Andhra HC (Pre-Telangana)
State Of A.P., Rep. By Its P.P.,High ... vs Rayudu Ramana & Another on 10 February, 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.Appeal No.540 of 2009 10-02-2014 State of A.P., rep. by its P.P.,High Court of A.P., Hyderabad... Appellant Rayudu Ramana & another...Respondent <GIST: >HEAD NOTE: ?CASES REFERRED :.... THE HON'BLE SRI JUSITCE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K.JAISWAL Dt. 10.02.2014 CRIMINAL APPEAL No.540 of 2009 JUDGMENT:
(Per the Hon'ble Sri Justice M.S.K.Jaiswal) Aggrieved by the Judgment of the learned VII-Additional Sessions Judge, Kakinada, dated 28-1-2008, in S.C.No.529 of 2006, acquitting the accused of the charge under Section 302 read with 34 of I.P.C., the State preferred the appeal.
2. The allegations in brief are as follows:-
One Vittanala Venkata Ramana @ Ramana (deceased) is the elder son of Vittanala Narayana @ Narayaudu who is a resident of Ramanayyapet, Kakinada Rural. Vittanala Narayana @ Narayaudu has four sons and a daughter. His 3rd son by name Krishna (P.W.3) was given adoption. While the deceased and his younger brother were residing in Hyderabad and working in Cinema Hall, the deceased and his younger son Simhachalam (P.W.3) were residing in a thatched house at Ramanayyapeta. The deceased divided his 150 yards of site equally among his three sons including the third son who was given in adoption. P.W.1 has got another 75 sq.yds., of site in the same street and he promised for giving it to the wife of the deceased (P.W.1) and his third son (P.W.3). The accused who are the sons of his daughter raised dispute claiming share of their mother. The relation between the accused and the deceased became strained.
On 26-11-2005 the deceased along with his wife (P.W.1) came to Gollagunta to attend a marriage function. From there he came to Ramanayyapeta to the house of his father Vittanala Narayana on 8-12-2005. On 9-12-2005 while the deceased was at the house of Vittanala Narayana, the accused took the deceased to their house, supplied brandy and within a short time the deceased returned to his house in drunken state and informed that he consumed liquor, supplied by A.2. Meanwhile, the accused along with their parental uncle Krishna (L.W.12) came to the house of the deceased and they all consumed liquor with the deceased.
Later the accused picked up a quarrel with the deceased regarding the share of their mother out of 75 yards of the site. Then the accused pounced upon the deceased, beaten him with hands, squeezed his neck, fisted on his chest and stomach and at the same time the accused Sattibabu kicked on the testicles of the deceased. Then P.Ws.2, 3 and Krishna who were present separated the deceased from the hands of the accused and took him into their house. The deceased vomitted and became unconscious. Vittanala Narayana (L.W.2), P.Ws.3 and 4 shifted the deceased to the Hospital of P.W.12 in the auto to P.W.9, the doctor, who examined the deceased and declared him as dead.
On the basis of report of PW.1, a case in Cr.No.240/2005 under Section 302 of IPC., was registered by PW.15. He intimated the matter to the Inspector of Police, Kakinada Rural (P.W.16), who took up investigation in the case. The Doctor who conducted autopsy over the dead body of the deceased opined that the cause of death is "asphyxia due to throttling".
3. A charge under Section 302 read with 34 of I.P.C. was framed, read over and explained to the accused, to which they pleaded not guilty. Prosecution examined PWs.1 to 16 and produced Exs.P.1 to P.14 and M.Os.1 to 4. When examined under Section 313 of Cr.P.C., the accused denied the incriminating material in the evidence against them. Except for marking Ex.D.1, which is the relevant portion of Section 161 of Cr.P.C., statement of P.W.9, no other evidence was adduced on his behalf.
4. Learned Public Prosecutor submits that the evidence that is placed on record was cogent and reliable but the accused have been acquitted by placing reliance on the minor discrepancies.
5. Learned Counsel for the accused submits that the evidence on record did not establish conclusively that it is the accused who have committed the crime and the evidence of P.Ws.1, 3, 4 and 5 was rightly rejected and the accused were given the benefit of doubt.
6. The point that arises for consideration is whether the prosecution proved its case beyond reasonable doubt warranting interference with the Judgment rendered by the learned Sessions Judge?
