Andhra Pradesh High Court - Amravati
Seggasm Veera Brahmamaih, Nellore ... vs P.P., Hyd on 27 July, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy, Ninala Jayasurya
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
AND
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
CRIMINAL APPEAL No.252 OF 2015
JUDGMENT:(Per Hon'ble Sri Justice M.Satyanarayana Murthy) Accused Nos.1 to 3 in Sessions Case No.314 of 2010 on the file of VI Additional District and Sessions Judge, S.P.S.R. Nellore District, preferred this criminal appeal under Section 374 (2) of Criminal Procedure Code (for short "Cr.P.C."), challenging the conviction and sentence passed in calendar and judgment dated 26.02.2015, whereby accused No.1 was found guilty for the offence punishable under Section 302 of Indian Penal Code (for short "I.P.C."), convicted and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/- in default to undergo simple imprisonment for 15 days. Accused Nos.2 and 3 were found guilty for the offence punishable under Section 302 read with 114 of I.P.C., convicted and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/- each in default to undergo simple imprisonment for 15 days each.
The appellants herein were accused Nos.1 to 3 before the Sessions Court and the deceased Seggam Sampurna was the wife of accused No.1 and daughter-in-law of accused Nos.2 and 3. The marriage of Seggam Sampurna was performed with accused No.1 about 3 years prior to 28.11.2008 i.e. date of offence. At the time of marriage, the parents of Seggam Sampurna paid an amount of Rs.1,00,000/- to accused No.1 as dowry. After marriage, she joined with accused No.1 to lead marital life. While so, the marriage of Omkar, brother of accused No.1 was performed. Since then, the MSM,J and NJS,J Crla_252_2015 2 accused started harassing Seggam Sampurna both physically and mentally, in the process of harassment, accused Nos.2 and 3 went to the extent of threatening Seggam Sampurna that they would perform the marriage of accused No.1 with another woman.
About two months prior to the date of death of Seggam Sampurna, accused No.2 beat her with a chappal and did not even allow her to go to her paternal house. On 26.11.2008 accused Nos.2 and 3 picked up quarrel with Seggam Sampurna and beat her indiscriminately. Unable to bear the torture in the hands of the accused, Seggam Sampurna informed the incidents of ill-treatment over phone to her parents. Thereafter, P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) went to Gottigundala on 27.11.2008 to settle the dispute amicably and to advise them to lead peaceful marital life. On the same day, they made an effort to settle the dispute and discussed the matter with Seggam Sampurna and accused. On 28.11.2008 at about 06.30 a.m. P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) were getting ready to return to their village via Kavali, at that time Seggam Sampurna was cleaning vessels at the water tub in the (front yard of) residential premises, while so, accused Nos.2 and 3 picked up quarrel with Seggam Sampurna. Accused No.1 was breaking firewood logs with an axe in the same premises, who in turn joined with other accused, and all of them started abusing Seggam Sampurna, accused Nos.2 and 3 while abusing instigated accused No.1 that Seggam Sampurna should be killed while uttering the word as "Danni kotti champara" in vernacular language (kill her by beating). On such instigation, with an intention to kill Seggam MSM,J and NJS,J Crla_252_2015 3 Sampurna, accused No.1 hacked her on her head with the axe he was holding. As a result, Seggam Sampurna sustained fatal hack injury on her head and died on the spot. However, accused No.1 managed to escape immediately, after causing death of Seggam Sampurna. Accused Nos.2 and 3 also absconded apprehending their arrest by the police. The incident was witnessed by P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased), directly. As there was heavy rain in the village, there was none to take care of dead body of Seggam Sampurna, and P.W.2 - S.Dhanamma and P.W.3 -
S.Malakondaiah were forced to remain in the house of the accused even in their absence and later, P.W.1 - A.Yedukondalu went to Kondapuram Police Station at 06.00 p.m. on 28.11.2008, presented Ex.P.1 - Report about the occurrence. P.W.11 - S.Madhava Rao, Sub-Inspector of Police, received Ex.P.1 - Report and registered the same as a case in Crime No.54 of 2008 of Kondapuram Police Station. On the same day, at about 09.00 or 09.30 p.m. P.W.11 - Sub-Inspector Police, visited Gottigundala Village of Kondapuram mandal, posted a guard at the dead body of Seggam Sampurna at the scene of offence. On 29.11.2008, P.W.9 - M.Rajanikanth Reddy, Inspector of Police, took up further investigation, visited the scene of offence, prepared Ex.P.14 rough sketch of scene of offence, examined P.W.1 - A.Yedukondalu, P.W.2
- S.Dhanamma and P.W.3 - S.Malakondaiah, P.W.4 - G.Lakshamma and P.W.5 - G.Vijayamma, recorded their statements. He also held inquest over the dead body of Seggam Sampurna, Ex.P.2 is the inquest report. P.W.9 - Inspector of Police seized M.O.1 - Axe, M.O.5 - blood stained shirt, and forwarded the MSM,J and NJS,J Crla_252_2015 4 dead body of the deceased Seggam Sampurna to Government Area Hospital, Kavali for post-mortem examination. On 01.12.2008, P.W.11 - S.Madhava Rao, Sub-Inspector of police produced accused No.1 before P.W.9 - M.Rajanikanth Reddy, Inspector of Police, he arrested accused No.1, remanded him to Judicial Custody. On 02.12.2008, P.W.9 - Inspector of police, filed a memo to alter the Section of law from 302 read with 34 of I.P.C. to Section 302 read with 114 of I.P.C. vide Ex.P.14 - alteration memo, forwarded the material objects to the FSL, Hyderabad for analysis. On 13.12.2008, accused Nos.2 and 3 surrendered before P.W.9 - Inspector of Police, he arrested them, remanded them to judicial custody. After receipt of Ex.P.12 - Post-mortem report and Ex.P.16 - F.S.L. Report, P.W.9 - Inspector of Police filed charge sheet against the accused for the offence punishable under Section 302 read with 114 of I.P.C. before the Additional Judicial Magistrate of First Class, Kavali, who in turn registered the same as P.R.C.No.07 of 2010 and 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 punishable under Section 302 of I.P.C. is exclusively triable by Court of Sessions. On committal, learned Principal Sessions Judge registered the same as S.C.No.314 of 2010 and made over to the VI Additional District and Sessions Judge, SPSR Nellore, to try and dispose of the same in accordance with law.
Upon hearing, the learned Additional Public Prosecutor and the learned counsel for the accused, the Sessions Court framed the charge for the offence punishable under Section 302 of I.P.C. against accused No.1, and Section 302 read with 114 of I.P.C.
MSM,J and NJS,J Crla_252_2015 5 against accused Nos.2 and 3, read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried.
During trial, the prosecution has examined P.Ws.1 to 11 and got marked Exs.P.1 to P.16 and M.Os.1 to 5 to substantiate its case. After closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C., explained the incriminating material that appeared against them in the testimony of prosecution witnesses, but they denied the same and examined one witness as D.W.1 and marked Exs.D.1 and D.2 on their behalf.
Upon hearing argument of learned Additional Public Prosecutor and Defence Counsel, the Court below found the accused guilty, convicted and sentenced them as stated supra.
Aggrieved by the conviction and sentence passed by the Court below in Sessions Case No.314 of 2010, the present appeal is preferred on various grounds.
