Andhra Pradesh High Court - Amravati
Shaik Subhan Basha, Spsr Nellore Dt., vs State Of Ap., Rep., Pp., on 17 November, 2020
Author: K.Suresh Reddy
Bench: K.Suresh Reddy
HON'BLE SRI JUSTICE A.V.SESHA SAI
&
HON'BLE SRI JUSTICE K.SURESH REDDY
CRIMINAL APPEAL NO.1002 OF 2014
JUDGMENT:(Per AVSS,J) The sole accused in Sessions Case No.177 of 2012 on the file of the Court of Session, Sessions Division, SPSR Nellore District, is the appellant in the present Criminal Appeal preferred under Section 374(2) of the Code of Criminal Procedure,1973 (for short "Cr.P.C.").
2. By way of the said judgment, dated 25-09-2014, the learned Sessions Judge convicted the appellant/accused herein for the offence punishable under Sections 302, 376, 379 and 201 of the Indian Penal Code,1860( for short "IPC").
3. The case of the prosecution, in nutshell, is as follows:-
One Tatiparthi Padmavathi studied upto X Class at Sullurupeta and Intermediate in D.K.W.Government College, Nellore and joined I year Degree in D.K.W.Government College, Nellore and she came to her house during Dasara Vacation on the ground that she was not doing well and subsequently she did not go to the College after Dasara Vacation. On 03-04-2011 she went to Nellore to receive her scholarship pertaining to previous year. On the second day evening, as she did not return to home, her grand father-Tatiparthi Subbaiah(Pw.6) and sister of Pw.1 2 AVSS,J & KSR,J CRL.A.1002_2014 Golla Kistamma(Lw.8) came to D.K.W.College, Nellore and on enquiry the grand father of the deceased came to know that the deceased did not come to the College and grand father of the deceased gave a land phone number to the Principal of the College with a request that if deceased comes to the College information be passed on. On information from the Owner of the Lorry and other neighbourers that they saw the photo of the dead body of deceased in "Saakshi Newspaper", Pw.5 along with his family members went to Balaji Nagar Police Station, Nellore and the police took them to the mortuary of the DSR Government Hospital, Nellore and they identified the dead body as that of the deceased and they also observed injuries on the dead body and missing of ear studs but found 'nose stud' to her nose and after conducting post-mortem, the dead body was handed over to them. In connection with the said offence, police registered a crime and after conclusion of the investigation, Pw.19 filed a charge sheet against the appellant/accused herein for the offences punishable under Sections 302,376, 379 and 201 IPC.
4. In order to substantiate its case, the prosecution examined PWs.1 to 19 and exhibited Exs.P-1 to P-25 apart from Mos.1 to Mo.6. On behalf of defence, none were examined, but marked Exs.D-1 to D-5.
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5. The learned Sessions Judge framed the following points for consideration:-
1. Whether the accused committed murder of the deceased-
Tatiparthi Padmavathi on the night of 4.4.2011 near metal heaps situated in the premises of S.V.G.S.College near N.T.R.Nagar, Nellore by throttling her with chunni and strangulated her?
2. Whether the accused committed rape on Tataparthi Padmavathi before committing murder?
3. Whether the accused committed theft of ear studs and Cell Phone of deceased-Tataparthi Padmavathi?
4. Whether the accused dragged the dead body of the deceased into metal heap and also had thrown away her articles in bushes near to the scene of offence with a view to cause disappearance of evidence?
5. Whether the prosecution proved the guilt of the accused for the offences under Sections.302, 376, 379 and 201 IPC beyond reasonable doubt?
6. The learned Sessions Judge eventually convicted the accused for the offence punishable under Sections.302,376,379 and 201 IPC. Hence, the present Criminal Appeal.
7. Heard Sri T.Pradyumna Kuamr Reddy, learned counsel representing the counsel for the appellant on record and the learned Public Prosecutor for the State.
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8. Submissions and contentions of the counsel for the appellant:
1. That the impugned judgment is highly erroneous, contrary to law, weight of evidence and probabilities of the case.
2. That the prosecution failed to prove the guilt of the accused beyond reasonable doubt, as such, the learned Sessions Judge ought to have acquitted him.
3. That in the absence of any eye witnesses for the offences alleged, the learned Sessions Judge grossly erred in convicting the accused.
4. That the prosecution failed to prove the motive for the offence.
5. That in view of the inconsistency in the evidence of Pws.9 and 10, benefit of doubt should have been extended to the accused.
6. That Pw.9 deposed that he saw the deceased in the company of the accused at 8.30 P.M and informed that he was intending to take the girl to a shop for purchase of a Cell Phone but the evidence of Pw.10 shows that the deceased and accused came to their shop between 6.00 P.M and 7.00 P.M, as such the version of Pw.9 cannot be relied upon and it is not a trustworthy and he is a planted witness.
7. That no "Test Identification Parade" was conducted through Pw.10 and the evidence of Pw.10 that he was able to identify the accused for the first time in the Court after 5 AVSS,J & KSR,J CRL.A.1002_2014 3 years of the alleged incident, cannot be given any credence in the absence of prior "Test Identification Parade".
