Andhra HC (Pre-Telangana)
Budi Mathsya Lingam vs The State Of A.P., Rep.By Public ... on 11 March, 2014
Bench: L. Narasimha Reddy, M.S.K. Jaiswal
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K. JAISWAL,
CRL.A.No. 1735 of 2009
11-03-2014
Budi Mathsya Lingam...APPELLANT/ACCUSED
THE STATE OF A.P., REP.BY PUBLIC PROSECUTOR, HIGH COURT OF A.P.,
HYDERABAD....RESPONDENT/COMPLAINANT
Counsel for the Petitioner:Sri K.Suresh Reddy
Counsel
Counsel for the respondent:Public Prosecutor
<Gist:
>Head Note:
?Citations:
JUDGMENT :(Per the Hon'ble Sri Justice L.Narasimha Reddy) This appeal is filed under Section 374(2) Cr.P.C., by the sole accused in S.C.No.162 of 2008 on the file of the VIII Additional District & Sessions Judge (FTC), Visakhapatnam.
Through its judgment, dated 30.10.2009, the trial Court convicted the accused for the offence punishable under Section 302 IPC, for causing the death of another person, with the same name, as the accused, on 23.12.2007 at 5.00 p.m. Sentence of imprisonment for life and fine of Rs.200/-, in default, to undergo Simple Imprisonment for one month, was imposed.
The case, as presented by the prosecution was that, the deceased was a resident of Pothulagaruvu Village of Visakhapatnam District, and he was allotted a house site of Ac.0.03 cents in Sy.No.4/3, Plot No.6 in Pothulagaruvu Village, under a Government scheme. The house site is said to be adjoining the land of the accused, and the assignment in favour of the deceased, was not to the liking of the accused. 15 days prior to the incident, the deceased is said to have constructed basement for compound wall, but the accused has demolished the same. A panchayat is said to have been conducted before the elders of the Village, and the accused was admonished therein.
On 23.12.2007, the second wife of the deceased (PW.1), his brother-in-law-PW.2, and his son through first wife, i.e., Velaga Abbayi Dhora (LW.1), (who is no more), were said to be sitting in their house at 5.00 p.m. The accused is said to have come to their house, and called the deceased out, for discussion about the house site. After taking him up to some distance, the accused is said to have hacked the deceased. The complaint in this behalf, Ex.P9, was submitted by the eldest son of the deceased Abbayi Dhora (LW.1), on 25.12.2007. According to Ex.P9, when the complainant (PW.1) therein, and his maternal aunt Ramanamma, were in conversation, the accused called the deceased, and hacked on the head and on other parts. He named the persons, who were present there. The incident is said to have been reported to the President of the Panchayat , MPTC, and that, with the help of some persons, the dead body of the deceased was carried to the grave yard on the next day.
For one reason, or the other, the complaint did not result in registration of a crime. It was only on the next day, when the dead body was taken to the grave yard, that Crime No.44 of 2007 was registered under Section 302 IPC, on the basis of information, furnished by PW.1, and formalities contemplated under law, were completed. Investigation was conducted, and the charge sheet was filed. The trial Court framed the charge, and put the accused to trial. The prosecution examined PWs. 1 to 9 and filed Exs.P1 to P17. MOs.1 to 3 were also taken on record.
Sri K. Suresh Reddy, learned counsel for the accused submits that, the very manner of initiation of proceedings, by the police, is uncertain, and several aspects, remain unexplained. He submits that the incident is said to have taken place at 5.00 p.m. on 23.12.2007, whereas, the F.I.R. (Ex.P10) was registered on 26.12.2007. He contends that, Ex.P9, said to have submitted by the son of the deceased, was not acted upon, and the version of PW.1, about the furnishing of information to the police, becomes untenable. He submits that registration of crime, two days after the occurrence, which is said to have been witnessed by the family members of the deceased, brings about serious legal infirmity. It is argued that the status of PW.1, vis--vis, the deceased, is some what strange, and if one takes into account, her version that they thought over the event for the entire night of 23.12.2007, as to what should be done with the dead body, and ultimately, took it in the after noon to the grave yard, without submitting any complaint, the artificiality of the case becomes clear. He further submits that the evidence of PW.2 is equally unreliable, and there was no basis for the trial Court, to convict the accused.
