Andhra Pradesh High Court - Amravati
Kamireddi Rama Tulasi vs Ketamalla Saibabu Saibabad The State Of ... on 13 August, 2020
Author: M.Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
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THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
AND
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
CRIMINAL APPEAL No.754 of 2014
JUDGMENT:(Per Hon'ble Sri Justice M.Satyanarayana Murthy)
1. Smt.Kamireddi Rama Tulasi claimed to be a victim and wife of the deceased Kamireddi Srinivasarao @ Srinivas in Sessions Case No.149 of 2012 on the file of the Principal District and Sessions Judge, East Godavari, Rajahmundry, preferred this criminal appeal under Section 372 Criminal Procedure Code (for short 'Cr.P.C.'), assailing the acquittal in calendar and judgment dated 13.09.2012, whereby the respondent/accused found not guilty for the offences punishable under Sections 302 and 506 of Indian Penal Code (for short 'I.P.C.')
2. The case of prosecution in brief is that the deceased Kamireddi Srinivasarao @ Srinivas who was the native of Pottilanka village used to live by cultivation, besides carrying on pesticides and fertilizers business under the name and style of Sri Sai Agro Agencies. He borrowed an amount of Rs.1,80,000/- from the accused and Kamireddi Srinivasarao @ Srinivas along with his brother Kamireddi Pothuraju(L.W.8) executed a promissory note in favour of the accused but failed to repay the amount together with interest. The accused used to exert pressure for discharge of debt, Srinivasarao and Pothuraju(L.W.8) disposed off most of their agricultural land and subsequently, Kamireddi Srinivasarao @ Srinivas created a general power of attorney in the name of his kith 2 and kin. Having learnt about disposal of the property, the accused insisted and harassed Kamireddi Srinivasarao @ Srinivas (deceased) to discharge debt due to him, but he was successfully postponing discharge of the debt.
3. About two months prior to 11-08-2011, during evening at about 19-00 hours, the accused came to the shop of Kamireddi Srinivasarao @ Srinivas(deceased), threatened to kill him, if he fails to discharge the debt, thereupon P.W.5-Kamireddi Janakiramaiah, father of Kamireddi Srinivasarao @ Srinivas, came in opposite direction, then the accused caught hold of his shirt and threatened him. The said incident was witnessed by P.W.6-Thorati Yesu, L.W.10-Vasa Bujji, L.W.11-Kamireddi Srinivasu and L.W.12-Kosuri Kotayya, at the shop of deceased Kamireddi Srinivasarao @ Srinivas, but due to their intervention, the matter was pacified and they were disbursed.
4. While the matter stood thus, at about 9-00 hours on 11-08- 2011, when father of the Kamireddi Srinivasarao @ Srinivas (deceased) was at his agricultural land, the accused went to the shop of Kamireddi Srinivasarao @ Srinivas, insisted him to pay the debt due to him with a threat to kill Kamireddi Srinivasarao @ Srinivas(deceased). Ten days prior to 11-08-2011, the accused uttered before Manna Veera Venkata Rao(L.W.13) that the hands of Kamireddi Srinivasarao @ Srinivas(deceased) shall be chopped as the deceased was not discharging his debt. Finally, on 12-08-2011 at about 13-00 hours, when Kamireddi Srinivasarao @ Srinivas (deceased) was in his fertilizers shop at Pottilanka village, the accused entered into the shop from rear side and insisted him to 3 discharge the debt instantaneously. He agreed to discharge the debt within a month, but the accused did not heed the words of Kamireddi Srinivasarao @ Srinivas(deceased) and insisted for instantaneous repayment of the debt or else he would consume poison in the shop of deceased Kamireddi Srinivasarao @ Srinivas itself and so threatening, the accused went into the godown of the Kamireddi Srinivasarao @ Srinivas (deceased), picked up a pesticide poison tin, threatened to consume it. But Kamireddi Srinivasarao @ Srinivas (deceased) pulled pesticide poison tin from the hands of accused, kept the same in the godown and while the deceased Kamireddi Srinivasarao @ Srinivas was standing up, the accused grew wild with a view to kill Kamireddi Srinivasarao @ Srinivas, picked up an iron pipe (M.O.1) available in the godown, abused Kamireddi Srinivasarao @ Srinivas as "chavara lanjakodaka" and beat him on the right eyebrow, caused a deep bleeding injury, due to which he fell down. The accused again beat Kamireddi Srinivasarao @ Srinivas with M.O.1 successively for four times on the head, caused professed bleeding injuries, including fractures on the head of Kamireddi Srinivasarao @ Srinivas who fell on the ground.
