Andhra Pradesh High Court - Amravati
B. Ashok Chakravarthi, Krishna Dist. vs P.P., Hyd on 30 July, 2019
Author: M. Satyanarayana Murthy
Bench: M.Satyanarayana Murthy, Cheekati Manavendranath Roy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
AND
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
CRIMINAL APPEAL No.691 of 2014
ORDER:(Per Hon'ble Sri Justice M. Satyanarayana Murthy) The accused No.1 in Sessions Case No.194 of 2012 on the file of I Addl. District and Sessions Judge, FAC/VI Addl. District & Sessions Judge, Krishna, Machilipatnam, aggrieved by the conviction for the offence punishable under section 302 of I.P.C. while sentenced him to undergo imprisonment for life to and pay fine of Rs.500/- in default of payment of fine amount, the appellant/accused No.1 to suffer two months simple imprisonment, preferred this appeal under section 374 of Cr.P.C.
The case of prosecution in nutshell is that the appellant/accused No.1 is known with different names and permanent resident of Pallevada Village near Bhimavaram, he is an habitual offender and married person. The accused No.2 is the watchman of fish tank developed friendship with accused No.1/appellant herein. About six (06) months prior to the occurrence of the incident in the month of October, the appellant/accused No.1 came to Ventrapragada Village where Merugu Naresh (P.W.1) and Merugu Bhagya Lakshmi (P.W.2) running a small hotel and deceased Rajani was the daughter of Merugu Bhagya Lakshmi (P.W.2) and elder sister of Merugu Naresh (P.W.1). The appellant/accused No.1 developed intimacy with her and took her with him to live together as live in relationship. Both went to Polukonda Village stayed about three 2 MSM, J & CMR, J Crl. A No.691 of 2014.
(03) months, latter, than the appellant/accused No.1 developed suspicion about character of Rajani and that he had strong suspicion that she is indulging in prosecution, used to beat and ill treat her. Unable to bear the ill treatment meted by Rajani in the hands of appellant/accused No.1 came away with her younger brother Merugu Naresh (P.W.1) to Rudravaram Village where Merugu Naresh (P.W.1) secured employment as a watchman on fish tank of Raguri Srinivasa Rao (P.W.4) and they came to Rudravaram Village one week prior to occurrence.
On 10.04.2011 the appellant/accused No.1 came to Rudravaram Village by bus and spent sometime with Rajani and went away. On 11.04.2011 at about 12.00 noon the appellant/accused No.1 came to Rudravaram Village again on Hero Honda Motor Cycle bearing No.AP-16-AV-0133 and demanded Rajani to accompany him, but she refused the demand of the appellant/accused No.1, he stayed at their house till about 2.00 p.m., and started to go back to Polukonda Village in anger, on that the Rajani informed to Merugu Naresh (P.W.1) that she will send him off upto cross road, accompanied with him. At that time Merugu Naresh (P.W.1) and Raguri Srinivasa Rao (P.W.4) were attending repair work of diesel engine at the road point of fish tank. The appellant/accused No.1 herein took the deceased to babul trees located behind the bus shelter by walk on the bund of drainage canal, had sex with her and he also directed accused No.2 to have sex with her as he decided to murder her, on that Rajani denied to participate in sex with accused No.2. On that appellant/accused No.1 stabbed her on her fore head, immediately she raised cries, at that time accused No.2 came there, gagged her 3 MSM, J & CMR, J Crl. A No.691 of 2014.
mouth with her half saree. The appellant/accused No.1 again stabbed on the upper part of the chest, near the collar bone, neck and then Rajani lost her breath. Later the appellant/accused No.1 tried to immerse the dead body in the drainage water and found that Merugu Naresh (P.W.1) is coming towards them on hearing the cries. Immediately accused No.2 managed to escape from the place un-noticed by Merugu Naresh (P.W.1) and then appellant/accused No.1 herein left the place on the motor cycle parked near the bus shelter. Thereafter, Raguri Srinivasa Rao (P.W.4) chased the appellant/accused No.1, but he could not catch hold of him.
Merugu Naresh (P.W.1) lodged a report with the police, S.H.O. Bandar Taluk Police Station and the A.S.I. of Police, L.Rambabu (P.W.11) registered a case in Crime No.63 of 2011 for the offence punishable under section 302 of I.P.C. of Bandar Taluk Police Station and submitted original report along with express FIR to the concerned officials. The Inspector of Police, V.Subrahmanyam (P.W.12) took up investigation visited the scene of offence at 17.15 hours on 11.04.2011 secured the presence of Chalamalasetty Pullaiah (L.W.13) and Gadelli Ijiah (L.W.14) respectively (mediators) observed the scene of offence from 17.30 hours got drafted an observation report at the scene of offence, seized the cheppals, glass bangle pieces (M.Os.1 to 3) separately in their presence. He also prepared rough sketch of the scene of offence, marked as Ex.P.4/observation report and Ex.P.5 is rough sketch and got photographed the scene of offence by K.V.Nageswara Rao (P.W.3) and bunch of photos was marked as Ex.P.2.
