Andhra Pradesh High Court - Amravati
Mallipudi Srinivasu vs The State Of A.P., on 22 November, 2022
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
CRIMINAL APPEAL No.1162 of 2015
JUDGMENT:- (Per Hon'ble Sri Justice C.Praveen Kumar) Sole accused in Sessions Case No.212 of 2011 on the file of the learned VI Additional District and Sessions Judge (Fast Track Court), Narsapur, West Godavari District is the appellant herein. He was tried for the offences punishable under Sections 302, 201, 380 and 411 I.P.C.
2. Vide judgment, dated 20.11.2015, the learned Sessions Judge, while acquitting the accused for the offence punishable under Section 411 I.P.C., convicted him for the offences punishable under Sections 302, 201 and 380 I.P.C. and accordingly, sentenced him to undergo imprisonment for life and to pay a fine of Rs.2,000/-, in default of payment of fine, to undergo simple imprisonment for a period of one year for the offence punishable under Section 302 I.P.C.; to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/-, in default of payment of fine, to undergo simple imprisonment for a period of three months for the offence punishable under Section 201 I.P.C., and to undergo simple 2 imprisonment for a period of six months and to pay a fine of Rs.1,000/-, in default of payment of fine, to undergo simple imprisonment for a period of three months for the offence punishable under Section 380 I.P.C. The substantive sentences were directed to run concurrently.
3. The substance of the charge levelled against the accused is that on 01.01.2010, at about 10:00 P.M., in the house belonging to one Kotla Venkata Ramamohana Rao (hereinafter, referred to as "the deceased") bearing D.No.4-4-45, Y.N.College Road, 7th Ward, Narsapur, the accused placed a pillow on the face of the deceased and caused the death of the deceased and later, the accused dragged the dead body to the bed room; committed theft of jewellery, cash and other articles including Lancer Car and escaped with the booty by locking the doors and gates and concealed the stolen property at Jangareddigudem. Part of the stolen property was sold and the remaining gold ornaments were alleged to have been pledged with an intention to screen the offence.
4. The case of the prosecution, in brief, is as under:
P.W.2 is the wife of the deceased and the deceased is the junior paternal uncle of P.W.1. P.W.22, who is also a resident of 3 Perupalem Village, was doing contract works along with the deceased during his lifetime. He also happens to be a family friend of the deceased. P.W.22 along with the deceased did civil contract works from 2002 to 2007 and they also took on lease "Ranga Metal Stone Crusher" in the year 2007. P.W.2 and the deceased went to U.S.A. to see their two sons who are residing there. However, the deceased returned early to India. On 01.01.2010, P.W.2 left America and came to Rajahmundry, as her brother and daughter-in-law informed that her husband was not keeping good health. She reached Rajahmundry on 03.01.2010.
It is said that on 02.01.2010, at about 10:30 A.M., the car driver of the deceased went to the house of P.W.1 and informed him that he was asked to come to the house of the deceased at 10:00 A.M., but the house was locked and cell phone was also switched off. He sent his driver and enquired the same. It was informed that the car was also not available. As there was no information in spite of the enquiry with the relatives, all of them went to the house and got the door broke open through one Mallipudi Srinivasa Rao. They found articles in pelmel condition and also found some cigarettes and khaini packets on the floor. The dead body was in the bedroom with A.C. unit 4 switched on. The gold ornaments which were normally present on the body of the deceased were also found missing. They suspected theft in the house and during the course of theft, the accused might have killed the deceased, and thereafter, took the car. On the same day, at 6:45 P.M., P.W.1 presented a report in Narsapur Town Police Station, which came to be registered as a case in Crime No.2 of 2010 for the offences punishable under Sections 302 and 380 I.P.C. Ex.P-37 is the F.I.R. Further investigation was taken up by P.W.27 - Inspector of Police, Narsapur, who on receipt of the copy of the F.I.R., left the scene of offence, examined P.W.1 and posted