The first and foremost contention urged before this Court in the grounds of appeal is that there was abnormal delay of 12 hours in lodging Ex.P.1 - report with the police and there was delay in forwarding Ex.P.13 - Original F.I.R. to the jurisdictional magistrate, which creates lot of suspicion about the implication of the accused, but the trial Court did not consider the effect of delay in lodging Ex.P.1 - Report and forwarding Ex.P.13 - Original F.I.R. to jurisdictional Magistrate, which creates reasonable doubt as to the involvement of the accused in the grave offence punishable under Section 302 of I.P.C.
It is further contended that the report submitted by P.W.6 - S.Venkata Subba Rao at 10.30 or 11.00 a.m. on 28.11.2008, Hazarathaiah, elder son of P.W.2 - S.Dhanamma and P.W.3 -
MSM,J and NJS,J Crla_252_2015 6 S.Malakondaiah at 04.00 p.m. and P.W.1 at 12.00 noon were suppressed by the investigating agency and created Ex.P.1 - Report conveniently to implicate the appellants - accused Nos.1 to 3 in such crime. It is also contended that when P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) were at the house of accused having mobile phone, informed the incident to her husband P.W.3 - S.Malakondaiah, P.Ws.4 and 5, sisters of Seggam Sampurna, who were at their village, came to Gottigundala village, it is for them to explain as to why they waited 12 hours even without lodging any report with the police. Maintaining silence for 12 hours after the incident is sufficient to disbelieve the presence of P.Ws.1 and 2 at the scene of offence, but the trial Court did not consider the same.
P.W.1 - A.Yedukondalu, in his evidence made lot of improvements and even if his evidence is taken into consideration, by the time, Ex.P.1 was lodged, already a case was registered, FIR was issued, police visited the scene of offence, took photographs, therefore, Ex.P.1 - Report cannot be taken into consideration as basis to set the criminal law into motion and it is hit by Section 162 of Cr.P.C. But the trial Court erroneously concluded that the prosecution was able to prove the guilt of the accused and recorded conviction erroneously and it is without any evidence, thereby the findings of the trial Court are perverse and requested to set aside the conviction and sentence passed against the appellants - accused Nos.1 to 3 and acquit them for the offence punishable under Section 302 red with 114 of I.P.C.
Sri V.R.Machavaram, learned counsel for the appellants, while reiterating the grounds urged in the memorandum of MSM,J and NJS,J Crla_252_2015 7 grounds of appeal, he has drawn the attention of this Court to the admissions in the evidence of P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased), so also P.W.6 - S.Venkata Subba Rao about lodging report by him and suppression of the same by the investigating agency and creation of Ex.P.1 - Report conveniently to enrope the accused Nos.1 to 3 - appellants. The delay in lodging Ex.P.1 report and forwarding the same to the jurisdictional Magistrate though the Court is at a short distance is another strong circumstance to disbelieve the case of the prosecution. He mainly contended that the appellants - accused Nos.1 to 3 were implicated falsely due to consultations, thereby the delay was caused. The voluminous material available on record, more particularly, the evidence of P.W.1 - A.Yedukondalu, P.W.2 - S.Dhanamma and P.W.3 - S.Malakondaiah, is sufficient to prove that there was consultation to implicate the accused after arrival of P.W.3 - Malakondaiah and P.W.4 - G.Lakshmamma, who are father and sister of deceased Seggam Sampurna, in such case benefit of doubt must go to the appellants - accused Nos.1 to 3 and thereby they are entitled for acquittal.
It is further contended that the presence of P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) at the scene of offence on the date of alleged commission of murder by accused No.1 at the instigation of accused Nos.2 and 3 is doubtful and their conduct is improbable, thereby recording conviction based on the uncorroborated independent testimony of P.W.1 - A.Yedukondalu and P.W.2 -
MSM,J and NJS,J Crla_252_2015 8 S.Dhanamma, mother of Seggam Sampurna (deceased) is erroneous, requested to set aside the same by allowing the appeal.
Sri Dushyanth Reddy, learned Additional Public Prosecutor appearing for the State, supported the judgment of trial Court in all respects while contending that the delay in lodging Ex.P.1 - Report with the police by P.W.1 - A.Yedukondalu was properly explained and the trial Court accepted the explanation offered by the prosecution and such fact finding cannot be disturbed by this Court. The evidence of P.Ws.1 and 2 is probable to the natural circumstances since they came to the house of accused and deceased Seggam Sampurna to settle the disputes between the accused and Seggam Sampurna. Apart from that the evidence of P.W.3 - S.Malakondaiah, P.W.4 - G.Lakshmamma and P.W.5 - G.Vijayamma lent support to the extent that the Seggam Sampurna was subjected to cruelty prior to the incident of murder. On an overall consideration of the material available on record, the trial Court believed that the prosecution was able to prove the guilt of the accused for the charges framed against them as referred above and found them guilty, convicted in accordance with law and such findings cannot be disturbed by this Court while exercising power under Section 374 (2) of Cr.P.C. and requested to dismiss the appeal.
Considering rival contentions, perusing the material available on record, the point that arises for consideration is:
1) Whether accused No.1 caused injury with M.O.1 - Axe on the head of Seggam Sampurna with an intention to kill her knowing that such injury is sufficient to cause death in ordinary course of events at the instigation of accused Nos.2 and 3? If not, whether MSM,J and NJS,J Crla_252_2015 9 the conviction and sentence recorded by the trial Court against accused Nos.1 for the offence punishable under Section 302 of I.P.C. and accused Nos.2 and 3 for the offence punishable under Section 302 read with 114 of I.P.C. is liable to be set aside?
Before deciding the point, it is appropriate to advert to the scope and jurisdiction of the High Court under Section 374 of Cr.P.C., which enables the Court to re-appraise the entire evidence.
Section 374 Cr.P.C conferred a substantive right of appeal on the accused who is convicted by the Trial Court and this Court while exercising power under Section 374(2) Cr.P.C is bound to re-appraise entire evidence to come to an independent conclusion, uninfluenced by the findings recorded by the Court below and decide the legality of conviction and sentence passed by the Sessions Court. Therefore, it is the duty of this Court to re-appraise entire evidence recorded by the Court below after giving an opportunity to both the parties, i.e accused and the respondent, unless the Court finds manifest perversity in the calendar and judgment or such findings were recorded without evidence, normally, this Court cannot interfere with such fact findings in appeal, while exercising jurisdiction under Section 374(2) Cr.P.C. It is the sacrosanct duty of the appellate court, while sitting in appeal against the judgment of the trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re-assessment, re- appreciation and re-scrutiny of the material on record. Appreciation of evidence and proper re-assessment to arrive at the conclusion is imperative in a criminal appeal. That is the quality of MSM,J and NJS,J Crla_252_2015 10 exercise which is expected of the appellate court to be undertaken and when that is not done, the cause of justice is not sub-served, for neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence on record to assure his guilt (vide: Kamlesh Prabhudas Tanna & Anr Vs. State Of Gujarat1). Keeping the scope of Section 374(2) Cr.P.C we would like to re-appreciate entire evidence on record to come to an independent conclusion, uninfluenced by the findings recorded by the Court below.
