Andhra Pradesh High Court - Amravati
Sirigineedi Venu Gopala Rao, vs The State Of Ap., Rep Byits P.P on 22 June, 2019
Author: M. Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
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THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTH
&
THE HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
JUDGMENT:(per the Hon'ble Sri Justice M. Satyanarayana Murthy) CRIMINAL APPEAL No.155 of 2014 The sole accused (Appellant) preferred this Appeal challenging the conviction and sentence imposed upon him under the calendar and judgment in S.C.No.593 of 2011 by VI Additional District and Sessions Judge, Fast Track Court, Narsapur, finding him guilty for the offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-.
The appellant/accused is a deaf and dumb and resident of Palamuru Village of Palakol Mandal and Mason by profession. One Sirigineedi Venkateswara Rao is also resident of Palamuru Village along with Sirigineedi Subrahmanyam, de facto complainant. The deceased Sirigineedi Venkatawara Rao and the accused are cousins and the accused and complainant are brothers.
12 years prior to the commission of offence, the marriage of the appellant/accused was performed with Ganga Bhavani @ Ganga, D/o Vanga Satyanarayana of Burugupalli Village of Elamanchili Mandal. By the date of marriage, mother of the accused was pre-deceased to his father and his father was alive. Within one year of the marriage, Ganga Bhavani died and on the date of death ceremony, younger 2 sister of Ganga Bhavani by name Venkata Ramana was married to the accused at the intervention of Venkateswara Rao and his brothers. Venkateswara Rao is carrying on cattle business and looking after the accused, who is deaf and dumb by birth. However, the Accused/appellant addicted to vices like drinking, gambling and became spendthrift, even not providing any amount to meet the minimum needs of his wife. Having vexed with the attitude of the accused, his second wife--Venkata Ramana left to her parents house along with her daughter and living there. On that, the accused/appellant bore grudge against the said Venkateswara Rao (deceased) and used to threaten him with gestures to kill him suspecting that he is responsible for separation of his wife with him and he became very close to Venkateswara Rao with an evil motive to put an end to his life.
On 18.03.2011 during evening hours, the accused secreted a curved knife in his waist, and went to the house of his father-in-law at Burugupalli village and threatened his wife to kill her and her father. Suspecting danger in the hands of the accused, his wife informed the same to her father.
On the same day i.e., 18.03.2011 at about 07.30 pm, when Venkateswara Rao was returning to his house on a bicycle with a bag containing clothes and when he reached the agricultural land of one Malla Varadarajulu at the 3 outskirts of Palamuru Village, the accused waylaid, holding a curved knife, attacked Venkateswara Rao and hacked him with the knife, caused multiple bleeding injuries on vital parts of the body of Venkateswara Rao and fled away. Injured Venkateswara Rao while struggling, raised cries and informed the same to PW.5-Polimera Rambabu that the accused/appellant hacked him. After some time, Sirigineedi Subrahmanyam, brother of the deceased, while proceeding on the way, noticed the body of Sigirineedi Venkateswara Rao lying in a pool of blood with multiple injuries and learnt that the accused/appellant hacked Venkateswara Rao. Thereafter, the injured was shifted in 108 ambulance to the Government hospital, Palakol. Till 09.45 pm on 18.03.2011, the injured was able to speak and on enquiry, he informed that the accused/appellant hacked him with a sickle and later became unconscious. The hospital authorities sent intimation to PW.11-B. Satyanarayana Murthy, ASI, who visited the hospital and recorded the statement of Pw.1- Subramanyam, brother of the deceased, as the injured Venkateswara Rao was unable to give statement as he was in unconscious state, forwarded the same to Pw.13-SI of Police, for taking necessary action. The injured Venkateswara Rao was referred to Government Hospital, Kakinada, for better treatment, and while undergoing treatment, he succumbed to injuries on 19.03.2011 at 1.50 hours at Government General Hospital, Kakinada.
