Telangana High Court
V.Venkateswara Rao, Khammam Dt., vs State Of Ap., Rep. Pp. Hyd., on 26 August, 2022
Author: M.Laxman
Bench: M.Laxman
THE HON'BLE SRI JUSTICE M.LAXMAN
AND
THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
CRIMINAL APPEAL No. 367 of 2014
JUDGMENT:(per Hon'ble Sri Justice M.Laxman) Challenge in the present appeal is to the Judgment dated 25.02.2014 in S.C.No.538 of 2012 on the file of the Principal Sessions Judge, Khammam, wherein and whereby the appellant was convicted for the charges under Sections 302 and 201 of IPC and sentenced to undergo Imprisonment for LIFE and to pay fine of Rs.1,000/-; in default, simple imprisonment for one month for the charge under Section 302 IPC and imprisonment for one year and fine of Rs.100/-; in default, simple imprisonment for ten days for the charge under Section 201 IPC.
2. The case of prosecution in simple is that the deceased is the father of the accused and the deceased suffered leg injury and he was taking treatment for leg injury. The accused took the deceased for treatment to Charla Hospital and Bhadrachalam Hospital and when the deceased was taken to Badrachalam hospital, the Doctors advised him to take him to the private hospital. While he was bringing back to the hospital, the deceased was provided with alcohol 2 mixed with poison by the accused. PW-1 had seen the deceased when the deceased was found in the mechanic shed of the accused vomiting and died. Basing on the above allegation charge sheet was laid.
3. The charges for the offence under Sections 302 and 201 IPC are framed and the charges are denied by the accused.
4. The prosecution to support its case, examined PWs.1 to 13 and relied upon Ex.P1 to P18, Ex.D1 and M.Os.1 to 3.
5. The entire case of prosecution rests upon the circumstantial evidence of the last seen together and the motive. The motive for the offence was that the deceased was blaming the accused for not providing required maintenance to him before the others, thereby the accused has a plan to kill the deceased by mixing poison with alcohol and the second circumstance is that the deceased was with the accused from Bhadrachalam hospital till he was found in the mechanic shed and the same was seen by PW-1.
6. The medical evidence on record shows that the deceased died on account of the presence of Organo Phosphate insecticide poison along with alcohol. The cause of death is not in serious dispute. The prosecution to prove the motive relied upon the evidence of PWs.1 to
4. PWs.1 and 4 are the sons of PW-2 who is none other than the eldest daughter of the deceased. PW-3 is the daughter in law of the 3 deceased and widow of another son of the deceased. Their evidence shows that the accused was proclaiming to kill the deceased on account of the deceased complaining to the others stating that the accused was not taking care of him.
7. So far as the last seen theory is concerned, they relied upon the evidence of PW-1. The prosecution is not clear whether the act of mixing of poison with alcohol and consumption of alcohol by the deceased was at the mechanic shed or outside the mechanic shed. PW-1 evidence shows that he had seen the deceased vomiting. It is not his case that when he had seen the deceased, he was unconscious. PW-1 had an occasion to verify with regard to how he had access to alcohol and who provided the alcohol but PW-1 evidence is silent. The cross-examination of PW-1 shows that his family is enmical with the accused. The entire evidence is relied upon by the prosecution to prove the last seen circumstance and the motive is PW-1 and his family members i.e., mother and brother.
7. In order to establish the death of the deceased on account of the administration of poison, the prosecution has to prove the four ingredients as held by the Apex Court in case of Sharad Birdhichand Sarda v. State of Maharashtra1, as under: 1
AIR 1984 SC 1622 4 "In the cases of murder by administration of poison the Court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction;
(1) there is a clear motive for an accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, (3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to the deceased".
8. In the present case, the first ingredient with regard to motive is not clearly established. The evidence on record shows that the accused was taking care of the deceased by taking him to various hospitals. Therefore, if he had any bad motive, he would not have taken the deceased to the hospitals. The accused conduct shows that he is of careful nature.
9. The second ingredient has been established by the prosecution with regard to the death of the deceased due to poisoning.
10. The third ingredient is that the accused was in possession of poison. The prosecution has not made any efforts to recover the poison bottle from which the alcohol was mixed with the poison. The scene of offence does not contain the alcohol bottle as well as the 5 poison bottle. The prosecution has not looked any other scene of offence.
10. The last ingredient was that the accused had an opportunity to administer the poison. It may be true that the accused had an opportunity but unless the accused was shown to be in possession of poison, we cannot say that there is some evidence to show that it was the accused who had administered the poison. There is no direct evidence that the accused administered the poison. Though there must be opportunity but unless the prosecution established the possession of poison with the accused, the opportunity to administer the poison available to the accused cannot be basis to come to a conclusion that he administered the poison.
11. Another aspect to be taken note of is that according to the evidence of PW-1, he had seen the deceased vomiting as well as death also. When such is the case, he should have lodged the report to police immediately but there is a delay of one day. Apart from that there is also animosity in between the accused and PW-1 family. In the above facts and circumstances, it is unsafe to rely on the evidence of such witnesses who have ill terms with accused. The prosecution failed to establish the charges against the accused beyond reasonable doubt. Therefore, the benefit of doubt can be extended to the accused.
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12. The Criminal appeal is allowed. The Judgment of conviction and sentence imposed by the Principal Sessions Judge, Khammam against the accused in S.C. No.538 of 2012 for the offences under Sections 302 and 201 IPC is hereby set aside and the accused is acquitted for the said charges and he shall be released forthwith if not required in any other case. Fine amount paid by the accused, if any, shall be refunded to him.
As a sequel, the miscellaneous applications, if any pending, shall stand closed.
____________________ JUSTICE M.LAXMAN _______________________________ JUSTICE M.G. PRIYADARSINI 26.08.2022 pgp