Andhra Pradesh High Court - Amravati
Venkadari Malyadri, Nellore Dt., vs The State Of Ap., Rep Pp., on 29 November, 2022
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
CRIMINAL APPEAL No.1110 of 2015
JUDGMENT:- (Per Hon'ble Sri Justice C.Praveen Kumar) The present Criminal Appeal came to be filed under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgment, dated 16.10.2015, in Sessions Case No.136 of 2012 on the file of the learned Principal Sessions Judge, Nellore.
2. Sole accused in Sessions Case No.136 of 2012 is the appellant herein. He was tried for an offence punishable under Section 302 I.P.C. for causing the death of one Kande Narasimhulu (hereinafter, referred to as "the deceased") on 15.12.2010 during night hours, after 8:00 P.M. at the motor shed situated in the fields of one Syed Khaja Rasool at Renamala Village of Kondapuram Mandal, by beating him with a stick indiscriminately all over his body.
3. Vide judgment, dated 16.10.2015, the learned Sessions Judge convicted the accused for the offence punishable under Section 302 I.P.C. and accordingly, sentenced him to undergo imprisonment for life and to pay a fine of Rs.500/-, in default of 2 payment of fine, to undergo simple imprisonment for a period of one month.
4. The facts, as spelt out from the evidence of prosecution witnesses, are as under:-
P.W.1 is the wife of the deceased and P.W.11 is the daughter of the deceased. The accused is son of P.W.1's junior maternal aunt. P.W.1 along with one Malyadri (P.W.2) jointly purchased Ac.1-00 cs of land and subsequently, divided the same and each of them took Ac.0-50 cents of land. The water to the said land was being drawn from the irrigation canal through the land of the accused. Disputes arose between the accused and the deceased with regard to drawal of water to the land, as the accused obstructed the flow of water to the land of the deceased by raising a cross bund. When P.W.1 questioned the accused, he is said to have replied that P.W.1 cannot have any right to draw water in that manner. Pursuant to a report lodged in Kondapuram Police Station, a panchayat was held in which the elders decided that P.W.1 also has a right to draw water through the land of the accused, from the said irrigation canal. The above incident is said to have taken place about two years 3 prior to the death of the deceased and since then, they were not on talking terms.
While so, the daughter of the elder sister of P.W.1 was given in marriage to the accused about two years prior to the incident. Disputes arose between the accused and his wife and cases were filed. It is said that the accused was coming to the house of P.W.1 and scolding them stating that they were responsible for the disputes between himself and his wife. However, cases between the accused and his wife were settled by the elders and both of them started living together happily, which was about three months prior to the incident. It is said that thereafter, the accused and the deceased were talking with each other. Since ten days prior to the death of the deceased, the accused and deceased started going together to the shop to consume liquor. On the date of incident, in the evening, the accused, while passing in front of the house of P.W.1, asked the deceased to come for consuming liquor. When questioned by P.W.1 as to why he was going with the accused and consuming liquor, he replied that he would return early. However, on that day, the deceased did not return home. During that night, herself, her son, her son-in-law and other relatives searched for the deceased but in vain. P.W.11 seems to have told P.W.1 that 4 she saw the deceased going with the accused and asked him not to go along with him due to earlier disputes. They also enquired P.W.5 - liquor shop owner, who informed that accused and deceased came to his shop and after consuming liquor, left the shop.
On the next day morning, P.W.3 informed them that he saw the dead body of the deceased lying in a pool of blood at the motor shed situated in their lands. P.W.1 and others went there and saw the dead body of the deceased and later, they went to Kondapuram Police Station and lodged a report - Ex.P-1 before P.W.14, which came to be registered as a case in Crime No.67 of 2010 of Kondapuram Police Station under Section 302 I.P.C. Ex.P-14 is the First Information Report. Thereafter, P.W.14 along with Inspector of Police went to the scene of offence and in the presence of mediators, conducted scene observation proceedings and seized controlled earth and blood stained earth. He conducted inquest over the dead body of the deceased. Ex.P-7 is the Inquest Report. After conducting the inquest proceedings, the body was sent to Post Mortem Examination.5
P.W.13, who was working as Civil Assistant Surgeon, Government Area Hospital, Kavali, conducted autopsy over the dead body of the deceased on 17.04.2010 and issued Ex.P-12 - Post Mortem Certificate. He noticed eleven external injuries on the body of the deceased apart from other internal injuries. The Doctor opined that the cause of death of the deceased was due to cardio respiratory arrest due to fracture of skull and brain injury. According to him, the death took place within 36 to 48 hours prior to his examination.
P.W.15, who took up investigation from P.W.14, again visited the scene of offence, examined the scene of offence and prepared the Scene Observation Report, which is marked as Ex.P-6. He also prepared the rough sketch of the scene of offence, which is marked as Ex.P-15.