7. The accused are alleged to have caused death of their maternal uncle - Vittanala Venkata Ramana on 9-12-2005 at about 2.30 p.m., by assaulting him with hands and legs on chest, stomach and testicles. P.W.1 - the de facto complainant is the wife of the deceased whereas P.Ws. 2 to 8 are said to be the eyewitnesses. P.Ws.2 and 3 are the younger brothers of the deceased, P.W.4 is the cousin brother of P.W.1 whereas P.Ws.5 to 8 are said to be the neighbouring residents. While P.Ws.1 to 4 can be categorized as interested witnesses, P.Ws.5 to 8 are the independent eyewitnesses.
8. The motive for the alleged incident is said to be the demand of the accused for a share in a plot of 75 Sq.Yds., which was owned by the father of the deceased and maternal grandfather of the accused. The accused are the sons of Laxmi, who was the only daughter of Vittanala Narayana, who had four sons, viz., the deceased, P.Ws.2 and 3, and one Satyanarayana. While P.W.3 went in adoption, the deceased and another brother Satyanarayana used to reside at Hyderabad, eking out their livelihood. Their sister Laxmi was married to one Simhachalam but was deserted by him. She is living with her four sons, two of whom are the accused.
9. The allegation, in brief, is that on 8-12-2005 the deceased, P.W.1 and others gathered at the house of Vittanala Narayana at Ramanayyapeta village. The accused and the deceased are said to have consumed liquor and were fully intoxicated. During the course of altercation about the property, the accused are said to have fisted the deceased with hands and legs on various parts of the body, due to which he fell unconscious and when he was taken to Madhavi Nursing Home; he was shifted to the Government General Hospital, Kakinada, on advice, and there he was declared as brought dead. Thereafter, the deceased was brought back to the house. All this is said to have happened in the afternoon at about 2.00 p.m.
10. After the arrival of P.W.4, the cousin brother of P.W.1 and on his advise, P.W.1 went to Sarpavaram Police Station at about 10.30 p.m. in the night and lodged the complaint Ex.P.1, and on the basis of it, a case in Cr.No.240 of 2005 was registered and the F.I.R- Ex.P.13 was issued. The dead body was subjected to post-mortem examination by the Medical Officer-P.W.14 at about 9.00 a.m. on 11-12-2005. It was found that the deceased had as many as '10' external ante- mortem injuries and 'five' internal injuries. After getting the viscera analysed chemically, the Doctor-P.W.14 took into account Ex.P.11, the report from the Forensic Science Laboratory and opined that the cause of death is asphyxia due to throttling. Ex.P.12 is the final opinion of the Doctor.
11. It is manifest that the case is based upon the evidence of as many as 'eight' eye-witnesses, out of whom 'four' are relations of the deceased and the remaining 'four' are independent. It is not as though that the evidence of the interested witnesses cannot be made the basis for driving home, the charges against the accused, but the essential requirement thereof is that the evidence of such witnesses should be cogent, consistent and convincing. This requirement will be all the more relevant if either there are no independent eye-witnesses or if their evidence does not support the case of the prosecution.
12. Firstly, it may be apt to refer to the evidence of the independent witnesses, who are examined as P.Ws.5 to 8.
13. P.W.5 deposed that on the date of the incident, in the noon-time, the accused and the deceased consumed liquor and thereafter they beat each other, in front of his house. He is silent about the allegation that it is the accused, who have fisted and kicked the deceased on neck, chest and testicles.
14. P.W.6 is a resident of the house opposite to the house where the incident is said to have taken place. She deposed that she does not know anything about the incident. Obviously, she was declared hostile by the trial Court, at the instance of the prosecution. In the cross-examination she denied having stated before the police as in Ex.P.4 or before the Magistrate in Ex.P.5.
15. Similarly, P.Ws.7 and 8, who are also neighbouring residents, have denied any knowledge about the incident proper. They claimed to have come to know about the incident subsequently through others.
16. It is apparent from the above that all the 'four' independent eye- witnesses have resiled from their previous statements and denied of having seen the incident. Therefore their testimony is of no help to the prosecution.
17. What is now required to be seen is as to whether the evidence of P.Ws.1 to 4 is cogent, consistent and whether it establishes the guilt of the accused. On a careful perusal of the testimony, what is noticed is that their evidence does not inspire the confidence of the Court and it is inconsistent and discrepant insofar as the material aspects are concerned. In the criminal trial, the complaint, which is the earliest narration of events, is important and though it is not supposed to contain of the minute details, it shall certainly contain the material allegation, the specific overt acts and the persons who have witnessed the incident to the extent possible. This gives the gist of the crime, around which the prosecution can built its edifice. In the instant case, it is mentioned by P.W.1 in Ex.P.1 - complaint that on 9-12-2005 at about 2.30 p.m., her husband was taken by the accused to their house along with liquor bottles and thereafter, her husband came and informed them that he was given liquor by A.2. It is further stated that sometime thereafter, both the accused and their paternal uncle (P.W.3) came to their house and all the four of them consumed liquor. Thereafter, both the accused are stated to have kicked her husband on chest and stomach. A specific allegation is that A.2 kicked her husband on the testicles.
