Andhra Pradesh High Court - Amravati
Yelampalli Narayana Reddy 2 Others vs The State Of A.P. on 8 January, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Ganga Rao
HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE M.GANGA RAO
Criminal Appeal No.461 of 2013
JUDGMENT :(Per the Hon'ble Sri Justice C.Praveen Kumar)
1. A1 to A3 in S.C. No.48 of 2012 are the appellants herein. Originally, A1 was tried for offences punishable under Sections 324 and 302 I.P.C.; A2 was tried for the offence punishable under Section 302 I.P.C.; and A3 was tried for the offence punishable under Section 302 read with Section 34 I.P.C. By its judgment dated 17.4.2013 the learned V Additional Sessions Judge, Fast Track Court, Kurnool at Nandyal found A1 and A2 guilty for the offence punishable under Section 302 I.P.C., while A3 was found guilty for the offence punishable under Section 302 read with Section 34 I.P.C., but, however, acquitted A1 for the offence punishable under Section 324 I.P.C. Challenging the same, the present appeal came to be filed.
2. The facts, as culled out in the evidence of the prosecution witnesses, are as under :
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A1 and A2 are brothers and sons of one, Sunki Reddy, while A3 is son of one Chowdeswara Reddy and related to A1 and A2. The deceased is the elder brother of P.W.1 and they are sons of Pasula Subbarayudu. P.W.2 is the junior paternal uncle of P.W.1, while P.W.3 is the younger brother of P.W.2 and Pasula Uma Devi is the wife of the deceased. A1 has one daughter by name Sujatha and a son by name Nagarjuna Reddy. Sujatha studied up to intermediate at Rao's College, Nandyal. In the year 2008, the elder brother of P.W.1 fell in love with A1's daughter and both of them left the village. Five or Six months thereafter, both of them returned to the village stating that they were in Tenali till then. The daughter of A1 lodged a criminal case against the deceased, P.W.1 and father of the deceased for offences of rape and kidnap. Police investigated and filed a charge-sheet in the said case vide S.C. No.538 of 2010 before the Principal Assistant Sessions Judge, Nandyal. However, in the said case, the witnesses turned hostile and the said case ended in an acquittal. Later, A1 got married his daughter Sujatha to a person from Durvesi Village. Five months later, the deceased also married one Pasula Uma Devi, a resident of Malayala Village. A1 suspected, the deceased was still going to Sujatha's house and was found roaming around the said house. On 9.2.2011, A1 warned the father of the 3 deceased about the conduct of the deceased. It was informed that in spite of warning, the deceased is roaming around the house of Sujatha and that he would take action at his will. On the same day, the deceased along with P.W.1 and others were called for hamali work so as to weigh the jowar at the house of P.W.6. Accordingly, at about 7.30 AM on 10.2.2011, all of them proceeded to the house of P.W.6. The deceased and P.W.1 were going ahead carrying weights, while P.Ws.3, 4 and 6 and other hamalies were following them with other equipments. It is said that, when the deceased and P.W.1 reached the house of P.W.6, at about 8.00 AM and immediately after putting down the weights, A1 to A3 along with sticks came from the hayrick yard of one Mohan Reddy and by raising cries, beat on the head of the deceased. The deceased tried to ward off the blow by raising his right hand. At that time, A3 caught hold of the deceased, as a result of which, he sustained an injury on his right hand. It is said that when the deceased was running towards pullimaddi river/kundu rastha, A1 caught hold of the deceased's hands near the hayrick yard gate of P.W.6 and A1 and A2 beat the deceased with a cart pegs, as a result of which, the deceased fell down saying that he was killed. A1 to A3 escaped from the