P.W.16, who took up investigation on 18.12.2010, verified the investigation done by P.W.15. He visited the house of the deceased and examined P.Ws.1, 2 and others. He did not record their statements since their statements were already recorded. On the same day, he visited B.C. Colony, Renamala Village and secured the presence of P.Ws.3 to 6, examined them and recorded their statements. On 23.12.2010, he received 6 information about the accused. Immediately, he secured the mediators and proceeded to Kondapuram Village at about 3:00 P.M. They arrested the accused at about 4:00 P.M. in the presence of P.W.9 and others near a bus shelter on Nekunampet and Thurpupalem Road. On interrogation, the accused confessed about the commission of the offence. Ex.P-8 is the admissible portion of the said statement. Pursuant to the confession made, the accused led them to the house of one Vankadari China Ankaiah in Renamala Village and produced a stick. M.O.3 is the stick seized under Ex.P-9. Later, all of them started to Thimmapalem Village and reached there by 9:00 P.M. They went to the house of P.W.7, which is a thatched house. From the said house, the accused produced one lungi and one shirt from the front yard stating that these two clothes were worn by him at the time of incident. Some blood stains were found on the shirt and as such, the same were seized under Ex.P-10. M.Os.4 and 5 are the shirt and lungi of the accused. After collecting all the necessary documents and examining the witnesses, a charge sheet came to be filed, which was taken on file as P.R.C.No.30 of 2011 on the file of the learned Additional Judicial Magistrate of First Class, Kavali. 7
5. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to him. As the offence is triable by a Court of Sessions, the same was committed to the Court of Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned Principal Sessions Judge, Nellore for trial and disposal in accordance with law.
6. Basing on the material available on record, charge, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, he pleaded not guilty and claimed to be tried.
7. To substantiate its case, the prosecution examined P.Ws.1 to 16 and got marked Exs.P-1 to P-15 and M.Os.1 to 5. Out of sixteen witnesses examined, P.Ws.2, 3, 6 and 7 did not support the prosecution evidence and they were treated hostile by the prosecution. After the closure of prosecution evidence, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses to which he denied. No oral evidence was adduced on his behalf. However, Exs.D-1 to D-4 were marked on his behalf.
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8. Believing the evidence of P.Ws.1, 4, 5, 9, 14, 15 and 16, the learned Sessions Judge convicted the accused. Challenging the same, the present appeal came to be filed by the accused.
9. Smt D. Lalitha Prasad, learned counsel for the appellant/ accused, submits that there are no eye witnesses to the incident and the case rests on circumstantial evidence. According to her, the circumstances relied upon by the prosecution are not proved so as to connect the accused with the crime. She further submits that the three circumstances relied upon by the prosecution namely 1) the deceased last seen in the company of the accused 2) motive and 3) the recovery are not proved by any legal evidence.
10. On the other hand, Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor, opposed the same contending that the evidence of P.W.1 shows existence of motive for commission of the offence and the evidence of P.W.5 would establish that the accused was last seen in the company of the deceased prior to the incident and the recovery of stick and the clothes containing blood stains of the deceased is established through the evidence of P.Ws.9, 15 and 16. Apart from that, learned Special Assistant Public Prosecutor would contend that 9 the plea taken by the accused that he was not present in the village at the time of incident is not proved and as such, he has come with a false defence. He relied upon a decision of the Hon'ble Supreme Court in Rajesh Kumar vs. Dharamvir and others With State of Haryana vs. Dharamvir and others1 in support of the said plea.
11. The point that arises for consideration is:-
"Whether the prosecution has proved the guilt of the accused for the offence punishable under Section 302 I.P.C. beyond all reasonable doubt?"
12. POINT:-
As seen from the record, there are no eye witnesses to the incident and the entire case rests on circumstantial evidence. In a case arising out of circumstantial evidence, the prosecution has to prove each of the circumstance relied upon by them and the circumstances so proved should form a chain of events connecting the accused with the crime. In Jawaharlal Das v. State of Orissa's case,2 the Apex Court held that to base a conviction in a case arising out of circumstantial evidence, three conditions are required to be satisfied viz., 1) the circumstances from which an inference of guilt is sought to be drawn must be 1 (1997) 4 Supreme Court Cases 496 2 AIR 1991 SC 1388 10 cogently and firmly established, 2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused and 3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
13. Keeping in view the principles laid down by the Apex Court in the judgment referred to above, we shall now deal with the case on hand. As stated earlier, in the instant case, the prosecution is mainly relying upon three circumstances namely motive, last seen and the recovery made.
