Andhra Pradesh High Court - Amravati
Beeravalli Narayana Reddy, Guntur ... vs Inspector Of Police, Macherla, Guntur ... on 4 December, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, D Ramesh
HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE D. RAMESH
Crl.A.No.142 of 2015
JUDGMENT :(per Hon'ble Sri Justice C.Praveen Kumar) Challenging the conviction and sentence imposed on the appellants in S.C.No.576 of 2012 on the file of the Court of X Additional District and Sessions Judge, Gurazala, the present Criminal Appeal came to be filed.
Originally, four appellants herein were tried for the offences punishable under Sections 302 read with 34 IPC and 201 read with 34 IPC for causing the death of one Saida Reddy on 18.11.2011 at 08:00 p.m. The facts as culled out from the evidence of the prosecution witnesses are as under:
PW1 is the father of PW2 and PW3 is the brother of PW1. PW4, who is stated to be the cousin of A1, is said to have developed illicit intimacy with the deceased, who is none other than the son of PW1. PW1 owned Ac.01.50 cents of wet land situated near Buggavagu dam which is towards southern side of the village. It is stated that on 18.11.2011 at about 07:00 p.m., the deceased went to his fields to fetch water with the help of oil engine. He claims to have gone on a motorcycle belonging to one G.Tirumal Reddy (LW5). But however, did not return home till 10:00 p.m. While PW1 and other family members were waiting in their house with the CPK,J & DR,J Crl.A_142_2015 2 hope that the deceased would return home, a villager of Mutyalampadu informed PW1 on phone that one motorcycle was lying on the road near the bridge. Immediately, PW1 went there and noticed the motorcycle as the one on which the deceased went to his field. He searched for his son in the vicinity but in vain. Three days thereafter i.e. on 21.11.2011, they came to know that dead body of the son of PW1 i.e. Saida Reddy was found floating in the waters of Bugga reservoir. On receipt of the said information, the family members including PW1 went there and noticed the dead body in the reservoir.
On the same day, PW1 presented a report before PW14 - Sub-Inspector of Police, Dachepalli, basing on which, a case in Crime No.124 of 2011 came to be registered under Section 174 Cr.P.C. Ex.P9 is the original F.I.R. PW14 proceeded to the scene of offence at 12:30 p.m. and found the dead body of the deceased floating in the water. He prepared an observation report in the presence of mediators and relatives of the deceased under Ex.P2. He got the dead body picked up from the reservoir and then conducted inquest over the dead body. Ex.P3 is the inquest report. At the time of inquest, he examined PWs.1 to 3 and recorded their statements. Later, he sent the body for post-mortem examination to the Government General Hospital, Gurazala. PW12, who was CPK,J & DR,J Crl.A_142_2015 3 working as Medical Officer at Government Hospital, conducted autopsy over the dead body of the deceased and issued Ex.P7
- post-mortem certificate. According to him, the death was due to strangulation and the deceased died about 60 to 68 hours prior to the post-mortem examination. PW14 sent the vicera contents, hyoid bones and skin palps to R.F.S.L., Guntur through the Mandal Revenue Officer. After receipt of R.F.S.L. report under Ex.P8, he altered the Section of law from 174 Cr.P.C. to 302 read with 34 IPC and sent the altered memo to the Court. Ex.P10 is the altered memo.
PW15, who was working as Inspector of Police, took up investigation from PW14, as per the orders of the Superintendent of Police, Guntur and visited the scene of offence at Buggavagu centre along with PW14. He proceeded to Manchikallu village and recorded the statements of PWs.1 to 3. On 12.01.2012, at about 03:00 p.m., while he was in Circle Office, PW11 - Village Revenue Officer, Manchikallu, brought A1 to A4 and produced before him along with the statements of the accused. PW15 detained A1 to A4, interrogated them and recorded their confession statements in the presence of PWs.11 and 13. All the accused are alleged to have confessed about the commission of the offence. Later, he arrested the accused who lead them to the scene of offence. On 07.02.2012, PW15 secured the presence of PW4 CPK,J & DR,J Crl.A_142_2015 4 and recorded her detailed statement. Further investigation was taken up by PW16 who re-examined PWs.1 to 10 and got their detailed statements recorded as part of the Case Diary. After collecting all the documents and recording the statement of all the witnesses, he filed a charge sheet before the Court of II Additional Junior Civil Judge, Gurazala which was taken on file as P.R.C.No.9 of 2012.
