Andhra Pradesh High Court - Amravati
Sri Thupakala Srinivasulu, Chittoor ... vs P.P., Hyd on 21 January, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HONOURABLE SRI JUSTICE BATTU DEVANAND
CRIMINAL APPEAL No.1184 of 2014
JUDGMENT:- (Per Hon'ble Sri Justice C.Praveen Kumar) Heard Sri M.Chalapati Rao, learned Legal Aid Counsel appearing for the appellant/accused and Sri S.Dushyant Reddy, learned Additional Public Prosecutor appearing for the respondent State.
2. The present appeal came to be filed assailing the sentence and conviction imposed against the accused in Sessions Case No.279 of 2013 on the file of the learned III Additional Sessions Judge, Tirupati wherein he was tried and convicted for the offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (for short, "I.P.C."). Vide judgment, dated 23.07.2014, the learned IV Additional Sessions Judge, Tirupati, (FAC) III Additional Sessions Judge, Tirupati convicted the accused for the offences punishable under Sections 302 and 201 I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for a period of six months for the offence punishable under Section 302 I.P.C.; and to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for a period of one month for the offence punishable under Section 201 I.P.C.
3. The substance of the charge against the accused is that on 17.02.2013, at 9:00 P.M., in the house of the accused at 2 CPK, J & DEV, J Crl.A.No.1184 of 2014 B.C.Colony, Adavi Kandriga @ K.B.R.Puram, caused the death of one Munichandra by hacking him on his right side back and also inflicted stab injuries on chest indiscriminately with a sickle.
4. The facts, as culled out from the evidence of prosecution witnesses, are as under: -
P.W.1 is the mother of the deceased and second wife of P.W.2. The accused, who is the younger brother of P.W.2, P.Ws.3 and 4 are residents of B.C. Colony, Adavi Kandriga @ KBR Puram. The marriage of P.W.1 initially took place with one Erraiah and out of wedlock, she was blessed with a daughter by name Muneeswari and a son by name Munichandra (hereinafter, referred to as "the deceased"). She developed acquaintance with P.W.2, who was working in a rice mill at Chandragiri. After P.W.1 deserted her husband, she started living with P.W.2 along with her two children. The marriage of her daughter Muneeswari was performed by her parents while P.W.2 used to look after the deceased. The accused, who is the younger brother of P.W.2, was married and having two children. He used to stay by the side of the house of P.W.1. It is said that the wife of the accused deserted her husband and living elsewhere. Since then, the accused was living in the house of P.W.1. About a week prior to the date of incident, P.W.1 went to Athur Village for coolie work while P.W.2, accused and the deceased were in the house. About 4 or 5 days later, P.W.2 joined her. On that day evening, she talked with the deceased, who is aged about 13 years, on phone and asked the deceased to sleep in the house after taking meals stating that P.W.2 would come on the next day morning. On the following day, 3 CPK, J & DEV, J Crl.A.No.1184 of 2014 when P.W.2 went to his house at B.C.Colony, Adavi Kandriga, he did not find the deceased in the house and when questioned about the same, the accused is said to have told him that the deceased went to school. Though P.W.2 searched for the deceased, his whereabouts were not known. When he questioned the accused as to how he got the cell phone of the deceased, the accused is said to have disclosed that there was a quarrel between both of them with regard to changing of T.V. channels and thereafter, he killed him, kept the body in a blanket, took it to the mango garden of one Nageswara Raju and buried it there. It is said that the accused took P.W.2 and others and showed the dead body of the deceased.
This information about the incident was given to P.W.1 on that night. On the following morning, she came to B.C.Colony and thereafter, set the law into motion by lodging a report - Ex.P-1 with P.W.7 - Inspector of Police. Basing on the same, a case in Crime No.23 of 2013 on the file of Puttur Police Station came to be registered under Sections 302 and 201 I.P.C. Ex.P-8 is the original F.I.R. After registering the F.I.R., he visited the place where the dead body was buried and examined P.Ws.1, 2 and others during inquest. He also secured the presence of panchayatdars - P.W.5, Cherukuri Muniraju and Siva and conducted inquest over the dead body of the deceased in their presence. Ex.P-3 is the Inquest Report. He noticed the body being kept in a bontha. M.O.1 is the bontha. He also got prepared a rough sketch of the scene, which is placed on record as Ex.P-9. Thereafter, he sent the dead body to Community Health Centre, Puttur for post mortem examination.
