Andhra Pradesh High Court - Amravati
Gopalam Haribabu, E.G.Dt., vs State Of Ap., Rep Pp., on 3 August, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
1
HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE M.GANGA RAO
CRIMINAL APPEAL No.246 of 2015
JUDGMENT:(Per Hon'ble The Acting Chief Justice C.Praveen Kumar) The sole accused in Sessions Case No.93 of 2014 on the file of the XI Additional District and Sessions Judge, Tenali, is the appellant herein. He was tried for the offence punishable under Section 302 I.P.C. for causing the death of one Gaddam Sudhakara Babu @ Sudhakar. By judgment dated 28.11.2014, the learned Sessions Judge convicted the accused and sentenced him to suffer imprisonment for life and also to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for three months.
The case of the prosecution, in brief, is as under:
The deceased, Gaddam Sudhakara Babu @ Sudhakar, is the elder son of P.W.1. He used to work as a lorry driver and live with his wife and children, opposite to the house of P.W.1 in Nandivelugu Village. As the wife and children of the deceased went to her parents' house on the occasion of Dasara festival, the deceased was staying in the house of P.W.1. On 13.10.2013, in the evening hours, the deceased along with P.W.10, who is the son of P.W.1's sister, went to the wine shop situated on the other side of Nandivelugu Bridge and after consuming liquor, while they were returning home, on the way, they met the accused who was weeping.
When P.W.10 asked the accused as to what had happened, the accused hurled the cell phone in his hand. When the deceased questioned the accused as to why he was behaving like that, the accused picked up a quarrel, upon which the deceased and P.W.10 beat the accused with hands. On that, the accused threatened the deceased that he would see his end within two days. When the deceased informed about the said incident to 2 P.W.1, she advised him to be careful. On the date of incident, i.e., on 15.10.2013, at about 8.00 a.m., upon receipt of a phone call from P.W.9, owner of the lorry, the deceased left home. The deceased and P.W.3, who was working as a cleaner of the lorry, met P.W.9 at AVR Filling Station, Nandivelugu, who told them to get ready to go to Bihar along with load. P.W.3 took Rs.100/- from P.W.9 towards expenses. After getting diesel filled in the tank of the lorry, P.W.9 went to get load slips. Thereafter, both the deceased and P.W.3 went to Srirama Wine shop, Nandivelugu, where the deceased consumed liquor. The accused also came there and went away, after consuming liquor. At about 11.00 a.m., the deceased and P.W.3 proceeded towards Nandivelugu bridge to go to their respective houses and when they crossed Theppala kalava bridge, the accused came from behind and hacked on the backside of the head of the deceased with M.O.7-knife. When the deceased turned back, the accused again hacked him indiscriminately and caused bleeding injuries. When P.W.3 tried to intervene, the accused threatened him with dire consequences. Due to fear, P.W.3 ran away towards Nandivelugu village. The deceased ran towards the turmeric fields of P.W.7, Meesala Rama Krishna @ Hari Krishna. P.W.3 rushed to the house of P.W.1 and informed her about the incident. Thereupon, P.W.1, along with her husband Gaddam Sambasiva Rao (L.W.2) and Gaddam Ramesh (L.W.4) went to the scene of offence and found the deceased lying in the turmeric fields of P.W.7 with bleeding injuries. They shifted the deceased in an auto to Government Hospital, Tenali, where he was declared brought dead. Based on Ex.P1-report lodged by P.W.1, a case in Crime No.179 of 2013 came to be registered for the offence punishable under Section 302 I.P.C. and Ex.P31-FIR was issued by P.W.16-S.I. of Police, Tenali Rural Police Station. P.W.17-Inspector of Police, Tenali Rural 3 Police Station, who took up investigation, visited the scene of offence, got it photographed, prepared rough sketch thereof, conducted scene of offence panchanama in the presence of mediators, and seized M.Os.1 to 6-blood- stained earth, controlled earth, blood-stained arums and leaves, under cover of mediators report-Ex.P32. He conducted inquest over the dead body of the deceased in the presence of P.W.15 and two other mediators under Ex.P29-inquest panchanama, got the dead body photographed by P.W.12-photographer, and sent the dead body of the deceased for post- mortem examination. He seized M.O.9-bloodstained shirt and M.O.10-lungi of the deceased, which were handed over to him by the Medical Officer who conducted post-mortem examination over the dead body of the deceased. P.W.17 examined the witnesses and recorded their statements. On 24.10.2013, upon receipt of reliable information, P.W.17 rushed to Kolakaluru Railway over-bridge near Kolakaluru Railway Station and arrested the accused, who confessed to the commission of the offence, in the presence of P.W.15 and another mediator. The accused produced M.O.7-knife used by him in the commission of the offence along with M.O.8-towel used for covering it, which were seized by P.W.17 under cover of mediators report-Ex.P30. Upon production before the concerned Magistrate, the accused was remanded to judicial custody. P.W.17 sent all the seized material objects to Regional Forensic Science Laboratory, Guntur, for analysis and report. On receipt of Ex.P27-post-mortem examination report and FSL report and upon completion of investigation, the successor of P.W.17 filed charge sheet against the accused for the offence punishable under Section 302 I.P.C.