On appearance of the accused, copies of documents as required under Section 207 Cr.P.C. were furnished, and thereafter, the case was committed to the Court of Sessions under Section 209 Cr.P.C.
On appearance, charges as referred to earlier came to be framed, read over and explained to the accused, to which they pleaded not guilty and claimed to be tried.
To substantiate its case, the prosecution examined PWs.1 to 16 and got marked Exs.P1 to P11 and MO1. After the closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses, to which they denied, but however, no oral or documentary evidence was adduced in support of their defence.
The learned Sessions Judge convicted the accused based on three circumstances. (1) The accused being last seen in CPK,J & DR,J Crl.A_142_2015 5 the company of the deceased (2) Extra-judicial confession made before the Village Revenue Officer - PW11 and (3) The death of the deceased was due to strangulation. Challenging the same, the present appeal came to be filed.
Sri Challa Srinivas Reddy, learned counsel for the appellants, would contend 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 are not proved. He further submits that the finding of the learned Sessions Judge that the accused were last seen in the company of the deceased is incorrect as there is no evidence to that effect. Insofar as extra-judicial confession is concerned, he would submit that some accused persons met the Village Revenue Officer of a different village 2½ months after the incident, but the said Village Revenue Officer, in his cross-examination, admits that such a confession was never made before him. At this stage, he was declared hostile. In view of the above circumstances, he would submit that merely because the death of the deceased was due to strangulation, the same does not by itself lead to an inference that it was the accused who were responsible for the same.
On the other hand, the learned Public Prosecutor opposed the same contending that there was a motive for the CPK,J & DR,J Crl.A_142_2015 6 accused to cause the death of the deceased as PW4, who is the cousin of A1, was having an affair with the deceased and that the accused informed her couple of days earlier about threatening the deceased and also assured that the deceased will not come to her again. Apart from that the learned Public Prosecutor would submit that since the evidence of PW11, Village Revenue Officer, Manchikallu village (though declared hostile) gets corroboration from the evidence of PW13, another Village Revenue Officer of Pokuluri village, the same can be taken as circumstance to believe the extra judicial confession made by the accused. The manner in which the death was caused, as reflected in the confession statement, gets support from the medical evidence and hence pleads that the trial Court was right in convicting the accused.
The point that arises for consideration is whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt?
Before dealing with the arguments advanced, it is to be noted that there are no eye witnesses to the incident and the case rests on circumstantial evidence. In order to prove the case, the prosecution should prove the circumstances relied upon by them and the circumstances so proved should form a chain of events connecting the accused with the crime.
CPK,J & DR,J Crl.A_142_2015 7 The Apex Court consistently held that in a case which rests on circumstantial evidence such evidence must satisfy the following tests:
(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else;
(4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharastra1) It is well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then as held by the Apex Court it is a strong circumstance pointing out the guilt towards the accused.
Keeping in view the law laid down in the judgments referred to above, it is to be seen whether the prosecution was able to prove the circumstances relied upon by the 1 (1982) 2 SCC 351 CPK,J & DR,J Crl.A_142_2015 8 prosecution so as to connect all the four accused with the crime.
The first circumstance which was relied upon is the accused being last seen in the company of the deceased.
In order to establish as to whether the accused were seen in the company of the deceased, we have perused the evidence of all the witnesses which we will dealt with.
PW1 is the father of the deceased. He, in his evidence, speaks about his deceased son leaving his house on the fateful day at 07:00 p.m. on the motorcycle, and thereafter, at 10:00 p.m., he was informed about a motorcycle lying on the road. His evidence is also to the effect that three days thereafter, they came to know that dead body of his son was found near Bugga reservoir. The evidence nowhere indicates that he saw the accused in the company of the deceased.