P O I N T:
The case of the prosecution, as narrated above, is that accused No.1, husband of deceased Seggam Sampurna hacked her with an axe while she was cleaning vessels in the front yard of house of the accused at the instigation of accused Nos.2 and 3. The same was witnessed by P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) while they were preparing to proceed to their house after settling the disputes between accused No.1 and Seggam Sampurna.
Homicidal death of Seggam Sampurna is not in dispute since the evidence of P.W.8 - Dr.M.Prasuna coupled with Ex.P.12 - post- mortem report, Ex.P.2 - Inquest report and evidence of P.W.6 - S.Venkata Subba Rao, inquest panchayatdar is sufficient to establish that the apparent cause of death of Seggam Sampurna was due to head injury. Hence, no further finding is required to be recorded as to apparent cause of death of Seggam Sampurna. The trial Court only on appreciation of evidence on record, rightly concluded that the death of Seggam Sampurna was homicidal and 1 (2013) 15 SCC 263 MSM,J and NJS,J Crla_252_2015 11 the finding to the extent of homicidal death of Seggam Sampurna is not challenged before this Court either in the grounds of appeal or during hearing. Consequently, the finding of the trial Court regarding nature of death is hereby confirmed.
The next question is whether accused No.1 caused injuries on the head of Seggam Sampurna at the instigation of accused Nos.2 and 3.
It is an undisputed fact that Seggam Sampurna is the wife of accused No.1 and daughter-in-law of accused Nos.2 and 3. The marriage of Seggam Sampurna and accused No.1 was performed, but they were not blessed with children. About two months prior to the incident, the marriage of Omkar, brother of accused No.1, was performed, since then the accused allegedly started harassing Seggam Sampurna for not blessing with children and for other reasons. Seggam Sampurna informed the same to her mother, P.W.2 - S.Dhanamma over phone and on one occasion accused No.2 beat Seggam Sampurna with chappal. P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) along with P.W.1 - A.Yedukondalu, who is a remote relative came to the house of the accused one day prior to the incident i.e. 27.11.2008 and after discussion with the accused and Seggam Sampurna, they settled the dispute and when they were about to leave the house of the accused, the alleged incident took place and the same was directly witnessed by P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased).
In view of the specific allegation made against the accused, it is appropriate to advert to the oral evidence of P.Ws.1 and 2 to MSM,J and NJS,J Crla_252_2015 12 decide whether they witnessed the incident directly at the scene of offence and that the offence was committed in their presence.
P.W.1 - A.Yedukondalu is a resident of Kavali, which is 40 kms away to the scene of offence as per the material on record. Similarly, P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) is the resident of Kakuturu, which is also more than 40 kms away to the scene of offence.
The reason for their visit to house of the accused and Seggam Sampurna on 27.11.2008 was to settle the dispute between the accused No.1 and Seggam Sampurna. After settling the dispute, they stayed there during that night, and on the next day morning when they were preparing to leave the house, the incident took place allegedly.
As per the examination-in-chief of P.W.1, he is only a distant relative of Seggam Sampurna, P.W.2 - S.Dhanamma and P.W.3 - S.Malakondaiah, parents of Seggam Sampurna (deceased). He also spoke about the harassment meted out by Seggam Sampurna in the hands of the accused, but one day prior to the date of incident, P.W.1 - A.Yedukondalu along with mother of the deceased P.W.2 - S.Dhanamma, went to Gottigundala to convince the accused not to harass Seggam Sampurna on the pretext that she administered Sorcery medicine (Vaseekaranam mandu) and that she was not blessed with any children. However, accused Nos.2 and 3 allegedly proposed to perform 2nd marriage of accused No.1, for which Seggam Sampurna did not agree. On the date of their visit, it was raining and on the next day while Seggam Sampurna was cleaning vessels and they prepared to return to their village, accused No.2 instigated accused No.1 by uttering "Aa Ammaini Narikeyara" in MSM,J and NJS,J Crla_252_2015 13 vernacular language (hack that lady) with an intention to perform 2nd marriage to accused No.1. On the instigation of accused No.2, accused No.1 hacked Seggam Sampurna on her head with M.O.1 - Axe. Thus, the accused No.1 caused injury at the instigation of accused No.2, but the attempt made by P.W.1 - A.Yedukondalu to catch hold of accused No.1 was in vain. He lodged report with Kondapuram police station. One Ramachandraiah and Hari accompanied him to the police station, who are residents of Kavali. Ex.P.1 is the report lodged by him with the police.
In the cross-examination of P.W.1 - A.Yedukondalu, learned counsel for the accused could elicit several aspects to prove that the report was not lodged at 06.00 p.m. on 28.11.2008 while suggesting that he was not a direct witness to the occurrence of the incident. It is condign to extract relevant portion of the cross- examination of P.W.1 - A.Yedukondalu for better appreciation. Accordingly, the same is extracted hereunder.
"Police came to the scene of offence at about 04.00 p.m. The police who came at 04.00 p.m. examined the witnesses observed the scene of offence and prepared a rough sketch. It is true to suggest that the police also recorded about the injuries on the body and particulars of the same. It is true to suggest that the inquest was held in the presence of Sivaraju Venkata Subbarao, VRO, Gottigundala village, Rajavarapu Hazarathaiah of Rapur, Ganugupenta Prasadu of Pallepadu village at 04.00 p.m. on the date of offence and prepared inquest. It is true to suggest that Rajavarapu Hazarathaiah and Ganugupenta Prasadu are my relatives. It is true to suggest that police examined me, Sangupu Danamma, Sangapu Malakondaiah, Gottam Lakshmamma, Gottam Vijayamma, Sangapu Hazarathaiah, Sangapu Narendra Babu at 04.00 p.m. on that day and recorded our statements. After presenting report I never went tot eh police station. The dead body was removed from the scene of offence at about 07.30 p.m. and shifted to Kavali Area Hospital."
These admissions elicited in the cross-examination of P.W.1 would go to show that before lodging Ex.P.1 - Report, police visited MSM,J and NJS,J Crla_252_2015 14 the scene of offence, completed major part of investigation including observation of scene of offence, held inquest over the dead body of Seggam Sampurna to find out the cause of death of Seggam Sampurna. It is mysterious to note how the investigation was started even before issue of Ex.P.13 - F.I.R. on receipt of Ex.P.1 - Report. Ex.P.1 - Report and issue of Ex.P.13 - F.I.R. is a preliminary step to commence investigation. In commission of cognizable offence, issue of F.I.R. is a preliminary step to set the criminal law into motion and it is an elementary principle of law. But, it is evident from the admission of P.W.1 - A.Yedukondalu, by the time of lodging Ex.P.1 - Report, major part of investigation was completed and the statement whatever recorded after commencement of investigation cannot be treated as report for registration of crime and at best, it is a previous statement recorded during investigation under Section 161 of Cr.P.C.
In the last paragraph of cross-examination, P.W.1 - A.Yedukondalu, made certain important admissions, which would go to the root of the case and the same is extracted hereunder:
"I went to the police station in an auto. The journey time was about one hour since the road was not in a good position. I went to the police station at 12.00 noon."