scene. Meanwhile, P.Ws.2 to 6 came running towards the deceased and 4 noticed the accused running away. Then P.Ws.1 and 2 informed over phone to P.W.1's brother-in-law and then both of them went to Nandyal Taluk Police Station in an auto. P.W.13 - S.I. of Police registered a case in crime No.34 of 2011 under Section 302 read with Section 34 I.P.C. and issued Ex.P11 - F.I.R. Thereafter, he left to the scene of offence. P.W.15 - Inspector of Police took up further investigation and after receipt of information about the incident, rushed to Munagala Village at 10.00 AM, by which time, the S.I. was also present. He noticed the dead body of the deceased lying in a pool of blood in front of hayrick yard. He tried to secure the information, but they refused to give any complaint stating that they will do so after the arrival of the wife of the deceased. His enquiries revealed that brother of the deceased i.e., P.W.1 already rushed to Nandyal Taluk Police Station for lodging a report. On his instructions, Sub-Inspector went to Nandyal Taluk Police Station to register a case. At 12.45 PM, while he was present at the scene, S.I. returned to scene and handed over a copy of crime. After receiving the copy of F.I.R., P.W.13 conducted inquest over the dead body. At the time of inquest, he examined P.Ws.1 to 3 and also seized bloodstained clothes of the deceased, bloodstained control earth. Ex.P20 is the inquest report. He also got prepared a rough sketch of the scene, which is placed on 5 record as Ex.P15. He also got the scene of offence photographed and the same was marked as Ex.P16. After conducting the inquest proceedings, he sent the body for post-mortem examination.
3. P.W.14, who was working as Civil Assistant Surgeon in Government Hospital at Nandyal, conducted autopsy over the dead body of the deceased and issued Ex.P14 - post-mortem report. According to him, the deceased died due to cut injury to vital organs like brain. On 15.2.2011, on reliable information about the accused, P.W.13 left along with C.I., panchayatdars and staff towards Kanala. At Nagarjuna residency school on Nandyal to Kanala road, he noticed three persons who on seeing the police party, tried to run away. It is said that they were chased and apprehended and on interrogation, they revealed their identity and confessed about the offence. Ex.P17 is the admissible portion of confession-cum-arrest panchanama. Pursuant to the confession, the accused lead them to Sunkulama temple, from there, the accused produced three cart pegs used in the commission of the offence and two sticks which are bloodstained in the upper portion. M.O.6 are the three cart pegs. The material objects are seized under Ex.P13. After collecting the FSL report - Ex.P19 and letter of advice - Ex.P18, he filed the charge-sheet, which was 6 taken on file as PRC No.41 of 2011 on the file of the Judicial Magistrate of First Class, Nandyal. On appearance of three accused, copies of the documents, as required under Section 207 Cr.P.C., came to be supplied. Since the offence is triable by the court of sessions, the same was made over under Section 209 Cr.P.C. On appearance of the accused, charges as referred earlier came to be framed, read over and explained to the accused, to which they pleaded not guilty and claimed to be tried.
4. In support of its case, the prosecution examined P.Ws.1 to 15 (P.Ws.5 to 7 and P.Ws.9 to 12 did not support the prosecution case and turned hostile) and got marked Exs.P1 to P20. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material appearing against them, to which they denied. Though no oral evidence was adduced, but, they got marked Exs.D1 to D14. Believing the evidence of P.Ws.1 to 4, coupled with the medical evidence, the learned Sessions Judge convicted the accused. Challenging the said conviction and sentence imposed, the present appeal came to be filed.
