Andhra Pradesh High Court - Amravati
Sushil Kumar Lema, Orissa., vs State Of Ap., Rep. Pp. Hyd., on 13 August, 2021
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE B. KRISHNA MOHAN
CRIMINAL APPEAL NO. 748 OF 2014
JUDGMENT:(per Hon'ble Sri Justice C.Praveen Kumar) Heard Sri B.Parameswara Rao, learned counsel appearing for the appellant and Sri S.Dushyanth Reddy, learned Additional Public Prosecutor, through Blue Jeans video conferencing APP.
1) Accused No.1 in Sessions Case No.132 of 2011 on the file of II Additional Metropolitan Sessions Judge-cum-IV Additional District and Sessions Judge, Visakhapatnam, is the appellant herein. The appellant along with two others were tried for the offences punishable under Sections 302, 201, 379 and 411 IPC. Vide Judgment dated 02.08.2013, the learned Sessions Judge, convicted the appellant for the offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for a period of six months. He was further convicted for the offences punishable under Section 411 IPC and 201 IPC and was sentenced to undergo rigorous imprisonment for a period of one year under each count and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for three months. All the sentences are directed to run concurrently.
2) The gravamen of the charge leveled against the accused is that, in pursuance of their plan to steal the vehicle i.e., Rhino RX Car bearing ` 2 No.AP31 TU 5858, they killed one Enakoti Govindu (hereinafter referred to as, "deceased") on 02.08.2009 at Tapatapani Ghat road located between Berhampur to Udayagiri Road and thereafter caused disappearance of evidence by burning the clothes of the deceased and the towel used for murder of the deceased and then fled away along with the car.
3) The facts, as culled out from the evidence of the prosecution witnesses, are as follows:
i) PW1, who is the informant, deposed in his evidence that he was running a travel agency in the name of Crazy cops.
On 02.08.2009 at about 02:00 PM, he received a call to his landline informing that the caller is doing cloth business and he requires a car on hire purpose and that he is in room No.107 of Purna lodge, Visakhapatnam. Accordingly, PW1 informed the same to one Nooka Raju, who is the owner of the vehicle i.e., Rhino Car bearing No.AP 31 TU 5858 to arrange a car on hire. The said Nooka Raju sent the vehicle engaging a driver by name Govind to Purna lodge.
ii) Subsequently, PW2, who works as boy in the Purna lodge, deposed that on 01.08.2009 three persons came to Purna lodge and requested the Manager for a room stating that they are doing cloth business. Room No.107 was allotted to them and all the three persons stayed in the said room. According to him, on the next ` 3 day, i.e., on 02.08.2009 in between 01:00 and 01:30 PM, A2 sat in the reception waiting for arrival of a car and, at 03:00 PM, a green colour car came in which all the three persons proceeded stating that they are going to Orissa and would come back soon. The three persons, who boarded the car, were identified by him before the court.
iii) It is the case of the prosecution that the vehicle which went from Purna lodge carrying A1 to A3 did not return back. The driver of the vehicle also did not respond to the calls made. Further, when PW1 enquired with Nookaraju, he was informed that the driver of the vehicle informed him that they reached Ichapuram at night 10:00 PM. Then PW1 and Nooka raju together telephoned to the driver of the taxi but there was no response. As such on 03.08.2009, PW1 went to PW5 the Sub-Inspector of Police, and gave a report basing on which a case in Crime No.478 of 2009 came to be registered. Ex.P8 is the FIR.
iv) PW5, who is the Sub-Inspector of Police, in his evidence deposed that on receiving report from PW1, he registered FIR- Ex.P8 and took up investigation. During the course of investigation, he visited Purna lodge and recorded the statement of PW2.
v) PW8, the Inspector of Police, CCS, Visakhapatnam, who took up further investigation, states that on 12.01.2010, he ` 4 received information from Orissa with regard to missing vehicle and immediately he informed the same to his superior and proceeded to Orissa via Parlakimidi along with his staff. When they reached Chiliguda Junction, they noticed the missing vehicle bearing No.AP 31 TU 5858 coming in opposite direction and on suspicion stopped the vehicle. When the vehicle was stopped they noticed the driver and one person in the said vehicle. On interrogation, the driver, who is A1, confessed about the offence before him and in the presence of mediators PW3 and LW7. He recorded the confessional statements of A1 and A2. PW8 further deposed that immediately sent a message to the owner of the vehicle and also the wife of the deceased asking them to come over to Orissa. Pursuant to the confession made, the vehicle was seized under the cover of mediators report. Thereafter the accused lead them to the scene of offence in the presence of PW3 and another and held inquest over the bones present there. Ex.P4 is the inquest report. Thereafter, the bones were sent to the Doctor for post mortem examination.