This piece of evidence is an admission that he went to the police station at 12.00 noon along with two others i.e. Ramachandraiah and Hari in an auto. But, he did not state anything about lodging of report at 12.00 noon. If really, he was present at the scene of offence, he ought not to have waited till 12.00 noon to reach police station when the incident took place at 06.30 a.m. Even assuming for a moment, he went to the police station, it was only for lodging report against the accused for MSM,J and NJS,J Crla_252_2015 15 causing death of Seggam Sampurna by accused No.1 at the instigation of accused No.2. He is not supposed to go back without lodging any report when he went to the police station at 12.00 noon itself.
P.W.6 - S.Venkata Subba Rao, Village Revenue Officer, is another crucial witness to decide lodging of report with the police and commencement of investigation in the above crime. P.W.6 - S.Venkata Subba Rao, in his examination-in-chief, admitted that he acted as inquest panchadar at the time of holding inquest at the house of accused. Ex.P.2 is the inquest report, which bears the signature of P.W.6 - S.Venkata Subba Rao.
In the cross-examination of P.W.6 - S.Venkata Subba Rao, he admitted that on 28.11.2008 at 08.30 a.m. the village servant Seethamma informed that Seggam Sampurna was hacked by her husband and asked him to come immediately, on that he gave a report to the police and M.R.O. Thereafter, police came to the village at about 10.30 a.m. or 11.00 a.m. on 28.11.2008. He went to the house of the accused at 10.00 a.m. on 28.11.2008, police were there up to evening. Thus, it is clear from the evidentiary admissions of P.W.6 - S.Venkata Subba Rao that he lodged report with the police and police visited the scene of offence at 10.30 a.m. or 11.00 a.m. Therefore, consistent evidence of P.W.1 - A.Yedukondalu and P.W.6 - S.Venkata Subba Rao is that police visited the scene of offence, observed the same on the date of commission of murder of Seggam Sampurna even before lodging Ex.P.1 - Report. But the case of the prosecution is totally different. According to it, the investigation started on the next day i.e. on 29.11.2008 and that on receipt of Ex.P.1 - Report, police registered MSM,J and NJS,J Crla_252_2015 16 crime, issued Ex.P.13 - F.I.R., posted guard at the dead body of the Seggam Sampurna. Therefore, there is any amount of suspicion as to lodging report by P.W.1 - A.Yedukondalu at 06.00 p.m. on 28.11.2008 vide Ex.P.1 - Report and issue of Ex.P.13 - F.I.R. The reason given by police in Ex.P.13 - F.I.R. in column No.8 is that the delay was caused due to heavy rain and the streams were overflowing causing inconvenience to travel. Based on this reason, it is contended by the Additional Public Prosecutor that the delay in lodging Ex.P.1 - Report was reasonably explained. If the evidence of P.W.1 is accepted as it is, he went to the police station in an auto at 12.00 noon, when he did not face any inconvenience due to rain or overflowing of streams etc., nothing prevented him to lodge report with the police about causing death of Seggam Sampurna. Apart from that, the evidence of P.W.3 - S.Malakondaiah, husband of P.W.2 - S.Dhanamma and father of Seggam Sampurna is clear that at about 08.00 or 09.00 a.m. he allegedly received phone call from his wife, she informed that there was quarrel between Seggam Sampurna and her father-in-law, accused No.2, at that time accused No.1 was breaking firewood logs with an axe and due to quarrel, at the instigation of accused Nos.2 and 3, accused No.1 hacked Seggam Sampurna. This piece of evidence is suffice to conclude that P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) was maintaining mobile phone and P.W.3 - S.Malakondaiah was at his village, Karakaturu.
P.W.3 - S.Malakondaiah admitted that on the date of incident, he was not at Gottigundala village. But he received information about the death of his daughter Seggam Sampurna. Therefore, his evidence with regard to causing death of Seggam MSM,J and NJS,J Crla_252_2015 17 Sampurna by accused No.1 at the instigation of accused Nos.2 and 3 is only hearsay evidence and that he did not directly witnessed the incident.
Similarly, P.W.4 - G.Lakshmamma and P.W.5 -
G.Vijayamma, who are the sisters of Seggam Sampurna (deceased) is only to prove the alleged harassment meted out by Seggam Sampurna for not bearing any child and for administering Sorcery medicine (Vaseekaranam mandu) and that they received information from P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) about the incident i.e. causing death of Seggam Sampurna by accused No.1 at the instigation of accused Nos.2 and 3. Thus, P.W.4 - G.Lakshmamma and P.W.5 - G.Vijayamma, also not direct witnesses, but their evidence regarding cause of death is based on information received from P.W.2 - S.Dhanamma, mother of P.W.4 - G.Lakshmamma and P.W.5 - G.Vijayamma, and Seggam Sampurna (deceased). Hence, their evidence is hearsay evidence. The evidentiary value of testimony of P.W.3 - S.Malakondaiah, P.W.4 - G.Lakshmamma and P.W.5 - G.Vijayamma will be dealt with at appropriate stage of this judgment regarding cause of death.
Though, P.Ws.1 to 5 stated in one voice that Seggam Sampurna was subjected to harassment by accused Nos.1 to 3 for not bearing any child and for administering Sorcery medicine (Vaseekaranam mandu) etc., for the last two months prior of her death after performing marriage of Omkar, second son of accused Nos.2 and 3, but no complaint was lodged by any of the witnesses including Seggam Sampurna with the police complaining the alleged harassment, for different reasons. For the first time, the MSM,J and NJS,J Crla_252_2015 18 alleged harassment is invented in Ex.P.1 - Report. Ex.P.1 - Report is silent as to the type of harassment and reason for such harassment except stating that in the recent past she was subjected to harassment by accused Nos.1 to 3 after performing marriage of Omkar, brother of accused No.1 and son of accused Nos.2 and 3. The alleged harassment of Seggam Sampurna by accused Nos.1 to 3 is invented for the first time during evidence. Hence, it is a clear improvement after lodging Ex.P.1 report by P.W.1 and the same cannot be accepted as a cause for committing murder of Seggam Sampurna by accused No.1 at the instigation of accused Nos.2 and 3. The alleged harassment is not on trivial issue and it is the root cause for causing death. If the improvement is trivial issue, which will not go to the core of the case, it can be overlooked. When it is having direct impact on the core of the case, it has got its own impact on the decision. Therefore, such improvement, which is the cause for causing alleged murderous assault, cannot be ignored lightly.
Evidence of a witness cannot be rejected on the basis of minor discrepancies on trivial matters not touching core of the case. It is well settled law that minor discrepancies on trivial matters not touching the core of the case or not going to the root of the matter could not result in rejection of the evidence as a whole. It is also well accepted principle that no true witness can possibly escape from making some discrepant details, but the Court should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that it would be justified in jettisoning his evidence. It is expected of the Courts to ignore the discrepancies which do not shed the basic MSM,J and NJS,J Crla_252_2015 19 version of the prosecution, the Court has to call into aid its vast experience of men and matters in different cases to evaluate the entire material on record.
In the depositions of witnesses there are always normal discrepancies however honest and truthful the witnesses may be and these discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and the like. (Vide: Babu Vs. State. Represented by Inspector of Police, Chennai2) Applying the above principle, the alleged harassment meted out by Seggam Sampurna in the hands of the accused can be disbelieved. The trial Court believed the same without appreciating the evidence in proper perspective and without recording any finding though such improvement is having impact on the core of the case, committed an error. Hence, the evidence of P.W.1 - A.Yedukondalu, P.W.2 - S.Dhanamma, P.W.3 - S.Malakondaiah, P.W.4 - G.Lakshmamma and P.W.5 - G.Vijayamma regarding harassment during recent past prior to death of Seggam Sampurna deserves no credence.