P.W.6, who is the then Civil Assistant Surgeon, Community Health Centre, Puttur, conducted autopsy over the dead body of 4 CPK, J & DEV, J Crl.A.No.1184 of 2014 the deceased and issued Ex.P-7 - Post Mortem Report. According to him, the cause of death was due to damage to major vessels and vital organ brain.
On 19.02.2013, at 3:00 P.M., P.W.7 visited the scene of offence i.e., the house of P.W.1, which is at a distance of 200 meters from the mango garden of Nageswara Raju and prepared a panchanama of the scene under Ex.P-4. He also prepared a rough sketch under Ex.P-10. He examined P.Ws.3, 4 and others and recorded their statements.
It is stated that on 21.02.2013, at 10:00 A.M., he apprehended the accused at Railway Gate in the presence of panchayatdars - P.W.5 and one Thoti Chiranjeevi. He recorded the confession statement of the accused. The accused disclosed that he would show the weapon used in causing the death of the deceased. Ex.P-5 is the admissible portion of the confession panchanama of the accused. At about 11:45 A.M., the said weapon was recovered from the house of the accused in B.C.Colony. M.O.7 is the said weapon while M.O.8 is the blood stained shirt. Both the objects were seized under Ex.P-6 - seizure panchanama. After completing the investigation and obtaining necessary documents including R.F.S.L. Report, a charge sheet came to be filed against the accused, which was taken on file as P.R.C.No.15 of 2013 on the file of the learned Additional Judicial Magistrate of First Class, Puttur for the offences punishable Sections 302 and 201 I.P.C.
5. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to him. As the 5 CPK, J & DEV, J Crl.A.No.1184 of 2014 offences are triable by a Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned III Additional Sessions Judge, Tirupati for trial and disposal in accordance with law.
6. Basing on the material available on record, charges under Sections 302 and 201 I.P.C. 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 7 and got marked Exs.P-1 to P-12 and M.Os.1 to 8. Out of the seven witnesses examined by the prosecution, P.W.3 did not support the prosecution case and he is treated as hostile by the prosecution. After the closure of the 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 behalf of the accused but Exs.D-1 to D-4 were got marked on his behalf.
8. Basing on the evidence available and the material on record, the trial Court convicted the accused and sentenced him, as stated earlier. Challenging the same, the present appeal came to be filed through a Legal Aid Counsel.
9. Sri M.Chalapati Rao, learned Legal Aid Counsel appearing for the appellant/accused, would contend that there are no eye witnesses to the incident and the circumstances relied upon by the 6 CPK, J & DEV, J Crl.A.No.1184 of 2014 prosecution are not proved and even if proved, do not form a chain of events connecting the accused with the crime. According to him, the so called confession, which is sought to be relied upon by the prosecution, and the recovery made basing on the said confession are not at all admissible in evidence. It is his case that the confession said to have been made by the accused is out of threat and coercion and the same is evident from the evidence of prosecution witnesses.
10. Insofar as the recovery of dead body basing on the said statement, it is contended that if really the dead body was recovered, it should have been mentioned in the panchanama. On the other hand, the evidence of the Investigating Officer shows that the said recovery was made after registering the F.I.R. Insofar as the answers given to question Nos.33, 35, 49 and 50 in the 313 Cr.P.C. examination, he would contend that similar questions were put through the evidence of P.W.4 but the same were denied by the accused. Hence, pleads that the case of the accused is of total denial, as answering four questions in a positive manner does not, in any way, help the case of the prosecution and these four answers, according to him, cannot be believed having regard to the manner in which all the answers were given.
11. On the other hand, Sri S.Dushyanth Reddy, learned Additional Public Prosecutor, would contend that even though there are no eye witnesses, the circumstances relied upon by the prosecution are proved and they form a chain of events connecting the accused with the crime. It is his plea that the statements made by the accused before lodging the report cannot be treated as 7 CPK, J & DEV, J Crl.A.No.1184 of 2014 the statements made under threat or coercion since keeping the body in a blanket and burying it in a mango garden were made before the accused made the said statements. In other words, his plea is that these statements can be acted upon to establish the culpability of the accused in the commission of the offence. He further pleads that these statements leading to discovery of the dead body of the deceased is not a circumstance, which cannot be thrown out as baseless. According to him, the answers given by the accused also establishes the involvement of the accused in the commission of the offence.
12. The point that arises for consideration is:
"Whether the circumstances relied upon by the prosecution are proved and if proved, whether they are sufficient to convict the accused under Sections 302 and 201 I.P.C.?"
