Andhra Pradesh High Court - Amravati
Kalidindi Patiyya vs The State Of A.P., on 29 September, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, J. Uma Devi
1
IN THE HIGH COURT OF ANDHRA PRADESH
***
Criminal Appeal No. 916 of 2015
Between:
Kalidindi Patiyya
.... Accused/ Appellant
And
1. The State of Andhra Pradesh
rep., through its Public Prosecutor,
High Court at Hyderabad for the State
of Telangana and the State of Andhra
Pradesh, through the Inspector of
Police, Polavaram Circle, West
Godavari District.
.... Complainant/ Respondents
Date of Judgment pronounced on : 29.09.2020
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE MS. JUSTICE J. UMA DEVI
1. Whether Reporters of Local newspapers : Yes/No
may be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether The Lordship wishes to see the fair copy : Yes/No
of the Judgment?
2
* HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE MS. JUSTICE J. UMA DEVI
+ Criminal Appeal No. 916 of 2015
% 29.09.2020
# Kalidindi Patiyya
.... Accused/ Appellant
And
The State of Andhra Pradesh rep., through its
Public Prosecutor, High Court at Hyderabad for
the State of Telangana and the State of Andhra
Pradesh, through the Inspector of Police,
Polavaram Circle, West Godavari District.
.... Complainant/ Respondents
! Counsel for the Appellant: Sri. D. Ramakrishna
Counsel for the Respondent: The Public Prosecutor
<Gist :
>Head Note:
? Cases referred:
1) AIR 1985 SC 1715
2) AIR1965SC119
3
3) AIR1952 SC354
4) AIR1960SC409
5) AIR1966SC40
6) AIR2012SC2435
7) 1974AIR1545
8) 1975AIR258
9) 1985AIR1678
10) 2001(2)SCC205
11) AIR1954SC47
12) AIR 1996 SC607
4
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE MS. JUSTICE J. UMA DEVI
Criminal Appeal No. 916 of 2015
JUDGMENT:(Per Hon'ble Sri Justice C.Praveen Kumar)
1) Accused No. 1 in Sessions Case No. 49 of 2015 on the file of the IX Additional Sessions Judge, West Godavari, Kovvur, is the appellant herein. Originally, Accused No. 1 and 2 in the above Sessions case were tried for the offence punishable under Section 302 read with Section 34 I.P.C., for causing the death of one Edupuganti Srinu ['deceased'], on 19.10.2013. By its judgment, dated 18.08.2015, the learned Sessions Judge, while acquitting Accused No. 2 convicted Accused No. 1, for the offence punishable under Section 302 IPC, and sentenced him to suffer imprisonment for life and also to pay a fine of Rs.2,000/-, in default, to suffer rigorous imprisonment for six months. The remand undergone by the accused was directed to be given set off. Challenging the same, the present appeal came to be filed.
2) The facts, as culled out, from the evidence of prosecution witnesses are as under:
i) A2 is the wife of A1; while PW3 is the father of the deceased and PW4 is the wife of the deceased. A1, who is a resident of Gangavaram village, used to eke out his livelihood by plying an auto. A1 and A2 were living together and out of wedlock, they 5 were blessed with children. The deceased who is the husband of PW4, developed illegal intimacy with A2. On coming to know about the same, A1 sent A2 to Chityala Village, where her parents stay. It is said that, deceased used to visit A2 at Chityala Village. On the date of incident, the deceased went to Chityala Village to meet A2. PW4 waited till 12.00 midnight for the return of the deceased, but, he did not return. Hence, she made a phone call to the deceased, but, it was switched off.