Learned Public Prosecutor, on the other hand, submits that contents of Ex.P9, would reveal that there is hardly any delay. According to him, the delay in registration of the F.I.R., was on account of the lack of certainty, on some aspects. He submits that the trial Court has taken all the relevant factors into account, and convicted the accused.
It is no doubt true that Ex.P9 was submitted by the son of the deceased, who is said to have died, during the pendency of the present case. However, neither there is an endorsement made upon it, nor any case was registered on the basis of it. While, in Ex.P9, PW.1 was descried as the maternal aunt to the son of the deceased, PW.1 stated that she is the second wife of the deceased. In her cross examination, PW.1 admitted that her marriage, with the deceased, took place three months prior to the incident, but, both of them had a child of three years, by that time. She sated that after the accused called the deceased out, and both of them were proceeding, she followed them, and his son, till the accused hacking her husband. According to her, PW.2, one V.Konda Babu, and PW.3 have also witnessed the incident. She did not make any reference to the complainant under Ex.P9. However, she admitted that the complaint was given by the Abbayi Dhora (LW.1). As to the nature of steps taken by her, after noticing the alleged attack; she sated as under:
"....Myself and my relations have thought over the matter on that day evening and we carried the dead body on next day morning. Poiba Bojjanna, the sarpanch gave report to the police. I went to the police station, where my statement was recorded...."
This is not at all the conduct expected of from a person, claiming to be a wife of the deceased. Once, she was aware of that an incident of that nature, must be reported to the police, she was required to do that, at the earliest. Even according to her, she informed the police on the next day. However, the record does not support this. As observed earlier, F.I.R was registered, only on the next day.
PW.2 stated that when the deceased followed the accused on being called, PW.1 and LW.1, have followed them, whereas, he was standing at the house of the accused. He categorically stated in his evidence that he witnessed the hacking of the deceased with axe, by the accused. While according to PW.1, the body was kept in the house. It was only on the next day that, it was taken to the grave yard of Munchingput. PW.2 stated that, it took two days for them to take the body to the police, and that the inquest was conducted at the burial ground. PW.2 did not make any reference to the presence of PW.3.
In his evidence, PW.3 stated that she too was present, when the incident took place. He is consistent with the PW.1 and PW.2, in stating that, the incident occurred in the evening of 23.12.2007, the dead body was taken to the burial ground, on the next day. He too is silent, as to how the police registered the crime, only on 25.12.2007. The reason mentioned in Ex.P10, is as under:
"....The lodging of report is delayed because of the transmission of the dead body from the place of offence...."
It is important to note that, LW.1 is mentioned as complainant. The Investigating Officer (PW.8), stated that even after the dead body was brought to the burial ground, near the police station, he asked the relatives of the deceased, to wash the dead body, and he went to the burial ground, only on 26.12.2007. In his cross examination, he stated that none of the witnesses examined by him, have stated as to on which side of the neck, the deceased was hacked by the axe.
Several persons, who were named in the evidence of PWs.1 and 2, were not examined at all. For the body of a person, who was said to have been killed at 5.00 p.m., on 23.12.2007, the inquest itself, was conducted at about 10' o clock, on 26.12.2007. No explanation, whatever was forthcoming. It has already been observed that the evidence of PW.1, does not command, any acceptance, be it on account of a nature of relationship, which she maintained with the deceased, or the acts and omissions, on her part, after the incident, had occurred. We find several missing links in the entire prosecution. The conviction, and sentence ordered against the accused, cannot be sustained in law. In the result, the appeal is allowed. The conviction and sentence ordered in S.C.No.162 of 2008 on the file of the VIII Additional District & Sessions Judge (FTC), Visakhapatnam, dated 30.10.2009, against the appellant-accused, are set aside. The appellant-accused shall be set at liberty forthwith, unless his detention is needed in any other case. The fine amount, if any, paid by the appellant-accused shall be refunded to him.
The miscellaneous petitions, if any, filed in this appeal shall also stand closed. There shall be no order as to costs.
__________________________ L.NARASIMHA REDDY, J.
_________________________ M.S.K. JAISWAL, J.
Date :11.03.2014