Though P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) are claiming to be direct witnesses, their presence at the scene of offence is doubtful according to the learned counsel for the appellants Sri V.R.Machavaram for the reason that there was abnormal delay in lodging Ex.P.1 - Report and that too, their village is at a distance of 2 (2013) 4 SCC 448 MSM,J and NJS,J Crla_252_2015 20 more than 40 kms, and one can reach Gottigundala village within 1 ½ or 2 hours, as admitted by them in their evidence.
The incident allegedly occurred at 06.30 a.m. on 28.11.2008, but Ex.P.1 - Report was lodged at 06.00 p.m. i.e. 11 ½ hours after the incident, though the police station is at a distance of 20 kms and one can reach the police station within half an hour by an auto or by any conveyance. P.W.1 admitted that he took one hour time to go to Police Station by auto and reached police station at 12.00 noon. Waiting for 11 ½ hours to lodge Ex.P.1 - Report creates any amount of suspicion about their actual presence at the time of incident. P.W.1 - A.Yedukondalu is a remote relative Seggam Sampurna, who allegedly went to the residence of accused and Seggam Sampurna to settle the dispute along with P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased). Both P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) stated that they settled the dispute on the night of 27.11.2008 itself and when they were about to leave Gottigundala, the alleged incident took place; that itself indicates that there was no rain on 28.11.2008 at 06.30 a.m. for the simple reason that Seggam Sampurna was cleaning vessels near the water tub in the open place and accused No.1 was allegedly breaking firewood logs with M.O.1 - Axe in the open place. If really, it was raining at the time of incident, the question of cleaning vessels by Seggam Sampurna in the rain and breaking firewood logs by accused No.1 during rain does not arise. This itself speaks volume about falsity of explanation for delay in lodging Ex.P.1 - Report in column No.8 of Ex.P.13 - F.I.R. This view is supported by P.W.3 - S.Malakondaiah in his cross-examination in 4th and 5th lines from MSM,J and NJS,J Crla_252_2015 21 bottom of 2nd page, where he voluntarily stated that "it was cloudy on that day". That means there was no rain.
In addition to the above admission of P.W.3 -
S.Malakondaiah, the evidence of P.W.4 - G.Lakshmamma, resident of Kavali, also disclosed that on receipt of information at about 07.00 a.m. from P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) about the murder of Seggam Sampurna, she came to the scene of offence, but she could not say whether it was raining on that day.
P.W.5 - G.Vijayamma is a resident of Warangal, Telengana State, she came to know that P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma stayed at the resident of accused during intervening night of 27/28.11.2008 due to heavy rain. Therefore, her evidence regarding rain on 28.11.2008 is of no avail to the prosecution and even if it is accepted, it is only during intervening night of 27/28.11.2008, not at the time of alleged incident.
Apart from the evidence on record, as discussed in earlier paragraphs, the admissions made by P.W.1 - A.Yedukondalu, extracted above and P.W.6 - S.Venkata Subba Rao, are suffice to conclude that 28.11.2008 was only cloudy day, but not a rainy day. If it was raining during the day, the question of arrival of P.W.3 - S.Malakondaiah and P.W.4 - G.Lakshmamma at the scene of offence does not arise in ordinary course, undertaking journey by bus from the village of Kakuturu by P.W.3, and journey by auto from Kavali to Gottigundala by P.W.4, does not arise. Similarly, P.W.1 - A.Yedukondalu admitted that he went to the Police Station at 12.00 noon. If it was raining and not in a position to reach the police station to lodge Ex.P.1 - Report by P.W.1, the question of MSM,J and NJS,J Crla_252_2015 22 P.W.1 visiting police station at 12.00 noon physically does not arise. Similarly, the testimony of P.W.1 - A.Yedukondalu with regard to commencement of investigation, observation of scene of offence, inquest etc., itself indicates that it was not raining on that day. P.W.6 - S.Venkata Subba Rao, Village Revenue Officer, supported the view of P.W.1 - A.Yedukondalu with regard to presence of police at the scene of offence at 10.30 a.m. based on his complaint to the police and M.R.O. P.W.6 - S.Venkata Subba Rao admitted in his cross-examination that he received information about the murder of Seggam Sampurna from village servant Seethamma at about 08.30 a.m. on 28.11.2008. Immediately, he gave a report to the police and M.R.O., thereafter, police visited the scene of offence at 10.30 a.m. or 11.00 a.m. on the same day and he went to the house of accused at 10.00 a.m. and police were at the scene of offence till evening.
P.W.6 - S.Venkata Subba Rao, is an independent official witness and no motive is attributed to him in his cross- examination to speak false against the prosecution and he was not declared as hostile to cross-examine him by the Public Prosecutor even though his evidence is contrary to the case set up by the prosecution. When P.W.6 is an official witness having no animosity against P.Ws.1 to 5 or interested on accused, his evidence can be relied upon being an official witness, unless there are compelling reasons to disbelieve his testimony.
Similarly, P.W.1 - A.Yedukondalu, who is remote relative of P.W.2 - S.Dhanamma, P.W.3 - S.Malakondaiah, P.W.4 - G.Lakshmamma and P.W.5 - G.Vijayamma and deceased Seggam Sampurna, himself gave self contradictory statement in his cross-
MSM,J and NJS,J Crla_252_2015 23 examination as to lodging Ex.P.1 - Report with the police and commencement of investigation even before lodging Ex.P.1 - Report, issue of Ex.P.13 - F.I.R. When P.W.1 - A.Yedukondalu is remote relative of P.Ws.2 to 5 and interested in the prosecution case, spoke against the prosecution case, his evidence cannot be brushed aside lightly based on the evidence of P.W.11 - S.Madhava Rao, Sub-Inspector of Police, who received Ex.P.1 - Report at 06.00 p.m. on 28.11.2008.
On an overall appreciation of evidence on record, it creates any amount of suspicion about actual presence of P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) at the scene of offence at the time of alleged causing death of Seggam Sampurna by accused No.1 at the instigation of accused No.2 and 3, in view of our foregoing discussion and it appears that on receipt of information about the death of Seggam Sampurna, P.W.1 - A.Yedukondalu, P.W.2 - S.Dhanamma and P.W.3 - S.Malakondaiah, parents of Seggam Sampurna (deceased) came down to Gottigundala and P.W.1 - A.Yedukondalu went to the police station in an auto at 12.00 noon, informed about the incident to the police. The conduct of P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) is improbable to the natural circumstances for the reason that when ghastly murder has taken place in their presence, though the accused escaped from the scene of offence, at least P.W.1, who is a male person, aged about 35 years, ought to have proceeded to the police station immediately and lodge a report to commence investigation at the early stage and to nab the accused. Instead of complaining to the police about the incident, MSM,J and NJS,J Crla_252_2015 24 they allegedly waited till 06.00 p.m. on the date of incident, in the meanwhile P.W.3 - S.Malakondaih and P.W.4 - G.Lakshmamma arrived at the scene of offence and consulted with each other, lodged Ex.P.1 - Report. The evidence of P.W.1 - A.Yedukondalu would suffice to believe that there was consultation for lodging Ex.P.1 - Report at belated time on 28.11.2008.