vi) PW6 is the Doctor, who conducted autopsy over the bones of the deceased. According to him, the bones were of a single individual human male having the age between 25 to 30 years with the stature 171-172 cm. According to him the cause of death could not be ascertained as no soft tissues could be identified and the time of death would be about 3 to 6 months prior to the post ` 5 mortem examination. He issued Ex.P10-Post Mortem Certificate. Thereafter, the material objects seized were sent to the Assistant Director, A.P.Forensic Science Laboratory (APFSL). PW7, the Assistant Director, A.P. Forensic Science Laboratories, Hyderabad, issued Ex.P11, the RFSL Repot dated 30.04.2011 and Ex.P12, three passport size photographs along with negatives.
vii) After completion of investigation, PW9, who is the Inspector of Police, CCS, Visakhapatnam, filed a charge sheet before the III Metropolitan Magistrate, Vijayawada, which was taken on file as PRC No.15 of 2011.
viii) On appearance of the accused, copies of all the documents, as required under Section 207 Cr.P.C. were furnished. Since the case is triable by Court of Sessions, the same was committed under Section 209 Cr.P.C to the court of II Additional Metropolitan Sessions Judge-cum-IV Additional District and Sessions Judge, Visakhapatnam. On such committal, charges under Sections 302, 201 and 379 or 411 r/w 34 IPC came to be framed against the accused and the same were read over and explained to them, to which they pleaded not guilty and claimed to be tried.
4. In support of its case, the prosecution examined nine witnesses as PW1 to PW9 and got marked Exs.P1 to P14 and MOS.1 to 3. After completing the evidence of the prosecution, the accused were ` 6 examined under Section 313 CrPC with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied. However, no defence evidence was adduced in support of this plea.
5. Relying upon the evidence of the prosecution witnesses and the evidence of the investigating officer coupled with the medical evidence, the learned Sessions Judge convicted the appellant/A1 as aforesaid. Challenging the same, the present appeal came to be filed.
6. Sri B.Parameswara Rao, learned counsel for the appellant, vehemently contends that there are no direct witnesses to the incident and the case rests only on the circumstantial evidence and the circumstances relied upon do not form a chain of events connecting the accused with the crime. According to him, even the prosecution failed to prove that bones recovered are that of a male or female leave alone it being that of the deceased. The recovery of the vehicle along with the accused nearly four months after the incident does not lead to any inference that the accused were responsible for the death of the deceased and even if it is believed, it can be an offence under Section 411 IPC.
7. Sri S.Dushyanth Reddy, learned Additional Public Prosecutor, opposed the same, contending that the circumstances relied upon by the prosecution are sufficient to base a conviction. ` 7
8. As seen from the record, PW2 is a hotel boy in Purna Lodge, who is said to have seen the three accused taking room. On 01.08.2009, by saying that they have come for doing cloth business and that on 02.08.2009, between 01:00 and 01:30 PM, A2 sat in the reception waiting for a car and at 03:00 PM, a green colour car came and all the three accused proceeded in it and stating that they are going to Orissa and would come back soon. Thereafter they did not come back to the hotel. His evidence is to the effect that five months thereafter the owner of the car came to the lodge and asked him to come along with him to Orissa for identification of the accused. He went to Orissa and found police and two persons who asked him to identify the persons and accordingly he identified. During his evidence, PW2 identified A1 in the court as one of the persons identified by him when he went to Orissa along with the owner of the car, which is nearly four months after the incident.
CORPUS DELICTI:
9. Coming to the issue as to whether the prosecution was able to prove that the dead body is that of the deceased, it would be appropriate to go through the evidence of PWs.6 and 7.