4 MSM, J & CMR, J Crl. A No.691 of 2014.
An inquest was held on 12.04.2011 by V.Subrahmanyam (P.W.12) in the presence of Merugu Naresh (P.W.1), Raguri Srinivasa Rao (P.W.4), Pamarthi Saibabu (P.W.9) and examined them and recorded their statements during inquest held over the dead body at about 8.00 hours on the same day and based on the statement of blood relations, the mediators unanimously opined that the apparent cause of death is stab injuries on the body of Rajani. Ex.P.6 is the inquest report. The dead body was sent to Government Hospital, Machilipatnam and on receipt of the same Dr.T.Vinay Kumar (P.W.10) conducted autopsy over the dead body of Rajani and issued Ex.P.11 postmortem report opining that the cause of death was due to bleeding from main vessels.
On 13.04.2011 P.W.12 examined Merugu Bhagya Lakshmi (P.W.2) and recorded her statement. He also examined Simhadri Venkat (L.W.9), Benda Ludiya Raju (L.W.10), Benda Kiran Babu (L.W.11) and Nelapala Nagaraju (L.W.12) and recorded their statements. During the course of investigation on 08.08.2011 Prob. Dy. S.P., H/C of Bandar Rural Circle arrested appellant/accused No.1 herein and accused No.2, during interrogation they disclosed their identity and promised to show the motor cycle and weapon used in commission of offences if anybody accompany them. The same was recorded as mediators report at 11.00 hours on the same day and on being led by the appellant/accused No.1 and accused No.2 seized the motor cycle and crime weapon at old iron sheeted shed at Railway station, Machilipatnam at 2.30 p.m., under the cover of Exs.P.7, P.8 and P.9 respectively. Thereafter, filed a memo for addition of section of law i.e., Section 201, 34 of I.P.C. in addition to section 302 of I.P.C.
5 MSM, J & CMR, J Crl. A No.691 of 2014.
as accused No.2 also participated in commission of murder as per the material collected so far. The crime weapon along with the other material objects seized were sent to R.F.S.L. along with letter of advise marked as Ex.P14, on analysis RFSL gave a report which is marked as Ex.P.15.
After completion of entire investigation filed charge sheet before the Judicial Magistrate of the First Class-cum-Spl. Mobile Court, Machilipatnam, who inturn registered the same as in P.R.C.No.5 of 2012 as the offence is exclusively triable by the Court of Sessions, after following the procedure under section 207 Cr.P.C. committed the case to Sessions Division, Krishna at Machilipatnam as per section 209 Cr.P.C. and in turn the Sessions Judge, Krishna, Machilipatnam registered the same as Sessions Case No.194 of 2012 and made over the same to I Additional District and Sessions Judge, FAC/VI Additional District & Sessions Judge, Krishna, Machilipatnam for trial and disposal of the same in accordance of law.
On production of the accused before the Sessions Judge and upon hearing arguments of the Public Prosecutor and the Legal Aid counsel Kumari Azmathunissa Begum, framed charges for the offence punishable under section 302 of IPC against accused No.1/appellant and under section 302 r/w 34 of IPC against accused No.2 read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried.
During trial on behalf of prosecution P.Ws.1 to 13 were examined marked Exs.P.1 to P.15, Exs.D.1 to D.6, and M.Os.1 to
5. After closure of the prosecution evidence the accused were examined under section 313 of Cr.P.C. explaining the 6 MSM, J & CMR, J Crl. A No.691 of 2014.
incriminating circumstances that appeared against them in the evidence of prosecution witnesses, they denied and reported no defence.
Upon hearing argument of the Public Prosecutor for the State and legal Aid counsel Kumari Azmathunissa Begum, found the appellant/accused No.1 guilty for the offence punishable under section 302 of I.P.C. convicted and sentenced him to undergo life imprisonment and to pay a fine of Rs.500/- in default of payment of fine amount, the appellant/accused No.1 shall suffer two months simple imprisonment, while accused No.2 found not guilty for the offence under section 302 r/w 34 of I.P.C. and acquitted him.
Aggrieved by the conviction and sentence passed under the Calendar and Judgment in S.C.No.194 of 2012, dated 29.04.2014, preferred this appeal under section 374 (2) of Cr.P.C. raising several contentions. The main grounds urged before the Court are that the identity of the accused was not established in view of the discrepancies as to the name of the accused No.1 more particularly identity of the accused based on his name and that the prosecution failed to prove the motive for commission of such offence, committed the grave error in finding him guilty, the trial Court failed to considered the failure of the prosecution to prove the important link in the chain of circumstances so as complete the chain of circumstances un-erringly the pointing out the guilt of the accused and inconsistent with innocence. Therefore, the conviction and sentence imposed upon the appellant/accused No.1 is illegal and unsustainable under law, prayed to set aside the 7 MSM, J & CMR, J Crl. A No.691 of 2014.
conviction sentence passed against accused No.1 for the grave offence punishable under section 302 of IPC.