5. It is the case of prosecution that the incident of causing injuries over the body of deceased Kamireddi Srinivasarao @ Srinivas by the accused was witnessed by P.W.1-Kothapalli Venkanna @ Appanapalli Venkanna who was a neighbouring shop owner and P.W.3-Adabala Venkatarao, brother-in-law of the deceased Kamireddi Srinivasarao @ Srinivas, Inapakolla Kanaka Srinivas (L.W.4), P.W.4-Aalajangi Suribabu who were neighbours of the scene of offence, heard cries and rushed to the scene of offence 4 which is at the godown and witnessed the accused giving blows on the head of Kamireddi Srinivasarao @ Srinivas (deceased) with iron pipe marked as M.O.1. On hearing cries, Kamireddi Janaki Ramaiah @ Jhani (L.W.6) who is son of Kamireddi Srinivasarao @ Srinivas (deceased) rushed to the scene of offence and on seeing them, the accused threatened them at the point of iron pipe(M.O.1) and escaped from the scene of offence.
6. While the accused was proceeding holding iron pipe (M.O.1), P.W.7-Bhimireddy Sathi Babu and Vaddi Ganesh(L.W.14) noticed the same and subsequently relatives of the deceased Kamireddi Srinivasarao @ Srinivas shifted him to the District Hospital, Rajahmundry where he succumbed to injuries while undergoing treatment.
7. On receipt of information P.W.2-Pantam Ganesh, who is close relative of Kamireddi Srinivasarao @ Srinivas came to hospital and P.W.1-Kothapalli Venkanna @ Appannapalli Venkanna got scribed a report marked as Ex.P1 through P.W.2-Pantam Ganesh. Basing on Ex.P1-Report, P.W.11-K.Nagaraju, the Station House Officer of Kadiam Police Station, registered the same as a case in Crime No.132 of 2011 and issued First Information Report marked as Ex.P10, Ex.P10 was forwarded to the jurisdictional Magistrate while marking copies of Ex.P.10, an Express F.I.R., to the higher authorities by P.W.11-K.Nagaraju. Immediately, P.W.13-M.Ambika Prasad, Inspector of police, took up investigation, visited the scene of offence in the presence of P.W.8-G.Satyanarayana and K.Veeranna Naidu (L.W.18), got photographed the scene of offence, the positive photos are marked as Ex.P5, through P.W.9-Guthula 5 Tirumala Rao, seized blood stained earth and controlled earth which are marked as M.Os.2 and 3 under the cover of observation report which is marked as Ex.P3 by P.W.8-G.Satyanarayana, held inquest over the dead body of Kamireddi Srinivasarao @ Srinivas (deceased) in the presence of blood relatives and eye witnesses. Based on the statements of witnesses and blood relations, they unanimously opined that the cause of death of deceased is due to injuries caused by the accused vide Ex.P.4-Inquest report. Later, the dead body of Kamireddi Srinivasarao @ Srinivas(deceased) was forwarded to hospital for postmortem examination and an autopsy was held over the dead body of Kamireddi Srinivasarao @ Srinivas (deceased) conducted by P.W.12-Dr.K.L.Vasundhara, Civil Assistant Surgeon, District Hospital, Rajahmundry, issued Postmortem Certificate, dated 13.08.2011 marked as Ex.P11
8. On 17-08-2011 at about 12-20 hours, P.W.13-M.Ambika Prasad, arrested the accused at Railway station road, Kadiam village in the presence of P.W.10-Beraka Venkateswara Rao and Mandapalli Satyananda Rao (L.W.21) under the cover of Ex.P6 and in pursuance of the confession of the accused, M.O.1-Iron pipe was seized under the cover of Ex.P7-Mediators report in the presence of above mediators.
9. The seized blood stained earth and control earth including the crime weapon viz., M.Os.1 to 3 were forwarded to RFSL, Vijayawada along with letter of advise which is marked as Ex.P13 for examination opinion. On receipt of report marked as Ex.P14, P.W.12-K.L.Vasundhara, issued Ex.P11-Postmortem certificate 6 opining that the cause of death is on account of shock and hemorrhage due to head injury.
10. Having concluded that the accused caused injuries on the body of Kamireddi Srinivasarao @ Srinivas(deceased) for non- payment of debt due to him, despite of his demands, the Inspector of police(L.W.26), Dowleswaram Police Station, filed charge sheet before the jurisdictional Magistrate, who in turn after compliance of procedure prescribed under Section 207 of Cr.P.C., committed the case to the Sessions Division, Rajahmundry, under Section 209 of Cr.P.C., as the offence under Sections 302 and 506 of I.P.C., are exclusively triable by Court of Sessions. On committal, learned Principal Sessions Judge, Rajahmundry, registered the same as Sessions Case No.149 of 2012.
