Andhra Pradesh High Court - Amravati
The State Of Ap Rep By Its Pp Hyd., vs Sake Harijana Anjamma, 7 Others, on 10 July, 2019
Author: M.Satyanarayana Murthy
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
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THE HON'BLE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Criminal Appeal No.785 of 2013
JUDGMENT :(Per Hon'ble Sri Justice M.Satyanarayana Murthy) The State preferred this appeal challenging the acquittal of the accused in Sessions Case No.145 of 2004, dated 11.08.2005 under Calendar and Judgment passed by the IV Additional Sessions Judge (FTC), Anantapur, finding them not guilty for the offences punishable under Sections 147, 148, 302 read with Section 149 and 109 I.P.C.
2. It is alleged by P.W.1 in Ex.P1 that he is the son of deceased Narigolla Kullayappa, resident of Malyavantham Village. During the year 1998, a crime was registered against the deceased Narigolla Kullayappa for the offence punishable under Section 376 I.P.C. at the instance of the 1st accused and Kullayappa was arrested and remanded to judicial custody and after completion of investigation, charge-sheet was filed, however, he was found not guilty for the said offence and it was ended in acquittal.
3. On account of facing trial in Sessions Case, the deceased Kullayappa used to abuse accused No.1 for his false implication in the case. Thereafter, son of accused No.1 picked up quarrel with him. Accused No.8 also bore-grudged against the deceased, since deceased Kullayappa was exposing the illicit intimacy between A8 and L.W.8 Kullayamma. So, the accused hatched a plan to do away the life of deceased Kullayappa. In pursuance of plan hatched by the accused, during night of 13/14-7-2003 at about 2.00 AM while the deceased Kullayappa was sleeping on a cot in front of his house in the front yard along with P.W.1 and P.W.2, son and wife of the deceased Kullayappa, at about 2.00 AM A1 to A7 formed themselves into an unlawful assembly 2 armed with deadly weapons with a common object of murdering the deceased. A2 to A7 were armed with sickles, knives and daggers and proceeded to the house of Kullayappa and at the instigation of A1 and A8, A2 to A4 hacked the deceased on his neck with the sickles. A5 to A7 stabbed the deceased with knife and daggers. On receipt of injuries, Kullayappa raised cries and on hearing the cries, P.W.1 Venkataramana and his mother Obulamma woke up. In the meanwhile, L.W.3 Harijana Narayanamma, P.W.3, P.W.4, L.W.6-Gujjala Harijana Kullayappa and P.W.5 rushed to the scene of offence, but the accused threatened them with dire consequences and ran away.
4. On 14.7.2003 at about 9.30 AM P.W.1 went to Bathalapalli Police Station along with P.W.4 and L.W.6 Gujjala Harijana Kullayappa and lodged a report, which is marked as Ex.P1 and the same was registered as a case in crime No.43 of 2003 for the offences punishable under Sections 147, 148, 302 read with Section 149 I.P.C. and investigation was taken up.
5. During investigation, the Inspector of Police - P.W.11 examined the witnesses and recorded statements under Section 161(3) Cr.P.C. and held inquest over the dead body of the deceased in the presence of L.W.13 - Giriyappa and P.W.7 - M.Satyanarayana and later sent the dead body for Postmortem examination. Dr. P.Yugandar- P.W.10 held autopsy over the body and issued Ex.P13 - Postmortem Certificate, dated 14.7.2003 opining that the cause of death of Kullayappa was due to hemorrhage and shock due to injuries.
6. On 22.7.2003 at about 11.00 AM P.W.11 - Inspector of Police arrested A1 to A7 near Narasampalli crossroad and on their confession, he seized bloodstained clothes and crime weapons produced by A2 to A7 under cover of panchanama in the presence of L.W.16 Kapadamu Ramudu and P.W.8 - Raghuvendra Prasad and remanded them to judicial custody. On 28.7.2003 at about 4.00 PM, P.W.11 - Inspector of 3 Police arrested A8 near R.D.T. Hospital in the presence of P.W.9 and L.W.19 -C.Venkata Reddy, remanded him to judicial custody. Scene of offence was also photographed by P.W.6 - M.Sivaram Naidu, thereafter, seized material objects were sent to R.F.S.L., Anantapur, through J.F.C.M., Dharmavaram, along with letter of advice Ex.P16. On analysis, the Director gave his report and the same is marked as Ex.P17.