5. Learned counsel for appellants mainly submits that there are number of circumstances to indicate that P.Ws.1 to 4, who are 7 closely related to the deceased, are not speaking the truth. According to him, there is any amount of doubt as to whether really P.Ws.1 to 4 were present at the scene. Apart from that, he would contend that there was no proximate or immediate motive for the accused to attack the deceased. It is his plea that the case which was registered against the deceased and his family members ended in a acquitted pursuant to a compromise, therefore, the question of attacking the deceased because of said motive namely, deceased and daughter of A1 eloping, cannot be believed. He further submits that F.I.R. itself is a suspicious document. According to him, P.W.1 went to the Police Station at 8.30 AM and gave a report, but a perusal of Ex.P1 would show that the said document was written in Munagala Village, but not at the Police Station as alleged by the Prosecution. He also pointed out interpolations with regard to the name of A3 and the time. He pleads that if really the report was given at 8.00 AM, there is no explanation as to why it reached the court at 10.40 PM on the same day, though the distance between police station and Magistrate Court is only about 200 meters. According to him, Ex.P1 came to be prepared after the arrival of the family members and also after the inquest and post-mortem and that was the reason why the F.I.R. reached the Court late in the night. He 8 further submits that the medical evidence is inconsistent with the prosecution case. The evidence of the prosecution is to the effect that initially the deceased was attacked with sticks and thereafter when he started running, A3 caught hold of him and A1 and A2 stood before him and beat him with cart pegs. According to him, if really the deceased was attacked by standing in front, the injuries would have been on the front portion of the head, but in the instant case all the injuries are on the left side. In fact, the Doctor was not confronted with the weapon to say as to whether these injuries are possible with M.O.6. It is further urged that when the deceased and P.Ws.1 to 3 have their own autos, it is impossible to believe that they would have hired as hamalies and carried the equipments from their house to the house of Shiva Shankar Reddy, when they can easily carry them in their autos. Further, the blind turning on the western side of the scene of offence, which is at a distance of 125 feet from the scene, makes it improbable for P.Ws.2 to 4 witness the incident, since they were coming way behind the deceased and P.W.1.
6. On the other hand, learned Public Prosecutor would contend that the evidence of P.Ws.1 to 4, which is consistent not only with the contents of Ex.P1, but also with their earlier statements has to be believed and as such, the conviction and sentence requires no 9 interference. According to him, though all the four witnesses were cross-examined at length, nothing useful came to be elicited to discredit their testimony. It is his case that the accused had a motive to attack the deceased, since the deceased was going around the house of the daughter of A1 though she was married. In fact, a warning to that effect was also given to the father of the deceased. That being the position, it cannot be said that the motive was stale or not proximate to the incident. Coming to the First Information Report, he would contend that there is nothing unusual. According to him, the distance between the police station and the village, where the incident took place is about 10 KMs. That being so, the delay of 3 ½ hours in lodging the report is not fatal to the prosecution case. The word 'Munagala' mentioned on the top of the first report does not make the contents of the report suspicious for the reason that even P.W.1 in his evidence deposed that the report was prepared in the village and then went to the Police Station. Therefore, he pleads that there is no delay in lodging the report and the argument of the learned counsel for the appellants that Ex.P1 is suspicious has no basis.
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7. The point that arises for consideration is, Whether the prosecution was able to prove the guilt of the accused for the offence punishable under Section 302 read with Section 34 I.P.C.?
8. As seen from the evidence on record, the entire case rests on the evidence of P.Ws. 1 to 4 and P.W.8. Other independent witnesses P.Ws.5 and 6 did not support the prosecution case and they were turned hostile by the prosecution. Two inquest panchas P.Ws.11 and 12 did not support the prosecution case and also panchas for arrest - P.Ws.9 and 10 did not support the prosecution case. Therefore, the entire case now rests on the evidence of P.Ws.1 to 4 and 8.
Motive :
The incident of daughter of A1 absconding with the deceased took place sometime in the month of December, 2018. Within few days thereafter, they returned to the village. It has come on record that A1's daughter Sujatha lodged criminal case of kidnap and rape against P.W.1, deceased and others. It is said that when the case was going on, marriage of Sujatha was performed with a person from Durvesi Village, while the marriage of the deceased was also performed with one Pasula Uma Devi. Having regard to the above, witnesses turned hostile and the case ended in an 11 acquittal. On 9.2.2011, A1 warned the father of the deceased about the conduct of the deceased and that he will take stern action. As seen from the record, though initially a case was registered for kidnap and rape, which was taken on file as S.C. No.538 of 2010 before the Principal Assistant Sessions Judge, Nandyal, the said case ended in acquittal pursuant to a compromise. The counsel for the appellants would contend that in view of the acquittal, there cannot be any motive for the accused to attack the deceased, but the learned Public Prosecutor would contend that A1 informed father of the deceased about the deceased roaming around the house of Sujatha, which made the accused to attack the deceased.