11. Upon securing the presence of accused, the Sessions Judge heard the arguments of learned Public Prosecutor and the Defence counsel, framed charges for the offence punishable under Sections 302 and 506 of I.P.C., against the accused/respondent, read over and explained to him in Telugu, he denied the same and claimed to be tried.
12. During trial, on behalf of the prosecution, P.Ws.1 to 13 were examined and got marked Exs.P1 to P14 and M.Os.1 to 3 to substantiate the case of prosecution, Exs.D1 to D3 were marked by the defence. After closure of prosecution evidence, the accused was examined under Section 313 Cr.P.C., explained the incriminating material that appeared against him, but he denied the same and reported no defence.
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13. Upon hearing arguments of learned Public Prosecutor and Defence counsel, the Trial Court found the accused not guilty, disbelieving the evidence of P.Ws.1 and 3 who are the alleged direct witnesses to the incident, appreciating the evidence in detail. Except the evidence of P.Ws.1 and 3, no other direct witness is available, besides circumstantial evidence. But the learned Sessions Judge did not accept the evidence of prosecution to establish the circumstances, found the accused not guilty and acquitted.
14. Aggrieved by the Calendar and Judgment, the appellant claimed to be the wife of Kamireddi Srinivasarao @ Srinivas (deceased)/victim preferred this appeal under Section 372 of Cr.P.C., on various grounds.
15. The main grounds raised before this Court in the grounds of appeal are that:
The oral evidence of P.Ws.1 to 3 who are direct witnesses was not appreciated in proper perspective and that rejection of their evidence based on improbability of their presence is illegal. The findings are based on assumptions and presumptions.
It is also contended that the conclusion arrived by the Trial Court based on variation in height is an apparent error and such conclusion arrived based on height variation is perverse.
Finally it is contended that the appreciation of evidence by Trial Court both oral and documentary evidence is illegal. When the evidence of witnesses inspires confidence of the Court, based on the evidence of those witnesses Court can record conviction, and requested to re-appreciate the evidence on record independently, 8 record a finding of guilty for the offences punishable under Sections 302, 506 of IPC, convict the respondent/accused in accordance with law.
16. The Additional Public Prosecutor representing the appellant herein during arguments mainly contended that the evidence of P.Ws.1 and 3 is wholly reliable and when their testimony inspires confidence of the Court, rejection of their evidence is illegal, if the evidence of P.Ws.1 and 3 is accepted, their evidence is sufficient to hold the accused guilty for the grave offence punishable under Section 302 of I.P.C., but the Trial Court on wrong appreciation of evidence arrived at such conclusion. Similarly, the learned Sessions Judge did not consider the scene of offence and witnessing the incident by P.Ws.1 and 3 in proper perspective and committed grave error in appreciation of oral evidence of P.Ws.1 and 2. It is further contended that the death of Kamireddi Srinivasa Rao @ Srinivas is a homicidal death and the said fact was supported by documentary evidence including the opinion of P.W.12 coupled with Ex.P10. Therefore, the conclusion arrived by the Trial Court that the death of Kamireddi Srinivasa Rao @ Srinivas (deceased) though homicidal failed to prove the complicity of the accused based on direct and circumstantial evidence is an error committed by the Trial Court and requested to set aside the same.
17. Whereas the counsel for the respondent refuting the contentions of the learned Additional Public Prosecutor would submit that the Trial Court minutely examined the evidence of P.Ws.1 and 3 and rightly concluded that the incident occurred only inside the godown not in the shop, but as per the evidence of P.Ws.1 9 and 3, they saw the incident in the shop of the deceased Kamireddi Srinivasa Rao @ Srinivas, thereby the Trial Court did commit no error and requested to confirm the acquittal of the accused for the offence punishable under Sections 302 and 506 of I.P.C., in Sessions Case No.149 of 2012.
18. Considering rival contentions and perusing the material available on record, the sole point that arises for determination is;
Whether the accused/respondent caused any injuries on the body of Kamireddi Srinivasa Rao @ Srinivas, with an intention to kill him, knowing that those injuries are sufficient in ordinary course of events to cause death? If not, whether the acquittal recorded by the Trial Court under the Calendar and Judgment in Sessions Case No.149 of 2012 dated 13.09.2012 be sustained?
P O I N T:
19. Before adverting to the evidence on record, it is appropriate to examine the scope of Section 372 of Cr.P.C., r/w 374 of Cr.P.C.
Section 372 of Cr.P.C., enables the victim who is defined under Section 2(wa) to prefer an appeal against the order of acquittal. But the scope of jurisdiction of the Appellate Court either under Section 372 or 374 of Cr.P.C., is one and the same since Section 374 of Cr.P.C., is the provision which deals with the appeals.