The main reason for the delay caused in lodging Ex.P.1 - Report is heavy rain during the day. As discussed in earlier paragraphs, 28.11.2008 was not a rainy day as P.W.3 - S.Malakondaish himself admitted that it was a cloudy day. If for any reason, the delay was caused due to rain, it has to be substantiated by producing necessary documentary evidence i.e. rainfall register being maintained by the office of Tahsildar/Mandal Revenue Officer of the Mandal where rainfall is recorded, similarly India Meteorological Department (IMD) maintaining rainfall register of every place in the State including villages. But, for one reason or the other, the prosecution did not summon such register to prove that 28.11.2008 was a rainy day. The evidence of P.W.3 - S.Malakondaiah and other circumstances, more particularly arrival of P.W.4 - G.Lakshamma at the scene of offence on receipt of information travelling from Kavali to Gottigundala by an auto and travel of P.W.1 from Gottigundala to police station by engaging auto and reaching police station at 12.00 noon cumulatively prove that 28.11.2008 was not a rainy day. Therefore, the reason mentioned in column No.8 of Ex.P.13 - F.I.R. is an invention by the police for one reason or the other suppressing the report lodged by P.W.6 - S.Venkata Subba Rao, Village Revenue Officer of the village on receipt of information from Village Servant - Seethamma and MSM,J and NJS,J Crla_252_2015 25 suppressing commencement of investigation only to establish the presence of P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) at the scene of offence conveniently.
The major contention urged before this Court by V.R.Machavaram, learned counsel for the appellants, is that the abnormal delay in lodging report when a ghastly murder allegedly took place in the presence of P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) creates any amount of doubt about the veracity of prosecution case. In support of his contentions, he placed reliance on "Meharaj Singh and Others. Vs. State of U.P. and Others.3" and "Harijana Thirupala and Other. Vs. Public Prosecutor, High Court of A.P., Hyderabad4"
The object and essence of prompt lodging of FIR had been explained by the Supreme Court in the case of "State of Andhra Pradesh Vs. M. Madhusudhan Rao5". The Apex Court in the said case laid down the following principles:
(1) That delay in lodging the FIR, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought.
(2) That a delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. (3) Therefore, it is essential that the delay in lodging the report should be satisfactorily explained. Resultantly, when the substratum of the evidence given by the complainant is found to be unreliable, the prosecution case has to be rejected in its entirety.3
(1994) 5 SCC 188 4 AIR 2002 SC 2821 5 (2008) 15 SCC 582 MSM,J and NJS,J Crla_252_2015 26 The object upon insisting upon prompt lodging of the report to the police in respect of the commission of the cognizable offence is to obtain early information regarding the circumstances in which the crime was committed. Delay results in the embellishment and the report gets bereft of the advantage of spontaneity.
FIR is important from many points of views. It is the statement made soon after the occurrence, hence the memory of the informant is fresh and it is also unlikely that he had opportunities of fabrication. Delay in providing FIR is therefore viewed from grave suspicion.
No doubt, delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained. (Vide: Apren Joseph alias Current Kunjukunju Vs. State of Kerala6) The same principle was reiterated by the Apex Court in "Meharaj Singh and Others. Vs. State of U.P. and Others." (referred supra) Similarly relevant extract of the judgment delivered by the Apex Court in the case of "Ravinder Kumar Vs. State of Punjab7" is reproduced herein below "The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It 6 AIR 1973 Supreme Court 1 7 AIR 2001 SC 3576 MSM,J and NJS,J Crla_252_2015 27 is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein."
In "State of Himanchal Pradesh Vs. Gian Chand8" the Apex Court reiterated as hereunder:-
"Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution.
In "Bhajan Singh Vs. State of Haryana9", it was alleged that there had been an inordinate delay delay of 3 hours in lodging the FIR by the complainant, even though the Police Station was in close vicinity of the place of occurrence. The Appellants alleged that there had been delay in lodging the FIR and sending the copy of the FIR to the court. Therefore, the Apex Court held that the prosecution failed to give a fair picture with regard to genesis of the crime.
Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding its true version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. 8 AIR 2001 (1) SC 2075 9 (2011) 7 SCC 421 MSM,J and NJS,J Crla_252_2015 28 Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint may prove to be fatal.
In such cases the Court has to carefully examine the facts before it, for the reason, that the complainant party may initiate criminal proceedings just to harass the other side with mala fide intentions or with ulterior motive of wreaking vengeance. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law. (Vide: Sahib Singh Vs. State of Haryana10) It was held in "Harbans kaur Vs. State of Harayana11" that even a long delay in lodging FIR can be codoned if witnesses have no motive of implicating accused and have given a plausible reason for delay.
In "Gajanan Dashrath Khartate Vs. State of Maharashtra12" it was observed that delay in setting law into motion by lodging of the complaint and registration of first information report is normally viewed by courts with suspicion because there is possibility of concoction and embellishment of occurrence so it becomes necessary for the prosecution to satisfactorily explain the delay.
10
AIR 1997 SC 3247 11 2005 Cr.LJ 2199(sc) 12 2016 Cr.LJ.1326(sc) MSM,J and NJS,J Crla_252_2015 29 First Information Report is an important document, which would show the earliest version of the prosecution, hence, the delay should be avoided in lodging F.I.R.
As per the law laid down in the judgments (referred supra), it is obvious that mere delay in lodging report and issue of F.I.R. itself is not a ground to disbelieve the case of the prosecution, if such delay is explained properly. What is reasonable explanation depends upon the circumstances of specific case and such reasonable explanation vary from case to case. In the present facts of the case, the reason offered for the delay as mentioned in Column No.8 of the Ex.P.13 - F.I.R. is heavy rain. This reason is falsified by the evidence of P.W.3 - S.Malakondaiah, father of Seggam Sampurna and other circumstances as discussed above. Therefore, the prosecution made a deliberate attempt to explain the delay by inventing a false reason apparently. The tenor of the cross-examination of the witnesses from the beginning is that P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) were not present at the time of alleged incident, but they were planted conveniently to implicate the appellants/accused and lodged report at belated time on the same day. The evidence of P.W.1 - A.Yedukondalu would go to show that there was consultation after arrival of P.W.4 - G.Lakshmamma and Ex.P.1 would make the same clear. The evidence of prosecution witnesses is suffice to prove that there was consultation and deliberations among P.Ws.1 to 4 and lodged Ex.P.1 - Report with the police.
P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) admitted that Hazarathaiah, her elder son, also lodged a MSM,J and NJS,J Crla_252_2015 30 report at 04.00 p.m. and he alone went to the police station and police came to the spot and went away.
The report lodged by Hazarathaiah, son of P.Ws.2 and 3, has not seen the light of the day and it was clearly suppressed. Therefore, suppression of reports lodged by Hazarathaiah at 04.00 p.m. and P.W.6 - S.Venkata Subba Rao at 10.00 a.m. and information given by P.W.1 - A.Yedukondalu at 12.00 noon on 28.11.2008 are suffice to conclude that the earlier reports were suppressed and conveniently created Ex.P.1 - Report to rope the accused with the offence though the presence of P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) is doubtful at the scene of offence at the time of occurrence. Apart from that, non-examination of Hazarathaiah as a witness before the Court, who allegedly lodged report according to P.W.2 - S.Dhanamma, though cited as L.W.6, is fatal to the prosecution case.