During hearing, the learned Legal Aid Counsel Sri T.S.Rayulu would contend that the name of the accused No.1/appellant is totally different and his name was shown as Benda Ashok Chakravarthi @ Siva @ Chakravarthi @ Suribabu @ Maddila Suri, but the evidence is totally run counter to the name mentioned in the cause title. The name of the accused No.1 was disclosed as Suri Babu in the evidence of P.Ws.1 and 2 and they did not identify the accused No.1/appellant as Chakravarthi and thereby failed to establish the identity of the person who stabbed Rajani with an intention to kill her knowing that those injuries found on the body of Rajani are sufficient to cause death in the ordinary course of event and committed a serious error in finding the accused guilty and made a sincere effort to demonstrate the failure of the prosecution to establish identity of Chakravarthi as Suri Babu to contended that the trial Court committed grave error in finding the accused guilty for such grave offence punishable under section 302 of IPC and requested to set aside the conviction and sentence passed against appellant/accused No.1 extending benefit of doubt, finding him not guilty and acquit for the same.
The Public Prosecutor for the State supported the Judgment in all respects while contending that the evidence of P.W.2/Merugu Bhagya Lakshmi and P.W.4/Raguri Srinivasa Rao and the name of the person of accused/appellant mentioned in other documents is sufficient to establish that the appellant/accused No.1 is the person who committed the murderer or assault on the body of Rajani, who succumbed to the injuries and that there is no dispute 8 MSM, J & CMR, J Crl. A No.691 of 2014.
as to the identity even according to the material available on record before the trial Court. Therefore, there are no grounds to warranting interference of this Court while exercising jurisdiction under section 374(2) of Cr.P.C., requested to dismiss the appeal, confirming the conviction and sentence under calendar and Judgment in Sessions Case No.194 of 2012 passed by I Additional District & Sessions Judge, FAC/VI Additional District & Sessions Judge, Krishna, Machilipatnam.
Considering rival contentions, material available on record the point was arise for consideration is that:
"Whether the appellant/accused No.1 caused injuries on the body of Rajani who is sister of Merugu Naresh (P.W.1) and daughter of Merugu Bhagya Lakshmi (P.W.2) with an intention to kill her, knowing that those injuries are sufficient to cause death in ordinary course of events, if not whether conviction sentence imposed upon the appellant/accused No.1 are liable to be set aside finding him not guilty for the offence punishable under section 302 of I.P.C.".
In Re-Point:
This is an appeal filed under section 372 of Cr.P.C. Section 374 Cr.P.C. conferred a substantive right of appeal on the accused who is convicted by the Trial Court and this Court while exercising power under Section 374(2) Cr.P.C. is bound to re-appraise entire evidence to come to an independent conclusion, uninfluenced by the findings recorded by the Court below and decide the legality of conviction and sentence passed by the Sessions Court. Therefore, it is the duty of this Court to re-appraise entire evidence recorded by the Court below after giving an opportunity to both the parties, i.e., accused No.1/appellant and the respondent, unless the Court finds manifest perversity in the calendar and Judgment or such
9 MSM, J & CMR, J Crl. A No.691 of 2014.
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, 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 criminal appeal. This 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 vs. State of Gujarat1. Keeping in view of the scope of section 374(2) Cr.P.C. we would like to re- appreciate entire evidence on record to come to an independent conclusion, uninfluenced by the findings recorded by the Court below.
The Apex Court while discussing the scope of Section 3 of the Evidence Act, more particularly, circumstantial evidence held that, in a case of murder when the prosecution relying on circumstantial evidence, it is for the prosecution to prove all the incriminating facts and circumstances and the circumstances which are incompatible with innocence of the accused to draw inference of guilt and such evidence should be tested by 1 2013 - 15 SCC 263.
10 MSM, J & CMR, J Crl. A No.691 of 2014.
touchstone of law relating to circumstantial evidence laid down by Supreme Court vide Syed Hakkim vs. State2.
Similarly, in G.Parshwanath V. State of Karnataka3, the Supreme Court is of the view, when the case of the prosecution is based on proof of circumstantial evidence on the basis of which conclusion of guilt is drawn must be fully established fully, individual chain of circumstances must be complete pointing out the guilt of accused, all proved facts must lead to inference of guilt of the accused alone and court has to draw distinction between primary and basic facts while appreciating the circumstances and regard must be had to common course of natural events and human conduct and finally the facts established should be consistent only with hypothesis of guilt accused and it does not mean that each and every hypothesis suggested by the accused must be excluded by proved facts. In Rukia Begum Vs. State of Karnataka with Issaq Sait vs. State of Karnataka with Nasreen vs. State of Karnataka4; Jagroop Singh vs. State of Punjab, Inspector of Police, Tamil Nadu vs. Balaprasanna5; Shaik Khadar Basha vs. State of Andhra Pradesh6, the same principle was reiterated.
The Supreme Court in Trimukh Maloti Kikran Vs. State of Maharashtra7, wherein the Supreme Court held as follows:
"In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must 2 2009 Cr.L.J. 1891.3
AIR 2010 S.C. 2914.4
AIR 2011 SC 1585.5
2009 (1) ALD (Crl.) 113.6
2009 (1) ALD (Crl.) 859 (AP).7
2006 (10) SCC 681.
11 MSM, J & CMR, J Crl. A No.691 of 2014.
be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence"
Keeping in view of the scope of circumstantial evidence and the sacracent duty that vested on this Court i.e. to be discharged by this Court, it is imperative to re-appreciate the evidence with reference to contentions raised by the counsel for the appellant/accused No.1.