8. That the learned Sessions Judge should have considered Exs.D-4 and D-5 material contradictions in 161 Cr.P.C.
statement of Pw.10 and the learned Sessions Judge ought to have seen that non-production of warranty card and cash bill pertaining to the purchase of Cell Phone and C.C. Camera footage is fatal to the case of the prosecution.
9. That the evidence of Pw.16 is unnatural and his residence is at a distance of 2 ½ kilometers from Balaji Nagar Police Station and his evidence shows that he has no acquaintance with police nor acted as a mediator previously.
10. That Pw.19-Investigation Officer would have secured ear studs and certificates from the parents of the deceased and planted the same so also Cell Phone and empty cover and warranty card from Pw.10.
9. Submissions and contentions of the learned Public Prosecutor:-
1. That there is no error nor infirmity in the impugned judgment and in the absence of the same, the impugned judgment is not amenable for any correction under Section 374(2) Cr.P.C.
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2. That the prosecution proved the guilt of the accused beyond reasonable doubt by adducing oral and documentary evidence.
3. That the prosecution proved by examining Pws.9 and 10, that the deceased was in the company of the accused prior to the occurrence of the offence, as such, the learned Sessions Judge is perfectly justified in convicting the accused by taking into account the "last seen theory".
4. That Pw.10 identified the photo of the deceased as the girl who came to their shop for purchase of SIM Card and Cell Phone and the evidence of Pw.12 shows that the deceased obtained passport size photos from their Photo Studio.
5. That Pw.19 arrested the accused in the presence of Pw.16 and another mediator and seized ear studs and Cell Phone and Pw.5 identified his daughter's ear studs before Pw.16 and another mediator and Pw.5 also identified his daughter's ear studs before the Court and Pw.10 identified the Cell Phone before the Court as the Cell Phone that was purchased by the deceased from their shop and the accused led the police and at his instance, plastic cover containing certificates of the deceased were recovered.
Therefore, it can be safely concluded that the prosecution established the complete chain of events, which can connect the accused with the commission of offence.
10. The learned Public Prosecutor, eventually prayed this Court to dismiss the Appeal.
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11. In the above backdrop, now the points that arise for consideration of this Court are:-
(1) Whether the prosecution established the guilt of the accused for the offence alleged under Sections 302, 376, 379 and 201 IPC beyond reasonable doubt?
(2) Whether the judgment rendered by the learned Sessions Judge warrants any interference of this Court under Section 374(2) Cr.P.C.
12. Admittedly, in the presence case, there is no eye witness for the alleged offence and the entire case rests on 'circumstantial evidence', as such, thorough verification and meticulous analysis of the entire material available on record are required to be undertaken for arriving at a just conclusion. Obviously, the learned Sessions Judge on the ground of 'last seen theory', and recovery of Material Objects allegedly from the accused, convicted the accused.
13. The material available on record reveals that the case of the prosecution depends upon the evidence of Pws.9,10,12, 15 and Pw.16 coupled with the medical evidence. According to Pw.9, he and accused belong to the same Village and he stated that on 04-04-2011 at about 8.30 P.M while he was proceeding towards North from Gandhi Statue, near New Talkies Center, Nellore, after purchasing a Pen from Pen Corner, he observed the accused and the accused called him and that he observed 8 AVSS,J & KSR,J CRL.A.1002_2014 one girl in the company of the accused and accused informed him upon his enquiry that she came out of her house due to disputes in her family and that he was searching for a job to her and also wants to purchase a Cell Phone to that girl and that he also informed that he was going to a shop for purchase of a Cell Phone and thereafter he went away. Pw.9 further deposed that he came to know of the rape and murder of a girl on 06-04-2011 through "Eenadu Newspaper", but could not recognize the photo of the girl on the said date, but after few days he identified the girl as the girl who was in the company of the accused at 8.30 P.M on 04-04-2011 and on 16-04-2011 he went to Inspector of Police, Nellore and informed about the same. At that point of time, the prosecution treated him as a 'hostile witness' and during the cross-examination Pw.9 stated that he approached the Inspector of Police on 12-04-2011 but not on 16-04-2011.
14. It is pertinent to note in this context that during cross examination on behalf of the accused, Pw.9 stated and reiterated that he saw the deceased in the company of the accused on 04-04-2011 at 8.30 P.M
15. Coming to the evidence of Pw.10--According to him, he worked as a Manager in Balaji Watch and Electronics, Nellore from September, 2005 to April, 2011 and he stated that on 04-04-2011 between 6.00 PM and 7.00 P.M one male person aged about 28 years came to their shop to sell a old Cell Phone and within five(5) minutes one girl also came for purchase of a 9 AVSS,J & KSR,J CRL.A.1002_2014 old Cell Phone and on persuasion by their Salesman, she purchased a new Cell Phone and prior to that there was a conversation between them with regard to sale and purchase of a Cell Phone. This part of evidence clearly demonstrates that the accused and deceased did not come together to the shop. As rightly pointed out by the learned counsel for the Appellant there exists inconsistency in the evidence of Pws.9 and 10 with regard to the time at which they saw the accused. If the version of the Pw.9 is to be given credence, the version of Pw.10 that the accused and deceased came to their shop between 6.00 P.M and 7.0-0 P.M for sale and purchase of a Cell Phone needs to be disbelieved since according to Pw.9 he saw the deceased in the company of the accused on 04-04-2011 at about 8.30 P.M and he further stated that accused informed him that he was going to a shop to purchase a Cell Phone to the girl and that inconsistency in the evidence of Pws.9 and 10, is a fatal to the case of the prosecution.