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On the strength of the statement given by PW.1, brother of Venkateswara Rao, PW.13-SI of Police registered a case in Cr.No.28 of 2011 under Section 307 IPC and issued FIR. After registering the crime, he examined Pws. 1 and 2 and LW.3-Panchadara Venkata Lakshmi Narayana Swamy Naidu and recorded their statements under Section 161 (3) Cr.P.C., PW.13 also visited the scene of offence and observed the same in the presence of Pw. 9 and Lw.15-Busi Prabhudasu and got drafted the observation report in their presence. He also prepared rough sketch of the scene of offence and seized blood strain earth, controlled earth, blood stained towel, cycle and other clothes of the deceased, including incriminating weapon from the scene of offence under cover of observation report.
Later, on receipt of death intimation, he altered the section of law from Section 307 IPC to 302 IPC. After of section of law from Section 307 IPC to 302 IPC, Pw.13 issued express FIRs. Thereafter, the investigation was taken by the Inspector of Police-PW.14, who verified the investigation done by PW.13-SI of Police, visited the scene of offence, observed the scene minutely and later visited the Government General Hospital, Kakinada, and held inquest over the dead body of the deceased Venkateswara Rao, in the presence of Pw.13, Lws. 16 and 17-Sirigineedi Venkateswara Rao and Kasse Babu Rajendra Prasad, prepared inquest report. During inquest, the family members and blood relatives of the 5 deceased Venkateswara Rao unanimously opined that the accused caused injuries on the vital parts of Venkateswara Rao and the injured Venkateswara Rao died due to those injuries. Later, the dead body of the deceased was sent to Government Hospital for autopsy, and the Doctor, who conducted post mortem examination, opined that the cause of death is due to shock and hemorrhage on account of multiple bleeding injuries. The incriminating material objects i.e., blood stained clothes of the deceased, weapon, blood stained earth, controlled earth etc., were referred to RFSL, Vijayawada, along with letter of advise, for chemical examination, and on receipt of the RFSL Report, Pw.14 concluded that there is prima facie material to proceed against the Appellant/accused and filed charge sheet before the Judicial Magistrate of First Class, Palakollu.
The Judicial Magistrate of First Class, having concluded that the offence committed by the accused is triable by Court of Sessions exclusively, after following the procedure under Sections 207 and 209 Cr.P.C., committed the case to the Sessions Division and the Principal District and Sessions Judge, who in turn registered the same as Sessions Case No.593 of 2011, made over to VI Additional District and Sessions Judge (FTC), Narsapur, to try and dispose of the case in accordance with law.
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Upon securing the presence of the accused, the trial Court framed a sole charge for the offence under Section 302 IPC against the accused, read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried.
During trial, on behalf of prosecution, Pws. 1 to 14 were examined, EXs. P.1 to P.3 and Mos. 1 to 12 were marked. On behalf of defence, Exs. D.1 and D.2 were marked. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C., explaining the incriminating material appearing against the accused, he denied the same and reported no defence evidence.
Upon hearing argument of both the counsel, the trial Court found the accused guilty for the offence punishable under Section 302 IPC and sentenced him as stated supra.
Feeling aggrieved by the conviction and sentence imposed in the Calender and Judgment under challenge, the accused preferred this appeal under Section 374(2) Cr.P.C., raising several contentions. The gist of grounds urged before this Court in the Appeal is that; the case is totally based on circumstantial evidence and proved circumstances must complete all the links in the chain of circumstances unerringly pointing out the guilt of the accused without giving any scope for any other hypothesis, but the evidence on record is not cogent, directly pointing out the guilt of the accused. However, the trial Court believed the evidence of 7 Pws. 1 to 5 and recorded conviction, totally ignoring the inconsistency in the evidence regarding the time of occurrence, ability to speak when several injuries on vital parts were found etc., and committed an error.
It is also contended that the evidence of Pw.5 can be brushed aside, as he is a chance witness and his conduct is improbable to the natural circumstances. It is further contended that the oral dying declaration is a very weak piece of evidence, though admissible, as there is a possibility of exaggeration during trial, there is no scope to give statement by injured when grievous injuries on neck were found, and therefore, the conviction and sentence imposed upon the accused, finding him guilty for the offence under Section 302 IPC by the trial Court is erroneous ex pacie and requested to set aside the conviction and sentence passed by the trial court in S.C.No. 593 of 2011.
