Andhra HC (Pre-Telangana)
Killo Kameswara Rao vs State Of A.P., Rep. By Its P.P.,High ... on 13 March, 2014
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY and THE HON'BLE SRI JUSTICEM.S.K.JAISWAL Crl.Appeal No. 1779 of 2009 13-03-2014 Killo Kameswara Rao... Appellant State of A.P., rep. by its P.P.,High Court of A.P., Hyderabad...Respondent Counsel for the Appellant: Smt. Shanthi Neelam Counsel for respondent: Public Prosecutor <GIST: >HEAD NOTE: ?CASES REFERRED : .... HON'BLE SRI JUSTICE L. NARSIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Crl.A.No.1779 of 2009 JUDGMENT:
(per Hon'ble Sri Justice M.S.K.Jaiswal) The appellant/accused was convicted by the learned VII-Additional District & Sessions Judge, Visakhapatnam in S.C.No.2 of 2009 on 23.09.2009 for the offences punishable under Sections 302 and 324 IPC, and was sentenced to undergo imprisonment for life and fine of Rs.1,000/-, in default simple imprisonment for six months; and fine of Rs.500/- in default simple imprisonment for one month respectively.
2. Briefly stated, the case of the prosecution is as under:
The accused Killo Kameswara Rao was having two brothers, by name Garuda and Telusu. Those two persons met with unnatural death. The accused suspected Gulluri Utra (hereinafter referred to as the deceased), resident of Sangiput village, Kumuda panchayat, Munchingput mandal, as being responsible for causing their death by practising witchcraft. Ons 28.10.2008 G. Laxmi (PW-1) along with her husband - deceased, and Tilusu (PW-2), another brother of the deceased were returning after attending Sandy at Busiput. When they reached Jumbari ghat, near Saginaput, the accused, who was hiding behind the bushes, suddenly attacked them with an axe and hacked the deceased brutally, resulting in his instantaneous death. The accused also caused a simple injury on the right thumb of PW.1. The accused fled away from there.
Three days thereafter i.e., on 31.10.2008 at about 10.00 a.m., a complaint (Ex.P.1) was lodged with S.I. of Police, Peddabayalu P.S. (LW-11), who registered a case in Crime No.43 of 2008 and issued the F.I.R. The Inspector of Police (PW-6) took up investigation and conducted inquest and scene of offence panchanama. The dead body was subjected to post-mortem examination. The accused was arrested on 03.11.2008 and he confessed of having committed the crime. The Medical Officer (PW.5) opined that the cause of death was 'due to cardio respiratory arrest secondary to haemorrhage shock due to injury with massive bleeding from the great vessels of neck'.
After completing the investigation, the charge-sheet was filed before the Judicial Magistrate of First Class, Paderu, who took its cognizance and committed to the Court of Sessions at Visakhapatnam. The case was tried by the learned VII Addl. District & Sessions Judge, Visakhapatnam. The prosecution has examined PWs.1 to 6, filed Ex.P.1 to P.14, and produced MOs.1 to 3. The accused was examined under Sec.313 Cr.P.C., where he denied the evidence on record and contended that he is falsely implicated. No defence was produced.
3. The learned counsel for the accused submits that the trial Court grossly erred in convicting the accused though there is absolutely no satisfactory evidence. It is further submitted that when the incident is said to have taken place on 28.10.2008, the F.I.R. came to be lodged 3 days thereafter on 31.10.2008 and this inordinate delay is not at all explained. He contends that the Medical Officer PW.5 who conducted autopsy over the dead body on 31.10.2008 found the age of the injuries on the deceased to be one week and ignoring this material aspect, and without appreciating the evidence on record in proper perspective, the trial Court found the accused guilty of having caused the death of the deceased.
4. Learned Public Prosecutor submits that the deceased and the prosecution witnesses, as also the accused are all residents of a tribal area and for want of proper conveyance and knowledge about the procedure to be followed, the complaint could not be submitted immediately. It is also submitted that the conviction of the accused is proper, particularly in view of the evidence of PWs. 1 and 2, and it does not warrant any interference.
5. The point for consideration is as to whether the prosecution proved its case against the accused beyond reasonable doubt, so as to sustain the conviction and sentence imposed or whether it needs to be set aside, modified or varied?
6. The accused is alleged to have caused the death of the deceased at about 6.00 p.m. on 28.10.2008 by brutally hacking him in the presence of PWs.1 and 2, on the suspicion that it is the deceased, who is responsible for causing the death of two of his brothers. PWs.1 and 2, being the wife and brother of the deceased, are the eye-witnesses to the incident. The incident is said to have taken place at Jumbari ghat, near Saginaput village. These two witnesses deposed that when themselves, the deceased, and another brother of PW.1, were returning from the sandy, the accused, who was hiding behind the bushes, suddenly pounced upon the deceased and hacked him with an axe, causing several injuries, resulting in his instantaneous death. According to PW1, the accused hacked the deceased on head, neck, left, middle and other parts of the body. PW.2 stated that the accused hacked the deceased all over the body. He did not specifically state as to on which part of the body, the accused hacked the deceased.
