Andhra HC (Pre-Telangana)
Middela Parvaiah vs The State Of A.P., Rep. By Public ... on 31 October, 2017
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
THE HONBLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HONBLE SRI JUSTICE AMARNATH GOUD
CRIMINAL APPEAL No.683 OF 2011
31-10-2017
Middela Parvaiah.. Petitioner/appellant
The State of A.P., Rep. by Public Prosecutor, High Court of A.P. at Hyderabad... Respondent
Counsel for Petitioner : Sri V.L.N.Prasad.
Counsel for Respondent/s: Public Prosecutor
<Gist:
>Head Note:
? Cases referred:
1)2013 SCC Online SC 691
2)(1971) 1 SCC 855:1971 SCC (CRL) 353: AIR 1971 SC 1606
3)(1996) 4 SCC 720
4)(2013) 3 SCC 721
HONBLE SRI JUSTICE C.PRAVEEN KUMAR
AND
HONBLE SRI JUSTICE T. AMARNATH GOUD
CRIMINAL APPEAL No.683 of 2011
JUDGMENT :(per the Honble Sri Justice C.Praveen Kumar) Assailing the judgment, dated 13.04.2011, in Sessions Case No.191 of 2010, on the file of the Court of the VII Additional Sessions Judge (FTC), Nizamabad, at Bodhan, wherein the sole accused was found guilty, convicted and sentenced to suffer imprisonment for life for the offence punishable under Section 302 of IPC, the present appeal is filed.
2. The gravamen of the charge against accused is that, on 04.01.2010, at about 12.00 p.m., at the house of the deceased, namely Smt.Thokala Anjavva, the accused is alleged to have caused her death by stabbing her with a sickle, as she failed to pay money, as demanded by him, and, thereafter, erased the blood stains on the sickle by wiping it off with a blanket.
3. The facts, as culled out, from the evidence, adduced by the prosecution witnesses, are as under:
PWs.1 to 4 are the children of the deceased. About 12 years prior to the date of incident, the husband of the deceased, Thokala Laxmaiah, died. PWs.1, 4 and wife of PW1 were living in one house at Shapurnagar, while PW.2 and her husband were living in a separate house. PW.3, who was residing with her motherthe deceased, was studying tenth class on the date of death of the deceased, at Durki Village. The deceased used to work in the house of one Sangi Narasimhulu. The accused Middela Parvaiah, of the same village, used to come to the house of the deceased and he slowly developed intimacy with her. Since the deceased was very cordial with Sangi Narasimhulu, the accused developed suspicion against the deceased. This was about five years prior to the date of the incident. It is stated that, on one occasion, the accused beat the sister of the deceased, by name Sujatha, which led to lodging of a report against the accused by the deceased. Pursuant to which, the accused was sent to jail. Subsequent to the release of the accused, on bail, there was a compromise between the accused and the deceased. The evidence on record discloses that after the closure of the said case, the accused and the deceased were having good relation. However, on suspicion that said Narasimhulu was having illicit relation with the deceased and that the said Narasimhulu was responsible for filing a false case against the accused, the accused killed the said Narasimhulu. In respect of the said incident, the accused was arrested and remanded to custody. However, after his release from the jail, the accused continued to maintain cordial relation with the deceased. The evidence on record discloses that the accused was insisting the deceased to speak in his favour in the said case (S.C.No.41 of 2006). The evidence of the prosecution witnesses further shows that on two or three occasions, the accused demanded the deceased to give money and also threatened to kill her. The evidence of PW3 further discloses that the accused was harassing the deceased by making galata in her house. The evidence of PW.3 further shows that prior to the incident, herself and her mother were staying in the house. On the date of incident, she went to the house of one K.Anuradha PW.9, by 06.00 p.m., for studying together. She claims to have returned back to the house at 09.00 p.m., for taking dinner. At that time, she noticed the accused and the deceased in the house. She was present in the house for about fifteen minutes, had dinner and then left the house, to the house of her friend (PW.9) for studies. At the time of leaving the house, she noticed the accused and the deceased in the house. On the next day, at about 05.30 a.m., she returned to the house, opened the doors and called her mother, who did not respond. She removed the blanket, which was on the body of the deceased, and found blood injuries on the stomach of the deceased and blood stains on her right hand. Immediately, she raised cries and called one and all, as she felt that her mother was killed. Then her neighbours came there to whom she is alleged to have informed that the accused might have killed the deceased, as he was present in the house, on the previous day night at 09.00 p.m. The information about the death of the deceased was informed to her brother and sisters, namely PWs.1 and 2. On receipt of the said information, PW.1 came down to the village, proceeded to the Bodhan police station and lodged a written report, under Ex.P-1. Basing on Ex.P-1, PW.18, the SI of police, registered a case in Crime No.1 of 2010, for an offence punishable under Section 302 of IPC and issued FIR, which is marked as Ex.P-15. Thereafter, PW 18 sent copies of the said documents to all concerned. Further investigation was taken up by PW.17, the CI of Police. According to PW.17, on receipt of a copy of FIR, he proceeded to the scene of offence and conducted panchanama of the scene of offence, in the presence of PW.15, under Ex.P-7 and Ex.P-9 is the rough sketch of the same. He also got the scene of offence photographed through PW16. During the preparation of observation report, he examined PWs.1 to 7 and thereafter he conducted inquest in the presence of PWs.15 and 11, under Ex.P-2. Thereafter, the body was shifted to the Government Hospital, Banswada, for postmortem examination. PW.14, the Civil Assistant Surgeon, Government Hospital, Banswada, conducted autopsy over the body at 03.30 p.m., on 05.01.2010 and issued Ex.P-6, the postmortem certificate.