The evidence on record show that, A1 brought the deceased to the hospital after beating him and got him admitted at Community Health Centre, Gopalapuram village, on 20.10.2013 at 3.30 A.M.
ii) PW2 who is a Nurse in the said hospital informed the admission of the injured to PW1, who was working as a Civil Assistant Surgeon in that Centre. On receiving the phone call from PW2, PW1 rushed to the hospital within two minutes, examined the person who was lying on the bench with bleeding injuries, and declared him dead. Thereafter, when PW1 enquired the person [A1] who brought the deceased to the hospital, he informed him about the manner in which the incident took place. At about 5.00 A.M., while PW8- Sub- Inspector of Police was present in police station, PW1 went to the police station and informed about one person bringing the injured to the hospital and on examination, he being found dead. Basing of the report given by PW1, a case in Cr. No. 119 6 of 2013 came to be registered for the offence punishable under Section 302 IPC. Ex.P10 is the FIR. Further investigation in the case was taken up by PW9 -Circle Inspector of Police.
iii) On receipt of information about the registration of FIR, PW9 visited the police station at 5.30 A.M., received copy of the FIR from PW8, and thereafter at 5.40 A.M., visited the Community Health Centre at Gopalapuram village. He found A1 and the deceased at the Community Health Centre. He asked PW8 to keep surveillance on A1 and posted one Constable to guard the dead body. Thereafter, he visited Chityala Village, secured the presence of A2 from the house of her parents and recorded her statement. Later, he visited the scene of offence, which is situated in the outskirts of Chityala Village and seized blood stained earth, controlled earth and also chappals, in the presence of PW6 and LW10, which are marked as MO.1 to MO.3. He got photographed the scene of offence and also prepared a rough sketch of the scene. Ex.P11 is the rough sketch of the scene, while Ex.P4 is the scene observation report. He again visited the Community Health Centre, Gopalalpuram village, examined PW1 and PW2 and recorded their statements. In the hospital, he conducted inquest over the dead body of the deceased in the presence of mediators and blood relatives. During inquest, he recorded the statement of PW3 and PW4 and LW5 to LW7. During the course of inquest, the panchayatdars as well as the blood relatives 7 opined that, A1 was responsible for the death of the deceased. After inquest, he forwarded the body of the deceased to Government Hospital, Kovvuru village, for post-mortem examination.
iv) On 21.10.2013 at 9.00 A.M., PW7 -Civil Assistant Surgeon, Community Health Centre, Kovvur village, conducted autopsy over the dead body of the deceased. Ex.P9 is the post-mortem certificate issued by him. According to him, the cause of death was due to cardio respiratory failure due to shock due to intra cranial and extra cranial haemorrhage and injury to vital parts like brain and meninges.
v) On the same day, at about 2.00 P.M., PW9 arrested A1 at Community Health Centre, Gopalapuram village. A1 is said to have confessed his guilt, pursuant to which, the clothes of A1 were seized.
vi) Insofar as the weapon used in the crime, A1 confessed stating that it was thrown in the bushes situated in the outskirts of Chityala Village. Pursuant thereto, all of them, including the mediators, proceeded to the place and from the bushes, accused is said to have brought out a crowbar, containing blood stains. The size of the crowbar was about 28 inches with a radius of 2 ½ inches. Ex.P7 is the seizure report of crowbar and MO.6 is the crowbar. From there, all of them went to the house of A2 and affected her arrest at 5.00 P.M. On enquiry about the cell phone and the SIM cards information furnished 8 by A1, A2 went inside the house and brought Richcom cell phone, which had a dual SIM facility and Nokia battery. A2 also produced a blood stained saree. After recording the confessional statement of A2, material objects MO.7 to MO.10 came to be seized in the presence of mediators. On completion of investigation, PW9 filed a charge-sheet against the accused, which was taken on file as P.R.C. No. 21 of 2014 on the file of II Additional Judicial Magistrate of First Class, Kovvur.
vii) On appearance of the accused, copies of all documents as required under Section 207 Cr.P.C. were furnished. As the offence is triable by Court of Sessions, the case was committed to the Court of Sessions under Section 209 Cr.P.C. On appearance of the accused, a charge under Section 302 read with 34 IPC came to be framed, read over and explained to the accused, to which they pleaded not guilty and claimed to be tried.
viii) In support of its case, the prosecution examined PW1 to PW9 witnesses and got marked Exs.P1 to P12, beside marking MOs. 1 to 11. After completion of prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied, but however did not adduce any defence evidence.