13. POINT:-
It is no doubt true that 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 circumstances relied upon by them and the circumstances so proved should form a chain of events connecting the accused with the crime and an irresistible inference can be drawn would be involvement of the accused in the offence.
14. As stated earlier, the circumstances relied upon by the prosecution are the alleged confession made before P.Ws.2, 3 and 4 and the recovery of the dead body pursuant to the said statement. Even assuming for a moment that these statements made can be 8 CPK, J & DEV, J Crl.A.No.1184 of 2014 treated as one under Section 24 of the Indian Evidence Act, 1872 (for short, "the Act") and the recovery under Section 27 of the said Act, the accused is said to have disclosed about the commission of the offence when he was repeatedly questioned by P.Ws.2, 3 and 4 and other villagers. It is also to be noted that these statements were made by the accused before P.Ws.2, 3 and 4 prior to registering the F.I.R. Before proceeding further, it would be useful to extract Section 24 of the Act, which reads as under:
"24. Confession caused by inducement, threat or promise when irrelevant in criminal proceedings --A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.--A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him."
From a reading of the said section, it is evident that any confession made by a person under threat, inducement or promise is irrelevant. In order to find out as to whether the said statement is under threat, it would be useful to refer to the evidence of P.Ws.2, 3 and 4.
9 CPK, J & DEV, J Crl.A.No.1184 of 2014
15. Admittedly, P.W.1 was not present and the said statement was made before P.Ws.2, 3 and 4. P.W.2 is none other than the stepfather of the deceased. In his evidence, he states that three days prior to the death of the deceased, he went to Athur and met his wife Munilakshmi. Both of them talked with the deceased over phone who informed him that he would come on the next day morning and asked him to go to school. On the next day morning, he came to the house situated at Adavani Kandriga B.C. Colony at 9:00 A.M. but the deceased was not present in the house. He asked the accused as to where the deceased is. The accused informed that the deceased went to school but the deceased did not return home even by 4:00 P.M. So, he went to the school and made enquiries, which revealed that the deceased did not come to the school on that day. He noticed the cell phone of the deceased in the hands of the accused and when questioned about the same, the accused informed that the deceased kept the cell phone in the house and went away. On suspicion, he called P.W.3, Munemma and others, who insisted on the accused to tell them about the whereabouts of the deceased. At 9:00 P.M., the accused told them that he hacked the deceased with a knife and caused his death, as there was an altercation between them regarding T.V. He also disclosed that he kept the body of the deceased in a bontha and buried it in the mud in the mango garden of Nageswara Raju. In the cross examination, he admits that his mother's name is Rajamma and she is also staying in their house. Dhanapal, who is his brother, was also staying in their house. But on that day, Rajamma and Dhanapal were away from their house. He further admits that himself and other villagers put pressure on the 10 CPK, J & DEV, J Crl.A.No.1184 of 2014 accused to speak about the whereabouts of the deceased and accused admitted the offence because they have threatened him. Later, the villagers tied the accused and beat him. Thereafter, the accused revealed about the incident. It would be relevant to extract the relevant portion from the evidence of P.W.2, which reads as under:
"Myself and other villagers put pressure on accused to say about the whereabouts of Munichandra. Accused admitted the offence because we threatened him.
The villagers tied the accused and beat him. Thereafter only accused revealed about the incident."
From the evidence of this witness, it is evident that the villagers tied the accused and beat him and only thereafter, the accused revealed about the incident, which was at about 9:00 P.M.
16. Coming to the evidence of P.W.3, his evidence discloses that P.W.2 enquired with the accused about the deceased. Though his evidence is silent about witnessing the enquiries made by P.W.2 with the deceased, his evidence is that P.W.2 informed him about the accused killing the deceased with a knife due to a T.V. dispute. However, he was declared as hostile by the prosecution. In fact, his evidence may not be of much useful for the reason that his evidence is hearsay.
17. Coming to the evidence of P.W.4, he is a resident of B.C. Colony, Adavi Kandriga and was eking out his livelihood by doing coolie work. His house is at a distance of four houses away from the house of P.W.2. According to him, P.W.2 enquired the accused about the deceased and the deceased told him that he killed the deceased by hacking with a knife. The accused also told him that 11 CPK, J & DEV, J Crl.A.No.1184 of 2014 he kept the body of the deceased in a bonta and buried it in the mango garden of Nageswara Raju and took them to the said mango garden and showed the dead body of the deceased. He further admits that the body was partly buried. In the cross examination, he admits that all of them caught hold of the brother of P.W.2 (accused) and threatened him to speak about the deceased. He also speaks about tying the accused and thereafter, handing over of the accused to the police. His evidence also shows that the accused was caught hold of by the villagers and was threatened to disclose about the deceased to which he confessed about killing the deceased. Therefore, it is evident that the so called information/confession said to have been furnished by the accused is not voluntary and it was obtained by threat and coercion, which fact cannot be taken into consideration to connect the accused with the crime.