14. Insofar as the motive is concerned, learned Special Assistant Public Prosecutor relied upon the evidence of P.Ws.1 and 11, to show that because of disputes, the accused has done away the deceased. P.W.1 is none other than the wife of the deceased. She, in her evidence, categorically states that there were disputes about two years prior to the incident, when the accused obstructed the flow of water through his land to the land of P.W.1 and the deceased. A panchayat was held in which 11 the mediators decided that P.W.1 had right to draw water through the land of the accused from the irrigation canal. But one fact which is required to be noted here is that this occurred two years prior to the date of incident.
15. The second ground taken to prove motive is dispute between the accused and his wife, who is none other than the daughter of the elder sister of P.W.1. It is the version of P.W.1 that the accused used to come to their house stating that P.W.1 and the deceased are responsible for the disputes between him and his wife. But P.W.1, while saying so, also states that the accused and his wife have settled their disputes and both of them are living happily since three months prior to the date of incident. Her evidence also shows that since last three months prior to the date of incident, the family of the accused and the family of the deceased were in talking terms and also moving together in the village and that the deceased was consuming liquor with the accused since ten days prior to the date of incident.
16. Therefore, from the evidence in chief of P.W.1, it stands established that there is no immediate or proximate motive for the accused to do away with the deceased. On the other hand, 12 her evidence shows that disputes with regard to supply of water to their land was about two years prior to the incident and disputes between the deceased and his wife were settled three months prior to the incident and thereafter, all of them were on talking terms.
17. When the evidence in chief of P.W.1 is tested through the evidence of P.W.15, the Investigating Officer, who recorded their statements under Section 161 Cr.P.C., it would reveal that P.W.1 did not state crucial facts showing motive for the accused to commit the offence in her earlier statement. Relevant portion of the same reads as under:-
"...... P.W.1 also did not state in the said statement that when she questioned the accused about it he replied that she has no right in it and in that connection she gave report in Kondapuram P.S. P.W.1 also did not state in her 161 Cr.P.C. statement that quarrels took place between accused and his wife and there were cases in that respect...."
18. At this stage, Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor, would contend that the incident in question took place because of previous disputes and the accused took the deceased to the belt shop only with a view to kill him. In other words, his argument appears to be that motive to kill the deceased was because of their earlier disputes. 13
19. We are not in agreement with the same, in the absence of any other evidence on record and more so, when both of them were going together to consume liquor everyday since ten days prior to the date of incident. Be that as it may, even assuming for the sake of argument that motive is proved, whether is it sufficient to convict the accused if the other two circumstances are not proved, which we will discuss herein.
20. The next circumstance relied upon by the prosecution is the accused being last seen in the company of the deceased. The prosecution is primarily relying upon the evidence of P.W.5 vis-à-vis P.W.11 to prove the same. P.W.5, in his evidence, states that on 15.12.2010, at about 7:00P.M., when he was in his sundry shop, he saw the accused and the deceased coming in a drunken condition for which, he chastised both of them and asked them to go away as 'Peerla Panduga' was being observed and the muslim people may not tolerate them. According to him, these two people purchased two cigar packets from his shop and left without paying. On the next day, he came to know about the death of the deceased. In the cross examination, he admits that he did not state before the police that on 15.12.2010, at about 7:00 P.M., the accused and the 14 deceased came to his belt shop and took one Mc Dowell Whisky bottle and two Thums Up bottles as in Ex.D-3. He also admits that he did not state before the police as in Ex.D-4 that from out of the total value of the items purchased, the deceased paid Rs.50/- and when he asked the accused for the balance amount, he replied that he did not bring the money. It would be appropriate to extract the same, which reads as under:-
"...... I also did not state before police that on 15.12.2010 at 7 p.m. the accused and the deceased came to my belt shop and took one Mcdowel whisky bottle and two thumsup bottles as contained in Ex.D-3. I also did not state before police as in Ex.D4 that from out of total value of the items purchased worth Rs.107/- the deceased paid Rs.50/- and when I asked the accused for the balance amount he replied that he did not bring money ....."
From the evidence of this witness, it is clear that on 15.12.2010, at about 7:00 P.M., he noticed the accused and the deceased passing in front of his shop in a drunken condition and he abused them to go away. At that point of time, they purchased cigars without paying money. But from the answers elicited in the cross examination, it is clear that his version before the Investigating Agency is something different.
21. Apart from that, the answers elicited through the evidence of P.W.16 are as under:-
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"...... P.W.5 Shaik Khajamia did not state before me under 161 Cr.P.C. statement that the deceased Narasimhulu and accused did not pay any money to him towards costs of Cigarette packets. P.W.5 did not state before me that P.W.1 came to his shop at about 8 p.m. and enquired him whether her husband (deceased) came to his shop, on which he replied that the deceased along with the accused came there at about 7 p.m. and later went away. P.W.5 stated before me as in Ex.D2 to D4....."