9
ix) Relying upon the evidence adduced by the prosecution, the trial court convicted A1, while acquitting A2 of the offence punishable under Section 302 I.P.C. Assailing the same, the present appeal came to be filed.
3) Sri D. Ramakrishna, learned counsel for the Appellant would contend that, the entire case is based on the alleged extra-judicial confessions said to have been made by A1 before PW1 - the Doctor, which cannot be relied upon. He would submit that, there is any amount of doubt as to whether this statement can be treated as extra-judicial confession. Relying upon the judgment of the Hon'ble Supreme Court in Pattipati Venkaiah v. State of A.P.1 he would submit that, the act of PW1 in examining the informant and noting down the details of information is impermissible in law. He would further submit that, there exists number of omissions in the evidence of PW1 and that his evidence is inconsistent with the evidence of PW2 with regard to contents of extra-judicial confession. In other words, his plea is that, if really A1 was involved in the commission of offence, he would not have brought the injured to the hospital, or even if he has brought the injured to the hospital, he would have escaped leaving the body there.
4) The same is opposed by the learned Public Prosecutor contending that, the evidence of PW3 and PW4 amply establish 'motive' for the commission of offence by A1. It is further pleaded that, after the incident, A1 brought the injured to the hospital and 1 AIR1985SC1715 10 disclosed the commission of offence to PW1 in the presence of PW2. As there is no necessity for PW1 and PW2 to speak false against A1, the evidence of PW1 and PW2 are sufficient to base conviction, and as such pleads that the judgment of the trial court warrants no interference.
5) The point that arises for consideration is, "whether the prosecution proved the guilt of the accused beyond reasonable doubt?"
6) It is to be noted here that, there are no eye witnesses to the incident and, the case rests on a confession made by the accused before the Doctor and Nurse, who were examined as PW1 & PW2. In order to appreciate the same, it would be useful to refer to the evidence of PW1 & PW2 and also the evidence of PW3 and PW4 [father and wife of deceased]. Before dealing with the evidence, it would be necessary to explain confession.
7) The expression "confession" has not been defined in the Evidence Act. But, it has been held that, a confession is a statement which either admits the offence, or at any rate, substantially all the facts which constitute the offence. The law relating to the confessions has been succinctly elucidated by the Apex Court in Aghnoo Nagesia v. State of Bihar2 as under:-
"The law relating to confessions is to be found generally in ss. 24 to 30 of the Evidence Act and ss. 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act 2 AIR1965SC119 11 are to he found under the heading "Admissions". Confession is a species of admission, and is dealt with in ss. 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides: "No confession made to a police officer, shall be proved as against a person accused of an offence." The terms of s. 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by S. 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by s. 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by ss. 24, 25 and
26. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence Order investigation, save as mentioned in the proviso and in cases falling under sub-s (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of S. 27 of the Evidence Act. The words of s. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under s. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by s. 27 of the Evidence Act, a confession by an 12 accused to a police officer is absolutely protected under s. 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by s. 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by S. 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them".
8) The Hon'ble Supreme Court in Palvinder Kaur v. State of Punjab3, while referring to the judgment of Pakala Narayana Swamy v. King Emperor, observed that the word 'confession', as used in the Evidence Act, cannot be construed as meaning, a statement by the accused suggesting an inference that he committed the crime. It has been held that, the 'confession' must either admit, in terms, the offence, or at any rate, substantially all the facts, which constitute the offence. An admission of a gravely inculpatory fact, or even a conclusively inculpatory fact, is not by itself a confession. The same principle was reiterated in Оm Prakash v. State of U.P4.