Turning to the facts of the present case we would like to discuss advert to the direct evidence of P.W.1. His testimony in examination in chief is directly pointing out that the accused No.1/appellant herein caused stab injuries on the body of his sister Rajani with whom the appellant herein developed the live-in relationship and lived together for three (03) months at Polukonda Village, when he started harassing Rajani suspecting that she is indulging in prostitution with others, she returned to Rudravaram Village where P.W.1 is living while working as watchman on the fish tank of Raguri Srinivasa Rao (P.W.4). Even one day prior to the incident accused No.1/appellant came to their house by bus and spent sometime and left the village and again came on the next day on the motor cycle spend some time and later demand Rajani to accompany him to Polukonda Village, but she expressed her disinterest to live with him and after sometime he started to go to his village on a motor cycle some how he managed Rajani to accompany him on the pretest to see him off upto cross roads of
12 MSM, J & CMR, J Crl. A No.691 of 2014.
Rudravaram Village and accordingly she accompanied him on motor cycle upto Rudravaram cross roads to see him off, but the appellant/accused No.1 due to his ill intention, had sexual due course with her near bushes behind bus shelter and directed accused No.2 to have sex with her, but she denied. Thereupon he grew wild and stabbed Rajani and pushed her body into drain so as to disappear evidence of murder. Therefore, the consistent evidence of P.W.1 he is the direct witness to the occurrence of the incident and he directly witnessed the incident while Accused No.1 inflicting injury on the head and neck of his sister with a small knife (chaku) accused No.1 pushed aside his sister into the drainage canal and immediately fled away from the scene of offence by the motor cycle. As Merugu Naresh (P.W.1) raised cries for help, Raguri Srinivasa Rao (P.W.4) who is working with him came on motor cycle and chased him, but in vain. In the cross- examination a suggestion was put to him that Rajani was leading adulterous life with many people and some one might have killed Rajani, but the suggestion was denied bluntly by the witness and similarly a suggestion was put to witness denying commission of murder by accused No.1/appellant herein and that he was falsely implicated, but P.W.1 did not accept the suggestion and denied categorically. The counsel for the petitioner confronted to the witness certain parts of the statement marked as Exs.D1 to D3 viz., part of the previous statement recorded under section 161 (3) of Cr.P.C. can be used to contradict witness. Therefore the legal Aid counsel Kumari Azmathunissa Begum sincerely made an attempt to disprove the testimony of P.W.1. According to Ex.D1 a week days ago P.W.1 together with brother-in-law Suri Babu (the 13 MSM, J & CMR, J Crl. A No.691 of 2014.
appellant herein) came to Rudravaram Village of Bandar Mandal to talk to Raguri Srinivasa Rao agreed to engage P.W.1 on monthly salary of Rs.4,000/-. Ex.D2 also show that on 10.04.2011 during day time his brother-in-law Suri Babu came to the house and stayed with them till night and went away and similarly Ex.D.3 and D.4 also. More curiously, Ex.D.3 shows that P.W.1/Naresh stated that Inspector of Police during recording his statement under section 161 of Cr.P.C. that his brother-in-law Suri Babu stabbed his elder sister with knife on her fore head and neck and killed her and on seeing he cried loudly, then he kicked his sister into water in the bode and ran away and the bund of bode which lead to road and on hearing his cries Suri Babu ran away on the motor cycle. This part of previous statement put to the witness may strengthen the case of the prosecution and it is of no assistant to the case of the defence set up by the appellant herein. Thus, the testimony of direct witness Merugu Naresh (P.W.1) who is no other than brother of deceased Rajani is suffice to conclude that the accused No.1/appellant stabbed her on various parts of her body as narrated by him, i.e., on fore head, neck and chest with a knife with an intention to kill her and pushing the body into drainage canal after causing grave injuries on the body of Rajani indicate the intention of the appellant/accused No.1 to kill Rajani.
Though P.W.1 is the brother of deceased he is a natural witness and nothing was elicited to improbabalise his presence at the scene of offence while causing stab injuries on the body of Rajani by the appellant/accused No.1. The last suggestion was put to the witness that he did not witness the incident of accused No.1 stabbing his sister, but he denied the same. The consistent 14 MSM, J & CMR, J Crl. A No.691 of 2014.
evidence of P.W.1 who is the direct witness is sufficient to prove that the accused No.1/appellant herein caused injuries on the body of Rajani with an intention to kill her knowing that those injuries are sufficient to kill, in the ordinary course of events.
Coming to the evidence of P.W.4/Raguri Srinivasa Rao the owner of the fish tank under whom P.W.1 is working. He spoke about the presence of P.W.1/Merugu Naresh and P.W.4/Raguri Srinivasa Rao near the scene of offence while attending to repairs of diesel engine for pumping water and spoke about P.W.1 leaving the place of P.W.1 as his sister Rajani did not return from bus stop even after half an hour and P.W.4 heard cries of P.W.1 that accused No.1 is killing his sister. Immediately went to the bus stop and found accused No.1 proceeded towards Bandar on a motor cycle, he chased him, but he could not catch the appellant/accused No.1. P.W.4 is the circumstantial witness who did not witness actual causing of stab injuries on the body of Rajani by accused No.1, but he chased accused No.1/appellant while leaving the scene of offence on a motor cycle after causing injuries on the body of Rajani with whom she developed live-in- relationship for few months. In the cross-examination P.W.4 admitted that after hearing P.W.1 shouts (cries) he started in the bus stop on the motor cycle and chased accused No.1. Followed by a suggestion that accused No.1 is not known as Suri Babu accompanied P.W.1 for negotiating terms with him and that at the instance of police he identified accused No.1 in the Court hall. These two suggestions were denied by him. Even assuming for a moment that Suri Babu came and approached him and negotiated the terms to engage Naresh (P.W.1) as watchman on salary at the 15 MSM, J & CMR, J Crl. A No.691 of 2014.