PW2 is the daughter of PW1. According to her, about 2½ years prior to giving evidence, her deceased-brother went to the fields with the help of a motorcycle belonging to PW5, but he did not report till 10:00 p.m. She also deposed about the information received at 10:00 p.m. about the motorcycle lying on the road near Bugga reservoir and also about the dead body being traced three days after the incident, while it was floating in the river / tank. Her evidence is to the effect that A1 bore grudge as her deceased brother misbehaved with the CPK,J & DR,J Crl.A_142_2015 9 sister of A1 and probably with the help of A2 to A4, he might have killed the deceased. Even her evidence does not anywhere reflect about she seeing the accused and the deceased together or anyone informing her about seeing the accused and the deceased together prior to the incident.
PW3, who is the brother of PW1, in his evidence deposed that on 18.11.2011 at 07:00 or 07:30 p.m., the deceased went to his field on a motorcycle and did not return home subsequently. His evidence toes in line with the evidence of PW2 in all aspects. He also suspects that the accused beat the deceased, killed him and threw the body in the canal as the deceased misbehaved with PW4, who is the cousin of A1.
PW4 is a lady who is alleged to have had illicit intimacy with the deceased. Her evidence is to the effect that on 01.05.2009, her marriage was performed with one Rama Chandra Reddy at Ramalayam Temple, Manchikallu. After the marriage, she started living with her husband and had no issues. According to her, about two or three months ago, before the incident, herself and her husband went to a doctor to check the fertility and the doctor informed that her husband has less fertility and the same came to the knowledge of the deceased. During that period, she is said to have illicit intimacy with the deceased, which came to the knowledge of the senior paternal aunt of A1. The Senior paternal aunt CPK,J & DR,J Crl.A_142_2015 10 came to PW4 and questioned her about the intimacy with the deceased. A1 and the senior paternal aunt of A1 asked her not to talk to the deceased, but however, she continued her intimacy with the deceased. On that A1 grew wild and threatened PW4 not to talk to the deceased and he claimed to have informed PW4 that he would see the end of the deceased. On the date of the incident, at 09:30 p.m., A1 is said to have telephoned to PW4 and informed that he threatened the deceased and the deceased would not come in the way in future. Three days thereafter, PW4 came to know about the death of the deceased. She suspected that A1 is the root cause of the death of the deceased. Even the evidence of this witness does not in any way indicate about the accused being last seen in the company of the deceased. On the other hand, her evidence is to the effect that A1 is said to have threatened the deceased on the fateful day at 09:30 p.m. As stated earlier, she only deposed about the motive of A1 to commit the death of the deceased, which we will deal with a little later, but the evidence of PW4 is silent with regard to the accused being last seen in the company of the deceased.
PW5 is the person who went on a motorcycle to the deceased at 07:30 p.m. His evidence is only to the effect that the deceased did not return home on the said night and three CPK,J & DR,J Crl.A_142_2015 11 days thereafter on 21.11.2011, his dead body was found in the water. His evidence is to the effect that A1 is a cousin of PW4 by courtesy and A1 spread rumors in the village that the deceased developed illicit intimacy with PW4. According to him, all the accused must have conspired to kill the deceased. In the cross-examination, he admits that he was examined one month after the incident and though he was present at the time of inquest, he was not examined by the Sub-Inspector of Police.
PW6 is a person who is running a buddy shop and all the accused came to his shop, purchased three quarter bottles of alcohol for Rs.250/- and consumed it in his shop and thereafter all of them went away.
PW7 is the Village Revenue Officer of Manchikallu village whose evidence will be dealt with a little latter.
PW8, who is a resident of Manchikallu village, was doing field work. According to him, on the date of the incident at 08:00 p.m., he went to the fields to fetch water near Bugga reservoir and after fetching the water he came on to the road at 08:30 p.m. and noticed all the accused proceeding towards Manchikallu village on a motorcycle driven by A2. Thereafter, he returned home around 09:00 or 10:00 p.m. While he was proceeding to his village, he noticed a group of villagers, and when enquired, they informed him that the deceased did not CPK,J & DR,J Crl.A_142_2015 12 return home and his motorcycle was found near the bridge. He accompanied them to the spot and noticed two-wheeler vehicle lying on the bridge. They searched for the deceased, but in vain.