During hearing, the legal aid counsel, contended that the evidence is not consistent and the proved circumstances are not sufficient to complete the links in the chain of circumstances directly pointing out the guilt of the accused, but based on oral dying declaration and giving primacy to the circumstantial evidence like recovery and motive, recorded conviction and sentence erroneously for the grave offence punishable under Section 302 IPC and placed reliance on a 8 judgment reported in Padala Veera Reddy v State of Andhra Pradesh and others1 to support his contentions.
Per contra, the learned Public Prosecutor for the State of Andhra Pradesh, supported the judgment in all respects, while contending that the inconsistency as to the time of oral dying declaration is insignificant and the said inconsistency can be overlooked and apart from that the proved circumstances are directly pointing out the guilt of the accused without giving any scope for reasonable hypothesis and requested to confirm conviction and sentence passed under the calendar and judgment in S.C.No. 593 of 2011 by VI Additional District and Sessions Judge, Fast Track Court, Narsapur.
Considering rival contentions and perusing the material available on record, the point that arises for determination is:
" whether the accused perpetrated the murder of Sirigineedi Venkateswara Rao (the deceased) with an intention to kill him knowing that those injuries are sufficient to cause death in ordinary course of events? If not, whether the conviction and sentence recorded by VI Additional District and Sessions Judge (FTC), Narsapur, be sustained ?
Before deciding the point for determination, we find it appropriate to advert to the scope of Section 374 of Cr.P.C. 1 AIR 1990 SC 79, 9 Section 374 Cr.P.C conferred a substantive right of appeal on the accused who is convicted by the Trial Court and this Court while exercising power under Section 374(2) Cr.P.C is bound to re-appraise entire evidence to come to an independent conclusion, uninfluenced by the findings recorded by the Court below and decide the legality of conviction and sentence passed by the Sessions Court. Therefore, it is the duty of this Court to re-appraise entire evidence recorded by the Court below after giving an opportunity to both the parties, i.e accused and the respondent, unless the Court finds manifest perversity in the calendar and judgment or such findings were recorded without evidence, normally, this Court cannot interfere with such fact findings in appeal, while exercising jurisdiction under Section 374(2) Cr.P.C. It is the sacrosanct duty of the appellate court, while sitting in appeal against the judgment of the trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re-assessment, re-appreciation and re-scrutiny of the material on record. Appreciation of evidence and proper re- assessment to arrive at the conclusion is imperative in a criminal appeal. That is the quality of exercise which is expected of the appellate court to be undertaken and when that is not done, the cause of justice is not sub-served, for neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence 10 on record to assure his guilt (vide Kamlesh Prabhudas Tanna & Anr v. State Of Gujarat2). Keeping the scope of Section 374(2) Cr.P.C we would like to re-appreciate entire evidence on record to come to an independent conclusion, uninfluenced by the findings recorded by the Court below.
POINT: The case of the prosecution is not only based on the circumstantial evidence but also by oral dying declaration made by the injured Venkateswara Rao to Pws. 1 to 5. Leave apart the oral dying declaration, when the case of the prosecution is based on circumstantial evidence, it is the obligation of the prosecution to establish each and every circumstance to complete the links in the chain unerringly pointing out the guilt towards the appellant/accused and inconsistent with the innocence.
When the case is based on circumstantial evidence, burden of proof is always on the prosecution to prove all the circumstances from which conclusion of guilt is to be drawn must be fully established and the facts so established must be consistent with hypothesis of guilt of accused and any circumstance consistent with innocence of accused, he is entitled to benefit of doubt. (vide Kishore Chand v. State of Himachal Pradesh3).
2 (2013) 15 SCC 263 3 AIR 1990 S.C. page 2140 11 The Apex Court while discussing the scope of Section 3 of the Evidence Act, more particularly, circumstantial evidence held that, in a case of murder when the prosecution relying on circumstantial evidence, it is for the prosecution to prove all the incriminating facts and circumstances and the circumstances which are incompatible with innocence of the accused to draw inference of guilt and such evidence should be tested by touch-stone of law relating to circumstantial evidence (vide Syed Hakkim & another v. State4).