16. Yet, another significant aspect, which needs mention in this context is the failure of the prosecution to hold "Test Identification Parade" of accused by Pw.10, as it is not the case of the prosecution that Pw.10 had acquaintance with the accused previously. The fact remains that Pw.10 is a stranger to the accused. In the considered opinion of this Court, the evidence of Pw.10 that he was able to identify the accused for the first time in the Court after three years of the alleged offence cannot be 10 AVSS,J & KSR,J CRL.A.1002_2014 given any credence in the absence of a prior Test Identification Parade.
17. Coming to the evidence of Pw.16, who is a witness for arrest and recovery of MOs - according to him, he is a social worker and a resident of Nellore and he is residing at a distance of 2 ½ kilometers from Balaji Nagar Police Station, Nellore. He further deposed that on 18-04-2011 between 2.00 P.M and 3.00 P.M he was called by Inspector of Police, Balaji Nagar Police Station, Nellore and in his presence the police caught hold of the accused and police found a pair of gold ear studs and also one Cell Phone in the possession of accused and seized the same. Mo.1 is the ear studs and Mo.2 is Cell Phone. During the course of cross-examination, he deposed that he had no prior acquaintance with the other mediators and did not act as a mediator in any police case previously. Except Mos.1 and 2, no material objects were said to have been recovered from the accused. Admittedly, according to the prosecution, Exs.P-16 to P-19 certificates were also recovered on 18-04-2011. According to the case of the prosecution, the alleged offence had taken place on 04-04-2011 and recovery of above certificates i.e., Exs.P-16 to P-19 was allegedly effected on 18-04-2011. This Court finds sufficient force in the submission of the learned counsel for the appellant that there is absolutely no truth in the case of the prosecution that the accused was carrying Mos.1 and 2 even after 13 days after the date of alleged offence. The 11 AVSS,J & KSR,J CRL.A.1002_2014 version of the prosecution to that extent appears to be highly untrustworthy and artificial.
18. According to Pw.19-Investigation Officer, after completion of all formalities, accused was produced before the learned V Additional Judicial First Class Magistrate for remanding him. The Medical Officer, after examining the accused, issued Ex.P-25 wound certificate stating that it can be concluded that there is nothing to suggest that the male examined by him is not capable to perform sexual act. In order to substantiate the said contention as to the compliance of Section 53-A Cr.P.C, Ex.P-25 wound certificate, dated 07-11-2011, said to have been issued by the Doctor is sought to be relied upon. It is significant to note in this context that Doctor, who issued the said wound certificate, was not examined by the prosecution and in the definite opinion of this Court the same is fatal to the case of the prosecution. Recovery of Exs.P-16 to P-19-certificates cannot drive this court to arrive at a conclusion that the accused committed the offence. It is also important to note that either in Ex.P-1 complaint or in Ex.P-7 Inquest Report, there is absolutely no mention about the missing of ear studs from the ears of the deceased. It is also pertinent to note that admittedly even according to the prosecution, nose stud is found on the nose of the deceased. If really the accused committed the theft of ear studs he would not have left the nose studs. It is also significant to note that the prosecution did not mark the bill, evidencing the purchase of a Cell Phone and according to Pw.10 the warranty 12 AVSS,J & KSR,J CRL.A.1002_2014 card does not bear the name of the purchaser. Though Pw.10 categorically stated that they have C.C.Camera footage for the relevant period, the prosecution did not make any endeavor to mark the same. In the definite opinion of this court, these aspects are also fatal to the case of the prosecution and the prosecution failed to prove either 'last seen theory' through Pws.9 and 10 or recovery of Exs.P-16 to P-19. As such, it is not safe to convict the appellant/accused for the offence alleged and the benefit of doubt should necessarily be extended to the appellant/accused herein. Therefore, the Criminal Appeal is liable to be allowed.
In the result, the Criminal Appeal is allowed by setting aside the conviction and sentence recorded under Sections 302, 376, 379 and 201 IPC, vide judgment dated.25-09-2014 in S.C.No.177 of 2012 on the file of the Court of Session, Sessions Division, SPSR Nellore District and the appellant/accused is found not guilty for the offences, for which he was charged, and he is accordingly acquitted of the same. The appellant/accused shall be released forthwith, if he is not required in any other cases. Fine amount, if any, paid by the appellant/accused shall be refunded to him.
Miscellaneous Petitions, if any, pending in this Criminal Appeal, shall stand closed.
_______________ A.V.SESHA SAI,J ___________________ K.SURESH REDDY,J 17th NOVEMBER,2020 TSNR