It is to be noted that motive pales into insignificance when there are eye-witnesses to the incident. The question now is, whether the evidence of P.Ws.1 to 4 and 8 can be believed and whether Ex.P1, the first report was brought into existence at the instance of rivals in the village.
9. The incident in question is said to have taken place on 10.2.2011 at about 8 AM. According to prosecution, P.W.1 is said to have gone to the Police Station and lodged a report. P.Ws.1 and 2 claim to have reached Police Station by 9.30 AM, but waited 12 there till the arrival of S.I. of Police who came to Police Station at 11 AM. It appears that at that point of time, Ex.P1 - Report came to be prepared by the brother of P.W.1 to his dictation and then P.W.1 is said to have signed the report. But a perusal of the original of Ex.P1 report would show as if it was prepared in Munagala Village, because on the top of the report it was written "Munagala". Unless something relating to Ex.P1 occurred in the village, the same would not have been mentioned. Further, a reading of the original report written in Telugu would show that no only the name of A3 was interpolated, but there were alterations as to the time (8 AM). This fact was admitted by P.W.13 in his cross-examination, which is as under :
"The last lines of complaint marked as Ex.P1 go to show as in Ex.D1. The name of 3rd accused appear to be interpolated as per complaint and so also the time of 8.00 a.m."
Further, a perusal of the evidence of P.W.13, the S.I. of Police, who proceeded to the scene of offence after receiving telephonic information about the incident, would show that he left the Police Station at 10.00 AM on instructions of his seniors by which time P.Ws.1, 2 and one Suresh were in the Police Station. According to him, a report was given to him, which was drafted at Munagala. But, P.W.1 never said that the report was drafted at Munagala. If 13 really a report was given by PW.1 at 10.00 AM to P.W.13, there was no reason for P.W.1 and others to wait till the arrival of C.I. of Police at 11 AM. No explanation is forthcoming from the prosecution.
10. Further, in the cross-examination, P.W.13, the S.I. of Police, admits that he went to scene of offence by 9.15 AM itself and nobody came forward to give a report thought P.W.3 and other eyewitnesses were present. He tries to get over the situation by stating that since Inspector was present at the scene he did not enquire about the offenders.
11. The evidence of P.W.15, the Inspector of Police, would show that he rushed to Munagala by 10 a.m. and found the dead body lying on a hayrick yard. He tried to secure a report, but they replied stating that the report would be lodged after the arrival of the wife of the deceased. Ex.D1 is the portion in Ex.P1 Report, which would show that "the sister-in-law narrated the incident to her parents and relatives and after their arrival, they are lodging this written report." A reading of the report - Ex.D1 would reveal that the report was not lodged at 11 a.m. as stated by P.W.1 in the evidence. Further P.W.1 in his earlier statement recorded under 161 Cr.P.C., marked as Ex.D2 through P.W.15, the Investigating 14 Officer, would disclose that report was given after the arrival of the relative of the deceased. The evidence of P.W.3 shows that the relatives of deceased including his wife arrived in the village at 4 or 5 p.m. on 10.2.2011. Therefore, lodging of Ex.P1 report at 11 a.m. is highly doubtful.
12. The argument that the first report came to be prepared only after the arrival of all the relatives and every effort was made to implicate the accused stands fortified by the admission of P.W.13 in cross, to the effect that though the distance between police station and court is only 200 meters, the F.I.R. reached the court at 10.40 PM though alleged to have been registered at 11.30 AM. Even the inquest report was received by 11.00 PM. Hence, there remained an unexplained delay of 11 hours which probabalises the defence theory, that everything happened after the inquest, Postmortem and after the arrival of the family members.