According to him, the cause of the death, to the best of his knowledge, was due to hypovolemic shock due to poly trauma leading to cardio respiratory arrest. He also noticed five stabbed injuries on the body of the deceased in the hypo contusion region. On 11.01.2010, the accused is said to have surrendered before PW.17, the CI of police, who recorded the confessional statement in the presence of PWs.12 and 13 (hostile witnesses). Basing on the confessional statement, the CI of police proceeded to the house of the accused and recovered a hunting sickle from the house, arrested the accused and sent him to judicial custody. After completing the investigation, he filed the charge sheet, which was taken on file as PRC.No.5 of 2010, on the file of Judicial Magistrate of First Class, Banswada. On committal to the Court of Sessions Judge, Nizamabad Division, the same came to be numbered as S.C.No.191 of 2010.
4. On appearance, charges under Sections 302 and 201 were framed, read over and explained to the accused, to which the accused pleaded not guilty and claimed to be tried.
5. In support of its case, the prosecution examined PWs.1 to 17 and got marked Exs.P-1 to P-15 and M.Os.1 to 7. No oral or documentary evidence is let in on behalf of the defence.
6. After 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.
7. Basing on the evidence of PW.3 and also the extra judicial confession said to have been made before PW.8, the trial Court convicted the accused. Challenging the same, the present appeal is filed.
8. Though the matter was listed yesterday and also today, there was no representation on behalf of the appellant, and Sri V.L.N.Prasad, Advocate, to whom the case was allotted by the High Court Legal Aid Services Committee, is not present.
9. The initial question is whether the criminal appeal can be decided without hearing the counsel, to whom the matter was allotted by the High Court Legal Services Committee ?
10. It is to be noted that in Shridhar Namdeo Lawand Vs. State of Maharashtra while dealing with the principles to be followed, while disposing criminal cases, in paragraph No.5 and 6, the Apex Court held as under:
Paragraph No.5: In the light of the said contention, we have carefully perused the impugned order. Even at the first sight, we noticed none appeared for the appellant- accused before the High Court. This is evident from paragraph No.2 of the impugned order. Though, the High Court has mentioned certain factual details, the fact remains that it has not analyzed the evidence led by the prosecution and defence pleaded by the appellant-accused.
Paragraph No.6: It is settled law that Court should not decide criminal case in the absence of the counsel for the accused as an accused in a criminal case should not suffer for the fault of his counsel and the Court should, in such a situation must appoint another counsel as an amicus curiae to defend the accused.
11. In Shyam Deo Pandey Vs. State of Bihar , the Apex Court ruled that the appellate Court must peruse the record before disposing of the appeal; the appeal has to be disposed of on merits even if it is being disposed of in the absence of the appellant or his pleader. Interpreting Section 423 of the old Code (the corresponding provisions are Sections 385- 386 of the present Code), the Apex Court in paragraph No.19 of the judgment held as under:
The consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits and to pass final orders will not be possible unless the reasoning and findings recorded in the judgment under appeal are tested in the light of the record of the case. After the records are before the Court and the appeal is set down for hearing, it is essential that the appellate Court should: (a) peruse such record; (b) hear the appellant or his pleader, if he appears, and (c) hear the public prosecutor, if he appears. After complying with these requirements, the appellate Court has full power to pass any of the orders mentioned in the Section. It is to be noted that if the appellant or his pleader is not present or if the public prosecutor is not present it is not obligatory on the appellate Court to postpone the hearing of the appeal. If the appellant or his counsel or the public prosecutor or both, are not present, the appellate Court has jurisdiction to proceed with the disposal of the appeal; but that disposal must be after the appellate Court has considered the appeal on merits. It is clear that the appeal must be considered and disposed of on merits irrespective of the fact whether the appellant or his counsel or the public prosecutor is present or not. Even if the appeal is disposed of in their absence, the decision must be after consideration on merits.