Taking into consideration of all the circumstances of the case, it is difficult to believe the evidence of P.Ws.1 to 5 with regard to causing death of Seggam Sampurna by accused No.1 at the instigation of accused Nos.2 and 3 and the possibility of coloured version due to consultation and deliberation among P.Ws.1 to 4 cannot be ruled out. In such case, the appellants - accused Nos.1 to 3 are entitled to benefit of doubt. When there are two views i.e. one in favour of false implication or coloured version due to consultations and deliberations, lodged report after 11 ½ hours from the time of occurrence and suppression of 3 reports, as discussed above, creates any amount of suspicion and the other view is commission of offence. When two views are possible, the MSM,J and NJS,J Crla_252_2015 31 view favourable to the accused is to be accepted extending benefit of doubt.
At the cost of repetition, we may repeat certain lacunas in the evidence of prosecution witnesses as well as Ex.P.1 - Report with reference to the defence set up by the accused.
As seen from Ex.P.1 - Report lodged with the police by P.W.1
- A.Yedukondalu at 06.00 p.m. on 28.11.2008, it was lodged only after arrival of P.W.3 - S.Malakondaiah, father of the deceased Seggam Sampurna, P.W.4 - G.Lakshmamma and P.W.5 - G.Vijayamma and their husbands, whereas the case of the accused from the beginning is that the delay was caused due to consultations and deliberations among the relatives of the deceased, created Ex.P.1, suppressing earlier reports. Several suggestions were put to P.Ws.1 to 3 about consultations. The delay allegedly caused in lodging Ex.P.1 - Report creates any amount of suspicion in view of specific contents of Ex.P.1 - Report as to the consultations and deliberations to implicate the accused.
P.W.11 - Sub-Inspector of Police assisted P.W.9 - Inspector of Police after registration of Ex.P.13 - F.I.R. Several suggestions were put to P.W.11 - Sub-Inspector of Police about suppression of earlier reports lodged by P.W.6 - S.Venkata Subba Rao, Hazarathaiah - elder son of P.Ws.2 and 3, who is cited as L.W.6, but not examined by the prosecution; so also the report lodged by P.W.1 - A.Yedukondalu at 12.00 noon on the same day. But P.W.11 - Sub-Inspector of Police denied the same. However, admissions of P.W.1 - A.Yedukondalu, P.W.2 - S.Dhanamma and P.W.3 - S.Malakondaiah, parents of Seggam Sampurna (deceased) and P.W.6 - S.Venkata Subba Rao are suffice to conclude that the MSM,J and NJS,J Crla_252_2015 32 earlier reports were conveniently suppressed by P.W.11 - Sub- Inspector of Police and created Ex.P.1 - Report, conveniently to implicate accused Nos.1 to 3 in the crime, issued Ex.P.13 - F.I.R.
So far as the narration of occurrence of incident is concerned, there are material discrepancies in the evidence of P.Ws.1 to 5. According to P.W.1 - A.Yedukondalu, at the time accused No.1 was breaking firewood logs with an axe, accused No.2, father of accused No.1 instigated accused by stating that "Aa Ammaini Narikeyara" with an intention to perform his marriage again. He reiterated the same in the cross-examination. Whereas, P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased), who is another direct witness to the incident stated that accused No.1 was breaking firewood logs with an axe, accused Nos.2 and 3 instigated accused No.1 by saying at "Yeseyira Danni". P.W.2 - S.Dhanamma allegedly informed over phone to P.W.3 - S.Malakondaiah, husband of P.W.2, that there was quarrel between the deceased Seggam Sampurna and her mother-in-law, accused No.3, and at that time acacused No.1 was breaking firewood logs with an axe and due to the quarrel, accused No.2 and 3 instigated accused No.1 "Inka Kottakunda Choosta Ventira Antha Maata Antutenu". P.W.4 - G.Lakshmamma, changed the words allegedly utter by accused Nos.2 and 3 while instigating accused No.1, which is as follows:
"Inchesepu Matladuthundi Nariki Sampeseyi"
In Ex.P.1 - Report, it is specifically stated that accused No.3, mother-in-law of Seggam Sampurna, picked up quarrel with Seggam Sampurna and started beating her, in the meanwhile accused No.1 while breaking firewood, without pacifying the MSM,J and NJS,J Crla_252_2015 33 dispute, beat on the head of Seggam Sampurna with the axe. Thereupon, accused Nos.2 and 3 directed accused No.1 to kill her uttering words "Danni Kottichampara". Thus, there is lot of improvements in the evidence of P.Ws.1 to 4 about the words uttered by accused Nos.2 and 3 and the words allegedly uttered by the accused are totally different as stated in Ex.P.1 - Report. Thus, the discrepancies though minor creates any amount of suspicion on the veracity of the prosecution case.
The only reason explained for the delay in lodging Ex.P.1 - Report is that it was raining on the day of incident. In fact, as per our discussion in the earlier paragraphs, there is absolutely no evidence for the same and it appears that the said reason is conveniently created for the purpose of explaining delay somehow for the reasons best known to P.W.11 - Sub-Inspector of Police.
Ex.P.15 - Rough sketch of scene of offence would show that the scene of offence is situated near water tub, bathrooms and wash area on the Northern side of the house of the deceased Seggam Sampurna and accused. By the time, the police allegedly visited scene of offence and arrival of P.Ws.3 to 5 and P.W.6 - S.Venkata Subba Rao, Village Renvenue Officer, the dead body of Seggam Sampurna was lying on the cot in the varandah of the house. Though scene of offence is shown specifically in Ex.P.15 - Rough Sketch of scene of offence, blood stained and controlled earth was not recovered from the alleged scene of offence to establish the actual scene of offence and observation report was not marked before the trial Court. Therefore, there is absolutely nothing to fix the scene of offence, which is allegedly within the MSM,J and NJS,J Crla_252_2015 34 compound of the house of the accused as shown in Ex.P.15 - Rough sketch.
Moreover, it is the case of the defence that the dead body of the deceased was lying at a different place and it was shifted to the house of the accused. To substantiate this contention, the accused examined D.W.1 - Seelam Venkata Narasa Reddy. According to his evidence on 28.11.2008, he saw the dead body of Seggam Sampurna with injuries and the body was lying on ground. Then he went to see her, but she was no more by the time. There are thorn bushes surrounding the neem trees. Immediately, he informed to S.Narasareddy and Ramireddy about lying of dead body near the tree and went away. He also went to the agricultural field of accused Nos.1 to 3, where they were attending to agricultural work, informed about the death of Seggam Sampurna, immediately all the accused came there, shifted the body of Seggam Sampurna and placed the same on a cot at 08.00 a.m. Thalari Seethamma informed the same to Village Revenue Officer. Then the Village Revenue Officer and T.Seethamma came there and saw the dead body, informed the same to Police. Thereupon, Sub- Inspector of Police and Inspector of Police came to the scene of offence; relatives of the deceased were not present at that time. But they came to the house of the accused at 11.00 a.m. Thus, as per the evidence of D.W.1, the incident took place at different place i.e. other than the place shown in Ex.P.15 - Rough Sketch of scene of offence i.e. near neem tree surrounded by thorny bushes on the way to agricultural fields. Accused Nos.1 to 3 were attending to agricultural operations by the time D.W.1 - S.Venkata Narasa Reddy saw the dead body. He was cross-examined by the learned MSM,J and NJS,J Crla_252_2015 35 Additional Public Prosecutor at length and elicited that he was an agriculturist and a suggestion was put to him that P.W.1 - A.Yedukondalu and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) came to the house on 27.11.2008 and got denial of it. It is also elicited that D.W.1 observed an injury on the head, but he did not enquire the cause of death and the day was not a rainy day. A suggestion was put to D.W.1 that there was heavy rain on 28.11.2008, but the same was denied by him.
