Andhra Pradesh High Court - Amravati
Smt.Boya Syamala, Anantapur Dt., vs State Of Ap., Rep. Pp., And 2 Othrs., on 31 July, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
CRIMINAL APPEAL No.487 of 2013
JUDGMENT :(per Hon'ble Sri Justice C.Praveen Kumar) Aggrieved by the judgment dated 23.1.2013 passed in S.C.No.454 of 2012 on the file of the I Additional Sessions Judge, Anantapur, the informant preferred the Appeal under Section 372 Cr.P.C. Accused Nos.1 and 2 were tried for the offence punishable under Sections 302, 201 read with Section 34 I.P.C., for causing the death of a minor child on 30.8.2011 by administering biscuits soaked in insecticide poison. By its judgment, dated 23.01.2013, the learned Sessions Judge acquitted accused Nos.1 and 2 for the offences punishable under Section 302 read with Section 34 I.P.C. and Section 201 read with Section 302 I.P.C.
2. The case of the prosecution is as under :
As the accused No.1 was suffering from kidney problem, he was taking treatment at Anantapur and NIMS Hospital at Hyderabad. During that period, one Thippe Swamy (P.W.8) became close to the wife of accused No.1. After his discharge from the hospital, A1 came to know that his wife developed illegal intimacy with P.W.8, and as such, he picked up a quarrel with him and since then, developed enmity with the family of P.W.2, who is the brother of P.W.8. Accused No.2, who is the neighbour of P.W.1, had an eye to have sex with her and thereby used to misbehave with her. When P.W.1 informed the same to P.W.2 and others, they warned A2. Because of 2 that, A2 felt insulted in the village and developed grudge against the family of P.Ws.1 and 2 and P.W.8. Thus, both A1 and A2 joined together and moved closely since last two or three months prior to the offence, waiting for an opportunity to take revenge on the family of P.Ws.1, 2 and 8. While so, on 30.8.2011, P.W.1, mother of the deceased, left the deceased boy at Anganwadi Center in the morning hours and returned home. It is said that instead of entering into the center, the deceased went outside to play. At about 11 AM, when the deceased was playing in the street with a rubber tyre near the house of A1, both the accused, who were present in the varanda, took the boy and gave biscuits containing poison. P.W.10- Boya Eranna witnessed the same through the rear side window of the house of accused No.1. After eating the biscuits, the deceased died. Later, the dead body was wrapped in the bed sheet and kept in a corner of the side room. Subsequently, accused came out, locked the house and went away, which was witnessed by P.W.7 - Boya Varalakshmi. On the same day, during night time, both the accused shifted the dead body to the hayrick yard of Ramappa, which was witnessed by PW.11 and P.W.12.
3. As the boy was found missing, P.W.1 gave a report to police which was registered as a case in crime No.41 of 2011, as boy missing. Police visited the village and enquired for the boy and stated that they would bring dogs to the village to trace the boy. It is said that apprehending danger, the accused shifted the dead body to the Garden land of Mareppa, on 31.8.2011 and threw it in a pond. P.W.12 - Boya Jagannath saw the accused near the garden land of Mareppa. Thereafter, both the accused absconded from the village. 3 On 3.9.2011, at about 3 PM, P.W.4 found the dead body of deceased Ravi Theja in the pond which was in a highly decomposed state. He informed the same to P.Ws.1 and 2. Initially the case was registered as 'body missing' under Ex.P8 - the F.I.R., but on a report Ex.P2, the section of law was altered to 174 Cr.P.C. Ex.P14 is the F.I.R. After issuing the F.I.R., P.W.18, the S.I. of Police proceeded to the scene of offence and as it was getting dark, posted a guard. On 4.9.2011 at 7 AM he proceeded to the scene and held inquest over the dead body in the presence of P.W.14 and another. Ex.P7 is the inquest report. After completing the inquest procedure, the body was sent for postmortem examination. P.W.17, the Civil Assistant Surgeon at the Government Hospital, conducted autopsy over the body and issued Ex.P9, the postmortem report. Hyoid Bone, Sternum bone, piece of stomach, piece of intestine, piece of liver, piece of kidney were preserved for sending the same to F.S.L. for examination. The material objects were sent to the F.S.L. and a report came to be issued on 24.10.2011 observing that there was organophosphate, an insecticide poison in the intestines. Ex.P13 is the final opinion of postmortem doctor. On receipt of the opinion, the section of law was altered to Sections 302 and 201 I.P.C.