Similarly, in G.Parshwanath v. State of Karnataka5, the Supreme Court is of the view, when the case of the prosecution is based on proof of circumstantial evidence on the basis of which conclusion of guilt is drawn must be established fully, individual chain of circumstances must be complete pointing out the guilt of accused, all proved facts must lead to inference of guilt of the accused alone and court has to draw distinction between primary and basic facts while appreciating the circumstances and regard must be had to common course of natural events and human conduct and finally the facts established should be consistent only with hypothesis of guilt of accused and it does not mean that each and every hypothesis suggested by the accused must be excluded by proved facts. In Rukia Begum Vs. State of Karnata with Issaq Sait and another v. State of Karnataka 4 2009 Cr.L.J. page 1891 5 AIR 2010 S.C. page 2914 12 with Nasreen v. State of Karnataka6; Jagroop Singh Vs. State of Punjab, Inspector of Police, Tamil Nadu Vs. Balaprasanna7 Shaik Khadar Basha v. State of Andhra Pradesh8, the same principle was reiterated.
The Supreme Court in Trimukh Maloti Kikran v. State of Maharashtra9, wherein the Supreme Court held as follows:
"In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence In view of the settled principle of law, the prosecution made a sincere attempt to prove each and every circumstance, pointing out the guilt of the accused that the offence punishable under Section 302 I.P.C by drawing inference from the proved facts and circumstances which are consistent only with hypothesis of guilt of accused before the Trial Court and inconsistent with innocence.
Keeping in mind, the law laid down in catena of perspective pronouncements, we would like to determine the complicity of the accused based on the material available on record.
6 AIR 2011 SC page 1585 7 2009(1) ALD (Crl.) page 113 8 2009(1) ALD (Crl.) page 859 (AP) 9 (2006) 10 SCC 681 13 In this case, the prosecution relied on the following circumstances:
(1) Motive; and (2) Recovery of incriminating material from the person of the accused.
As stated above, the case of the prosecution is based on circumstantial evidence, besides oral dying declaration. In view of the circumstances stated above, to connect the accused with the offence punishable under Section 302 IPC, we deal with the circumstances in the order of circumstances hereinafter.
The first circumstance relied on by the prosecution is the motive. Motive is relevant under Section 8 of the Evidence Act, but it is not a substantive piece of evidence and it is useful to fill the gaps in the chain of circumstances so as to complete the chain of circumstances, but it cannot be used as a substantive piece of evidence. The motive for the commission of the offence alleged by the prosecution is that the deceased Venkateswara Rao was responsible for separation of the accused/appellant and his second wife, who was living at the house of her father along with her child. It is not in dispute that the wife of the Appellant/accused is living with her parents along with her child born during the wedlock of the accused and his wife. But the appellant/accused suspected that the deceased Venkateswara Rao was responsible for their separation and the same is not 14 substantiated by the prosecution adducing satisfactory and cogent evidence.
PW.1, is no other than the cousin of the deceased Venkateswara Rao. He deposed in his examination in chief that the wife of the accused Venkata Ramana left the house with her child and that the accused bore grudge against the deceased Venkateswara Rao and Pw.1 assuming that they are responsible for her separate living with the accused. Except this sentence, nothing has been stated for developing such grudge against him. Moreover, in the cross examination, he admitted that his house is at Palamur, which is opposite to the house of accused/appellant, and he did not raise any dispute before the elders though the accused/appellant harassed his wife. She gave report once, but no case was registered against the appellant/accused. Therefore, at best, this piece of evidence may support the plea of the prosecution that there were disputes between the accused and his wife as the accused was harassing her. Moreover, the wife of the accused left the accused about 20 days prior to the death of Venkateswara Rao and no report was lodged by him with the police anticipating danger in the hands of the accused.
Motive and enmity are double edged weapons. One of the circumstances relied by the prosecution is the motive. But, motive is not a substantive piece of evidence, it is only a corroborative piece of evidence to complete the links in the 15 chain of circumstances. Here, in fact, no motive was attributed to the accused to kill Venkateswara Rao (deceased). Even if, the prosecution failed to prove the motive part, it is not a strong circumstance to disbelieve the entire case of the prosecution, since motive is only a corroborative piece of evidence. Enmity may be one of the circumstances, but that itself is not a substitute for proof of motive.