rate of Rs.4,000/- per month. This is of no use to disbelieve the case of the prosecution. If really appellant/accused accompanied Merugu Naresh (P.W.1) who negotiated with P.W.4/Raguri Srinivasa Rao it is easy for him to identify the accused No.1/appellant in the Court itself. Therefore the evidence of circumstantial witness P.W.4 who is independent not interested either in the prosecution or defence case, inspires confidence of this Court and the circumstance of chasing the accused on a motor cycle while he was proceeding towards Bandar Road on a motor cycle, after causing injury on the body of Rajani is directly pointing out his complicity and involvement in murderous assault of Rajani (deceased).
P.W.2 is no other than mother of deceased Rajani and Merugu Naresh (P.W.1), according to her testimony Suri Babu came to her village for works on tractor and he is also called as Chakravarthi. The accused No.1 is the said person with two names. He used to have tiffin at her hotel and slowly developed illicit intimacy with Rajani who is the daughter of P.W.2/Merugu Bhagya Lakshmi and sister of P.W.1/Merugu Naresh. Though P.W.2 being a mother of Rajani chastised both the appellant/accused No.1 and her daughter they beat her and left the house saying that they want to marry and stay elsewhere. In the cross-examination P.W.2 admitted that she did not disclose the name of the accused No.1 as Chakravarthi to the police and only stated that his name is Suri Babu, this omission will not go to root of the case. She further testified that two persons came to her hotel and enquired about accused No.1 on the ground that he took away their motor cycle. In the cross-examination she admitted 16 MSM, J & CMR, J Crl. A No.691 of 2014.
that two persons told her that Suri Babu committed theft of their motor cycle and she stated to the police that on the basis of news report that Suri Babu killed her daughter Rajani. The evidence of P.W.2 is only for the limited purpose of establishing development of illicit intimacy by Suri Babu who is also known as Chakravarthi with her daughter and elopement of her daughter with appellant/accused No.1, beating her on her left hand.
The prosecution also examined one Simhadri Venkata Rao (P.W.5) resident of Gudivada under whom accused No.1/appellant herein was working as watchman. According to his testimony the appellant/accused No.1 joined as a watchman on tank along with his wife Rajani on monthly salary of Rs.6,000/- they used to reside in the shed on the tank bund provided for watchman and they used to quarrel frequently, as the appellant/accused No.1 was suspecting character of Rajani and once he cut his hand and also at another time he made an attempt to consume poison. After one month from the date of joining duty P.W.1/Merugu Naresh came and spent on the tank about 10 days, then he secured employment as watchman on a fish tank at Rudravaram near Bandar and the deceased left the tanks went to Rudravaram. Later after one week at about 9.00 a.m., he went to his tank on his motor cycle Hero Honda bearing No.0133 and he noticed one auto rickshaw at the watchman shed, when enquired the auto driver told him that he was engaged to transport refrigerator, TV provided by P.W.5 in the shed and personal belongings of accused No.1. Then P.W.5 found fault with accused No.1 and auto driver claiming that he is the owner of TV and refrigerator as they were provided for him. In the meanwhile accused No.1/appellant herein started motor cycle as 17 MSM, J & CMR, J Crl. A No.691 of 2014.
P.W.5 and went away and later he came to know that he committed murder of his wife using the motor cycle for conveyance and identified motor cycle marked as M.O.4. In the cross- examination a suggestion was put to P.W.5 that he did not state to P.W.12 as in Ex.D.5 and followed by another suggestion that the appellant/accused No.1 never called as Suri Babu and that he is speaking false at the instance of police. The evidence of P.W.5 is helpful to establish commission of theft of his motor cycle used in commission of murder of Rajani and leave the scene of offence. Therefore his evidence is not directly connected with the causing murder of Rajani by the appellant/accused. Therefore, the circumstances spoken by P.W.5 is only useful to connect the accused with commission of theft of his motor cycle used in commission of murder to escape from the scene of offence after commission of murder of Rajani. The consistent evidence of P.Ws.2, 4 and 5 is that accused No.1 is also known as Suri Babu. Though P.W.1 stated in his examination in chief that Suri Babu used to visit their hotel and developed illicit contact with Rajani daughter of P.W.2, the said Suri Babu is the person known as Chakravarthi i.e. the appellant/accused No.1 and that fact is also substantiated by the evidence of P.Ws.4 and 5. Apart from that the confessional statement recorded by the police leading to discovery is specific that he is also known as Benda Ashok Chakravarthi @ Chakravarthi @ Ashok @ Suribabu @ Maddela Suri @ Siva, S/o.Kantha Raju. The core contention of the counsel for the appellant/accused No.1 before this Court is that the person who developed illicit contact with Rajani is Suri Babu not Chakravarthi and the prosecution failed to establish the identity of 18 MSM, J & CMR, J Crl. A No.691 of 2014.