4. Accused Nos.1 and 2 are alleged to have approached P.W.13 - Talari Bommanna (V.R.O.) on 31.10.2011, and confessed about the commission of offence which was recorded in the presence of one, Surendranath. Ex.P4 is the panchanama relating to the extra- judicial confession. Thereafter, the accused is alleged to have confessed about the commission of offence and lead the raid party to the house of A1 from where they recovered an insecticide poison 4 bottle - M.O.3, one plastic glass - M.O.4 and one bed sheet - M.O.2 in which the boy was wrapped and also a cap - M.O.1 belonging to the deceased. These objects were seized by the Police under the cover of Mahazar. Later the accused were sent to judicial remand.
5. After completion of investigation a charge-sheet came to be filed which taken on file as P.R.C.No.6 of 2012 on the file of the Judicial Magistrate of First Class, Kalyandurg for the offence punishable under Sections 302, 201 read with Section 34 I.P.C. against the accused Nos.1 and 2 and committed the case to the Sessions Judge, Anantapur, as it is exclusively triable by the Court of Sessions.
6. On appearance of both the accused, charges under Sections 302 read with Section 34 I.P.C. and Section 201 read with Section 302 I.P.C. came to be framed, read over and explained to the accused, to which the accused pleaded not guilty and claimed to be tried.
7. To substantiate its case, the prosecution examined PWs.1 to 20 and got marked Exs.P1 to P27 and MOs.1 to 4. After the closure of evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them, in the evidence of the prosecution witnesses, to which they denied. On behalf of the accused, Exs.D1 to D3 were marked.
8. The learned Sessions Judge, by judgment dated 23.1.2013, acquitted accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 34 I.P.C. and Section 201 read with 5 Section 302 I.P.C. Challenging the same, the present appeal came to be filed by the de facto-complainant.
9. Sri Maheswara Rao Kuncheam, learned counsel for the appellant, would submit that the prosecution proved the involvement of the accused in the commission of offence viz., by administering biscuits soaked in insecticide poison. He pleads that though there are no direct witnesses to speak about the incident, but the circumstances relied upon by the prosecution are sufficient to connect the accused with the crime. He placed reliance on the judgment of the apex court in Shanmughan v. State of Kerala [(2012) 2 SCC 788] in support of his plea. The same is opposed by the counsel appearing for the accused.
10. The judgment of the Apex court in Anant Chintaman Lagu v. State of Bombay (AIR 1960 SC 500) laid down three principles which are necessary to prove, in order to return a conviction, in a case of murder by poisoning. Those principles are as follows :
(a) that death took place by poisoning;
(b) that the accused had the poison in his possession; and
(c) that the accused had an opportunity to administer the poison to the deceased.
But, as seen from the evidence available on record, the prosecution was able to prove that the death took place due to poisoning, but, other two circumstances viz., that accused had the poison in his possession and that the accused had an opportunity to administer the poison to the deceased remain unproved. The prosecution failed to prove the person from whom the accused is said to have 6 purchased the poison before administering it to the deceased nor did they prove the act of accused carrying the poison to the house. In fact, to prove the said circumstances the prosecution mainly relied upon the evidence of P.Ws.10 to 12.
11. The counsel for the appellant took us through the evidence of P.W.10 to show that accused Nos.1 and 2 gave some biscuits to the deceased which he claims to have seen through the window of the house of the accused No.1, but, in the cross-examination, P.W.10 categorically admits that he did not inform P.Ws.1 and 2 about seeing the deceased in the house of A1, though he is related to P.Ws.1 and 2 and though he was aware that the deceased was missing since 30.8.2011. P.Ws.11 and 12 were examined to speak about A1 carrying some baggage on his shoulder followed by A2 to the place from where the dead body was recovered, four days after the incident. P.Ws.11 and 12 in their cross-examination admit that they did not inform P.Ws.1 and 2 about seeing A1 and A2 carrying one baggage on the date of the incident during night time. They also did not inform anyone in the village about seeing A1 and A2, till they were examined by the police, which was four days after the incident.