20. Section 374 of Cr.P.C., conferred a substantive right of appeal on the accused but whereas the Section 372 of Cr.P.C., conferred the right on the victim. While exercising the power under Section 374(2) Cr.P.C., or 372 of Cr.P.C., the Court is bound to re-appraise the entire evidence to come to an independent conclusion, uninfluenced by the findings recorded by the Trial Court and decide 10 the legality of either conviction or acquittal. Therefore, it is the duty of the Court to re-appraise the entire evidence recorded by the Trial Court before framing of charges i.e., the accused and the prosecution. Unless the Court finds manifest perversity in the calendar and judgment or such findings were recorded without evidence, normally, this Court cannot interfere with such fact findings in appeal, while exercising jurisdiction under Section 374(2) Cr.P.C. It is the sacrosanct duty of the appellate court against the judgment of the Trial Court, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re-assessment, re-appreciation and re-scrutiny of the material on record. Appreciation of evidence and proper re- assessment to arrive at the conclusion is imperative in a criminal appeal. That is the quality of exercise which is expected of the appellate court to be undertaken and when that is not done, the cause of justice is not sub-served, for neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence on record to assure his guilt (vide Kamlesh Prabhudas Tanna & Another v. State of Gujarat1). Keeping the scope of jurisdiction under Section 372 and 374(2) Cr.P.C. in view, we would like to decide the issue before us on re- appreciation of entire evidence, afresh.
21. The case of prosecution is totally based on both direct and circumstantial evidence. P.Ws.1 and 3 are alleged to be direct witnesses, whereas the circumstantial evidence is the motive, in view of the prior incident of insistence of the accused for payment of 1 (2013) 15 SCC 263 11 amount with a threat to kill and declaring to chop both hands of the deceased Kamireddi Srinivasarao @ Srinivas allegedly establish the motive and recovery of M.O.1 on the confession of accused leading to discovery which is relevant under Section 27 of the Evidence Act, is another strong circumstance to believe that the accused committed an offence.
22. When the case of prosecution is based on both direct and circumstantial evidence, if the prosecution was able to establish the complicity of the accused by direct evidence, the circumstantial evidence more or less become insignificant, when the prosecution failed to establish the guilt of the accused by direct evidence before the Sessions Court, the Court is required to examine the circumstantial evidence which establishes the circumstances, so as to complete the links in the chain of circumstances, still it is the duty of the prosecution to prove each and every circumstance to complete the links in the chain of circumstances and based on such proved circumstances, the Court may come to conclusion of guilt by drawing an inference that the accused committed the offences, if the proved circumstances consistent with hypothesis of guilt and inconsistent with innocence.
23. When the case of prosecution is based on circumstantial evidence, the burden of proof is always on the prosecution to prove the circumstances from which conclusion of guilt is to be drawn fully established and the facts so established must be consistent with the hypothesis guilt of the accused and any circumstances consistent with innocence of the accused would entitle him to the 12 benefit of doubt (vide Kishore Chand v. State of Himachal Pradesh2 and Syed Hakkim & another v. State3)
24. Keeping in mind, it is the duty of this Court to re-appreciate the evidence of both the direct witnesses and the circumstantial evidence once again.
25. P.W.1 is the person who allegedly witnessed the incident directly. According to testimony of P.W.1 while he along with accused were at the shop of deceased, between 12-00 noon to 1-00 p.m., the accused came there and demanded him to discharge the debt, Kamireddi Srinivasarao @ Srinivas agreed for repayment within one month but the accused insisted him for discharge of debt immediately. Thereupon, the accused threatened to commit suicide by consuming the pesticide available in the shop of the accused. But Kamireddi Srinivasarao @ Srinivas (deceased) pulled the pesticide tin from the hands of the accused and while Kamireddi Srinivasarao @ Srinivas was about to keep the pesticide tin in the shop, the accused suddenly picked up an iron pipe available in the shop, caused injuries on the body of Kamireddi Srinivasarao @ Srinivas. P.W.1 himself lodged report with the police which is marked as Ex.P1. As seen from the contents of Ex.P1-Report, the shop and godown of Kamireddi Srinivasarao @ Srinivas are by the side of NH- 5 road at Pottilanka village under the name & style as Sri Sai Agro Agencies consisting of two shops and one godown. P.W.1 narrated the genesis of the incident, more particularly, about the insistence 2 AIR 1990 S.C.Page 2140 3 2009 Cr.L.J. Page 1891 13 of Kamireddi Srinivasarao @ Srinivas for instant repayment of debt and the accused picked up pesticide tin in the shop but Srinivasarao