12. Referring to Shyam Deo case, the Apex Court in paragraph No.11 in Bani Singh and others Vs. State of U.P. , opined as under:
11. In our view, the above-stated position is in consonance with the spirit and language of Section 386 and, being a correct interpretation of the law, must be followed
13. Further, in paragraph No.14 of the said decision, the Apex Court held as under:
14. We have carefully considered the view expressed in the said two decisions of the Court and, we may state that the view taken in Shyam Deo case appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of Section 385 makes it clear that if the appellate Court does not consider the appeal fit for summary dismissal, it must call for the record and Section 386 mandates that after the record is received, the appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial Court are consistent, with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record.
14. Further, in paragraph No.15, of the said decision, while referring to Sections 385 and 386, it has observed as under:
..The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court.
15. With regard to the principle to be followed in case of absence of the appellant and his Counsel, it was held as under:
.We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellate if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are, therefore, of the opinion and we say so with respect, from doing so.
16. The said principle has been reiterated even in K.S.Panduranga Vs. State of Karnataka .
17. Heard the learned public prosecutor for the State of Telangana and perused the record. The Court also took the assistance of Sri Posani Venkateswarlu, the learned public prosecutor for the State of Andhra Pradesh, in deciding the appeal.
18. The learned Public Prosecutor for the State of Andhra Pradesh, who assisted the Court, would submit that there are no eye witnesses to the incident and the case rests on circumstantial evidence. According to him, the circumstances relied upon by the prosecution do not form a chain of events so as to connect the accused with the crime.
19. Learned Public Prosecutor for the State of Telangana mainly relied upon the evidence of PW.3, the extra judicial confession made by the accused before PW.8, the evidence of PW.6, who deposed about seeing the accused near the house of the deceased on that night at 01.00 a.m.
20. It is not in dispute that there are no eye witnesses to the incident and the case rests on circumstantial evidence. The circumstances relied upon are:
(i) the last seen together i.e., PW3, noticed the accused and the deceased in their house at 09.00 p.m.,
(ii) the extra judicial confession made before PW8 on 11.01.2010, pursuant to which the Sarpanch-PW8 is said to have produced the accused before the police,
(iii) the evidence of PWs.1 to 4, to show that the accused was harassing the deceased for money and that on one occasion he threatened to kill her, and
(iv) the accused seen in a lane near the house of the deceased at 01.00 a.m. on the date of incident.
21. All the prosecution witnesses deposed that both of them were cordial with each other. PWs.3 and 4 deposed that the accused was coming to the house whenever he felt like, either in the morning or in the night.
22. As stated earlier, since the motive for the commission of the offence, as per the prosecution, appears to be the demand for money, it would be relevant to extract the relevant portion of the evidence, which is as under:
23. PW1 in his evidence deposed as under:
I know the accused. The accused used to come to my mothers house in view of intimacy between them. My mother was also having good relationship with Narsimhulu. The accused beat my deceased mother due to suspicion that she had intimacy with Narsimulu and the same was happened about five years back to the date of death of my deceased mother. At that time the accused also beat my sister Sujatha. Then myself and my mother filed a complaint against the accused with the help of Narasimhulu and accused was sent to jail in that case. Subsequently, the accused was released on bail. Subsequently, the accused entered into a compromise with my mother in that case. I do not know whether the case was compromised in the Court and ended in acquittal or not. Subsequently the accused and my mother were having cordial relationship. The accused killed late Narsimhulu due to his helping my mother and myself in filing case against him. The accused was sent to jail in the case filed against him for killing the deceased Narasimhulu. After the release of the accused from the jail in the case filed against him for killing of deceased Narasimhulu, he started to live with my mother cordially. My deceased mother about one month back to the date of her death over phone informed me on two or three occasions that the accused demanded and harassed her to give money to him and he also threatened to kill her. Santhosh also informed me over phone about the accused harassing my mother and making galatas in the house by coming to the house of my mother..
24. PW1 further deposed as under:
Then myself my mother filed a complaint against the accused with the help of Narsimlu and accused was sent to jail in that case. Subsequently the accused was released on bail. Subsequently the accused entered into a compromise with my mother in that case. I do not know whether the case was compromised in the Court and ended in acquittal or not. Subsequently, the accused and my mother were having cordial relationship. The accused killed late Narsimhulu due to his helping my mother and myself in filing case against him. The accused was sent to jail in the case filed against him for killing deceased Narsimhulu. After the released o the accused from the jail in the case filed against him for killing of deceased Narsimlu he started to live with my mother cordially..