9) If the confession was made before a Judicial Officer while discharging his duties, it is called as 'judicial confession', and if it made before a person other than the Judicial Officer or a Police Officer on duty or while in the custody of the Police Officer or before 3 AIR1952SC354 4 AIR1960SC409 13 a Magistrate, who is not in discharge of his duty, is called as 'extra- judicial confession'.
10) In Sahoo v. State of U.P5, the Hon'ble Supreme Court held as under:-
"Admissions and confessions are exceptions to the hearsay rule. The Evidence Act places them in the category of relevant evidence, presumably on the ground that, as they are declarations against the interest of the person making them, they are probably true. The probative value of an admission or a confession does not depend upon its communication to another, though just like any other piece of evidence, it can be admitted in evidence only on proof. This proof, in the case of oral admission or confession, can be offered only by witness who heard the admission or confession, as the case may be".
11) In Sahadevan and another v. State of Tamil Nadu6 it is held as under:-
"22. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused".
"The Principles i. The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
ii. It should be made voluntarily and should be truthful. iii. It should inspire confidence.
5 AIR1966SC40 6 AIR2012SC2435 14 iv. An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
v. For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. vi. Such statement essentially has to be proved like any other fact and in accordance with law."
12) The evidence of extra-judicial confession in the very nature of things is a weak piece of evidence [Jagta v. State Of Haryana7] and [State Of Punjab v. Bhajan Singh & Others8]. But, it is not always open to the court to start with a presumption that extra- judicial confession is a weak piece of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. [Narayan Singh & Ors v. State Of Madhya Pradesh9].
13) In Gura Singh v. State of Rajasthan10 it was held by the Hon'ble Apex Court that:
"Extra-judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. That the evidence in the form of extra-judicial confession made by the accused to witnesses cannot be always termed to be a tainted 7 1974AIR1545 8 1975AIR258 9 1985AIR1678 10 2001(2)SCC205 15 evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. It is not open to the court trying the criminal case to start with presumption that extra-judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession."
14) The presumption that a person will not make an untrue statement against his own interest is normally the basis for receiving confessions as evidence, but, it is required to be noted that this extra-judicial confession is a weak piece of evidence and normally the courts insist for some corroboration to the said extra-judicial confession. It is not necessary that the said statement should be corroborated at all times, but, it depends on the person before whom such confession was made.
15) In Muthuswamy v. State of Madras11, Justice Bose observed that, "a confession should not be accepted, merely because it contains a wealth of details. Unless the main features of the story are shown to be true, it is unsafe to regard mere wealth of uncorroborated details as a safeguard of truth". The Apex Court further observed that, "normally speaking, it would not be safe as a matter of prudence, if not of law, to base a conviction for murder on a confession by itself". 11
AIR1954SC47 16
16) In Sahoo v. State of U.P. [Supra], the Apex Court held that, "there is a clear distinction between the admissibility of evidence and the weight to be attached to it". The Court held that, "extra-judicial confession may be an expression of conflict of emotion; a conscious effort to stifle the pricked conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime".
17) In Balwinder Singh v. State12, the Supreme Court laid down certain guidelines in the form of deciding the case, that, in the case of extra-judicial confession, the court must check for the credibility of the person making the confession and all of his statements shall be tested by the court to conclude whether the person who made the confession is trustworthy or not, otherwise a person who is not so trustworthy then his statements cannot be used for making any inference to prove the guilt of the accused.
18) Keeping in view the law laid down in the judgments referred above, it is to be seen, whether the said statement/extra-judicial confession of A1 before PW1 and PW2 can be accepted to establish his guilt beyond reasonable vis-a-vis the charge.