12. The relevant portion of the cross-examination of P.W.10 is as under :
"I know that Raviteja was found missing from 30.8.2011 and P.Ws.1 and 2 are searching. I am related to P.Ws.1 and 2. I did not inform P.Ws.1 and 2, nor intended to inform P.Ws.1 and 2 that I saw Raviteja in the house of A1. During the time of inquest also though I was present, I did not inform the Police that I saw Raviteja in the house of A1......7
Till I inform to the police, 1 ½ month after the incident, I did not inform anybody in the village."
13. The relevant portion in the cross-examination of P.W.11 is as under :
"I did not inform P.Ws.1 and 2 that I saw A1 and A2 carrying one baggage on the date of the incident during night time.....
I did not inform anyone in the Village about my seeing A1 and A2, till I was examined by the Police."
14. The relevant portion in the cross-examination of P.W.12 is as under :
"I did not inform P.Ws.1 and 2 also that I had seen A1 and A2 carrying some baggage on their shoulder......
Till I was examined by the Police, I did not inform anybody in the village that I had seen both the accused in the fields on that day."
15. In view of the above admissions, their conduct, in our view, appears to be unnatural. When the family members of deceased were searching for the deceased and when P.Ws.10, 11 and 12 knew about it, they would at least informed P.Ws.1 and 2 about seeing the deceased with A1 or A1 carrying the baggage.
16. Having regard to the above, we feel that the evidence of P.Ws.11 and 12 that accused 1 and 2 carried the dead body cannot be accepted. Further, the evidence of P.W.15 relating to confession of the offence cannot be believed, as P.W.15 did not reveal it to the Police when he was enquired by the Police in the Police Station. Further, there is long delay of more than one and half months in recording the statement of this witness by the police. 8
17. Insofar as the contention of the learned Public Prosecutor that confession made by the accused before P.W.13 - V.R.O. has to be accepted, it would be useful to extract the relevant portion of the chief-examination of P.W.13, which is as under :
"I do not have much acquaintance with the villagers of Rangaiahpalem Village. I do not know both the accused present in the court as I had no acquaintance with them. The accused had never approached me and never made any confession statement before me.....
Ex.P4 titled as the panchanama for extra-judicial confession dated 31.10.2011 is containing my signature and the signature of Surendranath, the Ex.V.R.O. Ex.P5 titled as the letter submitted to the C.I. of Police, Kalyandurg is also containing my signature and the signature of Surendranath. Ex.P6 titled as Mahazarnama for arrest and seizure dt.31.10.2011 is also containing my signature and the signature of Surendranath. I do not know the contents of Exs.P4 to P6."
18. The relevant portion of the cross-examination of P.W.13 is as under :
"Ex.P4 is in the handwriting of Surendranath. Ex.P5 contains my signature, but I do not know who had scribed that letter. It is not in my handwriting. Ex.P6 also was not scribed by me."
19. From the evidence of P.W.13, it is clear that the documents under Exs.P4 to P6 are not believable and no confession was made by the accused before him. Hence, the evidence of P.W.13 is of no help to the prosecution.
20. In Kallu V. State of Madhya Pradesh1, the Supreme Court observed that in an appeal against acquittal the appellate Court will not reverse decision of the trial Court merely because a different view 1 (2006) 10 SCC 313 9 was possible, in case the view taken by the trial Court is reasonable and plausible. It is further Laid down therein that if the appellate Court decides to interfere, it should assign reasons for differing with decision of the trial Court.
21. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr., 2, the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."
22. Having regard to the law laid down by the Apex Court and since the evidence available on record is not cogent and convincing, we feel that judgment under challenge requires no interference.
23. In the result the appeal fails and it is accordingly dismissed, confirming the acquittal of the accused for the offences punishable under Section 302 read with section 34 I.P.C. and Section 201 read with Section 302 I.P.C. passed in S.C.No.454 of 2012 on the file of the I Additional Sessions Judge, Anantapur.
2 (2006) 6 S.C.C. 39 10 Consequently, miscellaneous petitions, if any, pending shall stand closed.
_____________________________________________ ACTING CHIEF JUSTICE C.PRAVEEN KUMAR ________________________________________ JUSTICE M. SATYANARAYANA MURTHY 31st July, 2019.
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