25. PW2 in her evidence deposed as under:
Thereafter the accused lived happily with my deceased mother. My mother informed me over phone on several times since four months prior to the date of her death, that the accused harassed her by demanding money and also by stating why she filed case against him and he also threatened to kill her. My mother lastly about one week by the date of her death also informed me over phone that the accused threatened to kill her by demanding money and harassing her..
26. PW2 further deposed as under:
..The accused was arrested and sent to jail in that case and later he was released on bail from the jail. Subsequently the case filed by my mother was compromised with accused. Thereafter the accused lived happily with my deceased mother.
27. PW3 in his evidence deposed as under:
..After release of accused from the jail, a compromise was entered in the case filed by my mother against the accused. Subsequent to compromise the accused lived with my mother cordially. I and my mother alone used to stay in my house. The accused harassed my deceased mother since one month prior to the date of death of her by demanding money from her and also not to evidence in the case filed against him for murdering late Sangi Narsimulu.
.........The accused who used to come to our house used to beat my mother now and then in my presence since one month prior to the death by demanding her to give money to him and also not to give evidence in the case filed against him for the murder of Narsimulu. The accused used to threaten my mother in my presence that he will kill her if she does not give money to him.
28. PW3 further deposed as under:
.The accused was sent to jail in the case filed against him for murdering Sangi Narsimlu. After release of accused from the jail, a compromise was entered in the case filed by my moth against the accused. Subsequent to the compromise the accused lied with my mother cordially.
29. PW4 in his evidence deposed as under:
..The accused used to come to the house of my mother at Durki during festival, but I do not know the reason for the same. My mother died about 8 months back at about 04.00 a.m., PW3 informed PW1 over phone that my mother was suffering with ill health. Then myself, PWs.1 and 2 and Lokeshwar Rao had come to the house of my mother, but I cannot say at what time, he reached our house at Durki village.
30. PW4 further deposed as under:
.I know the accused. The accused used to come to the house of my mother at Durki during festival, but I do not know the reason for the same.
31. From the narration of the facts, by the witnesses, it is clear that though there were some disputes between the accused and the deceased, with regard to money, the fact remains that the relation between them was cordial and the accused was visiting the house of the deceased frequently. Therefore, the argument of the learned public prosecutor that there was motive for the accused to kill the deceased cannot be accepted.
32. Coming to the incident proper, on the fateful day i.e., on 04.01.2010, PW.3 left the house at 06.30 p.m., to go to the house of PW.9 for pursuing her studies. She claims to have returned back to the house at 09.00 p.m., stayed in the house for 15 minutes, had her dinner and then went back to the house of PW.9. PW.3 deposed that at 09.00 p.m., when she came to the house for dinner, she noticed the accused and the deceased together. But her evidence is silent as to any demand for money at that time or that they were quarreling. On the next day morning, when she came back to house at 05.30 a.m., found her mother dead. From the evidence of PW.3, it is clear that she did not notice the presence of accused and deceased together at 06.30 p.m., but she noticed both of them together at 09.00 p.m., when she came home for dinner.
33. But, the evidence of PW9 is otherwise, which is as under:
Santhoshi used to visit my house for combined studies about one week prior to the death of her mother. She used to come to my house at about 06.00 p.m., and used to return back to her house during early hours at about 05.00 a.m. Anjavva died on 04.01.2010. On 04.01.2010, Santhoshi came to my house at about 06.30 p.m. She returned back to her house at about 05.30 a.m. on the next day. We came to know that Anjavva died. Myself and others went to her house and found Anjavva lying dead with knife injuries. I do not know the accused.
34. Therefore, it is clear that PW3, when came back to the house at 09.00 p.m., for dinner, saw the accused and deceased together, but her visit to the house at 09.00 p.m., get falsified by the evidence of PW.9. According to PW.9, PW.3 went to the house of PW.9 at 06.30 p.m., and returned back to her house at 05.30 a.m., PW.9 was neither declared hostile, nor any suggestion was put to her, nor any material is elicited through her to show that PW.3 returned back to her house at 09.00 p.m., for dinner.
35. Therefore, a doubt arises as to whether really PW.3 returned back to her house at 09.00 p.m., for dinner and saw the accused and the deceased together, at that time.
36. The next circumstance, which is sought to be relied upon by the prosecution, is the evidence of PW.6 to show that the accused was seen near the house of the deceased in the midnight.