7. The medical evidence does not corroborate the version of PWs.1 and 2. PW- 5, who conducted autopsy and issued post mortem examination certificate Ex.P.6, found as many as 23 injuries on the deceased. The prosecution failed to explain as to who caused those many injuries on different parts of the body of the deceased. Furthermore, the post mortem was conducted on 31.10.2008 at about 3.00 p.m. According to the Doctor (PW-5), the age of the injuries and the time of death of the deceased is mentioned as one week before the autopsy. It means that the deceased may have died somewhere on 24.10.2008, but, according to the prosecution, the incident took place on 28.10.2008. A marginal difference in the ocular and medical evidence can be ignored on the ground that perfection on that score is yet to be achieved. However, there cannot be such a wide difference of about four days. The Medical Officer specifically asserts that the body was decomposed and putrefaction has set in. The condition of the body was such that it could not even be shifted to the Hospital and the autopsy was conducted near the Police Station, at the burial ground. If really the deceased was done to death on 28.10.2008 and the post mortem was conducted within three days thereafter that would not have been the condition of the dead body.
8. The other evidence also raises serious doubt about the veracity of PWs.1 and 2. They stated that the gruesome murder of the deceased took place in their very presence. The natural reaction of the wife and the brother of the deceased would be to firstly shift the body to a safer place, if not to a hospital or Police Station and thereafter approach the authorities. Contrary to that, it is noticed in the evidence of PW.1 that when she visited the dead body of her husband, bad smell was coming from the body and that it was decomposed. What could be understood from this statement is that after the deceased was killed at that place, the wife and brother of the deceased did not come near the dead body for many days.
9. As submitted by the learned counsel for the accused there is inordinate delay of three days in lodging the FIR, even if the death can be taken as occurred on 28.10.2008 and that it has not been satisfactorily explained. According to the Investigating Officer (PW.6) the FIR was lodged at 10.00 a.m. on 31.10.2008 and he immediately took up the investigation and reached the scene of offence at about 12.00 noon. Apparently, the place of offence was not so inaccessible as to make it impossible for the wife and the brother of the deceased to reach the Police Station either on 28.10.2008 when the incident is said to have taken place, or at least on 29.10.2008 or 30.10.2008. A feeble attempt is made to explain this delay by stating that immediately after the incident they informed about it to the Secretary of the village and thereafter they went to Police Station.
PW.3 is the Village Revenue Officer of Kumuda Panchayat. He deposed that on 29.10.2008 at about 3.00 p.m., PWs.1 and 2 came to him and informed him about the death of the deceased. Even this information to the local Village Officer is said to have been given at 3.00 p.m. on 29.10.2008, whereas the incident is stated to be taken place at 6.00 p.m. on 28.10.2008. Significantly, it is in the evidence of PW.3 that even though he was informed about the incident on 29.10.2008 at about 3.00 pm., he went to the scene of offence on the next day on 30.10.2008 and found the body with injuries. Thereafter, on 31.10.2008 they gave report to the Police Station. In the cross-examination PW.3 admits that even by the time when he visited the scene of offence on 30.10.2008, the body was highly decomposed. That would not have been the case had the incident taken place on 28.10.2008, as alleged. As a matter of fact, this evidence of the village official accords with that of the medical evidence on record, which suggested that the death had taken place around 24.10.2008, but not on 28.10.2008.
10. Confronted with the above evidence on record, the learned trial Judge has observed that the circumstances are not fatal in view of the fact that the witnesses are tribal and illiterate persons and there are naxals problems. Curiously, it is nobody's case including that of the Investigating Officer PW.6 that they were having any such problem in that area.
11. After carefully perusing the evidence on record, we are constrained to observe that the approach of the learned Sessions Judge, particularly the language in which the evidence was recorded and the way the learned Judge expressed himself in the judgment, is far from satisfactory.
12. With regard to the material discrepancy in the evidence of Prosecution witnesses and the medical evidence on record, the learned Judge has observed in paras.15 and 16, as under:
"So, according to the Addl. PP he submitted that the fact must be taken into consideration but not the medical opinion alone. The defence counsel submitted that the Doctor P5 deposed that in his cross examination it is true that the mentioned in PME report that the age of the wounds might have caused one week before autopsy. And he also mentioned that body is purification.
So, according to the learned legal Aid counsel they are the medical evidence important but as per the prosecution it is only opinion but not the fact. According to the material submitted by the prosecution and on go through the said book and decision it is only opinion but it is not a fact. So, the arguments of the defence counsel is not relied."
Observations of similar nature were made on other aspects also. The adjudication by a Judge of the rank of Additional District and Sessions Judge is expected to be somewhat better.
13. Be that as it may, we have carefully analysed the evidence on record and we conclude that the prosecution has miserably failed to prove its case that the incident took place on 28.10.2008 at 6.00 p.m., as alleged. There is material discrepancy as to when actually the deceased died, or was killed. The medical evidence does not support the case of PWs.1 and 2. The accused is naturally entitled to the benefit of doubt.
14. In the result, the Criminal Appeal is allowed. The conviction and sentence ordered in S.C.No.2 of 2009 on the file of VII-Additional Sessions Judge (FTC), Visakhapatnam, dated 23-09-2009, against the appellant - accused are set aside. The appellant - accused shall be set at liberty forthwith, unless his detention is needed in any other case. The fine amount, if any, paid by the appellant - accused shall be refunded to him. The material objects, if any, shall be destroyed after the appeal time is over. ___________________ L.Narasimha Reddy, J.
_______________ M.S.K. Jaiswal, J.
Dt.13.03.2014