pulled the tin from the hands of accused, while he was about to keep the tin in the shop, the accused picked out iron pipe and beat on the head of Kamireddi Srinivasarao @ Srinivas. Immediately, he fell down and again the accused gave four blows on the head indiscriminately, caused bleeding injuries. The evidence of P.W.1 in his examination in chief totally changed the scene of offence. According to Ex.P1 which shows earlier version of P.W.1 who set the criminal law into motion, the scene of offence in the godown, whereas, as per the oral evidence, the accused picked up a pesticide tin from the shop and caused injuries on the head of Kamireddi Srinivasarao @ Srinivas in the shop itself. However, in the cross examination of P.W.1, he admitted that the shop of the deceased is abutting the road, which is leading to the High-way and Pottilanka village. The shop of Kamireddi Srinivasarao @ Srinivas is having a front verandah and two shop rooms and the godown is located behind those shops. Thus, it is clear from the description of the property, the godown is behind the two shops and there is verandah infront of the shops but P.W.1 allegedly witnessed the incident in the shop which is contrary to the earlier statement of P.W.1 vide Ex.P1. Similarly, Ex.P3-Observation Report of scene of offence dated 12-08-2011, and Ex.P12-Rough sketch of scene of offence including the bunch of photographs marked as Ex.P5 would show that the scene of offence is in the godown not in the shop. In description of the property, the scene of offence in Ex.P3 clearly mentioned and according to Ex.P3, the shop of the deceased is by 14 the side of NH-5 road in Pottilanka village and having a godown behind two shop rooms and there are two doors, one wooden door on the rear side of the godown to enter into the godown and one iron shutter between the shops and godown. More so, there is verandah to the shops. At the end of first page of Ex.P3, it is clearly mentioned that the scene of offence is in the godown and the dead body of Kamireddi Srinivasarao @ Srinivas was lying in the godown and P.W.13-Investigating officer seized both blood stained earth and controlled earth which are marked as M.Os.2 and 3 under the cover of observation report marked as Ex.P3. The said fact is supported by the evidence of P.W.8 and P.W.13-M.Ambika Prasad, Investigating Officer. Thus, the scene of offence is inside the godown not either in the verandah of the shop nor in the two shops. When the shops and godown are separated by wall and an iron shutter, the question of person witnessing the incident in the godown that took place in the godown either from the shop or from the verandah is impossible. Therefore, the learned Sessions Judge rightly disbelieved the evidence of P.W.1, more particularly, about witnessing the incident.
26. According to the evidence of P.W.1, on the date of incident, he returned back with two baskets and two bags of guava fruits and they were kept in the shop of the deceased with a view to collect them on the next day morning. But in the observation report, no such two baskets and two bags of guava fruits were found in the shop. Therefore, this is another strong circumstance to disbelieve the testimony of P.W.1, more particularly direct witnessing the incident by him.
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27. P.W.1 admitted that his wife deserted him and it is followed by a suggestion that his wife is working in the house of Kamireddi Srinivasarao @ Srinivas as servant maid, of course it is denied. In para No.11 of the cross examination, the evidence of P.W.1 more specific that the Kamireddi Srinviasarao @ Srinivas pulled the pesticide tin from the hands of accused containing Endryne and it is a liter tin, the accused beat the deceased with M.O.1 at the place where the deceased was keeping the tin i.e., in the shop of the deceased. Hence, there is material inconsistency about the exact scene of offence mentioned in Ex.P3-Observation report, Ex.P5- bunch of photographs and Ex.P12-rough sketch. Admittedly, P.W.13 while observing the scene of offence, prepared Ex.P12-Rough Sketch of the scene of offence in the presence of mediators P.W.8 and another. Even according to Ex.P12, the dead body was found lying in the godown near to rear wall of the godown and the godown and shops were separated by a long iron shutter door way into verandah of the godown and later another door to enter into the godown. When P.W.1 was sitting either in the shop or in the verandah, it is impossible for him to witness the incident that took place inside the godown having one door way to enter into it from the northern side of the godown. Therefore, his evidence with regard to witnessing the incident in the shop while causing injuries over the head of the deceased by the accused is highly doubtful. Consequently, the Trial Court rightly disbelieved his presence at the time of alleged offence witnessing the incident of causing injuries over the head of Kamireddi Srinivasarao @ Srinivas by the accused and even after re- appraisal of oral evidence with reference to documentary evidence, 16 marked as Exs.P3, P5 and P12, it is difficult for us to come to any other conclusion other than the conclusion arrived by the Trial Court.