10. PW6 is the Doctor, who conducted post mortem examination on the bones of the deceased. According to him, the bones were of a single individual human male with the age between 25 to 30 years, having the stature 171-172 cm. The cause of death could not be ascertained as no soft tissues could be identified and the time of death was within 3 to 6 ` 8 months prior to the post mortem examination. He admits that he has not mentioned the place where he has conducted autopsy over the bone and it was also not mentioned in Ex.P10 about the place where the highly decomposed dead body was produced before him. In the cross-
examination, he admits that the cause of death could not be ascertained as no soft tissues could be identified.
11. Coming to the evidence of PW7, the Assistant Director of AP Forensic Science Laboratory, Hyderabad, he admits in his cross- examination as under:
"I cannot say whether the skull examined by me belongs to a male body or female body. Only DNA Test can determine the sex of the person to whom the skull belonged. Since I could not conduct DNA examination, I could not give any opinion. The measurements of the skull examined by me tally with the measurements of a person whose photo is supplied to me, the test may show the same result."
12. From the admissions elicited in the cross-examination of PW7, it is clear that he cannot say whether the skull examined by him belongs to a male or female body. He further admits that only DNA test can determine the sex of the person to whom the skull belongs to. But since he could not conduct DNA examination, he cannot give any opinion.
13. From the above, it is very much clear that there is no legal evidence on record to show that the body alleged to have been recovered nearly five months after the incident pursuant to the confession made by the accused is that of the deceased. ` 9 ACCUSED LAST SEEN IN THE COMPANY OF DECEASED: -
14. The second circumstance relied upon by the prosecution is the last seen theory i.e., the accused being last seen in the company of the deceased. The prosecution relies on the evidence of PW2 to prove the same. As stated earlier, PW2 saw the accused on 01.08.2009 and on the next day at about 03:00 PM when they left the hotel in the car along with the deceased. His evidence does not anywhere indicate that the driver of the car was a known person to him. But, however, five months later he identified A1 in the test identification parade. As seen from the record, the test identification parade was conducted sometime in the month of April, 2010, which is nearly eight months after the incident. It is to be noted that PW2, who claims to have identified the accused, did not give the physical features of the suspect at the time of test identification parade. It would be appropriate for this court to extract the relevant portion in the cross-examination of the evidence of PW4, which reads as under:
"The witnesses have not given the physical features of the suspects. I have not enquired the suspects before commencement of T.I.parade whether they were shown to the witnesses at any place. I have received requisition on 16.04.2010 and on same day I issued summons to the witnesses. It is not mentioned in my proceedings as per proceedings received by me the accused were arrested on 13.01.2010. It is true the witness B.Suresh Kumar disclosed only one person name as Krishna Kumar the other person name not disclosed. Suresh Kumar not identified the suspect by name Krishna Kumar."
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15. Even assuming that the identification of A1 by PW2 is believed, still the same cannot be made the basis to convict the accused since it was nearly ten months after the incident. The test identification parade was conducted after arrest of the accused along with the car on 13.01.2010. It is to be noted that there is any amount of doubt with regard to car seized. PW8, the investigating officer in the cross- examination admits that he has not prepared any mediators report for seizure of the car, having the chasis number and engine number of the car. It would be appropriate to extract the relevant portion in the cross- examination of PW8, which reads as follows:
"I have not prepared any mediators report bearing number of chasis number and engine numbers therein."
16. Having regard to the facts and the circumstances of the case and the evidence adduced by the prosecution, this court holds that the prosecution miserably failed to prove the circumstances relied upon by them, which form a chain of events connecting the accused with the crime and as such, the conviction and sentence imposed against the appellant basing on the said circumstances, is unsustainable.
17. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant in Sessions Case No.132 of 2011 on the file of II Additional Metropolitan Sessions Judge-cum- IV Additional District and Sessions Judge, Visakhapatnam, dated 02.08.2013 are set aside and the appellant is acquitted for the said ` 11 offences. Consequently, the appellant shall be set at liberty forthwith, if he is not required in any other case or crime.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
________________________________ JUSTICE C. PRAVEEN KUMAR ________________________________ JUSTICE B. KRISHNA MOHAN July 24, 2021 LMV ` 12 HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND HON'BLE SRI JUSTICE B. KRISHNA MOHAN 117 CRIMINAL APPEAL NO. 748 OF 2014 July 24, 2021 LMV