13. As observed by us, even in the belated report, the name of A3 and the time of incident were interpolated, which is admitted by P.W.13. Therefore, a doubt arises as to the very lodging of the report and the contents therein. When once the fabric of the case is doubtful, the case has to be viewed with suspicion, unless there is other strong evidence connecting the accused with the crime. 15
14. The prosecution is relying upon the evidence of P.Ws.1 to 4 to prove their case. P.W.1 in his evidence deposed that on 10.2.2011 at about 7.30 a.m., himself, P.W.2, deceased and others went to the house of one Lakshmi Reddy. From there, P.W.1 and the deceased went to the house of one Siva Sankar Reddy by taking 20 K.Gs. weight and wooden planks (spans). When they were placing the weighing material, A1 to A3 came there armed with sticks from the hayrick yard of one Mohan Reddy and attacked. When A1 tried to beat on the head of the brother of P.W.1 with the stick saying that deceased was not listening to them and only if he was murdered it can be solved, he raised his hands to protect himself from being beaten by A1. When the deceased was running towards Pullimaddi river, A3 caught hold of his hand near the hayrick yard gate of one Siva Sankara Reddy, then A1 and A2 beat him with cart pegs. The deceased fell down saying that he was murdered. A1 to A3 absconded from the scene. Meanwhile, the witnesses present there came to the scene. On seeing them, A1 to A3 absconded with the sticks towards Pullimaddi river rastha.
15. In the cross-examination P.W.1 admits that they have their own auto which is driven by himself and his deceased brother on hire. He further admits that whenever there is necessity for them to take vegetables in the morning, they use their auto. It is the 16 case of the prosecution that P.Ws.1, 2 and deceased carried 20 K.Gs. weight and wooden planks (spans) from their house to the house of one Sivasankar Reddy. When they are having autos and when they use those autos to carry vegetables, it is difficult to believe that they would have carried such heavy articles with them instead of carrying them in the auto. Be that as it may, the evidence on record show that P.Ws.1, 2, 3 and others were standing at the house of Sivasankar Reddy when the incident in question took place. If really they were present, at least an effort would have been made to save him or interfere when the accused attacked, more so when they were with some iron material in their hands. Further, it is the evidence of all the witnesses that initially A1 tried to beat on the head of the deceased with stick saying that the deceased was not listening to them and only if he was murdered it can be solved; the deceased is said to have raised his hands to protect himself from being beaten by A1. When deceased was running towards Pullimaddi river, A3 caught hold of deceased's near the hayrick yard gate of one Siva Sankara Reddy and then A1 and A2 beat him with a cart pegs. Deceased fell down saying that he was murdered. Thereafter, the accused absconded. At this stage, it is to be noticed here that the medical evidence does not tally with the version of the eyewitnesses. All 17 the injuries on the body of the deceased were found only on the left side of the head. If really the deceased was attacked by A1 and A2 when he was caught by A3 from behind, injuries on the one side of the body would not have caused. This throws some suspicion as to the manner in which the incident took place. In the cross-examination, the Doctor admits, the death might have occurred prior to 5.30 AM, meaning thereby, the version of the prosecution that incident occurred at 8 AM is incorrect.
16. Having regard to the findings arrived at, we feel that it is a fit case where benefit of doubt can be extended to the accused.
17. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellants/accused Nos.1 to 3 in the judgment dated 17.4.2013 in S.C. No.48 of 2012 on the file of V Additional Sessions Judge (Fast Track Court) Kurnool at Nandyal, for the offence punishable under Section 302 IPC against A1 and A2 and under Section 302 read with Section 34 I.P.C. against A3 are set aside. Consequently, the appellants/accused Nos.1 to 3 shall be set at liberty forthwith, if not required in connection with any other case or crime.
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Consequently, miscellaneous petitions pending, if any, shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR _________________________ JUSTICE M.GANGA RAO Date : 08.01.2020.
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