PW9, who is also a resident of the same village, too deposed on the same lines as that of PW8. He also claims to have seen all the accused coming on two-wheeler driven by A2 after crossing Bugga reservoir. Thereafter, PW9 returned home at 09:30 p.m. After reaching the village, he heard from the villagers that the deceased did not come home and his whereabouts were not known. Three days thereafter, he came to know about the death of the deceased.
Thus, the prosecution relied on the evidence of PWs.1 to 5, 6, 8 and 9 to show that the accused was last seen in the company of the deceased, but in our view, the evidence of these witnesses nowhere indicates accused being seen in the company of the deceased. In fact, the evidence of PWs.1 to 6 does not anywhere show about the accused being seen either at the scene of offence or at the place where he was lying. On the other hand, all of them received information while they were in the house and thereafter proceeded to the scene.
PWs.8 and 9 are two witnesses who are relied upon by the prosecution to show that the accused was in the company CPK,J & DR,J Crl.A_142_2015 13 of the deceased together prior to the incident. Strictly speaking, none of them speaks about presence of the deceased anywhere near the scene of offence. On the other hand, they only deposed about all the accused going on motorcycle driven by A2, and thereafter, the villagers informing them about the deceased not returning home and the vehicle of PW5, on which the deceased went to the fields lying on the bridge. This circumstance by itself, in our view, cannot establish that the accused was seen in the company of the deceased. It may be true that the accused were proceeding towards Manchikallu village, as spoken to by PW9, which is inconsistent with the version of PW8, but even assuming it to be true, nowhere the witnesses deposed about the body of the deceased or the blood of the deceased lying at the place where motorcycle was lying.
At this stage, it will be useful to refer to the cross- examination of PWs.8 and 9 and the evidence of the investigating officer with regard to these witnesses i.e. PWs.8 and 9 being present at the scene. A reading of the cross- examination of PW8 would show that he admits to have raised crop in the month of July which will be cut at the end of December. He further admits that generally, before harvesting paddy crop, they do not fetch any water to the fields for ten days. However, he tried to explain the same by CPK,J & DR,J Crl.A_142_2015 14 saying that in the year 2011 he raised paddy crop late. He further admits that he cannot identify the persons on the road. However, in his earlier statement recorded by the police, during the course of investigation, PW8 admits that he did not state before the Investigation Officer that he saw the villagers gathering and discussing about the same. It is useful to refer the same which is as under:
"It is true, PW4 did not state before me that she got illicit intimacy with the deceased and the deceased used to contact her over phone and the same was brought one Lakshmamma. The said Lakshmamma chastised that and subsequently, Lakshmamma informed the same to A1 and on that A1 also threatened her and told her that he will see the end of the life of the deceased. It is true PW5 did not state before me that A1 spread rumors in the village that the deceased got illicit intimacy with PW4.
It is true, he also did not state before me that he has seen gathering of the villagers in their village and discussing about the same."
Coming to the evidence of PW9, he, in his cross- examination, admits that he was examined by the police twice. Firstly, he was examined by the Sub-Inspector of Police and subsequently by Circle Inspector and then by C.I.D. of police. Therefore, the evidence of these two witnesses as stated above, is not only inconsistent but they have not seen the deceased anywhere near the scene. As stated earlier, PW8, in his evidence in chief, states that at about 08:30 p.m., while he was on the road, all the accused were proceeding on motorcycle driven by A2 towards Manchikallu village from CPK,J & DR,J Crl.A_142_2015 15 Bugga reservoir. In their statements recorded under Section 161 Cr.P.C. by the police, PW8 stated that he saw all the accused coming on motorcycle from Bugga reservoir, while the evidence of PW9 is to the effect that on that day at 08:30 p.m., while he was standing at Bugga reservoir, he noticed all the accused coming on two-wheeler driven by A2 after crossing Bugga reservoir. Even assuming that there is not much of the discrepancy with regard to the movement of the accused on the road, but definitely, the circumstances, in our view, cannot be treated as circumstances which would establish that the deceased was last seen in the company of the accused. Hence, the first circumstance relied upon by the prosecution namely the accused was last seen in the company of the deceased is not proved.