a Guard at the scene. On the next day, at 6:00 A.M., he observed scene of offence along with his staff, P.W.16 and mediators. Ex.P-7 is the scene observation report. At the scene, he seized M.Os.71 to 80 under a mediators' report. He also got prepared a rough sketch at the scene, which is placed on record as Ex.P-38. In the house, he conducted inquest in the presence of P.W.16 and others. Ex.P-8 is the Inquest Report. During inquest, he examined Pachipulusu Viswanadham, P. Venkateswara Rao, Pachipulusu Govindu, P.Narasimha Murthy, Uppala Gopala Krishna Murthy, T.Manikyalarao, Ch. Padmavathi (L.Ws.19, 20, 21, 22, 23, 24 and 26) and P.W.8 and recorded their statements. Basing on information, he secured the mediators - P.W.16 and G.Sankara 5 Sai, went to Navabharat Guest House at Jangareddygudem on 05.01.2010 at about 4.00 P.M. along with my staff and seized Lancer Car bearing No.AP 37 AH 3789 (M.O.1) and M.O.2 to M.O.69, under Exs.P-9 to P-26 in the presence of mediators under the cover of mediators' report - Ex.P-27. He examined P.W.9, P.Sudheer, K.Sughuna, T.Ramesh, T.Tripura Sundari, V.V.V.S.Sastry, U.Satyanarayana, K.Srividya and M.Ramesh and recorded their statements. On 20.01.2010, he sent the material objects and seizers to R.F.S.L., Vijayawada. Thereafter, he received Post Mortem Certificate from the doctor, which is marked as Ex.P-39. On 15.04.2010, he received R.F.S.L. Report, which is marked as Ex.P-40. Basing on the same, a final opinion was given on 11.05.2010 wherein the doctor opined that the deceased would have died due to asphyxia. Ex.P-41 is the Final Opinion issued by the doctor.
On 23.02.2010, himself along with P.Ws.16, 17 and others proceeded to the house of the accused at Lakshmaneswaram, arrested him and recorded his confession statement. Basing on the confession made, he seized M.Os.13, 14, 70, 97 and 98. On the same day, he went to the shop of P.W.10 and seized gold ornaments which are pledged by the accused under a cover of mediators' report. He also seized cell 6 phone under Exs.P-29 to P-31. On 25.02.2010, in the presence of mediators - P.W.16 and T.Chandrahas conducted property identification parade under Ex.P-28.
It has come on record that pursuant to the confession made, the police party proceeded to the pawn broker shop of P.W.10, from where M.Os.13 and 14 were said to have been recovered. The evidence also discloses that on 13.01.2010, the accused pledged the gold ornaments and on 21.01.2010, he sold some gold ornaments. M.Os.13 and 14 were handed over to the police by P.W.10.
P.W.11 speaks about accused giving him a cell phone belonging to the deceased to change the panel. M.O.70 is Nokia Camera colour cell phone seized from P.W.11 by the police. After completion of investigation, P.W.27 filed the charge sheet. After filing of charge sheet, a representation was filed by P.W.2, questioning the manner in which the investigation is done by the police. In the said representation, she suspected P.Ws.1 and 22 as the persons responsible for the death of her husband. The Hon'ble High Court ordered investigation to be handed over to C.B.C.I.D. pursuant to which, P.W.28, who took up investigation, examined P.Ws.4, 10, 11 and others. His investigation revealed that the accused alone has committed the 7 offence and filed additional charge sheet before the Court. It is also to be noted here that the first charge sheet filed by the police was taken on file as P.R.C.No.39 of 2010 on the file of the learned Additional Judicial Magistrate of First Class, Narsapur.
5. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to him. As the offences are triable by a Court of Sessions, the case was committed to the Court of Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned VI Additional District and Sessions Judge (Fast Track Court), Narsapur, West Godavari District for trial and disposal in accordance with law.
6. Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, he pleaded not guilty and claimed to be tried.
7. To substantiate its case, the prosecution examined P.Ws.1 to 28 and got marked Exs.P-1 to P-41 and M.Os.1 to 98. After the closure of prosecution evidence, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of the 8 prosecution witnesses to which he denied. No oral evidence was adduced on his behalf. However, Exs.D-1 to D-15 were got marked on his behalf.