In Anil Rai v. State of Bihar10, the Apex Court held that the admitted position of law is that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. In case of inimical witnesses, the Courts are required to scrutinize their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity held to be a double edged weapon may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime. Testimony of eye-witnesses, which is otherwise 10 2001(2) ALD (Cri.) page 446 16 convincing and consistent, cannot be discarded simply on the ground that the deceased were related to the eye-witnesses or previously there were some disputes between the accused and the deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case. However, the mere existence of enmity in this case, particularly when it is alleged as a motive for the commission of the crime cannot be made a basis to discard or reject the testimony of the eye-witnesses, the deposition of whom is otherwise consistent and convincing.
From the principle laid down by the Hon'ble Apex Court, enmity by itself is not a ground to conclude that the accused is the person who perpetrated the murder. After developing enmity, the accused must develop motive to commit murder. However, motive by itself is not a ground to convict the accused and proof of motive is not the substitute for proof.
When the case of prosecution is depending upon circumstantial evidence, last seen together deposed by natural witness about 'last seen' only after 5 years in Court and made improvements makes his evidence unreliable without corroboration. Fact that one of accused did not like 17 his sister's affair with deceased and, therefore, had motive, creates suspicion but cannot be substitute of proof. Thereby, the accused is entitled to be given benefit of doubt (Sampath Kumar v. Inspector of Police, Krishnagiri11).
In view of the law declared, motive is not a substantive piece of evidence, it is only a corroborative piece of evidence. According to Section 8 of the Indian Evidence Act, motive is relevant fact and it is one of the circumstances to complete the chain of circumstances. Motive is double-edged weapon. It may be a ground for committing a crime and it may also be a ground for falsely implicating the accused. Proof of motive may lend additional support to the prosecution, but it cannot make good the deficiency of the prosecution case.
In Suresh Chandra Bahri Vs. State of Bihar12, the Apex Court held that, sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the Court that the accused was guilty for the offence charged with. But the absence of 11 AIR 2012 SC pg 1249 12 AIR 1994 S.C. page 2420 18 proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of offence.
In the present facts of case, evidence of PW.1 is not sufficient to attribute any motive to the accused/appellant to do away the life of the deceased Venkateswara Rao. The said fact was not spoken by other witnesses to corroborate the alleged motive attributed to the accused/appellant. Therefore, on the basis of such motive, it is difficult to connect the accused with the grave offence punishable under Section 302 IPC.
The legal aid counsel appearing for the appellant contended that PW.1 is an interested witness and his evidence cannot be relied upon. It is undoubtedly true that Pw.1 and the deceased are closely related to one another. A suggestion was put to him in the last portion of cross examination that the accused refused to sell his house to him and on that he bore grudge and deposing false against the appellant/accused and this suggestion was denied by the witness. Similarly, in the cross examination of Pw.2 also, a suggestion was put to him, but denied by both Pws. 1 and 2 to describe them as interested witnesses.
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Interested witness means a witness, who is going to get some benefit out of the litigation. Legal Aid Counsel appearing for the appellant based on the suggestion contended that Pw.1 is going to get benefit out of litigation, but the suggestion put to the witness is not sufficient to describe him as interested witness.
Pw.2 is another witness, who came to know about the hack injuries on the body of the deceased Venkateswara Rao by the appellant from PW.1. But, in the cross examination, he admitted that he received phone call at about 7.30 pm or 7.00 pm from the neighbor and by that time, Poornachandra Rao was in Tillapudi Village and one person brought him and all the three persons went on motor cycle to Government hospital, Palakol. At best, his evidence may support the differences between the accused and his wife, but this evidence is not sufficient to prove motive attributed to the Accused to describe Pw.1 as interested witness. Pw.3 is also resident of same village and according to his testimony, on 18-03-2011 at about 07.30 pm when he was at Tillapudi Village, he received a phone call from his friend that his father was hacked by accused with knife and that his father was shifted to Government Hospital, Palakol, from the scene of offence. Thereafter, he went to Government Hospital, Palakol, along with Pw.2, noticed that his father was on bed with bandage, he was in conscious state and informed that he was hacked with knife by the accused/appellant. But, in the 20 cross examination, a suggestion was put to him that the deceased Venkateswara Rao was in unconscious state of mind and that he did not inform anything as to the cause of injuries.
