Andhra Pradesh High Court - Amravati
Golla Ramudu Another vs The State Of A.P. Rep., By Its Pp on 19 September, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
CRIMINAL APPEAL No.1031 of 2013
JUDGMENT:(Per Hon'ble Acting Chief Justice C.Praveen Kumar) Accused Nos.1 and 2 in S.C.No.259 of 2010 on the file of II Additional Sessions Judge, Kurnool at Adoni are the appellants herein. Originally the accused Nos.1 to 6 were tried on the following charges.
(1) Section 148 of I.P.C. against accused Nos.1 to 4. (2) Section 147 of I.P.C. against accused Nos.5 and 6. (3) Section 302 of I.P.C. against accused Nos.1 to 4. (4) Section 302 read with 149 of I.P.C. against accused Nos.5 and 6.
(5) Section 109 of I.P.C. against accused Nos.5 and 6. (6) Section 201 of I.P.C. against accused Nos.1 to 6. Vide judgment dated 31.10.2013, learned II Additional Sessions Judge, Kurnool at Adoni while acquitting accused Nos.3 to 6 convicted accused Nos.1 and 2 for the offence punishable under Section 302 of I.P.C. and sentenced each of them to suffer imprisonment for life and to pay a fine of Rs.2,000/- each in default simple imprisonment for six months each. Challenging the same, the present appeal came to be filed.
The gravamen of the charge against the accused is that on 26.06.2009 at about 04.00 p.m. near Mulla Bavi in Nemilikallu Village of Peddakadubur Mandal, all the accused formed themselves into an unlawful assembly and killed one Golla Basavaraju by beating him with sticks.
2 HACJ & MSMJ crla_1031_2013 The facts as culled out from the evidence of prosecution witnesses are as under:-
Accused Nos.1 to 3 are brothers and sons of senior maternal aunt of the deceased. Accused Nos.4 to 6 are also brothers and sons of junior paternal uncle of the deceased. Both families are inter se related to each other. About six months prior to the incident, accused No.1 suspected that the deceased developed illicit intimacy with his sister Hanumanthamma, due to which he planned to do away with the deceased. On coming to know about the same, village elders called for a panchayat, wherein the elders decided that the deceased should give Ac.0.04 cents of plot to father of accused No.1 and an agreement to the effect was entered into. On one day, while the deceased was ploughing the land, accused along with others assaulted the deceased. At that time the villagers intervened and cautioned both the groups. Cases were registered against both the groups and subsequently, they were released on bail. While things stood thus, on 26.06.2009 at about 03.00 p.m., Basavaraju (deceased) along with P.W.1, who is the brother of the deceased, went to Mulla Bavi to bring fodder for goats. The deceased went ahead up to a distance of 2 furlongs from P.W.1. At that point of time, P.W.1 saw accused Nos.1 to 4 following the Basavaraju. On seeing the same, P.W.1 followed them. According to him, accused Nos.1 and 2 were armed with sticks while accused Nos.3 and 4 were armed with stones. At that point of time, accused Nos.5 and 6 joined them and instigated accused Nos.1 to 4 to kill Basavaraju. Then accused Nos.1 and 2 beat Basavaraju with sticks and accused Nos.3 and 4 beat him with stones. As a result of which, said Basavaraju received bleeding injuries on his head, nostrils and ears. When P.W.1 tried to rescue the deceased, he was chased by the accused. Apprehending threat to
3 HACJ & MSMJ crla_1031_2013 his life, P.W.1 went to Kothur village and took shelter in the house of P.W.8. On instructions of P.W.8, P.W.1 informed P.W.5 about the incident and asked him to inform the same to other brothers. On receiving information, brothers of P.W.1 went to the scene of offence, but at that time P.W.1 was at Kothur. At about 11.00 p.m., P.W.1 again called his brothers and enquired them as to whether the dead body of Basavaraju was traced. He was informed that the body could not be traced on that night. On the next day morning, P.W.1 and P.W.8 came to the place of offence, but the dead body was not