19) PW1, who was working as Civil Assistant Surgeon, Gopalapluram Village, in his examination-in-chief deposed that, on 20.10.2013 at about 3.30 A.M., he received a phone call from staff nurse informing about one person bringing an injured to the Health Center. Within two minutes, he rushed to the hospital and examined 12 AIR1996SC607 17 the injured who was lying on a bench with bleeding injuries. He found the said person dead. PW1 also observed one person sitting by the side of the deceased person. On enquiry, he [A1] is alleged to have informed that, he brought the said person to the hospital. On further enquiry, he told his name as Kalidindi Patiyya and that his wife Jyothi was having illicit relationship with the deceased [Eepuganti Srinu], who is a resident of Chityala Village. In view of disputes between him and his wife [A2] because of illicit intimacy with the deceased, A2 left and started living at her parental home. About 10 days prior to the incident, A1 went to the house of his in- laws and started living there.
(ii) On the night of 19.10.2013, he noticed his wife [A2] going out of the house. On suspicion, he followed her and noticed she boarding an auto. The driver of the said auto was identified as the deceased. He followed them, and on the way, picked up an iron rod, used for tying cattle. He observed stopping of the auto and his wife and deceased sitting side-by-side in the auto. On seeking them, he got raged and beat the deceased with iron rod on his head from his back side, while his wife [A2] escaped from the scene. After beating the deceased, shifted the deceased, who was having bleeding injury on his head in the auto to the hospital.
(iii) Basing on the said information, PW1 claims to have informed the same to the police on phone. The Sub-Inspector of Police and his staff went to the hospital, where, PW1 gave a report mentioning the facts. The said report is marked as Ex.P1. 18
20) From the evidence-in-chief of PW1, it appears that, 10 days prior to the incident, A1 went to the house of his in-laws, where his wife [A2] was staying and on the night of the fateful day, he noticed his wife [A2] leaving the house and then boarding an auto driven by deceased. Suspecting foul play, he followed the auto, picked up a crowbar on the way, and thereafter, attacked the deceased when both of them were sitting in a stationed auto.
21) In cross-examination of PW1, it has been elicited that, Ex.P1 report is not in the hand writing of PW1. The persons of the police station scribed Ex.P1 in his presence. He further admits that, in Ex.P1, there is no reference to handing over the person who brought the injured to the police. He further admits that, as he has informed the incident to the police, they came to the hospital and took the accused into the custody. It was further elicited that, Gopalapuram Police Station is adjacent to their hospital and within 10 to 15 minutes police came to the hospital. He further admits that, he has not given written report to the Sub-Inspector of Police, in the hospital. The relevant admissions are as under:-
"Ex.P1 is not in my hand writing. The person of the police station scribed Ex.P1 in my presence. In Ex.P1 there is no reference that I am handing over the person who brought the injured to the police. I have not mentioned about the descriptive particulars of the person who brought the injured person to hospital i.e., height, colour etc."19
22) From the answers elicited in the cross-examination, a doubt arises as to whether Ex.P1 report was given by PW1 or whether he lent his signature to the report prepared by the police.
23) PW2, was working as a Nurse in the said hospital. According to her, on the intervening night of 19/20.10.2013, at about 3.30 A.M., one person brought the injured person to the Health Centre. She immediately informed the same to PW1, who on receiving the said information, came there and found the injured dead. According to her, PW1 enquired with the person who brought the deceased to the hospital as to how the deceased died. Pursuant to which, A1 informed them that, on 19.10.2013 at about 11.30 P.M., his wife [A2] along with the deceased went to fields near Cherukumilli Village and on seeing them, he beat the deceased on his head from back side due to which the deceased fell down unconscious. Later he brought the injured person to the hospital. PW1 is said to have informed the same to the police. PW2 identified the person who brought the injured to the hospital.
24) PW2 was also subjected to cross-examination, wherein, she admits that, on 20.10.2013 at about 4.00 A.M., itself, she was examined by the police, while, she was in the hospital. She admits that, it was the Circle Inspector of Police who examined her. According to her, police came to the hospital after receipt of information from PW1 and then took the accused into their custody. 20
25) From the evidence of PW2, it appears that A1 made a extra- judicial confession stating that the incident took place in the fields near Cherukumilli Village and her statement was recorded by Circle Inspector of Police at 4.00 A.M.