7. Based on the evidence collected during investigation by P.W.11, charge-sheet was filed before the Judicial Magistrate of First Class, Dharmavaram, for the offences punishable under Sections 147, 148, 302 I.P.C. read with Section 149 I.P.C. and 109 I.P.C. The Judicial Magistrate of First Class, after following necessary procedure, committed the case under Section 209 Cr.P.C. to Sessions Judge, as the offence is exclusively triable by the Court of Sessions. In turn, the Principal Sessions Judge registered the same as Sessions Case and made over to the Court of IV Additional Sessions Judge (FTC), Anantapur for trial and disposal in accordance with law.
8. On securing the presence of the accused and upon hearing the argument of the learned Public Prosecutor and the counsel for the accused, the Sessions Judge framed charges under Sections 147 and 148 against A1 to A7 and under Section 302 I.P.C. against A1 to A8, read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried. Later, charge No.2 was altered against A2 to A7 charging them under Section 148 I.P.C.
9. During trial, the prosecution examined as many as 11 witnesses on its behalf and marked Exs.P1 to P17 and M.Os.1 to 18. Ex.D1 was marked on behalf of the defence.
10. 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 4 witnesses, they denied the same and reported no defence. Upon hearing arguments of the learned Public Prosecutor and defence counsel, the trial court found the accused not guilty for the offences punishable under Sections 147, 148 and 302 I.P.C. and acquitted them for the same.
11. Aggrieved by the acquittal, the present appeal is preferred by the State mainly on the ground that the Sessions Judge did not consider the evidence with reference to the ingredients to constitute an offence punishable under Sections 147, 148, 302 read with Section 149 I.P.C. and despite the consistent evidence of P.Ws.1 to 5 supported with prosecution case, the trial Court found the accused not guilty, considering the minor inconsistencies in their testimony. Describing P.Ws.3 to 5 as chance witnesses is not based on any material and that the trial Court failed to appreciate the evidence in proper perspective and committed an error in finding the accused not guilty and acquitting them for the above charges and requested to set aside the acquittal of the accused for the offences punishable under Sections 147, 148 and 302 I.P.C. and requested to convict them for the said offences on re-appreciation of the entire evidence.
12. As this appeal is filed against the acquittal by the State, normally the Court has to re-appreciate the evidence and the Court will not interfere with such acquittal, unless there is a perversity in the findings recorded by the trial Court. It is the sacrosanct duty of the appellate court, while sitting in appeal against the judgment of the trial Judge, 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 5 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 & Anr v. State Of Gujarat1). It is the duty of the Court to re-appraise the entire evidence even in appeal filed against acquittal vide Girja Prasad v. State of M.P.2 and the appeal shall never be a slipshod matter. Where two views are possible based on the evidence, this Court cannot interfere with the order of acquittal in ordinary course of events vide Rama Krishna Vs. S. Rami Reddy3. Though the powers of the Court are very wide to appreciate the evidence in appeal against the order of acquittal, the interference with such acquittal is permissible only when the findings are not based on any evidence or the trial Court failed to appreciate the evidence in proper perspective vide Musheer Khan @ Badshah Khan and another v. State of Madhya Pradesh4 and Sangappa and others v. State of Karnataka5.
13. During the hearing, the Advocate General on behalf of the State contended that the trial Court failed to appreciate the evidence in proper perspective and extending benefit to the accused as to the identity in a dark night is contrary to the evidence available on record, since they are known persons to P.Ws.1 and 2. Similarly, the change of time of death is also not based on any material and therefore, the Court below committed an error and the impugned judgment warrants interference of this Court in the appeal filed under Section 378 of Cr.P.C.
14. Whereas, counsel for the accused/respondents Sri Kunchem Maheswara Rao supports the judgment in all respects while drawing the attention to findings recorded by the trial Court on appreciation of evidence to contend that the Court cannot interfere when the benefit is extended to the respondent by the trial court in view of the settled law. 1 (2013) 15 SCC 263 2 AIR 2007 SC 3106 3 AIR 2008 SC 2066 4 AIR 2010 SC 762 5 AIR 2010 SC 977 6
15. Keeping in view of the scope of appeal under Section 378 of Cr.P.C. we would like to advert to re-appreciate the evidence with reference to the authorities framed against the respondents.