8. Out of 28 witnesses examined by the prosecution, P.Ws.4, 9, 12, 15, 18, 19 and 21 did not support the prosecution case and were treated hostile by the prosecution. Relying upon the circumstances i.e., accused being the driver of the deceased; recovery of gold ornaments from the pawn broker shop of P.W.10; recovery of key of the car belonging to the deceased from the accused; and the confession made by the accused before the police, the learned Sessions Judge convicted the accused and sentenced him, as stated supra. Challenging the same, the present appeal came to be filed by the accused.
9. Sri K. Chidambaram, learned counsel for the appellant/accused, mainly submits that there are no eye witnesses to the incident and the circumstances relied upon by the prosecution do not form a chain of events connecting the accused with the crime.
10. On the other hand, Sri S. Dushyanth Reddy, learned Public Prosecutor, opposed the same.
9
11. The point that arises for consideration is:-
"Whether the prosecution has proved the guilt of the accused for the offences punishable under Sections 302, 201 and 380 I.P.C. beyond all reasonable doubt?"
12. POINT:-
As seen from the record, there are no eye witnesses to the incident and the entire case rests on circumstantial evidence. In a case arising out of circumstantial evidence, the prosecution has to prove each of the circumstance relied upon by them and the circumstances so proved should form a chain of events connecting the accused with the crime. In Jawaharlal Das v. State of Orissa's case,1 the Apex Court held that to base a conviction in a case arising out of circumstantial evidence, three conditions are required to be satisfied viz., 1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, 2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused and 3) 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 none else and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
1 AIR 1991 SC 1388 10
13. Keeping in view the principles laid down by the Apex Court in the judgment referred to above, we shall now deal with the case on hand. As seen from the entire evidence available on record, the only circumstance, which is sought to be relied upon by the prosecution to connect the accused with the crime is the recovery of M.Os.13, 14, 70, 97 and 98 at the instance of the accused. It is to be noted here that the incident in question took place on 02.01.2010 and the accused was arrested on 23.02.2010. The evidence of the Investigating Officer and the evidence of P.W.16 - mediator would assume significance to prove the recovery made. P.W.16 is the Village Revenue Officer, who, in his evidence, deposed that on 03.01.2010, at about 7:30 A.M., he was present at the time of inquest and in his presence, inquest proceedings were conducted. According to him, on 05.01.2010, at 4:00 P.M., he along with the police, proceeded to Jangareddigudem and to the guest house at Jangareddigudem. There they noticed a Lancer car bearing No.AP 37 3789, which was locked. The Circle Inspector of Police brought a mechanic and opened the car door. In the said car, one pair of chappals and one jerkin were found. The police got opened the dikky of the car and found a red colour bag, a brief case, two polythene covers containing silver and gold articles, and two ATM cards. 11 These articles were seized and placed on record as M.Os.2 to 69 along with M.O.1. From the evidence in chief of this witness, it is clear that M.Os.2 to 69 came to be seized on 05.01.2010 at 4:00 P.M. in Navabharat Guest House in Jangareddigudem.
14. P.W.27 - Investigating Officer, in his evidence in chief, also states the same version, which is as under:-
"On 05.01.2010 according to information I secured the mediators P.W.16 and G.Sankara Sai, went to Navabharat Guest House at about 4.00 PM at Jangareddygudem along with my staff and I seized the Lancer Car bearing No.AP 37 AH 3789 (M.O.1) and M.O.2 to M.O.69, and Ex.P.9 to Ex.P.26 in the presence of mediators under the cover of mediators report (Ex.P.27). I examined P.W.9, P.Sudheer, K.Sughuna, T.Ramesh, T.Tripura Sundari, V.V.V.S.Sastry, U.Satyanarayana, K.Srividya and M.Ramesh and recorded their statements."