26) PW3 is the father of the deceased. He is neither an eye witness to the incident nor present when the accused made the extra- judicial confession. According to PW3, A1 and deceased were good friends. On the date of incident, the deceased left the house in an auto but did not return. PW3 further deposed that, there was some friendship between the deceased and A2- wife of A1 and he also heard about illicit intimacy between them. He further deposed that, in view of the illicit intimacy, A1 sent out A2 and thereafter, A2 started living at her parent's house at Chityala Village. According to him, the deceased and A2 went near to a canal near Chityala Village, and A1 followed and beat the deceased with iron rod on his head. On receipt of the blow, the deceased fell down and thereafter he was shifted to hospital. On receiving the information, all of them went to the hospital by 9.00 or 10.00 A.M.
27) In the cross-examination, it has been elicited that, there are no disputes between his family and family of A1. He further admits that, during the life time, the deceased used to reside with his family and children separately and his welfare was taken care by her another son, Ravi. He further admits that, he has no personal knowledge about the illegal intimacy in between the deceased and A2.
21
28) In substance, the evidence of PW3 would reveal that, he heard about the deceased being attacked near a canal in the outskirts of Chityala Village.
29) PW4 is the wife of the deceased, who is also not an eye witness to the incident. According to her, the deceased was having illicit intimacy with A2 and when A1 came to know about the same, he sent his wife [A2] to Chityala Village where her parent's stay. She further deposed that, during his life time, the deceased used to visit A2. On receipt of phone call from A2, the deceased went to Chitayala and met A2 but did not return again. Hence, she made a phone call to her husband, but, his phone was switched off. On the next day, she came to know that A1 took her husband to Tadipudi Canal and killed the deceased by beating him with a crowbar on the head. She further deposed that, it was A1 who brought her husband to the hospital after beating him.
30) In the cross-examination, she admits that, there were no disputes between A1 and the deceased, and that, she has not stated before the police about the alleged illegal intimacy between her husband and A2. She further admits that, she has not stated before the police about the deceased going to the house of A2 and also about the deceased informing her that he was going to Chityala Village.
31) PW5 is the photographer; PW6 is the panch for the inquest, arrest and seizure; PW7 is the post-mortem doctor; PW8 is the Constable who registered the First Information Report and PW9 is 22 the investigation officer. This, in all, is the evidence available on record.
32) As observed earlier, the entire case now rests on the alleged extra-judicial confession made by A1 in the presence of PW1 & PW2. It may not be necessary to reiterate the contents of the extra-judicial confession. But, few facts, which are required to be mentioned are as under:-
i. A2 who is the wife of A1, left the company of A1 because of the disputes between them and started staying with her parent's;
ii. About 10 days prior to the incident, A1 went to the house of A2 and on the night of the fateful day, he saw his wife [A2] leaving the house;
iii. He seems to have followed her, picked up an iron rod on the way and attacked the deceased when both of them were together in a stationed auto.
33) PW1 in his evidence deposed to this version of extra-judicial confession made before him. However, PW2 who also present at the time when PW1 enquired with A1 as to how the incident happened and also when A1 disclosed the manner in which he committed the offence, gives a different version. According to her, on enquiry by PW1, A1 confessed that, on 19.10.2013 at about 11.30 P.M., his wife [A2] along with the deceased went to fields near Cherukumilli Village and on seeing them, he beat the deceased with iron rod on his head 23 from the back side and, on that the deceased fell unconsciously and thereafter, he brought that person to the hospital. The evidence of PW2 is silent with regard to the disputes between A1 and A2 and also A1 joining the family of his in-laws about 10 days prior to the incident. Her evidence is also silent with regard to the version of PW1 that A1 noticed his wife going out of the house in the night, boarding an auto driven by the deceased; he following them; picking up an iron rod used for tying the cattle and, thereafter, on seeing both of them in the auto, beating the deceased with the said iron rod. As stated earlier, PW2's version is to the affect that A2 and the deceased went to fields near Cherukumilli village and on seeing them A1 beat the deceased with iron rod on his head from his back side. Though, there is only one extra-judicial confession said to have been made by A1 before PW1 and PW2, but, the version of these witnesses is quite different with regard to the manner and place of incident.