person, i.e., Suri Babu as the same person known as Chakravarthi as arrayed in the cause title. But this cannot be accepted in view of the consistent evidence available on record more particularly evidence of Merugu Bhagya Lakshmi (P.W.2), K.V.Nageswara Rao (P.W.3), Raguri Srinivasa Rao (P.W.4), Simhadri Venkat Rao and (P.W.5) and so also Simhadri Venkat (P.W.6) whose evidence is consistent that he know accused No.1 as Suri Babu who worked as a feeder on the tank of his father and committed theft of motor cycle and escaped, about four (04) months thereafter his father brought back the motor cycle marked as M.O.4 saying that it was recovered by Bandar Police.
Coming to the evidence of the other circumstantial evidence Gadelli Ijaiah (P.W.7) who is an agriculturist and resident of Rudravaram Village in whose presence the scene of offence was observed and found the dead body of lady aged about 25 years lying in the drainage with bleeding injuries on the neck and fore head. One Pamarthi Sai Babu (P.W.7) and Merugu Naresh (P.W.1) removed the body from drainage and kept the same on the road margin and also spoke about finding cheppals both male and female, broken bangle pieces on the canal bund. In his presence, scene of offence was observed and a report was prepared by P.W.12 marked as Ex.P4/scene observation report and rough sketch of the scene of offence marked as Ex.P.5 also prepared. His evidence is only to prove the apparent cause of death of Rajani, not for any other purpose.
K.Ramanuja Rao, VRO of Karagraharam was examined as P.W.8 whose evidence gained importance to establish the other circumstances confessional statement of accused/appellant while 19 MSM, J & CMR, J Crl. A No.691 of 2014.
under arrest, leading to discovery. According to the testimony of P.W.8 on 08.08.2011 at 10.30 a.m. P.W.8 himself and another VRO was called to Bandar Taluk Police Station and accordingly they went to police station and in turn police informed that they received information about the offenders. They all went to Rubbish Road behind F.C.I. Godown in Seetaiahnagar of Chilakalapudi and on seeking them both accused No.1/appellant herein and other accused started running on seeing the police jeep. Police chased and apprehend them. P.W.12 interrogated Accused Nos.1 and 2 and on disclosing their identity during interrogation arrested them in the presence of P.W.8 and according to statement of accused No.1 he is also having alias names Benda Ashoka Chakravarthi @ Ashok @ Siva @ Chakravarthi @ Suri Babu @ Maddela Suri, S/o.Kantha Raju native of Pallevada Village. He also promised to show the weapon used in commission of offence and motor cycle, if anybody accompany him and the same is reduced into writing marked as Ex.P.7 and on being led by accused No.1 along with the police party and mediators to Old godowns near Machilipatnam Railway Station there the accused produced M.O.4/motor cycle M.O.5/knife and seized the same under the cover of Ex.P9. This evidence is another strong circumstance as the confession leading to discovery was made by the accused No.1 after his arrest is not a substantiate piece of evidence and it is a strong circumstance which completes the links in the chain of circumstances. Therefore, the evidence on record established seizure of M.Os.4 and 5, based on confession made by the accused No.1/appellant leading to discovery:
20 MSM, J & CMR, J Crl. A No.691 of 2014.
Section 27 of the Indian Evidence Act is an exception to Sections 25 and 26. The conditions necessary for invoking the aid of the Section are as follows:
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 vs. State8.
Similarly, in Inspector of Police, Tamil Nadu Vs. Balaprasanna9, 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:-8
AIR 1970 Bombay 438. 9 2009 (1) ALD (Crl.) (SC) 113.
21 MSM, J & CMR, J Crl. A No.691 of 2014.
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."
In view of the principle laid down in the above decision, when a 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.
Even otherwise, in Brijesh Mavi vs. State of NCT of Delhi10, the Apex Court, held that recovery evidence, when not sufficient to prove culpability of accused and no direct evidence connecting accused to murder. Recovery of weapon of offence at the instance of accused two years after incident is not believable. Mere recovery of weapon, therefore, not sufficient to convict the accused for the offence of murder under Section 302 of I.P.C. 10
2012 (2) ALD (Crl.) 865 (SC).
22 MSM, J & CMR, J Crl. A No.691 of 2014.
As discussed above, the prosecution was able to prove the seizure of M.Os.4 and 5 based on the confession leading to discovery made by accused No.1 to the police after his arrest and that to M.O.4 was concealed at the old godowns, near Machiliaptnam Railway station and from the zip cover of the motor cycle, the knife with broken handle M.O.5 was produced. The place where these two items were kept is not accessible to any third party, except the accused. Therefore, seizure of M.Os.1, 4 and 5 is accept rightly by the trial Court and this circumstances is lending support, corroborates the evidence of P.W.1 and the vehicle was identified by P.W.5 and his son P.W.6.
When the prosecution case is based on both direct and circumstantial evidence, the circumstantial evidence is only an additional corroborative evidence to support the direct evidence of a witness.