The second circumstance relied upon by the prosecution is the alleged extra-judicial confession made before PW11 - Village Revenue Officer. PW11, in his evidence, deposed that he acted as panch for the scene of offence, drafted rough sketch of the scene and also held inquest over the dead body of the deceased. He, in his evidence in chief deposed that he has seen the accused and he knows them and the writing shown to him was drafted by him and that he knows the contents therein. According to him, it was scribed by him on 06.02.2012. The same was drafted as stated by A1 and others CPK,J & DR,J Crl.A_142_2015 16 and duly attested by A1 to A4, and thereafter, it was handed over to the police along with his report. According to him, Ex.P4 is the statement of the accused and Ex.P5 is his report. Thereafter, he claims to have handed over the accused along with Exs.P4 and P5 to the Inspector of Police, Macherla Rural. From the evidence of PW11, it appears that on 06.02.2012, all the accused made extra-judicial confession before him and the statement of the accused was reduced into writing by him vide Ex.P4, and pursuant thereto, he prepared a report Ex.P5 and handed over the same to the police. However, in the cross-examination, he gives a go-by to the said version and states as under:
"It is true, I sent a representation to the Collector through M.R.O., Rentachintala stating that the police came to my house on 06.06.2012 in the night and took me to Macherla Police Station and gave me the paper containing with matter by Inspector of Police, Macherla and asked me to rewrite the same and on protest put my signature. It is also true that the accused did not come to me on 06.06.2012 and I was forced by the Inspector of Police, Macherla to scribe a statement against four innocent persons and I am submitting the truth to the District Collector with a request to provide protection to me from the police. It is true that the accused did not come before me and never gave any confessional statement. I sent a representation to the District Collector on the ground that I may lose my job. I put my signature on Ex.P6 at the instance of S.I. of Police, Macherla without I knowing the contents."
At this stage, the witness was declared hostile. Though it was elicited in the cross-examination that he scribed the CPK,J & DR,J Crl.A_142_2015 17 document, but he goes back on what he has stated in the cross-examination and admits that he put his signature on Exs.P4 to P6 and the contents therein are correct. He further admits that any representation to the District Collector should be sent within two months. He also says that what all he stated has happened. Therefore, this witness, in our view, cannot be treated as a reliable witness. As seen from the evidence of this witness, initially he gave one version and thereafter, in the cross-examination, he goes back on what he has stated in his chief and again in the cross-examination by Additional Public Prosecutor, he admits the contents of Exs.P4 to P6 to be correct. Therefore, we feel that the evidence of this witness cannot be believed, unless the same is corroborated in all material particulars, more so, when the extra-judicial confession made before PW11 was retracted by the accused. This retracted extra-judicial confession being a weak type of evidence, requires corroboration in all material particulars, which is lacking in the instant case.
Coming to the motive for the accused to commit the crime, it is the case of the prosecution that the deceased was having illicit intimacy with PW4 which was not to the liking of A1 who is the cousin of PW4. All the witnesses including PW4 in one voice deposed that they suspected A1 and A1 along with A2 to A4 to be responsible for the death of the deceased.
CPK,J & DR,J Crl.A_142_2015 18 During the course of investigation, none of them expressed any suspicion over the accused till extra-judicial confession is made by them. It will be useful to refer to the cross- examination of PW14 which is as under:
"It is true, PW1 stated before me as in Ex.D1 and PW2 also stated before me as in Ex.D2 and PW5 stated before me as in Ex.D3. It is true, PW1 did not state before me that he got sufficient suspicion over the accused for the killing of his son on the ground that he got illicit intimacy with PW4. It is also true that PWs.2 and 3 did not state before me about the same. It is true that PWs.1 to 3 stated before me that the deceased fell down in the water accidentally. It is true that PW1 stated before me that he searched for his son in the water of Buggavagu dam and after he found the dead body in the water, he lodged Ex.P1.