Pw.4 is another witness, who spoken about receipt of phone call from somebody informing about hacking of the deceased Venkateswara Rao by the accused and he is no other than the brother of Venkateswara Rao.
On consideration of evidence of Pws. 1 to 3, there is any amount of inconsistency as to the fit state of mind and consciousness of the injured Venkateswara Rao by then. None of the witnesses are direct witnesses to the incident. But, Pw.1 while returning to home at about 7.30 pm noticed that the injured lying by the side of road with bleeding injuries on his body. More strangely, the examination in chief itself, he admitted that the injured was in unconscious state. The specific admission is extracted hereunder for better appreciation:
" the son of the deceased Poornachandra Rao and my wife Padmavathi also came to the hospital. The injured narrated the incident to his son and Padmavathi also. The police came to the hospital. By that time, the injured Venkateswara Rao was in unconscious stage. The police recorded his statement."
Therefore, at best, oral information as to the cause of death cannot be discarded, but the statement recorded by the police, which is basis for registration of the crime, cannot be 21 accepted as the injured Venkateswara Rao was in conscious state of mind when the police came to the hospital and recorded the statement of Pw.1. Thereby, the question of giving information to his son by the deceased Venkateswara Rao as to the cause of death is highly doubtful.
The important witness is Pw.5-Polimera Rambabu. According to him, on 18.03.2011 at about 8 pm while he was returning to Gavarapeta from Dagguluru after repairing one engine, he heard cries from Palamuru Road as "Nannu kapadandi", on that he went to the spot and noticed the injured Venkateswara Rao with cut injuries and that the said Venkateswara Rao informed him that his younger brother, whose name does not remember, hacked him and asked to inform the same to his family members. Immediately, he contacted 108 ambulance and went to Palamuru and informed the incident to Panatala Veeraswammy and others and thereafter, four or five persons came to the spot again and the injured informed the incident to them also.
Taking advantage of the statement of Pw.5, the Legal Aid Counsel appearing for the Appellant, pointed out that there is any amount of inconsistency in the evidence of witnesses. At best, the statement allegedly given by the injured Venkateswara Rao to Pws. 1, 4 and 5 amount to oral dying declaration, but they are closely related to each other and that too the injured was found on the road margin at 22 about 7.30 pm by Pw.1 on 18.03.2011 and Pw.2, whose testimony is somewhat inconsistent as to the time, as the witness stated that she received information over phone at 7.30 or 7 pm. Similarly, Pw.3 stated that he received information at 7.30 pm and whereas Pw.4 deposed that while he was at Kalla Village, he received a phone call at about 7 pm from somebody about the incident. Whereas, the statement of Pw.5 disclosed that he found the injured at 8.00 pm on 18.03.2011. However, as per the material available on record, when Pw.1 telephoned to 108 ambulance, it reached the scene of offence within 15 or 30 minutes and at the latest, the injured was shifted to the hospital at 8.00 pm. When the injured was shifted to the hospital by 108 ambulance, the question of Pw.4 finding the injured alone on the road margin and giving statement by the injured Venkateswara Rao as to the cause of injuries is highly improbable. Therefore, basing on the evidence available on record, in view of the inconsistency pointed out in the testimony of Pws. 1 to 5, the oral dying declaration of the deceased Venkateswara Rao is highly doubtful and it is a weak type of evidence.
Yet another reason to disbelieve the evidence of Pws. 1 to 6 with regard to oral dying declaration is the evidence of Pw.10-Dr.V.Nalini and Pw.12-Dr. D. Durga Prasad. According to Pw.10, at about 8.45 pm on 18.03.2011 while she was on duty, the injured was brought to the hospital and at that time, he was unconscious and in critical condition. Ex.P.7 is 23 the hospital intimation dt. 18.03.2011 signed by her. If the medical evidence of Pw.10 is accepted that the patient was unconscious and in critical condition, the question of giving information by the deceased to his son-Pw.3 as to the cause of injuries by the accused is wholly unreliable and no credence can be attached to the testimony of Pw.3, son of the deceased, to accept the oral dying declaration. Apart from the evidence of Pw.10, the consistent evidence of Pw.12, who conducted autopsy over the dead body of the deceased Venkateswara Rao is relevant. According to him, generally a person, who sustained 3rd or 4th injury, as per Ex.P.8, dt. 20.03.2011, becomes unconscious or may lead to instant death. External Injury No.9 in Ex.P.8 is on the neck of the deceased and there is possibility of cutting of important nerves that send signals to the brain. Due to external No.9 also, the victim may become unconscious or even instant death is also possible. If the opinion of Pw.12 is accepted, on account of receipt of injury Nos. 3, 4 and 9, the question of giving statement by the deceased Venkateswara Rao to any of the witness as to the cause of injuries on his body cannot be believed. Therefore, based on oral dying declaration, which is a weak piece of evidence, recording of conviction and imposing sentence against the accused by the trial Court finding him guilty for the offence under Section 302 IPC is unsustainable.