As discussed above, P.W.1 is the direct witness to the incident and the prosecution could establish the identity of the person of the accused No.1/appellant herein who is known as Benda Ashoka Chakravarthi @ Ashok @ Siva @ Chakravarthi @ Suri Babu @ Maddela Suri, S/o.kantha Raju. When the evidence on record is consistent as to the alias names of the appellant/accused No.1 and the more particularly when the prosecution established that the appellant/accused is also known as Benda Ashoka Chakravarthi @ Ashok @ Siva @ Chakravarthi @ Suri Babu @ Maddela Suri, S/o.Kantha Raju based on the evidence of P.Ws.2, 4 and 5, the contention of the counsel for the appellant is without any merit and the same is rejected.
23 MSM, J & CMR, J Crl. A No.691 of 2014.
To disprove the presence of P.W.1/Merugu Naresh and P.W.4/Raguri Srinivasa Rao, the defence counsel made honest attempt that there was no engine on the road near the scene of offence as in Ex.P.5. P.W.12 the investigating officer in the cross- examination clearly stated that he did not find motor engine on the road near the scene of offence. Hence, the same was not covered in Ex.P5. Taking advantage of this piece of evidence the defence counsel would contend that the presence of P.W.1/Merugu Naresh at the scene of offence along with P.W.4/Raguri Srinivasa Rao who is the owner of the tanks under whom P.W.1/Merugu Naresh working as watchman. But it is the consistent case of the prosecution from the beginning that P.W.4/Raguri Srinivasa Rao is the owner of fish tanks and they were attending to repairs of diesel engine on the bund of the tanks which is by the side of the road. The counsel failed to elicit the distance between the tanks and the scene of offence and in the absence of eliciting the distance between the tanks and the scene of offence failure to find motor engine (diesel engine) for pumping water as admitted by P.W.12 is insignificant and inconsequential and is of no assistance. Added to that if the tanks are nearest to the scene of offence when the accused No.1/appellant assaulted Rajani, P.W.4/Raguri Srinivasa Rao ought to have heard those cries, but only P.W.4/Raguri Srinivasa Rao heard cries of P.W.1/Merugu Naresh from a distance. Therefore, failure to cover the motor engine (diesel engine) used for pumping water in Ex.P.5 as admitted by P.W.12 is not a ground to improbabalise the presence of P.W.1/Merugu Naresh and proceeding to scene of offence, witnessing the incident directly, cannot be accepted.
24 MSM, J & CMR, J Crl. A No.691 of 2014.
P.W.12/V.Subrahmanyam investigating officer admitted that no test identification parade was conducted as he was not advised by his probationary DSP to conduct test identification parade. Taking advantage of the fact elicited in the cross-examination of P.W.12/V.Subrahmanyam, the counsel contended that when a death was caused by two persons allegedly, test identification parade is necessary and in the absence of test identification parade the evidence of prosecution witnesses shall be thrown over head. Test identification parade is only relevant under section 9 and failure to hold test identification by itself is not a ground to disbelieve or discredit direct the evidence of P.W.1/Merugu Naresh and that to P.W.1 had acquaintance with the accused No.1/appellant even prior to the incident and he stayed for few days in the shed on the tank bund of P.W.5/Simhadri Venkat Rao. He also used to visit the hotel being run by P.W.2/Merugu Bhagya Lakshmi before developing illicit contact with Rajani who is the daughter of P.W.2/Merugu Bhagya Lakshmi. Thus the accused No.1/ appellant is known and familiar person of the entire family of the deceased Rajani including P.Ws.1 and 2, in such case conducting test identification parade is insignificant and there is no law which direct the investigating agency to conduct test identification parade invariably in all cases.
Undoubtedly, no test identification parade was held by the police during investigation for identifying the accused, but that by itself is not a ground to acquit the accused.
Hon'ble Apex Court in Ravi Kapur vs. State of Rajasthan (MANU/SC/0659/2012)11, discussed about the importance to 11 AIR 2013(1) ALD (Crl.) 303 (SC).
25 MSM, J & CMR, J Crl. A No.691 of 2014.
hold test identification parade for identifying the accused in a case filed for the offence punishable under section 304-A of the Indian Penal Code in paras 55 to 59. However, Their Lordships in paras 56 and 57 observed as follows:
"The whole idea of a Test Identification Parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the money of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime.
It is equally correct that the code of Criminal procedure does not oblige the investigating agency to necessarily hold the Test Identification Parade. Failure to hold the test identification parade while in police custody, does not by itself render the evidence of identification in court inadmissible or unacceptable. There have been numerous cases where the accused is identified by the witnesses in the Court for the first time. One of the views taken is that identification in Court for the first time alone may not from the basis of conviction, but this is not an absolute rule. The purpose of the Test Identification Parade is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence is, however subjected to exceptions."
In another judgment reported in Sheo Shankar Singh vs. State of Jharkhand12 held that;
"Failure to hold Test identification parade does not have effect of weakening evidence of identification in Court, as to what should be the weight attached to such an identification 12 AIR 2011 SC 1403.
26 MSM, J & CMR, J Crl. A No.691 of 2014.
is a matter which Court will determine in peculiar facts and circumstances of each case. Version of two eye-witnesses that it was accused who had shot deceased. However, only one of the witnesses associated with Test Identification Parade in which he identified accused. Failure of prosecution to offer an explanation for not holding Test Identification Parade for other witness will not ipse jure prove fatal to the case of prosecution."