28. P.W.3 is another direct witness. He also testified in the same lines of P.W.1. The only difference in testimony of P.W.1 and P.W.3 is relationship with the deceased. He is no other than the brother- in-law of Kamireddi Srinivasarao @ Srinivas (deceased). On the date of incident, he along with his wife went to the house of Kamireddi Srinivasarao @ Srinivas. The shop of Kamireddi Srinivasarao @ Srinivas is by the side of his residential house and when P.W.3 and his friend I.K.Srinivas(L.W.4) were at the gate of residential house, they heard cries and immediately ran to the shop of Kamireddi Srinivasarao @ Srinivas(deceased), found the accused beating him with an iron rod. He could identify the M.O.1-Iron pipe and witnessed the incident from the distance of 7 or 8 feet. As the accused threatened at the point of M.O.1, they could not interfere but after some time on account of gathering at the shop of the deceased, the accused ran away holding the iron pipe marked as M.O.1 in his hands. In the second sentence of cross examination on 06-08-2012, P.W.3 admitted that P.W.1 used to visit the shop of deceased Kamireddi Srinivasarao @ Srinivas and I.K.Srinivas(L.W.4) is the husband of the sister of Kamireddi Srinivasarao @ Srinivas and they saw the incident after entering into the shop of the deceased and according to them, the incident had taken place in the godown not in the shop and further admitted that there is shutter between the shop room and godown and the shutter was open, they could witness the incident if there is a wooden frame between the 17 shop and godown, it may not be possible to witness the incident and that there is a separate entrance door to the godown and three sides of the godown are covered by walls. This crucial admission in the evidence is sufficient to disbelieve the witnessing the incident by P.W.2 coupled with Ex.P12-Rough Sketch of the scene of offence, Ex.P3-Observation report and Ex.P5-Photographs. Even if anybody enter into the godown, they have to first enter into the verandah and then enter into the shops and from there by opening the door between the verandah of the godown and then open a door of the godown to its northern side. But according to the evidence of the P.W.2 as the door between the verandah of the godown and shops was open, they could witness the incident. But on verification of the Ex.P12-Rough Sketch and the Ex.P3-Observation report coupled with Ex.P5-Positive and Negative photographs, it is highly difficult for anyone to witness the incident from the shops because a shutter is fixed to wall between the shops and verandah of the godown. Only one door was fixed to the godown to its northern wall and thereby it is impossible to witness the incident that allegedly took place near the rear wall of the godown from the door way fixed to the wall between the verandah of the godown and shops. Hence, the Trial Court disbelieved the evidence of P.W.3 also based on the documentary and oral evidence.
29. Apart from that there is any amount of discrepancy in the evidence of P.Ws.1 and 3. According to P.W.1, the incident took place in the shop and according to P.W.3, the incident took place in the godown. But neither of them are wholly reliable witnesses. It appears from the evidence available on record that these two 18 witnesses are conveniently planted to prove the complicity of the accused for the grave offence punishable under Sections 302 and 506 of I.P.C. Therefore, the Trial Court rightly disbelieved the evidence of P.Ws.1 and 3 and this Court can't take any different view than the view taken by Trial Court.
30. The other witnesses are only circumstantial witnesses. According to Ex.P5-Positive Photographs with negatives, the incident took place inside the godown near to the rear wall of the godown. But surprisingly, the P.W.13 during observation of scene of offence, seized blood stained earth and controlled earth. But as seen from the material available on record, the godown flooring is not earthen flooring, it is a cement flooring, thereby the question of seizure of controlled earth and blood stained earth from the scene of offence during the observation of scene of offence which is marked as Ex.P3 in the presence of P.W.8 is highly doubtful. P.W.8 in his examination in chief and P.W.13, the Investigating Officer specifically stated that the controlled earth and blood stained earth were seized under the cover of Observation report marked as Ex.P3 and P.W.8 is the scribe of Ex.P3. He also gave description of the property, more particularly, about the existence of verandah and door ways etc., In the cross examination of P.W.8, he admitted that the contents of M.Os.2 and 3 are controlled and blood stained cement floor pieces and not controlled and blood stained earth. Hence, the evidence of P.W.8 coupled with Ex.P3-Observation report and evidence of P.W.13-Investigating Officer regarding seizure of M.Os.2 and 3 which are described as controlled earth and blood stained earth is unbelievable. Hence, on that ground also, it can 19 safely be concluded that the incident took place inside the godown near rear wall of the godown.
31. On re-appreciation of evidence of P.W.1, P.W.3 coupled with other documentary evidence referred above, it is difficult to believe the presence of P.W.1 and P.W.3 at the time of incident and directly witnessing the incident by them. As such, they are planted witnesses to establish the guilt of the accused and that too P.W.3 is a relative of the deceased whose presence is highly doubtful as he is resident of Chemudulanka village of Alamuru Mandal. But to substantiate his presence on the day at the house of deceased Kamireddi Srinivasarao @ Srinivas, he invented a theory of visiting the house of deceased on account of 'Sravana Sukravaram'. Therefore, the presence of P.Ws.1 and 3 is highly doubtful and their evidence is rightly rejected by the Sessions Judge.