I drafted Ex.P1 - report in the station at the dictation of PW1. It is true that the Rentachintala Police Station comes under the jurisdiction of office of the Circle Inspector of Police, Gurazala."
Coming to the evidence of PW15, the second Investigation Officer, who took up investigation from PW14, he admitted in his evidence while referring to the evidence of PW4, as under:
"After verifying the inquest report, I started my investigation. It is true that there are some discrepancies in between the statements recorded by PW14 and the statements recorded by me. The statements of witnesses recorded by me were not explained the reasons as to why they did not suspect the accused. Prior to I examined PW4, I do not know her whereabouts. It is true that I did not trace PW4 prior to 22.07.2012.
It is true that PW4 did not state before me that she got illicit intimacy with the deceased and the deceased used to contact her over phone and the same was brought one Lakshmamma. The said Lakshmamma chastised that and CPK,J & DR,J Crl.A_142_2015 19 subsequently, Lakshmamma informed the same to A1 and on that A1 also threatened her and told her that he will see the end of the life of the deceased. It is true that PW5 did not state before me that A1 spread rumors in the village that the deceased got illicit intimacy with PW4.
It is true that he also did not state before me that he has seen gathering of the villagers in their village and discussing about the same."
From the evidence of these witnesses, it is very clear that though in their earlier statements they never suspected the accused, in fact, PW4 never stated to PW15 during the course of investigation about her intimacy with the deceased and the paternal aunt of A1 i.e. Lakshmamma chastised her, and thereafter, A1 and paternal aunt threatened and scolded her about her intimacy and also A1 informing her that he would see the end of the deceased. Therefore, we feel that the motive as alleged now never came to light for nearly three months, though all the material witnesses were examined prior to 06.02.2012 i.e. the day on which the accused made extra-judicial confession leading alteration of Section of law from 174 Cr.P.C. to 302 IPC. Therefore, the motive which now sought to be relied upon as on one of the circumstances, in our view, was never spoken to by any of the witnesses at that point of time, and on the other hand, PW1 stated before the police that he noticed the motorcycle of his son falling down on the road while PW4 never spoke about the relationship with the deceased. In fact, PW16 - Investigating CPK,J & DR,J Crl.A_142_2015 20 Officer, who filed charge sheet, categorically states that PW4 did not give any explanation when she was examined by PW15 as to why she did not disclose her intimacy with the deceased. It is useful to extract the same as under:
"The statement of PW4 recorded by PW15 was readily with me by the time I re-examined and recorded her statement separately. It is true that PW4 did not give any explanation as to why she did not disclose her illicit intimacy with the deceased till PW15 examined her."
Therefore, the motive as alleged by the prosecution is not established and there is no iota of evidence and the motive for the accused causing the death of the deceased came to be introduced while giving evidence and at a later point of time i.e. probably after extra-judicial confession made by the accused before PW11 which again appears to be doubtful as he cannot be treated as reliable witness. Therefore, the findings of the trial Court that the circumstances relied upon by the prosecution namely motivation of the accused, the accused being last seen and the extra-judicial confession made by the accused, in our view, are not proved beyond reasonable doubt. Merely because the evidence of post-mortem doctor indicates that there was throttling, that by itself, does not establish that the accused were responsible for the death of the deceased in the absence of any circumstance connecting them to the crime CPK,J & DR,J Crl.A_142_2015 21 and the prosecution failed to establish the circumstance relied upon by them to connect the accused with the crime.
Hence, we feel that the findings of the trial Court are incorrect and the same are liable to be set aside.
Accordingly, the Criminal Appeal is allowed setting aside the conviction and sentence imposed on the accused for the offences punishable under Sections 302 read with 34 IPC and 201 read with 34 IPC, and consequently, the accused are acquitted for the charged offences. Hence, the accused are directed to be released forthwith if they are not required in any other case.
____________________ C.PRAVEEN KUMAR, J 04.12.2020 ___________________ D.RAMESH, J bcj