Thus, in view of the principles laid down in the above decisions, Test Identification Parade is a part of investigation and used primarily to strengthen the case of the prosecution and this rule of prudence is however subject to exceptions. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in the Court. Thus, it is only a relevant consideration which may be examined by the Court in view of other attendant circumstances and corroborative evidence with reference to the facts of a given case.
In view of law declared by the Hon'ble Apex Court, failure to hold test identification parade is not ground to disbelieve the commission of murder by appellant/accused more particularly when he is a known person to eyewitness to the incident i.e. brother of deceased Rajani.
Yet another contention raised before the Court is that P.W.1/Merugu Naresh is related witness. No doubt, undisputedly P.W.1/Merugu Naresh is the brother of deceased Rajani and merely because he is related to deceased in the absence of any animosity between the accused and the P.W.1 his evidence cannot 27 MSM, J & CMR, J Crl. A No.691 of 2014.
be thrown over head, merely because he is related witness. Apex Court held that:
"There is no legal impediment in convicting a person on testimony of sole witness. Evidence has to be weighed and not counted. Test is whether evidence has a ring of truth, is cogent, credible and trustworthy. Emphasis is on weight and quality of evidence, rather than on quantity, multiplicity or plurality of witness."
Merely because witnesses are related, it is not a ground to discard their evidence. In many cases, only relatives are available for giving evidence, having regard to trend in the present society, where other than relations, witnesses are not available. However, evidence of interested witnesses has to be carefully scrutinized as held by Hon'ble Apex Court in Birender Poddar vs. State of Bihar13.
It is not the contention of counsel for the accused No.1/appellant that P.W.1 is interested witness, but he is a related witness. When the incident took place while at a place near to the house of P.W.1 and the tank where he is working more particularly his presence at the tank near to the scene of offence is probable. In the absence of any fact elicited in the cross-examination to disbelieve or discredit the testimony of P.W.1, the Court can rely on such sole related witness, if it is inspires confidence to record conviction the accused. The evidence of P.W.1 is corroborated by the other circumstances, more particularly seizure of M.Os.4 and 5 on the confession made by accused No.1/appellant after his arrest, leading to discovery and seizure of M.Os.4 and 5 under the cover of mediators. Therefore, the confession of accused leading to 13 (2011) 6 SCC 350.
28 MSM, J & CMR, J Crl. A No.691 of 2014.
discovery and seizure of M.Os.4 and 5 under the cover of mediators is an additional circumstances to corroborate the testimony of P.W.1 which unerringly pointing out the culpability of the accused and inconsistence with the innocence. The Court shall not give over much importance to a minor discrepancies as to the alias names of the accused. Time and again the Apex Court held that "Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, cannot be annexed with undue importance. More so when the all important "probabilities factor" echoes in favour of the version narrated by the witnesses" vide Binavwada Bhoginbhai Hirjibhi vs. State of Gujarat14.
Coming to the present facts and the material available on record, as discussed in the earlier paras, it is clear that the appellant/accused No.1 is the person who caused death of Rajani and based on the weapon used and managing her to accompany with her to see off while proceeding to Bandar, on a motor cycle clearly establish that he had an intention to put an end to her life as he was suspecting that she is indulging in prostitution with others and based on the seat of injuries and nature of weapon the Court can infer that the accused No.1/appellant had an intention to kill her that those injuries caused on her body found by the postmortem Dr.T.Vinay Kumar (P.W.10) and issued postmortem certificate marked as Ex.P.11, the Court can conclude without any hesitation that the appellant/accused No.1 caused injuries on the body of Rajani with an intention to kill her knowing that those injuries are sufficient to cause death in ordinary course of event. 14
AIR 1983 SC 753.
29 MSM, J & CMR, J Crl. A No.691 of 2014.
On appreciation of entire evidence concluded that accused No.1/appellant is the person who caused grave injuries with a dangerous weapon M.O.5 which led to her death, with an intention to kill her knowing that those injuries are sufficient to cause death in ordinary course of events. Even after re-appreciation of the entire evidence with reference to the arguments advanced by the legal aid counsel T.S.Rayulu, it is difficult to come to any other conclusion other than the conclusion arrived by the learned Sessions Judge. Therefore, we find no merit in the appeal warranting interference of this Court and to find him not guilty and acquit him for the offence punishable under section 302 of IPC, setting aside the conviction and sentence imposed by the trial court. Consequently the appeal is liable to be dismissed as it is devoid of merits.
In the result, the appeal is dismissed confirming the conviction sentence passed by the I Addl. District and Sessions Judge, FAC/VI Addl. District & Sessions Judge, Krishna, Machilipatnam, dated 29.04.2014. Consequently, Miscellaneous Petitions, if any, pending shall stand closed.
_________________________________________ JUSTICE M.SATYANARAYANA MURTHY ________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date: 30.08.2019 sdp 30 MSM, J & CMR, J Crl. A No.691 of 2014.
HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY AND HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY CRIMINAL APPEAL NO.691 OF 2014 Date: 30.08.2019 sdp