16. The case of the prosecution is based on both direct and circumstantial evidence. P.W.1 is the son of the deceased Kullayappa and P.W.2 is the wife. The incident allegedly occurred while they were sleeping in front of their house in the front yard during the night of 13/14-7-2003. They also spoke about the previous enmity between A1 and the deceased Kullayappa on account of his false implication in the sessions case punishable under Section 376 I.P.C. Homicidal death of Kullayappa is not in dispute and this fact is supported by Ex.P8 - Inquest Report and Ex.P13-Postmortem Certificate and the evidence of P.W.10 - Dr.P.Ugandar. When homicidal death of Kullayappa is not in dispute, the only question remains for our determination is, whether the accused caused death of Kullayappa knowing that those injuries are sufficient to cause death in ordinary course of events with an intention to kill him.
17. As per the evidence of P.W.1, son of the deceased Kullayappa, while they were sleeping in front yard of their house during the intervening night of 13/14-7-2003, he heard dog barking during midnight. Immediately, P.W.1 and his mother woke up and noticed A1 to A7 surrounding cot of his father Kullayappa armed with deadly weapons like sickles, dagger, churakatti. A2 to A5 were holding sickles, whereas A6 was holding a dagger, A7 was having churakatti and the light was glowing in front of their house and there is a community hall nearby the house and streetlights were glowing in front of the community hall as well. P.W.1 identified the accused with the aid of lights glowing in front of the house and also in front of the community hall, near the house. It is his specific evidence that A1 instigated the other accused to hack Kullayappa and then A2 hacked his father on his neck with a sickle. 7 P.Ws.1 and 2 went to rescue the deceased Kullayappa, but they were pushed aside. A3 hacked his father with a sickle on his face, A4 hacked his father on his cheek with a sickle, A5 hacked his father on his throat with a sickle, whereas A6 stabbed on the shoulder of his father with dagger and A7 stabbed the deceased on his chest with churakatti. While witnessing the incident, P.W.1 and his mother P.W.2 raised cries and on hearing the same, his grand-mother and younger brother and junior paternal uncle came there, but the accused threatened them and ran away from the scene of offence.
18. In the cross-examination, he stated that his father was convicted for the murder of one, Debbaiappa and served life imprisonment. He pleaded ignorance as to the attempts made by sons of Debbaiappa to kill his father twice in retaliation of murder of their father. A suggestion was put to witness that Kullayappa developed illicit contact with Kullayamma and there was a galata at 6 PM on 13.7.2003 between the husband of Kullayamma and father of P.W.1 Kullayappa and that suggestion was denied by P.W.1. The defence counsel made an attempt to prove that due to illicit contact between Kullayappa and Kullayamma, wife of Narayana and disputes between Kullayappa and Debbaiappa, somebody might have caused death of the deceased Kullayappa, father of P.W.1, but nothing was elicited in the cross-examination of P.W.1 to establish that there were disputes between Narayana and Kullayappa, while establishing that there were differences between Debbaiappa and Kullayappa. The defence counsel also honestly made an attempt to prove that there is no possibility of L.W.3 - Harijana Narayanamma, P.W.4 and L.W.6 - Harijana Kullayappa came to the scene of offence on hearing the cries, since the distance between the house of L.W.3 and the house of P.W.1 is one furlong and the distance between the house of P.W.4 and the house of P.W.1 is about 100 yards and the house of L.W.6 - Harijana Kullayappa is at a distance of about 50 yards from the 8 house of P.W.1 on western side. On the basis of the distance, the counsel contended that there is no possibility of hearing cries during night and their arrival at the scene of offence. Curiously, in the cross- examination, P.W.1 admitted that he was studying Intermediate at Bathalapalli at the time of the incident and his younger brother was learning weaving work at Dharmavaram by staying in the house of his elder sister Venkatalakshmi of Dharmavaram. The suggestion that P.W.1 was also staying in the house of his sister at Dharmavaram by studying Intermediate at Dharamavaram was denied by P.W.1. It is also suggested to the witness that Obulamma - P.W.2 is also residing at Dharmavaram at the time of incident in P.W.1's sister's house. But, all the suggestions were denied. The suggestions were quoted only to disbelieve their presence at the time of the incident. The facts elicited at best would show that the lights are not shedding light up to the main doorway of the house of P.W.1, therefore, P.W.1 put on their light in front of their house. But, the evidence of P.W.1 creates any amount of doubt as to his presence in the house at the time of incident or even prior to the date of incident.