32. Turning to the circumstantial evidence, the prosecution relied on borrowing of debt, insistence for repayment of debt by the accused immediately on the date of incident with a threat to consume poison in case he refused to repay the debt amount and the earlier incident. No doubt the evidence of P.W.5, father of deceased Kamireddi Srinivasarao @ Srinivas supports the earlier disputes with regard to non payment of debt due to the accused by the Kamireddi Srinivasarao @ Srinivas. However, the motive is not substantive piece of evidence. It is the only circumstance which is an additional link in the chain of circumstances and if the prosecution is able to prove its case by direct witnesses, the motive is more or less remains academic. However, mere establishment of motive by itself is not sufficient to draw an inference that the 20 accused is the person who caused death. Time and again the Apex Court highlighted what is the effect of establishment of motive in grave offences like murder. It is only the corroborative piece of evidence to complete the links in the chain of circumstances.
33. In Anil Rai v. State of Bihar4, the Apex Court held that the admitted position of law is that enmity is a double edged weapon which can be a motive for the crime and also false implication of the accused persons. In case of inimical witnesses, the Courts are required to scrutinize their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be motive for the commission of crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity held to be a double edged weapon may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the testimony of prosecution witnesses regarding the involvement of accused in the commission of the crime. The testimony of eye witnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased were related to the eye witnesses or previously there were some disputes between the accused and the deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the 4 2001(2) ALD (Crl.) Page 446 21 accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case. However, the mere existence of enmity in this case, particularly when it is alleged as a motive for the commission of the crime cannot be made basis to discard or reject the testimony of the eye-witnesses, the deposition of whom is otherwise consistent and convincing.
34. In view of the principle laid down by the Hon'ble Apex Court, enmity by itself is not a ground to conclude that the accused is the person who perpetrated the murder. After developing enmity, the accused must develop motive to commit murder. However, motive itself is not a substitute for proof.
35. Turning to the facts of the present case, the consistent case of the prosecution from the beginning is that the accused earlier threatened Kamireddi Srinivasarao @ Srinivas for repayment of the amount or else consume poison and even on the alleged date of incident, initially he insisted for repayment of debt instantaneously and when the Kamireddi Srinivasarao @ Srinivas(deceased) agreed to discharge the debt within one month, he made an attempt to consume poisonous substance in a tin available in the godown annexed to the shops of the deceased Kamireddi Srinivasarao @ Srinivas. If really, he had any motive to kill the deceased on account non-payment of debt, question of making an attempt to commit suicide by consuming poisonous substance does not arise. Therefore, the motive attributed to the accused to kill Kamireddi Srinivasarao @ Srinivas is not acceptable in the set of circumstances in the present case and in fact he had no intention to kill but 22 threatened to commit suicide by consuming poisonous substance by himself on account of postponement of re-payment of debt by Kamireddi Srinivasarao @ Srinivas within one month. Even assuming for a moment that there was enmity and developed motive to kill Kamireddi Srinivasarao @ Srinvias that by itself is not substantive piece of evidence, since it is not substitute for the proof.
36. The second circumstance relied by the prosecution is seizure of M.O.1, based on the confession leading to discovery by the accused which is admissible under Section 27 of Evidence Act. Ex.P6 admissible portion of mediators report dated 17-08-2011 confession leading to discovery is relevant at this stage along with evidence of P.W.10 and P.W.13. As seen from the contents of Ex.P6, the accused after his arrest assured that he will show an iron pipe if they accompany him. Based on his confession, the accused led P.W.13, P.W.10 along with other mediator to agricultural land of Kothapalli Satyanandam, the accused picked out iron pipe piece from bushes and produced before the P.W.10, P.W.13 and other mediator, the same is seized under the cover of Ex.P7 in the presence of same mediators. At best this recovery evidence if established, it is only one of the circumstances to establish guilt of the accused. Though the recovery evidence is not a substantive piece of evidence, it is useful to prove the circumstances to complete the links in chain.
37. Section 27 of Indian Evidence Act is an exception to Sections 25 and 26. The conditions necessary for invoking the aid of the Section are as follows:
23
a) there must be a discovery of a fact albeit relevant fact in pursuance of an information received from a person in police custody;
b) the discovery of such fact must be deposed to;
c) at the time of giving information the accused must be
in police custody;
Then the effect is that so much of the information as relates distinctly to the fact thereby discovered is admissible. What is allowed to be proved is the information or such part thereof as related distinctly to the fact thereby discovered.
Discovery evidence is not substantive evidence (vide Dinakar v. State5].