34) At this stage, it would be appropriate to refer to the charge framed of the prosecution, which is as under:-
"A1 of you being the husband of A2 of you being the wife of A1 developed illicit intimacy with one Edupuganti Srinu and there arose disputes between both of you and A2 of you left the company of A1 and was residing at the parental home of A2 of you at Chityala Village and was continuing illicit contacts with the deceased and that A1 of you about 20 days prior to 19.10.2013 joined A2 of you at Chityala Village, pacified A2 of you by erasing all the previous disputes and that A1 of you sought the assistance of A2 of you to get rid of the deceased by convincing her that both of you can live happily and that A1 of you threatened to commit suicide if A2 of you does not support 24 the demand of A1 of you to end the life of the deceased and that as per your plan A2 of you invited the deceased to Chityala Village by doing phone calls and when the deceased came to Chityala Village in his auto at about 10.00 P.M. and when the deceased in his auto was waiting for A2 at the high school, Chityala Village, as per the premeditated plan A1 of you started from the parental home of A2 and on the way picked up an iron crowbar from a cattle shed and went up to the outskirts of the Chityala Village village, hide behind the bushes by the side of bitumen road leading to Cherukumalli village and that A2 of you met the deceased of the High School and took him towards Cherukumalli village in his auto and when the deceased started cohabiting on the ground behind the auto, A1 of you reached with that iron crowbar and caused fatal injuries and caused his death there by A1 of you committed the murder of the deceased E. Srinu and A2 of you by sharing the common intention with A1 supported him in the plan of committing murder and thereby A1 of you guilty for the offense U/Sec. 302 IPC and A2 of you guilty for the offense of 302 r/w. 34 IPC."
35) From a reading of the charge, a totally different picture is put forward by the prosecution. The version as projected in the charge is that, about 20 days prior to 19.10.2013, A1 joined A2 at Chityala Village, pacified A2 by clearing all previous disputes and thereafter both of them planned to eliminate the deceased, as he was responsible for the disputes between both of them. Accordingly, A2 was directed to inform the deceased to come to Chityala Village, pursuant to which, A2 invited the deceased to Chityala Village and when the deceased came to Chityala Village in his auto, both of them proceeded in the said auto to the outskirts of Chityala Village and went behind the bushes by the side of bitumen road leading to Cherukumalli Village. It is said that, when the deceased was about to cohabit with A2, A1 who was following the auto in pursuant to the 25 plan, attacked the deceased with a crowbar on his head leading to his death.
36) The version set-out in the charge, which the accused is required to defend, is totally different from the contents of the extra- judicial confession made. In-fact, no iota of evidence has been adduced by the prosecution to prove the substance of the charge.
37) Therefore, there are three versions, with regard to the manner in which the incident occurred. The first version as projected in the charge is that, both A1 and A2 conspired and killed the deceased; while, PW1 and PW2 gave two different versions with regard to the manner in which the incident took place, though there is only one confession by A1.
38) As held earlier, there are no eye witnesses to the incident except the extra-judicial confession made by A1 before the doctor and nurse, who were examined as PW1 and PW2. A close examination of the evidence of PW1 and PW2 would show that, their evidence with regard to the contents of the extra-judicial confession, more particularly, the circumstances and the manner in which the incident in question took place is inconsistent. Though, there is only one extra-judicial confession made before them, it is strange that both of them gave different versions, which are totally different from the contents of the charge. At this stage, it is also to be noted that, if really, the extra-judicial confession was made by A1 disclosing the commission of offence, definitely, he would not have stayed in the hospital till the arrival of the police. Even assuming for the sake of 26 argument, that he took the deceased to hospital to save his life, definitely, he would not have waited at the hospital till the arrival of the police.