19. Similarly, P.W.2, mother of P.W.1 and wife of the deceased also deposed in the same lines. Their consistent evidence is that they directly witnessed the incident. The evidence of P.Ws.1 and 2 is consistent that the deceased Kullayappa returned to home at about 8.00 PM or 9.00 PM and did not take meal, whereas other inmates of the house had their food. But, in the cross-examination, a suggestion was put to P.W.1 that the deceased had meal at 7.30 PM and went to bed at 8.00 PM and he was murdered at 9.00 or 9.30 PM on the date of incident. P.W.2 also stated on the same lines regarding time of death and food etc., Other witnesses P.Ws.3 to 5 who allegedly came to the scene of offence on hearing the cries explained the incident. P.W.6 is photographer who photographed the scene of offence.
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20. The prosecution also examined P.W.10 Doctor who conducted Postmortem examination over the dead body of Kullayappa and found several injuries. He found semi-digested food in the intestines during internal examination. In the cross-examination of P.W.10 he clearly stated that 4 or 5 hours' time is sufficient to digest food in the stomach and intestines, but he did not mention the volume of the semi-digested food found in the stomach of the deceased in the postmortem report. He found only pulp in the stomach and the normal mechanism of digestion is that by peristaltic movements in the stomach, the food will be made pulp and for every half an hour, half of the food consumed and remained in the stomach will be pushed into the small intestines and in the next half an hour, half of the remaining food in the stomach will again pushed into the intestines and thus it continues till the entire food is sent into the intestines and the duration varies depending upon the nature of food, quantity of food, digesting capacity of the person etc., A person with rural background and accustomed to hard labour will have better digestive system. For a man of rural background accustomed to hard work and of good health and for an ordinary meal, the food will leave the stomach completely within 3 to 4 hours and there is no chance of the presence of any food or semi-digested food in the stomach after lapse of 6 hours of taking the last meal.
21. Taking advantage of admissions of P.W.10 about finding semi- digested food in the stomach, the counsel for the respondent contended that the time of death was changed. When deceased Kuallayappa returned home at 8.00 PM and the incident occurred during midnight, the question of finding semi-digested food or pulp in the stomach does not arise. Therefore, the time of death is changed, because the deceased Kullayappa is a man of rural background attending hard labour and nothing was stated by P.W.10 or any witness that his health condition was not good or he was suffering from any ailments. In the absence of 10 any material, basing on the evidence of P.W.10, the trial Court concluded that the time of death was suppressed and conveniently created the time of death as midnight. Therefore, the trial court rightly disbelieved the time of death. All the witnesses, including P.Ws.3 to 5, categorically stated that they heard cries during midnight, that must be about 12 midnight or thereafter or before 12 midnight. Even according to the evidence of P.W.10, in view of finding, semi-digested food or pulp in the stomach, it is highly difficult to conclude that the time of death was during midnight. If really the deceased Kullayappa had meal prior to 8 PM, it could have been digested completely by 12 midnight. When semi- digested food is found in the stomach, any amount of doubt as to the time to death arises. Therefore, the conclusions arrived at by the trial Court cannot be disturbed as two views are possible, more particularly, one view is in favour of the accused that the actual time of death is suppressed and changed conveniently to prove the arrival of other witnesses to witness the incident. When the time of incident is changed, the presence of all other witnesses and witnessing the incident is not believable, hence, we are of the view that the benefit must go to the accused/respondents.