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The third circumstance relied on by the prosecution is the recovery of Mo.8. PW.9 is the V.R.O., of Daggulur-II. According to him, on 19.03.2011 at 7 am on being called, he went to the scene of offence and noticed blood stains on the road and earth, one curved knife with blood stains and with wooden pidi in red and green colour near the boundary stones in the field, one old bicycle by the side of the road with a bag containing blood stained clothes and they were seized by Pw.14 under cover of scene observation report. PW.14 also seized Mo.4--white coloured half sleeved shirt and Mo.5-- white coloured full sleeved shirt and Mo.6-blood stained towel. Seizure of Mos. 1 to 4 at the scene of offence is not sufficient to connect the accused with the grave offence as the knife did not contain any blood stains and it appears to be new one as per Ex.P.13-RFSL Report. Unless blood is detected and group is identified with that of the accused, mere recovery of a curved knife or a sickle is not sufficient to connect the accused with the offence. Even the blood group on the other material objects was not determined and that it is not the case of the prosecution that those clothes were the clothes belonging to the accused/appellant. Therefore, seizure of Mos. 1 to 4 is not sufficient to connect the accused with the offence.
Yet another circumstance relied upon by the prosecution is that on 24.03.2011 at 7.15 Pw.14 arrested the accused at his house in the presence of PW.9 and Lw.15- 25 Busi Prabhudasu and Pw.1 shown the accused to the police and on interrogation by the Police, he gave particulars in writing and at that time, the accused was wearing pant and shirt with blood stains and seized those clothes under cover of mediator's report. But, in the cross examination, PW.9 admitted that Mo.1 appears to be new one and the cycle and bag containing clothes were on the eastern side of the road leading to Dagguluru and followed by a suggestion that Mo.1 is planted. Seizure of Mos. 2, 3 and 7 is not based on the confession leading to discovery, which is relevant under Section 27 of the Evidence Act. Ex.P.6 is the admissible portion, but surprisingly, the accused/appellant is a deaf and dumb and therefore, the question of interrogation by the police as an ordinary person is unbelievable. Apart from that, it is stated that particulars were given in writing and in fact, it is not case of the prosecution that the accused was a literate being a deaf and dumb. At the same time, question of giving any statement leading to discovery does not arise and in such case, Ex.P.6-Mediator's Report, cannot be accepted as truthful and therefore, recovery of Mos.2, 3 and 7 based on the confession leading to discovery cannot be accepted. Even otherwise, recovery evidence on the basis of confession is only a circumstantial evidence, which is relevant under Section 27 of the evidence Act.
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Section 27 of the Indian Evidence Act is an exception to Sections 25 and 26. The conditions necessary for invoking the aid of the Section are as follows:
a) there must be a discovery of a fact albeit relevant fact in pursuance of an information received from a person in police custody;
b) the discovery of such fact must be deposed to ;
c) at the time of giving information the accused must be in police custody;
Then the effect is that so much of the information as relates distinctly to the fact thereby discovered is admissible. What is allowed to be proved is the information or such part thereof as related distinctly to the fact thereby discovered. Discovery evidence is not substantive evidence (vide Dinakar v. State13].