On appearance of the accused, copies of material documents as required under Section 207 Cr.P.C. were furnished to him. Since the 4 offence is exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, Guntur. The learned Sessions Judge made over the case to the Court of XI Additional District and Sessions Judge, Tenali, for trial, where a charge for the offence punishable under Section 302 I.P.C. came to be framed against the accused. The same was read over and explained to him in Telugu, for which the accused pleaded not guilty and claimed to be tried.
During the course of trial, the prosecution examined P.Ws.1 to 17 and got Exs.P1 to P33 and M.Os.1 to 10 marked on its behalf. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material appearing against him in the evidence of prosecution witnesses, to which he denied. In defence, the accused did not adduce any oral evidence but got marked Exs.D1 to D5, relevant portions in 161 Cr.P.C. statements of P.Ws.1 to 4.
Basing on the oral and documentary evidence available on record, the Sessions Court, by the judgment under appeal, held the accused guilty of the offence punishable under Section 302 I.P.C., convicted and sentenced him as stated supra. Challenging the same, the present appeal came to be filed.
Learned counsel appearing for the appellant-accused would contend that the evidence available on record does not establish the guilt of the accused beyond reasonable doubt. She would contend that the case of the prosecution mainly rests on the evidence of P.W.3, but his evidence is full of omissions and contradictions and does not corroborate with the contents of Ex.P1-report, which came to be lodged by P.W.1 on the basis of the information furnished by P.W.3 himself. Learned counsel would, therefore, 5 contend that the accused is entitled to acquittal and the conviction and sentence imposed by the Sessions Court against him need to be set aside.
On the other hand, learned Public Prosecutor would contend that the evidence of P.W.3 gets corroboration from the evidence of P.W.1 and the contents of Ex.P1-report in all material aspects and the alleged omissions in the evidence of P.W.3 are not fatal to the case of the prosecution. He would contend that as the prosecution has proved the guilt of the accused, by adducing sufficient oral and documentary evidence, the Sessions Court has rightly imposed the impugned conviction and sentence, which need not be interfered with in this appeal.
Now the point that would arise for consideration in this appeal is whether the oral and documentary evidence adduced by the prosecution, particularly the evidence of P.W.3, who is said to be an eyewitness to the incident, was sufficient to hold the accused guilty of the offence punishable under Section 302 I.P.C. or the conviction and sentence imposed by the trial Court, based on such evidence, warrant interference in this appeal.
As seen from the record, the prosecution examined as many as 17 witnesses, viz., P.Ws.1 to 17. P.W.1 is the mother of the deceased. P.W.2 is the wife of the deceased. P.W.3 is the cleaner of the lorry, who is said to have witnessed the incident. P.W.4 is the driver of the auto, who shifted the deceased to the hospital in his auto. P.W.5 is an agricultural coolie, who is said to have witnessed a male person rushing towards and falling down in the turmeric fields of P.W.7. P.W.6 is a worker in the petrol bunk, where the deceased and P.W.3 are said to have got fuel filled in the tank of the lorry prior to the incident. P.W.7 is the owner of the turmeric fields, where the deceased rushed to and fell down after the incident. P.W.8 is a worker in Sreeram Wines. P.W.9 is the owner of the lorry with whom the deceased 6 worked as a driver. P.W.10 is the relative of the deceased, who deposed about the alleged quarrel that took place on 13.10.2013 in between the accused, himself and the deceased. P.Ws.11 and 12 are photographers, who took photographs of the scene of offence and the dead body of the deceased respectively. P.W.13 is the doctor, who sent intimation about death of the deceased to the police, under Ex.P26. P.W.14 is the doctor, who conducted post-mortem examination over the dead body of the deceased and issued Ex.P27-post-mortem certificate, opining the cause of the death of the deceased to be due to cardio-respiratory arrest due to multiple injuries and mainly due to head injury. P.W.15 is one of the mediators to Ex.P28-scene of offence panchanama and seizure of M.Os.1 to 6 and also to the confession statement of the accused and seizure of M.O.7-blood-stained knife and M.O.8-blood-stained towel from the possession of the accused. P.W.16 is the Sub-Inspector of Police, who registered Ex.P1-report lodged by P.W.1 and issued Ex.P31-FIR. P.W.17 is the Inspector of Police, who conducted the investigation and arrested the accused.