found at the scene of incident, but it was found at a distance of one furlong from the place of offence, in the field called Mullavalla Massedu Manyam. They noticed bleeding injury on the back of the head of the deceased and blood was oozing from nostrils and ears. There were contusions on the stomach and shirt was in a torn condition. Thereafter, P.W.1 and others went to Peddatumbalam Police Station and lodged a report with the police under Ex.P.1, which came to be registered as a case in Crime No.58 of 2009 under Ex.P.9 - F.I.R. On intimation, P.W.15 - Inspector of Police received Ex.P.9 - F.I.R. and took up investigation. At 11.00 a.m., P.W.15 reached the scene of offence and conducted inquest over the dead body of the deceased in the presence of P.W.9. Ex.P.4 is the inquest report. During inquest, he examined P.Ws.1 to 3 and 8 and seized the wearing apparels of the deceased. Thereafter, he prepared a rough sketch of the scene of offence under Ex.P.10. He also seized blood stained earth, control earth from the scene of offence along with three sticks under Ex.P.5, the observation report. Thereafter, the dead body of the deceased was sent to Area hospital, Adoni where P.W.11-Doctor conducted post- mortem over the dead body of the deceased and issued Ex.P.6- postmortem report. According to him, death was due to shock and 4 HACJ & MSMJ crla_1031_2013 haemorrhage and ante-mortem injuries. P.W.11, the Post-mortem Doctor also opined that the injuries found on the deceased are possible with stones. Further investigation was taken up by P.W.16, who examined P.Ws.4, 5, 6, 7 and 8. He sent seized apparel along with blood stained and control earth to R.F.S.L. On 05.07.2009 when he was present in Peddathumbalam police station, he received information about the accused. Accordingly proceeded to Kosigi Cross road and arrested the accused and recorded their confessional statement under Ex.P.7. Pursuant to their statement, Ex.P.7, he along with the accused went to Mantriki village called Masjid Inam fields and discovered three sticks used in the commission of offence under Ex.P.8. After the receipt of Ex.P.14 -R.F.S.L. report, he filed a charge sheet against the accused before the Court of Judicial Magistrate of First Class, Adoni, which was taken on file as P.R.C.No.2 of 2010, who after complying with Section 207 Cr.P.C., committed the case to the Sessions Division under Section 209 of Cr.P.C. On committal, the same came to be numbered as S.C.No.259 of 2010.
Basing on the material available on record, a charge under Section 148 of I.P.C. against accused Nos.1 to 4, Section 147 of I.P.C. against accused Nos.5 and 6, Section 302 of I.P.C. against accused Nos.1 to 4, under Section 302 read with 149 of I.P.C. against accused Nos.5 and 6, under Section 109 I.P.C. against accused Nos.5 and 6, under Section 201 of I.P.C. against accused Nos.1 to 6 came to be framed, read over and explained to the accused, to which they pleaded not guilty and claimed to be tried.
To substantiate its case, the prosecution examined P.Ws.1 to 16 and got marked Exs.P.1 to P.16. After the closure of evidence, the accused were examined under Section 313 Cr.P.C., with reference to 5 HACJ & MSMJ crla_1031_2013 the incriminating circumstances appearing against them, in the evidence of the prosecution witnesses, to which they denied. No oral or documentary evidence was adduced on behalf of the accused, but Exs.D.1 to D.8 were marked on their behalf.
Out of 16 witnesses examined by the prosecution, P.Ws.5, 6 and 7 turned hostile and did not support the prosecution case. Relying upon the evidence of P.W.1, the learned Sessions Judge while acquitting accused Nos.3 to 6, convicted accused Nos.1 and 2 for the offence punishable under Section 302 of I.P.C. and sentenced them to suffer imprisonment for life and to pay a fine of Rs.2,000/- each, in default, simple imprisonment for 6 months each. Challenging the conviction and sentence, accused Nos.1 and 2 preferred the present appeal.