Similarly, in Inspector of Police, Tamil Nadu Vs. Balaprasanna14, the Apex Court held as follows:
"Law is well settled that the prosecution while relying upon the confessional statement leading to discovery of articles under Section 27 of the Evidence Act, has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts. The scope and ambit of Section 27 of the Evidence Act had been stated and restated in several decisions of the Supreme Court. However, in almost all such decisions reference is made to the observations of the Privy Council in Pulukuri Kotayya vs. Emperor, AIR 1947 PC 67. At one time it was held that the expression 'fact discovered' in the second is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression 'fact discovered' includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kotayya's case. The various requirements of the section can be summed up as follows:-
1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.13
AIR 1970 Bombay page 438 14 2009(1) ALD (Crl.)(SC) page 113 27
2) The fact must have been discovered.
3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
4) The person giving the information must be accused of any offence.
5) He must be in the custody of a police officer.
6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
In view of the principle laid down in the above decision, when a fact is discovered in pursuance of confession leading to discovery is only relevant piece of evidence, but it is not a substantive piece of evidence.
Even otherwise, in Brijesh Mavi Vs. State of NCT of Delhi15, the Apex Court, held that recovery evidence, when not sufficient to prove culpability of accused and no direct evidence connecting accused to murder. Recovery of weapon of offence at the instance of accused two years after incident is not believable. Mere recovery of weapon, therefore, not sufficient to convict the accused for the offence of murder under Section 302 of I.P.C.
In view of the law declared by the Apex Court in the judgment referred above, there must be a confession leading to discovery. But, the question of giving confession leading to discovery by the accused, is unbelievable, for the reason that 15 2012 (2) ALD (Cri.) page 865 (SC) 28 he is a deaf and dumb and it is not the case of the prosecution that he gave any statement by gestures or in any other mode being deaf and dumb person and therefore, Ex.P.6 cannot be accepted and on the basis of such recovery of Mos.2,3 and 7, it is difficult to connect the accused with such grave offence. But, the trial Court did not appreciate the evidence in proper perspective and committed an error. Even the examination of the accused under Section 313 Cr.P.C. was also not in accordance with law in view of the stamp affixed on the statement is incorrect on the face of the record, which is as follows:
" Taken down by me which contains true and full account of the statement made by the accused under Section 313 Cr.P.C. It had been read over to him and declared by him to be correct. "
Similarly, the opportunity given to the accused/appellant after finding him guilty as to the sentence to be imposed is also incorrect for the simple reason that the accused is a deaf and dumb. Therefore, the conviction and sentence recorded by the trial Court is erroneous.
Yet another lacunae in the evidence of prosecution is the non production of case sheet maintained by Pw.10-Dr. V. Nalini. In her cross examination, Pw.10 admitted that she rendered first aid to the accused and maintained case sheet, but it did not produce before the Court. If the case sheet is produced before the Court, it would disclose the condition of 29 the patient at the time of first aid. Therefore, suppression of such material is a matter of serious consequence and non production of the material record must go to the benefit of the accused. Similarly, the evidence on record, more particularly, Pws. 1 to 5 as to the oral dying declaration, is not worthy of credence. Therefore, the trial Court erroneously found the accused guilty for the grave offence punishable under Section 302 IPC and committed an error and the same is liable to be set aside on re-appraisal of the evidence by the Appellate Court while exercising power under Section 374(2) Cr.P.C. In view of the foregoing discussion, no cogent and satisfactory evidence is produced to connect the accused/appellant with the offence punishable under Section 302 IPC as the prosecution miserably failed to prove the circumstances to complete the links in the chain of circumstances unerringly pointing out the guilt of the accused and inconsistent with the innocence. Therefore, the conviction and sentence recorded by the trial Court is hereby set aside finding the accused not guilty for the offence punishable under Section 302 IPC.
In the result, the Criminal Appeal is allowed and the conviction and sentence imposed against the appellant- accused-Sirigineedi Venu Gopala Rao, for the offence punishable under Section 302 IPC, in Sessions Case No.593 of 2011 on the file of VI Additional District and Sessions Judge (Fast Track Court), Narsapur, by judgment dt. 30 10.12.2013, are set aside. Accordingly, the appellant-accused is acquitted and he shall be set at liberty forthwith, if he is not required in any other case.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
____________________________ M. SATYANARAYANA MURTHY, J _____________________ D.V.S.S. SOMAYAJULU, J Dt. 22-06-2019 eha 31 THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTH & THE HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU CRIMINAL APPEAL No. 155 of 2014 Dt. 22-06-2019 eha