Thus, the consistent evidence of prosecution witnesses and D.W.1 is that 28.11.2008 was not a rainy way, but it was a cloudy day.
When the incident took place in the front yard of the house of the accused, and caused grave injury on the head with an axe allegedly, there must be some traces of blood at the scene of offence though the day was cloudy. But for one reason or the other, investigating agency did not collect any material evidence either from the scene of offence shown in Ex.P.15 - Rough Sketch or scene of offence spoken by D.W.1.
Yet, P.W.1 - A.Yedukondalu stated that he and P.W.2 - S.Dhanamma, mother of Seggam Sampurna (deceased) shifted the dead body to the house and placed the same on the cot and in the process of shifting, his clothes were stained with blood, but those blood stained clothes were not collected by the investigating agency during investigation, which is a crucial evidence to prove presence of P.Ws.1 and 2 at the time of commission of offence, no explanation was offered by investigating officer for the same.
P.W.9 - Inspector of Police is the investigating officer and his examination-in-chief is most casual as he did not state anything MSM,J and NJS,J Crla_252_2015 36 about the contents of various documents, the prosecution relied upon, except marking those documents. Mere marking of documents Exs.P.3 to P.16 without speaking about the contents of those documents is of no use. In the cross-examination, he admitted that he directed to post a guard at the scene of offence, but the details of person, who was posted as guard, were not spoken by P.W.9 - Inspector of Police, pleaded ignorance. A suggestion was put to him that Ex.P.15 - Rough Sketch is not reflecting actual scene of offence, but the same was denied. Similarly, a suggestion was put to him that report lodged by Hazarathaiah etc., were suppressed, the same was denied by him. However, P.W.9 - Inspector of Police expressed his inability to give any explanation for the delay that was caused in forwarding the F.I.R. to the Court. Even according to the prosecution case, Ex.P.1 was lodged at 06.00 p.m. the jurisdictional Magistrate Court is at a distance of 45 Kms, one can reach the Court within 1 or 1 ½ hours from the police Station. However, P.W.11 - Sub-Inspector of Police, admitted that he sent the report to the Magistrate at Kavali through a constable and the distance between the police Station and Kavali is 45 kms. In any event, the report should reach the Court by 10.00 p.m. on 28.11.2008, but it reached the Court at 10.30 a.m. on 29.11.2008. Thus, the delay of more than 12 hours in reaching the F.I.R. to the Court was not explained by the prosecution.
As per Section 157 of Cr.P.C., if, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report MSM,J and NJS,J Crla_252_2015 37 of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in his behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender.
Thus, it is the duty of the investigating officer to forward a copy of the F.I.R. to the Magistrate empowered to take cognizance of such offence i.e. Judicial Magistrate of First Class, whose Court is at a distance of 45 kms and one can reach the Court at Kavali from Kondapuram Police Station within 1 or 1 ½ hours by any conveyance. Instead of reaching the Court within 1 or 1 ½ hours, caused substantial delay of more than 12 hours in reaching the F.I.R. to the concerned jurisdictional Magistrate. Delay in forwarding F.I.R. to the concerned Magistrate is another strong circumstance to suspect the bonafides in the prosecution case.
As stated above, Section 157 of Cr.P.C. casts a duty upon the investigating officer to forthwith send the report of the cognizable offence to the concerned Magistrate. The purpose for forthwith sending the report to the concerned Magistrate is to keep the concerned Magistrate informed of the investigation of a cognizable offence so that he may be able to control the investigation and if required, to issue appropriate directions. Mere delay in the despatch of the F.I.R. itself is no ground to throw away the prosecution case in its entirety. Sending the report to the concerned Magistrate is a circumstance which provides a basis to raise suspicion that the F.I.R. is the result of consultation and MSM,J and NJS,J Crla_252_2015 38 deliberations and it was recorded much later than the date and time mentioned in it, and discloses that the investigation is not fair and forth right. (Vide: Swati Ram Vs. State of Rajasthan13) Thus, it is the settled law that mere delay in dispatching the report to the concerned Magistrate by itself is not a ground to disbelieve the case of the prosecution. But, it is a strong circumstance to suspect the prosecution case that the F.I.R. was lodged due to deliberations and consultations not in the exact time.
In the present case, various circumstances, as discussed above, creates a lot of suspicion on the case of the prosecution as to the time of death, scene of offence and the persons who caused death. Thus, the view favourable to the accused is to be accepted in view of the law declared by the Apex Court in "Ramabhupala Reddy and Ors. Vs. State of A.P.14" and "Bhim Singh Rup Singh Vs. State of Maharashtra15". In the said judgments, it has been said that "if two reasonable conclusions can be reached on the basis of the evidence on record, the Appellate Court should not disturb the finding of the Trial Court". This, of course, is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a 13 (1997) 2 Crimes 148 (Raj.) 14 AIR 1971 SC 460 15 AIR 1974 SC 286 MSM,J and NJS,J Crla_252_2015 39 duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable.
The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than the conviction of an innocent. (Vide: Alarakha K. Mansuri Vs. State of Gujarat16") Applying the principles laid down in the above judgments to the present facts of the case, the view favourable to the accused is to be accepted extending benefit of doubt.
In view of our foregoing discussion, we find that the prosecution miserably failed to establish the guilt of the accused beyond reasonable doubt, thereby the accused are liable to be acquitted finding accused No.1 not guilty for the offence punishable under Section 302 of I.P.C. and accused Nos.2 and 3 not guilty for the offence punishable under Section 302 read with 114 of I.P.C.
In the result, the Criminal Appeal is allowed, conviction recorded and sentence imposed upon appellant-accused No.1 for the offence punishable under Section 302 of I.P.C., and against appellants - accused Nos.2 and 3 for the offence punishable under Section 302 read with 114 of I.P.C. in Sessions Case No.314 of 16 (2002) 3 SCC 57 MSM,J and NJS,J Crla_252_2015 40 2010 on the file of the VI Additional District and Sessions Judge, S.P.S.R.Nellore District, by judgment dated 26.02.2015, are set aside. The appellant-accused No.1 is acquitted finding him not guilty for the offence punishable under Section 302 of I.P.C. and accused Nos.2 and 3 are acquitted finding them not guilty for the offence punishable under Section 302 read with 114 of I.P.C. and they shall be set at liberty forthwith, if they are not required in any other case. The fine amount, if any, paid by the accused shall be refunded to the accused.
Consequently, miscellaneous applications pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY _______________________________ JUSTICE NINALA JAYASURYA 27.07.2020 Ksp