39) One another factor which requires to be noticed is that, PW1 claims to have informed the Police on phone, pursuant to which, the police came to the hospital, where, he is said to have given a report. In the cross-examination, PW1 denies preparing Ex.P1 in his hand writing. On the other hand, he states that the persons at the police station scribed Ex.P1 in his presence. So, a doubt arises as to whether really the First Information Report containing the extra- judicial confession was made by the accused before PW1, or, whether he scribed his signature to the contents of Ex.P1 prepared by the police officer.
40) Further, the evidence of PW8 - Sub-Inspector of Police would show that, on 20.10.2013 at about 5.00 A.M., while he was in the police station, PW1 came to the police station and informed that one person brought an injured person to the hospital, and on his examination, he found the said person dead. He also deposed about enquiries made by him from A1, who disclosed his identity as Kalidindi Patiyya. Thereafter, PW1 is said to have given a written report, basing on which, he registered a crime. In the cross- examination, PW8 admits that, as there was a written report from PW1 in the police station, he did not record the statement separately under Section 161 Cr.P.C. This version of PW8 is totally contrary to 27 what PW1 has deposed with regard to lodging of the report and also as to place where the said report was given.
41) At this stage, it would be useful to test the version of PW1 with the evidence of PW2, with regard to the lodging of the report. While the version of PW1 is to the effect that the report came to be lodged at 5.00 A.M., strangely, PW2 in her evidence deposed that, at 4.00 A.M. itself, her statement was recorded by the Inspector of Police in the hospital. Therefore, even before the report about the incident was lodged by PW1, the police were at the hospital and recorded the statement of PW2. Therefore, we feel that, all is not well insofar as the manner in which the report came to be prepared and lodged. That being so, this court is of the opinion that the extra-judicial confession said to have been made by A1 before the Doctor and Nurse [PW1 & PW2], [inconsistent versions] cannot be accepted at its face value, without any corroboration to the contents therein.
42) As stated by us earlier, the contents of the charge are totally at variance with the contents of the extra-judicial confession made. That being so, it is impermissible to base a conviction on such a charge to which no evidence was adduced.
43) It may be true that, participation of A1 is common in all the statements and in the charge, but the other contents namely, the manner in which it was committed, the conspiracy between A1 and A2, the place and also the manner in which the attack was made by A1 and more particularly, the weapon used [while the charge refers to crowbar; the extra judicial confession speaks about use of an iron 28 road used for tying cattle], this court is of the opinion that the alleged extra-judicial confession though made before a doctor and nurse is surrounded by suspicious circumstances. In-fact, when the charge itself sets out a totally different version, the entire fabric of the case collapses.
44) Having regard to above, we feel that the circumstances relied upon by the prosecution are not proved beyond doubt and the said circumstances do not form a complete chain, connecting the accused with the crime. Considering the judgments referred to above and in the absence of any cogent and convincing evidence, we feel that, it may not be safe to convict the appellant/accused for the charge of murder basing on the evidence adduced. Accordingly, we are inclined to acquit the appellant, by extending benefit of doubt.
45) In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/accused No. 1 in the Judgment, dated 18.08.2015 in Sessions Case No. 49 of 2015 on the file of the IX Additional Sessions Judge, West Godavari, Kovvur, for an offence punishable under Section 302 I.P.C., is set- aside and he is acquitted for the said offence. Consequently, the appellant/accused no. 1 shall be set at liberty forthwith, if he is not required in any other case or crime. The fine amount, if any, paid by the appellant/accused no.1 shall be refunded to him. No order as to costs.
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46) Consequently, miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR _______________________ JUSTICE J. UMA DEVI Date: 29.09.2020 Note: LR Copy to be marked B/o.
SM.
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THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HON'BLE MS. JUSTICE J. UMA DEVI Criminal Appeal No. 916 of 2015 (Per the Hon'ble Sri Justice C.Praveen Kumar) Date: 29.09.2020 SM.