22. At this point of time, it would be appropriate to refer to the evidence of P.W.1. She, in her evidence in chief, states that when the deceased did not return to their house, she, along with her son and others, went to the shop of P.W.5, who informed them that accused and deceased came to his liquor shop and after consuming liquor, left the shop. It would be appropriate to extract the same, which reads as under:-
".... When we enquired in the liquor shop, the shop owner Kahajamia (L.W.8) informed us that the accused and the deceased came to his liquor shop and after consuming liquor they left the shop...."
This version of P.W.1 that P.W.5 informed her that the accused and deceased consumed liquor at his shop on 15.12.2010 was not spoken to by P.W.5.
23. Further, P.W.11, who is the daughter of the deceased, in her evidence, states that she saw the accused and deceased at 16 the shop of P.W.5 in a drunken condition. Her evidence also discloses that on that day, at about 7:00 P.M., she went to the sundry shop of Khaja Vali for purchasing jaggery, where she saw her father and the accused on the road in front of the shop in a drunken condition. She asked her father to come home for dinner, to which he replied that he would come and then, she returned home. But this evidence of P.W.11, when tested with the evidence of P.W.5, would show that when P.W.1 and others were searching for the deceased, P.W.1 told them that she saw the deceased going along with the accused and asked him not to go along with him due to earlier disputes, which was not spoken to by P.W.11. Apart from that, P.W.11 does not speak about the presence of P.W.5, when accused and deceased were at his shop or in front of his shop in a drunken condition. Therefore, in view of the discrepancy in the evidence of these witnesses with regard to the information furnished by P.Ws.5 and 11, narrating the circumstances under which they have seen the accused and the deceased together, a doubt arises as to whether really their evidence can be believed for proving the theory of accused being last seen in the company of the deceased.
24. Even if the evidence as spoken to by P.Ws.5 and 11 in Court is taken as correct, they saw both of them together at 17 7:00 P.M. but the dead body was found on the next day morning i.e., after 12 hours. There is no evidence as to what happened during this period. It cannot be said to be proximate or immediate, after both of them were seen together.
25. The third circumstance relied upon by the prosecution is the recovery of M.O.3 - stick and M.Os.4 and 5 - clothes of the accused which contained blood stains. As seen from the evidence of the Investigating Officer, the accused was arrested on 23.12.2010 and pursuant thereto, he made a confession which lead to discovery of M.O.3 - stick and the clothes of the accused - M.Os.4 and 5, but P.W.11, in her cross examination, admits that the accused surrendered before the police on the next day of the death of her father. It would be appropriate to extract the same, which reads as under:-
"".... It is true after the death of deceased father, the accused surrendered before the police on the next day..."
26. Further, P.W.1, in her cross examination, also states that the accused himself appeared before the police immediately after giving of report by her to the police. It would be appropriate to extract the same, which reads as under:- 18
".... I learnt that on the next day of giving of report by me to the police the accused himself appeared before the police...."
27. Therefore, when the accused surrendered himself before the police immediately after the death of the deceased, question of police arresting him on 23.12.2010 and making recoveries pursuant to a confession cannot be believed.
28. At this stage, Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor, would submit that in the cross examination of P.W.5, a suggestion was given that the accused was not there in the village on the date of incident and that the accused and deceased did not come to his shop on that day and he is deposing falsely, which was denied by P.W.5.
29. Having regard to the suggestions given namely that accused was not in the village on that day, the learned Additional Public Prosecutor would contend that a false plea has been taken by the accused and as such, the same can be made the basis for taking it as an additional circumstance to connect the accused with the crime. He relied upon the judgment of the Hon'ble Supreme Court in Rajesh Kumar vs. Dharamvir and others (1 cited supra) in support of his plea. But in the said case, the High Court acquitted the accused by 19 accepting the plea of rivalry and the Hon'ble Supreme Court found fault with the findings given and held that the testimony of D.W.2 does not substantiate the plea of rivalry on behalf of the accused. Therefore, mere denial of a suggestion does not mean that the accused has taken a false plea. For all these reasons, we feel that the prosecution failed to prove the circumstances relied upon by them, beyond all reasonable doubt, against the accused for the offence punishable under Section 302 I.P.C., and accordingly, the judgment of the trial Court is liable to be set aside.
30. In the result, the conviction and sentence recorded by the learned Principal Sessions Judge, Nellore vide judgment, dated 16.10.2015, in Sessions Case No.136 of 2012 against the appellant/accused for the offence punishable under Section 302 I.P.C. are set aside. The appellant/accused shall be released forthwith if he is not required to be detained in any other crime. Fine amount, if any, paid by the appellant/accused shall be refunded to him.
31. Accordingly, the Criminal Appeal is allowed. 20
Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR ___________________________________ JUSTICE B.V.L.N.CHAKRAVARTHI Date : 29.11.2022 AMD 21 216 THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI CRIMINAL APPEAL No.1110 of 2015 Date : 29.11.2022 AMD