Sri T.Niranjan Reddy, learned Senior Counsel appearing for the appellants- accused Nos.1 and 2 would contend that the entire case rests on the solitary testimony of P.W.1, which cannot be accepted. According to him, P.W.1 is not a reliable witness having regard to the existence of disputes between the family of the accused and the deceased and in view of his conduct after the incident. He further pleads that when the evidence of P.W.1 is disbelieved in respect of accused Nos.3 to 6, believing his evidence to record conviction against accused Nos.1 and 2 may not be proper, more so when there is a delay in lodging the F.I.R. He also pleads that medical evidence is inconsistent with the oral testimony of prosecution witnesses and hence prays to allow the appeal.
Sri K.Srinivas Reddy, the learned Pubic Prosecutor representing the State would contend that, when the evidence of P.W.1 inspires confidence, the same can be relied upon to record conviction against the accused. According to him, the argument of the learned counsel 6 HACJ & MSMJ crla_1031_2013 for the appellants that there was delay in lodging the report is fatal to the case of the prosecution, cannot be accepted, since the incident took place at 04.00 p.m. on 26.06.2009 and the report came to be lodged at 10.00 a.m. on the next day morning i.e. immediately after tracing out the dead body. Insofar as the conduct of P.W.1, he would contend that since the accused threatened him with dire consequences, there is nothing wrong in P.W.1 going to other village and staying there that night. Hence pleads that the judgment of trial Court warrants no interference and prays to dismiss the appeal.
The point that arises for consideration in this appeal is:
"Whether the evidence of P.W.1 is sufficient to record conviction against the accused Nos.1 and 2?"
P O I N T:
The entire case rests on the evidence of P.W.1, who is the brother of the deceased. It is also to be noted that there exists a dispute between the family of the accused and the deceased. Keeping this circumstance in the background, it is to be seen whether the evidence of P.W.1 can be accepted.
The evidence of P.W.1 discloses that, accused suspected Basavaraju who is the brother of P.W.1, as having illegal intimacy with Smt.Hanumanthamma, who is sister of accused No.1. As Basavaraju, brother of P.W.1 was afraid of the accused, he left the village and started living in different place. The village elders namely Venugopal, Boya Pedda Narasaiah, P.W.7 and Ediga Muneppa, P.W.6 held a panchayat in the year 2009, settled the matter; advised them to live amicably and asked them not to quarrel with each other. Pursuant to the said settlement, his brother Basavaraju returned to the village. Sometime later, there was a quarrel in the agricultural field leading to a dispute between both the groups. On hearing the
7 HACJ & MSMJ crla_1031_2013 same, P.Ws.1 to 3 went to the field. Thereafter, both groups went to the police station, lodged reports and took bail from the concerned Court. While so, on the date of the incident, P.W.1 and the deceased went towards Mullavallabavi for fetching fodder for goats. P.W.1 claims to have been near the stream, while the deceased was working at a distance of two furlongs from the said Mullavallabavi. At that time, accused Nos. 1 to 4 proceeded towards the deceased. According to him, accused No. 1 and 2 were armed with sticks while accused Nos.3 and 4 were armed with stones. On hearing the cries from the place where the deceased was present, P.W.1 went to that place and saw accused Nos. 1 and 2 beating his brother with sticks, while accused Nos. 3 and 4 were beating him with stones. When he went to rescue his brother, he heard the accused saying to kill Basavaraju (deceased) as he insulted the women folk. Meanwhile accused Nos. 5 and 6 came to the scene of offence. They also exerted the other accused to kill P.W.1 also. Afraid of the same, P.W.1 is said to have left the scene.
From the evidence referred to above, it appears that P.W.1 and deceased together went to the scene of offence for fetching fodder for goats and both of them were at a distance of two furlongs when the incident took place. On hearing the cries, P.W.1 proceeded to the place where deceased was working and saw accused Nos. 1 to 4 attacking the deceased. Accused Nos. 5 and 6 reached the said place and exerted other accused to kill P.W.1. Afraid of the same, he left the place. After the incident, the conduct of P.W.1 being the brother of the deceased requires consideration. After the incident P.W.1 never went to his village to inform other family members of the deceased and the other village elders, on the other hand he went towards Kothur village, to the house of P.W.8, who is his junior maternal aunt.