37. The evidence of PW.6 would show that about 8 months back, on the intervening night of the date of incident, he woke up at about 24.00 hours to attend natures call. At that time, she found the accused fleeing away through a lane situated nearby to the house of the deceased.
38. PW.6, who is an old aged lady, is said to have opened the door during midnight, to attend to natures call. When she was about to go out, she noticed the accused running away through the lane, situated nearby to the house of the deceased. But, her evidence does not anywhere show that the accused was coming out from the house of the deceased, or that he was armed with sickle, while he was trying to run away from the scene. Since the case of the prosecution is that the accused ran away from the place along with sickle, PW.6 should have seen the presence of hunting sickle in the hands of the accused. But, as stated earlier, her evidence is silent on the said aspect.
39. Therefore, a doubt arises as to whether really PW.6, who is a lady, aged about 60 years, could have come out at night, all alone, to attend the natures call, though there were some persons living with her in the house. Even assuming that she has come out to attend natures call, but seeing the accused running away through the lane, which was beside her house, does not by itself connect the accused with the crime, unless there are other circumstances to connect the presence of the accused in the house.
40. The next circumstance, relied upon by the prosecution, is the alleged extra judicial confession made by the accused before PW.8, on 11.01.2010.
41. According to PW.8, on 11.01.2010, at about 08.00 a.m., the accused came to his house and informed him that he killed the deceased with a sickle. The accused further informed him that, on the date of incident, he demanded Rs.10,000/- from the deceased and when she refused to pay the amount, he killed her. The accused further told PW.8 that the deceased threatened to give evidence against him in the murder case of Narsimhulu at Durki Village and as such he killed her. He requested to produce him before the Inspector of Police, Banswada. Immediately, thereafter, PW.8 is said to have taken the accused to the Inspector of Police, Banswada.
42. It is to be noted here that the statement made by the accused before PW.8 was not reduced into writing. No explanation is forthcoming as to why the said statement was not reduced in writing. Even otherwise, there is no requirement for the accused to go to the house of the Sarpanch, a week after the incident, and disclose about the commission of offence.
43. As seen from the record, the accused was already an accused in another case. Hence, the plea of the prosecution that due to fear the accused must have gone to the house of PW8 and disclosed about the commission of offence cannot be accepted.
44. Apart from that, it is also to be noticed here that though PW.8 stated in his evidence that after the extra judicial confession by the accused, he took the accused to the Inspector of Police, Banswada, is falsified by the evidence of PW.17, the Inspector of Police, who, in his evidence stated that the accused himself came to his office and surrendered before him. There is no reference to PW.8 in his evidence.
45. It would be useful to extract the relevant portions in the evidence of PWs.8 and 17, which are as under:
46. PW.8 in his evidence deposed as under:
On 11.01.2010 at about 08.00 a.m., the accused came to my house and informed me that he killed Anjamma with a sickle on the night of 04.01.2010. The accused further informed me that he asked Anjamma for Rs.10,000/- and as she refused to pay the said amount he killed her. The accused further informed me that Anjamma told him that she would give evidence in the murder case of Narsimhulu, a resident of Durki whom the accused killed. The accused informed that for the above said reasons he stabbed Anjamma and killed her. He requested me to produce him before the Inspector of Police, Banswada. Immediately thereafter I produced the accused before the Inspector of Police, Banswada.
47. PW.17 in his evidence deposed as under:
On 11.01.2010 the accused came to my office and surrendered before me. I examined him and recorded his confessional statement in the presence of PW.12 and PW.13. Basing on his confession I proceeded to his house along with the above said panchas and recovered MO.1 sickle from his house. Later after returning to the office I arrested the accused and sent him to judicial custody.
48. Therefore, all the three circumstances, relied upon by the prosecution, to connect the accused with the crime, remained un-proved and in the absence of any other material connecting the accused with the crime, the conviction of the accused under section 302 IPC is unsustainable.
49. Having regard to the above, the Criminal Appeal is allowed. The conviction and sentence awarded against the appellant/accused by name Middela Parvaiah, in the judgment dated 13.04.2011, in Sessions Case No.191 of 2010, on the file of the VII Additional Sessions Judge (FTC), Nizamabad at Bodhan, for an offence punishable under Section 302 of I.P.C., is set aside and he is acquitted for the said offence. Consequently, the appellant/accused shall be set at liberty forthwith, if not required in any other case.
50. Consequently, miscellaneous petitions, if any, pending shall stand closed.
____________________ C.PRAVEEN KUMAR, J _____________________ T. AMARNATH GOUD, J 1.10.2017