22. The other reason recorded by the trial court is that there is possibility of mistaken identity as it was dark night and the trial Court placed reliance on the judgment of the Supreme Court reported in State of Rajasthan v. Bhola Singh and another6 wherein the Apex Court held that the identification of the accused by witness without any light is highly doubtful and plea taken by the witness that electric bulb was burning is not supported by any material and such evidence cannot be relied upon. In the facts of the present case also there are no street lights or electric bulbs glowing at the scene of offence as can be seen from the evidence of Investigating Officer - P.W.11. In such case, the 6 AIR 1994 SC 542 11 identification of the accused by P.Ws.1 to 5 with the aid of lights glowing in the front yard of the house of the deceased or community hall is doubtful. P.W.11 in his evidence specifically stated that he does not know about the provision for the electricity at the house of the deceased or outside the house of the deceased, but there is reference about location of school in the same lane i.e., by the side of the house of the deceased. He also did not mention anything about provision of electricity to the community hall in front of the house of the deceased. The observation report marked as Ex.P9 and rough sketch marked as Ex.P15 did not disclose any provision of electricity lights and shedding of light to the scene of offence from any direction. In Ex.P15-rough sketch of the scene of offence, no electric lights were noted. In the absence of mention of electricity provision or bulbs glowing either in the front yard of the house of the deceased or in the front yard of the community hall opposite to the house of the deceased, it is difficult to accept the contention that P.Ws.1 to 5 identified the accused with the help of the lights shedding to the scene of offence, either from the front yard of the house of the deceased or from the community hall. Therefore, by applying the principle laid down in the Apex Court judgment, benefit should be given to the accused.
23. On over all consideration of material available on record it is clear that Kullayappa was murdered prior to mid night itself and the medical evidence disproved the time of commission of murder as spoken by P.Ws.1 to 4 at 2.00 AM in the intervening night of 13/14-7-2003 and apart from that there is no possibility to identify the assailants in the absence of any electric lights available at the scene of offence as per Ex.P9 and Ex.P15. In those circumstances, we have no option except to uphold the acquittal of the accused finding them not guilty for the offences punishable under Sections 147, 148, 302 read with Section 149 and 109 I.P.C.
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24. Though the learned Public Prosecutor raised a ground that the trial Court did not consider the ingredients constituting the offences and though the evidence of P.Ws.1 to 5 is consistent as to causing injuries with deadly weapons and witnessing the incident, but their presence at the time of incident or much before the time of incident, as they stated, cannot be believed. When the evidence of P.Ws.1 to 5 is disbelieved, absolutely there is no material to conclude that respondents perpetrated the murder of Kullayappa at 2.00 AM in the intervening night of 13/14- 7-2003.
25. One of the motive attributed to the accused is that the deceased Kullayappa used to abuse A1 for foisting false case against him for the offence punishable under Section 376 I.P.C. Motive or enmity may be a ground either to foist a false case or to commit an offence, motive is only relevant under Section 8 of Evidence Act, but it is not a substantive piece of evidence, it is only a corroborative piece of evidence to complete the links in the chain of circumstances.
26. In Anil Rai v. State of Bihar7, 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 as also the ground for 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 the motive for the commission of the 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 7 2001(2) ALD (Cri.) page 446 13 evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime. 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 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.
27. From 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 by itself is not a ground to convict the accused and proof of motive is not the substitute for proof.
28. In view of the law declared, motive is not a substantive piece of evidence, but it is only a corroborative piece of evidence. According to Section 8 of the Indian Evidence Act, motive is relevant fact and it is one of the circumstance to complete the chain of circumstances. Motive is double-edged weapon. It may be a ground for committing a crime and it may also be a ground for falsely implicating the accused. Proof of motive may lend additional support to the prosecution, but it cannot make good the deficiency of the prosecution case.
29. In view of the law declared by the Apex Court, proof of motive itself is not sufficient, more particularly when the prosecution is unable to prove witnessing the incident by P.Ws.1 to 5. Therefore, based on enmity it is highly difficult to reverse the finding recorded by trial court, as we find no merit in the contention.
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30. In view of our foregoing discussions, after reappraisal of the entire evidence, we find no grounds to interfere with the Calendar and Judgment in Sessions Case No.145 of 2004, dated 11.08.2005 passed by the IV Additional Sessions Judge (FTC), Anantapur. Consequently, the appeal is devoid of merits and is liable to be dismissed.
31. In the result, the Criminal Appeal is dismissed. Consequently, miscellaneous petitions, if any, pending shall stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 10.07.2019 skmr