Amongst the above witnesses, the case of the prosecution mainly rests on the evidence of P.W.3, who is said to be an eye-witness to the incident and based on whose information, Ex.P1-report came to be lodged by P.W.1 before the police. When the case of the prosecution rests mainly on the sole testimony of an eye-witness, the same should be wholly reliable and should not give any room for doubt in the mind of the Court and should receive corroboration by the other evidence on record, as to involvement of the accused in the commission of the offence. Therefore, it is to be examined whether the evidence of P.W.3 is wholly reliable and trustworthy and whether his evidence received corroboration by the evidence of P.W.1 7 and contents of Ex.P1, so as to sustain the conviction and sentence imposed upon the accused by the Sessions Court.
P.W.3, in his evidence, deposed that he has been working as a cleaner of the lorry and the deceased used to work as a driver under P.W.9- Jakka Sreenivasa Rao, owner of the lorry. He knows the accused, being resident of their village. On the date of incident, as P.W.9 called them, himself and the deceased went to the petrol bunk at 8.00 a.m. and after getting diesel filled in the tank of the lorry, P.W.9 asked them to get ready to go to Bihar along with load and gave him Rs.100/- towards expenses. As the deceased requested money to buy liquor, he gave the said amount of Rs.100/- to him. The deceased left to the wine shop and returned to the petrol bunk after consuming liquor. Then both of them proceeded to their houses. While crossing Teppala Kaluva bridge, the accused came from behind and hacked the deceased on the back side of his head with a knife. Due to fear, he ran away and informed the incident to P.W.1. P.W.1 and another rushed to the spot and he followed them. By the time he reached the spot, they shifted the deceased to hospital. P.W.3 stated that the accused did not threaten him and he does not know the disputes between the accused and the deceased. He went to the Government Hospital, Tenali, where he was informed that the deceased was dead.
While P.W.3 deposed that he ran away from the scene after he witnessed the accused hacking the deceased on his head, Ex.P1-report shows that P.W.3 informed P.W.1 that the accused hacked the deceased also on his body brutally. Strangely, P.W.1 gave a different version before the Court stating that P.W.3 informed her that the accused hacked the deceased with a knife on his head and neck. Thus, the evidence of P.W.3, P.W.1 and the contents of Ex.P1 are inconsistent with each other as to the 8 injuries alleged to have been inflicted on the deceased in the presence of P.W.3. This apart, P.W.3, in his evidence, deposed that the accused did not threaten him. On the contrary, in Ex.P1 report, P.W.1 stated that when P.W.3 intervened, the accused threatened him with knife, upon which P.W.3 ran away. Thus, the evidence of P.W.3 also lacks corroboration with Ex.P1 on this aspect. Further, if really there was no threat from the accused, as deposed by P.W.3, the normal human conduct would have been different and P.W.3 would have raised hues and cries, which would have been heard by P.W.6 and other agricultural coolies said to be working in the nearby turmeric fields of P.W.7.
Further, according to the evidence of P.W.3, after receiving Rs.100/- from him, the deceased alone went to the wine shop, had liquor and returned to petrol bunk and thereafter, himself and the deceased proceeded towards their respective houses. But, Ex.D3, a portion in his 161 Cr.P.C. statement, shows that P.W.3 stated before the police that he also accompanied the deceased to the wine shop and while he was waiting outside, the deceased went into the wine shop to consume liquor.
Thus, the evidence of P.W.3 not only lacks corroboration from the evidence of P.W.1 and Ex.P1-report but the same is also inconsistent with his own statement under Section 161 Cr.P.C. His evidence, therefore, cannot be said to be wholly reliable and it is not safe to convict the accused based on the sole testimony of P.W.3.
Though the prosecution also relied upon the evidence of P.W.10 to prove the alleged quarrel that took place between the accused, the deceased and P.W.10 on 13.10.2013, so as attribute motive to the accused to kill the deceased, the fact remains, P.W.10 in his cross-examination stated that prior to the alleged incident that took place on 13.10.2013, 9 there were no disputes either between the accused and the deceased or between him and the accused. Further, it was also elicited that in the said incident, P.W.10 also beat the accused. When P.W.10 also beat the accused in the alleged incident and when there was no previous enmity between the accused, the deceased and P.W.10, it is doubtful that the accused would bore grudge against the deceased alone due to the said incident.
For the foregoing discussion, we are of the opinion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt for the offence punishable under Section 302 I.P.C. and the conviction and sentence imposed by the Sessions Court cannot be sustained.
In the result, the Criminal Appeal is allowed by setting aside the conviction and sentence recorded against the appellant-accused, vide judgment dated 28.11.2014 in S.C.No.93 of 2014 on the file of the XI Additional District and Sessions Judge, Tenali, for the offence punishable under Section 302 I.P.C. Consequently, the appellant-accused shall be set at liberty forthwith, if he is not required in any other case, and the fine amount, if any paid by him, shall be refunded to him.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
____________________ C. PRAVEEN KUMAR, ACJ ____________________ M. GANGA RAO, J Dt: 03.08.2019 IBL 10 HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR AND HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY CRIMINAL APPEAL No.246 of 2015 Dt: 03.08.2019 IBL