Similarly, in Inspector of Police, Tamil Nadu Vs. Balaprasanna6, the Apex Court held as follows:
"Law is well settled that the prosecution while relying upon the confessional statement leading to discovery of articles under Section 27 of the Evidence Act, has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts. The scope and ambit of Section 27 of the Evidence Act had been stated and restated in several decisions of the Supreme Court. However, in almost all such decisions reference is made to the observations of the Privy Council in Pulukuri Kotayya vs. Emperor, AIR 1947 PC 67. At one time it was held that the expression 'fact discovered' in the second is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression 'fact discovered' includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kotayya's case. The various requirements of the section can be summed up as follows:- 5
AIR 1970 Bombay Page 438 6 2009(1) ALD (Crl.)(SC) Page 113 24
1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
2) The fact must have been discovered.
3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
4) The person giving the information must be accused of any offence.
5) He must be in the custody of a police officer.
6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
38. In view of the principle laid down in the above decision, when fact is discovered in pursuance of confession leading to discovery is only relevant piece of evidence, but it is not a substantive piece of evidence.
39. Even otherwise, in Brijesh Mavi Vs. State of NCT of Delhi7, the Apex Court, held that recovery evidence, when sufficient to prove culpability of accused and direct evidence connecting accused to murder. Recovery of weapon of offence at the instance of accused two years after incident is not believable and the recovery of weapon, therefore, is not sufficient to convict the accused for the offence of murder under Section 302 of I.P.C.
40. In the instant case on hand, the recovery alleged to be effected on 17-01-2011, whereas the incident took place on 12-08-2011. The difference is only five days. Therefore, the above judgment has no application. More over, the evidence on record, more particularly, alleged direct witnesses P.Ws.1 and 3 is not consistent 7 2012(2) ALD (Crl.) Page 865(SC) 25 as to the nature of weapon used in the commission of offence. According to P.W.1 in the first sentence of Page No.2, the accused beat Kamireddi Srinivasarao @ Srinivas(deceased) with an iron rod on the right eye, over the head and caused bleeding injuries, whereas in the evidence of P.W.3 in the examination in chief, he specifically testified that on hearing cries, P.W.3 ran along with L.W.4-I.K.Srinivas to the shop of deceased Kamireddi Srinivasarao @ Srinivas and found the accused beating the deceased with an iron rod and identified the said iron rod as M.O.1. But whereas M.O.1 is a rusted iron pipe. Hence, there is any amount of inconsistency in the evidence on record as to the weapon used in commission of such an offence. In the evidence of P.W.12, doctor, who conducted autopsy, found five injuries and all those injuries are lacerated wounds of different sizes and found blood clots and cerebral hemispheres and fracture of left parietal temporal right bones and stated that those injuries could be caused with M.O.1. But the Trial Court considered the height of the deceased, found 5" variation in the height of the deceased etc., But that is not relevant, it depends upon the posture at the time when the accused caused injuries over the head or body Kamireddi Srinivasarao @ Srinivas(deceased). Though, the reasoning based on the height of the deceased etc., recorded by the Trial Court is not acceptable, the recovery of M.O.1 on the basis of confession leading to discovery marked as Ex.P6 and seizure of M.O.1 under Ex.P7 is highly doubtful for the simple reason that the testimony of alleged eye witnesses was in-consistent that the injuries were caused with an iron rod not with pipe, that too such iron pipe or rod is easily available in the market and place 26 of recovery is not in the exclusive knowledge of accused on the other hand it is accessible to any one. Thus the prosecution miserably failed to establish the guilt of the accused/respondent either by direct or circumstantial evidence. Hence, we find no ground calling for interference of this Court in appeal.
41. On consideration of the entire material and after re-appraisal of entire evidence, we find no illegality in the findings recorded by the Trial Court warranting interference of this Court while exercising power under Section 372 r/w 374(2) of Cr.P.C. Hence, the acquittal of the accused recorded by the Trial Court in Sessions Case No.149 of 2012 vide calendar and judgment dated 13.09.2012 are hereby confirmed.
42. In the result, the Appeal is dismissed confirming the acquittal of the accused passed by the Principal Sessions Judge at Rajahmundry, East Godavari District in favour of the accused for the offence punishable under Sections 302 and 506 of I.P.C., in Sessions Case No.149 of 2012 vide calendar and judgment dated 13.09.2012.
____________________________________________ JUSTICE M. SATYANARAYANA MURTHY, J __________________________________ JUSTICE NINALA JAYASURYA, J Dated:19.06.2020 BLV 27 THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY AND THE HON'BLE SRI JUSTICE NINALA JAYASURYA CRIMINAL APPEAL No.754 OF 2014 (Judgment delivered by the Hon'ble the Justice M.Satyanarayana} 19.06.2020.
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