8 HACJ & MSMJ crla_1031_2013 He is said to have informed about the incident to her. Thereafter, on instructions on P.W.8, he telephoned to P.W.5 and informed him about the incident and asked him to inform the same to other brothers. On the same day at about 11.00 p.m, he is said to have called his brothers and enquired as to whether the dead body of the deceased was traced, to which they replied in negative. On that night he stayed at Kothur village and on the next day morning, he along with P.W.8 proceeded to the place of offence and started searching for the dead body. The dead body was located at a distance of one furlong from the place of offence, in the field called Mullavalla Maseedu Manyam.
At this stage, we intend to comment on the conduct of P.W.1 to say that he is wholly unrealiable witness, as his conduct, in our view, improbablizes the natural conduct of an ordinary prudent person, more so, he being the brother of the deceased. It is not as if he is an aged man, who requires help from others to go to a police station. He was aged about 20 years at the time of incident and he was hale and healthy. If, really, he has seen the incident, the normal conduct would have been to go to the village, inform his brothers and other family members about the incident and thereafter proceed to the police station for lodging the report. Further, if really the incident has occurred at 3.00 p.m or 4.00 p.m as alleged, definitely, he would have called all the villagers, inmates and family members of the house to the scene of offence. Further, instead of going to the village, he proceeded to Kothur village. At this stage, it would be useful for us to refer to certain admissions made by him in his cross-examinations, wherein he admits that "Mullavalla chenu is towards North of his village and Kothur village is towards South of the village." According to him, when the incident took place, he was facing towards South 9 HACJ & MSMJ crla_1031_2013 and the accused chased him and he ran towards North upto some distance and again took a turn towards South and ran away. Thus, scene of offence is at a distance of two kilometers from Gramakantam. On the date of offence, the other brothers and sister-in-law were in the village and by short cut the village is at distance of 1 ½ kms and from check dam Kothur village is at a distance of 2 ½ kms. When the distance to his village is shorter by 1 km, the question of he going to Kothur village after the incident, instead of returning to his village appears to be strange. Apart from that, after going to Kothur village and informing the incident to P.W.8, he never made any effort to collect the villagers to reach the scene of offence. It is not as if it was dark by then. The incident occurred at 4.00 p.m. and within no time he reached his village. Therefore, staying in Kothur village without coming out from the house till next day throws a doubt and improbablizes his natural conduct.
One another circumstance which throws any amount of doubt on his evidence is that, his evidence is silent as to the existence of any threat to his life in the hands of the accused, though he refers to some disputes, but they were all settled. Apart from that, at 11.00 p.m he calls his brother and enquires as to whether dead body of deceased was traced. When P.W.1 has seen the incident at 4.00 p.m., question of asking his brothers as to whether dead body was traced would not arise, when he knew where the incident took place. It is he who should have telephoned others and informed as to where the incident took place and where the dead body actually exists, when his brothers were searching for the body. Instead, he enquires his brothers about the tracing of dead body of Basavaraju (deceased). This again is a doubtful circumstance to say that he has 10 HACJ & MSMJ crla_1031_2013 actually witnessed the incident. His evidence, as observed by us further states that, on the next day morning, he along with P.W.8 went to the scene of offence, but the body was not there. They started searching for the body and traced it at a distance of one furlong from the place of offence in the field called Mullavalla Maseedu Manyam. It is not the case of accused that third persons tried to shift the body of the deceased into the fields.
Even accepting P.W.1's presence, doubt arises as to whether P.W.1 would have witnessed the incident at all. Admittedly, he was at a distance of two furlongs behind the deceased when the incident in question took place i.e. at a distance of 60 meters or approximately 200 ft. Neither could he have witnessed the incident or could have seen all the accused armed with weapons. Probably, he must have seen the accused moving in the direction where the deceased was working, but not the weapons with which they were holding. According to him, he went to the place where the deceased was doing the work and saw the incident in question. Accused Nos. 1 and 2 are said to have beat the deceased with sticks, while accused Nos. 3 and 4 beat him with stones. This version of P.W.1 with regard to injuries on the body of the deceased was disbelieved by the learned Sessions Judge, since the injuries does not indicate use of stone. Further, a perusal of post-mortem certificate would show existence of burn injuries on the body of the deceased which are as follows:
"Burnt hair with singing present over the right temporal region; Superficial burns are seen over the left lower abdomen with burnt public hair."