He also states that on 23.02.2010, basing on the information available, himself along with staff and mediators - P.Ws.16 and 17, proceeded to the house of the accused at Lakshmaneswaram, arrested him and recorded his confession statement, pursuant to which, M.Os.13, 14, 70, 97 and 98 were recovered. He further states that on the same day, they went to the pawn broker shop of P.W.10 and seized gold ornaments which were pledged by the accused under a mediators' report and also seized the cell phone. The mediators' reports are 12 marked as Exs.P-29 to P-31. It would be appropriate to extract the same, which is as under:-
"On 23.02.2010 according to information myself and my staff along with mediators P.W.16 and P.W.17 I arrested accused at his house at Lakshmaneswaram and recorded his confession statement. On 23.02.2010 I arrested the accused at Mallipudivari Meraka at his house and recorded his confession statement and I seized M.O.13, 14, 97, 98 and 70. On the same day we went to Ashok Kumar pawn broker shop and I seized the gold ornaments which are pledged by the accused under cover of mediator report, and I also seized cell phone under cover of mediator report. The mediators was marked as Ex.P.29 to Ex.P.31. On the same day I sent the accused to the Hon'ble A.J.F.C.M. Court for judicial custody."
From the evidence of this witness in chief, there appears to be an inconsistency which goes to the root of the matter. On one hand, he speaks about recovering M.Os.2 to 69 (which includes M.Os.13 and 14) on 05.01.2010 and on the other hand, he also speaks about the recovery of these two articles i.e., M.Os.13 and 14 on 23.02.2010 from P.W.10 under a mediators' report. Therefore, a doubt arises as to when M.Os.13 and 14 were recovered i.e., whether it was on 05.01.2010 at Jangareddigudem or after the arrest of the accused from the shop of P.W.10 on 23.02.2010 more so, when P.W.10 also speaks about accused pledging the articles and he handing over 13 the articles to the police when they came to his shop. When once the recovery of the articles at the instance of the accused is doubtful, no credence can be placed to the recoveries made so as to connect the accused with the crime.
15. Insofar as the recovery of M.Os.97 and 98 is concerned, M.O.98 is nothing but two pairs of readymade clothes belonging to the accused. This circumstance is a neutral circumstance and it cannot be said that he purchased new clothes from the money stolen from the house of the deceased. Insofar as the recovery of key of the car - M.O.97 from the house of the accused, it is to be noted here that P.W.2 did not identify the key as belonging to Lancer Car owned by the deceased. Apart from that, P.W.27, in his cross examination, admits that he did not make any effort to find out where M.O.97 relates to M.O.1 car. Therefore, even assuming for the sake of argument that M.O.97 was recovered from the accused, the same, in our view, does not link it to M.O.1.
16. Apart from all these things, one crucial fact which requires to be noted here is that for reasons best known, the prosecution has not legally proved the cause of death. The Doctor, who conducted post mortem, was not examined and no effort was made to get the post mortem report marked through a 14 person who has acquaintance with the signature of the doctor who conducted post mortem examination. Marking the post mortem report through Investigating Officer, in our view, may not satisfy the requirement of law to prove that it is a case of homicidal death.
17. Another aspect which shows that the prosecution has failed to prove its case is the evidence of P.W.1, which is to the effect that the door of the house of the deceased was broke open on 02.01.2010 while in the cross examination, he admits that at 2:00 P.M. on that day, police came and broke open the lock of the door. However, the Investigating Officer, in his evidence, speaks about breaking open the lock or breaking open the door on 03.01.2010. All these circumstances, in our view, create some amount of doubt.
18. Viewed from any angle, we feel that the prosecution has failed to prove the circumstances relied upon by them beyond all reasonable doubt for the offences punishable under Sections 302, 201 and 380 I.P.C., and as such, the judgment of the trial Court impugned herein is liable to be set aside.
19. In the result, the conviction and sentence recorded by the learned VI Additional District and Sessions Judge (Fast Track 15 Court), Narsapur, West Godavari District vide judgment, dated 20.11.2015, in Sessions Case No.212 of 2011 against the appellant/accused for the offences punishable under Sections 302, 201 and 380 I.P.C. are set aside. The appellant/accused shall be released forthwith if he is not required to be detained in any other crime. Fine amount, if any, paid by the appellant/accused shall be refunded to him. M.Os.1 to 69 and 97 shall be returned to P.W.2 as per law.
20. Accordingly, the Criminal Appeal is allowed.
Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR ___________________________________ JUSTICE B.V.L.N.CHAKRAVARTHI Date : 22.11.2022 AMD 16 48 THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI CRIMINAL APPEAL No.1162 of 2015 Date : 22.11.2022 AMD