18. As against this, the evidence of P.W.1 is that after consuming liquor, A.1 caught hold of the neck of her husband and squeezed it, A.2 kicked on the testicles of her husband with his knee portion of legs and both the accused fisted her husband on the face, chest and all over the body. It is noticed that there is no specific mention of A.1 squeezing the neck of her husband in Ex.P.1, but the same has been spoken to by P.W.1 in her evidence ostensibly for the reason that as per the medical evidence, the cause of death is asphyxia due to throttling but not due to any other injuries.
19. The brother of the deceased-P.W.2, however, has a different version about the incident. According to him, the deceased and the accused consumed liquor and were quarrelling with each other and both of them pushed each other. He further stated that when he (P.W.2) intervened, his deceased brother slapped on his cheek, due to which he fell down and got reeling sensation, and thereafter was not able to notice anything. It is evident from the statement of P.W.2 that the incident as alleged by P.W.1 either in her evidence or in her complaint - Ex.P.1, has not taken place and he did not witness anything of that kind.
20. P.W.3 is another eye-witness and brother of the deceased. His evidence with regard to the incident is that on 9-12-2005, at about 9.30 a.m., he went to the house of his father where the accused and his deceased brother were quarrelling, at about 2.00 p.m., the deceased was shifted to Hospital, and the accused and the deceased were in a fully drunken condition. He further deposed that when Rayudu Krishna caught hold his deceased brother, A.1 and A.2 beat his brother. This witness has given an altogether new dimension to the entire case of the prosecution. According to him, it is not only the two accused, but also one Rayudu Krishna, who are involved in the crime. It has come in the other evidence that Rayudu Krishna was also detained by the police for three days in this crime but subsequently released and has not been charge-sheeted. That apart, P.W.3 is conspicuously silent about the specific overt acts such as squeezing the neck of the deceased, giving fist and kicking blows on different parts of the body. In addition to it, according to this witness, the incident took place at about 9.30 a.m., but not 2.00 p.m., in the afternoon as is the version of P.W.1.
21. The other evidence is that of P.W.4, who is the cousin brother of P.W.1. According to him, he has not seen the incident at all but came there on being informed about the death of the deceased. It is the case of the prosecution that only after the arrival of PW-4 in the night and as per his advise PW-1 went to Sarpavaram Police Station and lodged the complaint, Ex.P.1.
22. Not only the evidence of material witnesses is inconsistent and full of contradictions but it also shows that it lacks the credibility. Sarpavaram P.S., is at a distance of one kilometre from the place where the incident took place. The deceased had three brothers, who are all said to be the eye- witnesses to the incident, in addition to the wife-PW-1. Even though deceased was declared dead at about 2.00 p.m., in the afternoon, none of them thought of approaching the police and lodging the complaint, but have waited till the arrival of PW-4 in the night, and only as per his advice, they lodged the complaint. This is quite unnatural conduct on the part of the material witnesses, if in fact a ghastly crime has been committed in their presence, involving the death of their younger brother at the hands of their nephews.
23. Yet another requirement is that the ocular testimony of the witnesses should correspond with the medical evidence on record. In the instant case, the Doctor PW-14 has categorically opined in his post mortem report, Ex.P12 that the cause of the deceased is "asphyxia due to throttling". As already stated, the cause of death which is mentioned in Ex.P.1 is totally different.
24. Upon carefully scrutinizing the oral and documentary evidence on record, we have no hesitation in holding that the prosecution failed to prove its case against the accused, much less beyond reasonable doubt. The learned VII- Additional Sessions Judge, Kakinada, has appreciated the entire evidence on record in proper perspective and having disbelieved the evidence of material witnesses, acquitted the accused. We see no reasons to take any view other than the one, taken by the learned VII-Additional Sessions Judge, Kakinada. He had an opportunity of observing the demeanour of the witnesses and his findings are based on valid reasons. There are no merits in the appeal and the same is accordingly dismissed.
25. In the result, the Criminal Appeal is dismissed. The material objections, if any, shall be destroyed after the appeal time is over.
_________________________ L.NARASIMHA REDDY, J __________________ M.S.K.JAISWAL, J 10th February, 2014