It is not the case of prosecution that there was any attempt made by any of the accused to burn the deceased. Though the learned Public Prosecutor tried to give an explanation saying that burning of the dead body must have taken place after the accused left the scene, 11 HACJ & MSMJ crla_1031_2013 but, that is neither the version of P.W.1 nor the Investigating Officer. Further, the Investigating Officer failed to explain the burn injuries on the body of the deceased. It is also to be noted here that, P.W.1 in his evidence further states that, on the next day morning when the dead body of the deceased was traced, they all noticed bleeding injuries on the back side of the head and blood oozing from the nostrils and ears. But the doctor in his cross-examination admits as follows:
"It is true that I have opined in Post Mortem Examination that the deceased might have died within 36 hours prior to my examination. Within a time of less than three hours the body may become cool because of stoppage of mobility of blood in the nerves and veins. I have mentioned in the Post Mortem Examination report that the blood was oozing from nostrils and ears. My intention in saying so is that the blood was present at nostrils and ears, but the blood was not oozing. Because of the injury 1 and 2 there is possibility the blood was ooze for three to five minutes. Later the blood gets clotted. Injury No.3 might not have been caused by an individual and such contusion is possible by a person falling on right side of the body and stays on the ground for considerable period. I cannot give the exact time of age of all injuries."
From the evidence of doctor, it is very clear that the version of P.W.1 is palpably false. If really, the incident took place at 4.00 p.m., on the previous day question of they seeing the blood oozing from nostrils and ears on the next day improbablizes the timing of the incident. Therefore, all the circumstances referred to above create any amount of doubt with regard to veracity of prosecution case.
Coming to the aspect of delay, it is to be noted that though the incident took place on 26.06.2009 at 4.00 p.m, a report about the incident was lodged at 10.00 a.m on the next day morning i.e. on 27.06.2009, which reached the Court at 5.00 p.m on 27.06.2009. No justifiable explanation is forthwith coming for the delay in lodging the report. It is a case as of P.W.1 and others being illiterates. Earlier they went to the police station, lodged reports and got themselves released on bail along with prosecution party. As such it can be said that P.W.1 and others were not aware about the legal proceedings and as 12 HACJ & MSMJ crla_1031_2013 to lodging of reports. When telephone facility is available, there is no justification for P.W.1 to go to P.W.8 without informing the police or his brothers. When he could inform about the incident to P.W.5 on telephone, nothing prevented him from informing about the incident to the police. Even his brothers never made any effort to give a report to the police. Therefore, having regard to the disputes between the families of deceased and accused, the possibility of implicating the accused in this case cannot be ruled out.
Having regard to the above discussion, we hold that the prosecution failed to establish the guilt of the appellants - accused Nos.1 and 2 for the offence punishable under Section 302 of I.P.C., for which they were convicted, and as such the judgment of the Trial Court cannot be sustained and the same is liable to be set aside.
In the result, the Criminal Appeal is allowed and the conviction and sentence imposed against the appellants-accused Nos.1 and 2 - Golla Ramudu and Golla Hanumantha Reddy, for the offence punishable under Section 302 of I.P.C., in Sessions Case No.259 of 2010 on the file of the II Additional Sessions Judge, Kurnool at Adoni, by judgment dated 31.10.2013, are set aside. The appellants - accused Nos.1 and 2 - Golla Ramudu and Golla Hanumantha Reddy are acquitted and they shall be set at liberty forthwith, if they are not required in any other case.
Consequently, miscellaneous applications pending if any, shall also stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated: 19.09.2019 Ksp/sp