18. Insofar as the discovery of the dead body of the deceased is concerned, though all the witnesses deposed that pursuant to the statement made, the accused led them to the place where the dead body was buried, strangely, neither any proceedings nor any panchanama was prepared at that time. On the other hand, the evidence of the Investigating Officer shows as if the same was discovered by him after lodging of the report by P.W.1 on the next day at 12 noon.
19. This circumstance of discovery of the dead body of the deceased cannot also be accepted for many a reasons. Firstly, when the confession itself is doubtful/suspicious, the recovery made pursuant to it also has to be viewed with suspicion. Apart 12 CPK, J & DEV, J Crl.A.No.1184 of 2014 from that, no proceedings were prepared at any point of time. Neither the statement of the accused nor the discovery of the dead body at the instance of the accused was reduced into writing. No panchanama was prepared about the recovery made on the next day morning. That being the position, we feel that it may not be safe to convict the accused on this solitary circumstance of discovery of dead body. It is not as if the body was located at an isolated area. It was found half buried in the fields of one Nageswara Raju, who was the owner of the mango garden.
20. The last circumstance relied upon by the prosecution is the admission to answers in question Nos.33 and 35 in 313 Cr.P.C. examination of the accused, which are as under:-
"Q.No.33 : PW-2 further deposed that when he insisted you where is Munichandra when the phone of Munichandra is with you. You told that Munichandra kept the cell phone in the house and went away. What do you say?
Ans: nijame
Q.No.35 : PW-2 further deposed that you also told them that
there was an altercation between you and
Munichandra regarding television and you also told that you kept the body of Munichandra in a bontha and buried it in the mud in mango garden of Nageswara Raju. What do you say?
Ans: nijame"
However, similar such questions were put at question Nos.49 and 50 in the 313 Cr.P.C. examination of the accused to which he answered negatively, which are as under:
"Q.No.49 : PW-4 further deposed that you told them that you killed Munichandra by hacking him with a knife and you also told that you kept the dead body of Munichandra in a bontha and buried it in the 13 CPK, J & DEV, J Crl.A.No.1184 of 2014 mango garden of Nageswara Raju. What do you say?
Ans: abaddam Q.No.50 : PW-4 further deposed that you took them to Mango garden of Nageswara Raju and showed the dead body of Munichandra. What do you say?
Ans: abaddam"
21. It is no doubt true that there is some inconsistency in the answers given to two similar questions but an overall view of the answers given coupled with the plea of the accused at the time of recording his plea under Section 251 Cr.P.C. examination would show that he denied his involvement in the commission of the offence. It is well established that any admission made under Section 313 Cr.P.C., cannot be made a basis to convict the accused.
22. Therefore, as the circumstances relied upon by the prosecution are not proved and the sole circumstance so proved do not by itself connect the accused with the crime, it can be safely concluded that the prosecution failed to prove its case beyond all reasonable doubt against the appellant/accused for the offences punishable under Sections 302 and 201 I.P.C. and as such, the judgment of the trial Court is liable to be set aside.
23. In the result, the conviction and sentence recorded by the learned IV Additional District and Sessions Judge, Tirupati (FAC) III Additional District and Sessions Judge, Tirupati vide judgment, dated 23.07.2014, in Sessions Case No.279 of 2013 against the appellant/accused for the offences punishable under Sections 302 and 201 I.P.C. are set aside. The appellant/accused shall be released forthwith if he is not required to be detained in any other 14 CPK, J & DEV, J Crl.A.No.1184 of 2014 crime. Fine amount, if any, paid by the appellant/accused shall be refunded to him.
24. Accordingly, the Criminal Appeal is allowed.
Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR _____________________________ JUSTICE BATTU DEVANAND Date : 21.01.2020 AMD 15 CPK, J & DEV, J Crl.A.No.1184 of 2014 109 THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE BATTU DEVANAND CRIMINAL APPEAL No.1184 of 2014 Date : 21.01.2020 AMD