Andhra Pradesh High Court - Amravati
J.Malleswara Rao A1, E.G.Dt 2 Othrs., vs State, Thrinspector Of Police Tuni ... on 11 November, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, J. Uma Devi
THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HONOURABLE MS JUSTICE J.UMA DEVI
CRIMINAL APPEAL No.742 of 2013
JUDGMENT:- (Per Hon'ble Sri Justice C.Praveen Kumar) Originally, A-1 to A-4 in Sessions Case No.95 of 2012 on the file of the learned IV Additional Sessions Judge at Kakinada were tried on two charges. A-1 was tried for the offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (for short, "I.P.C.") whereas A-2 and A-4 were tried for the offence punishable under Section 201 I.P.C. Vide judgment, dated 13.08.2013, the learned Sessions Judge convicted A-1 for the offence punishable under Section 302 I.P.C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for three months, and also sentenced him to suffer imprisonment for one year and to pay a fine of Rs.500/- in default, to suffer simple imprisonment for three months for the offence punishable under Section 201 I.P.C. while A-2 and A-4 were sentenced to suffer imprisonment for one year and to pay a fine of Rs.500/- in default, to suffer simple imprisonment for a period of three months for the offence punishable under Section 201 I.P.C. Aggrieved by the same, the present appeal is filed by A-1, A-2 and A-4.
2. Briefly stated, the facts of the case are as under: -
About four months prior to the date of offence i.e., on 13.10.2011, Adari Siva Prasad (P.W.6) purchased Ac.38.00 cents of dry land in the limits of Raghavapatnam along with his partner Nookaraju and raised cotton crop therein. They requested A-1 to 2 CPK, J & JUD, J Crl.A.No.742 of 2013 look after their lands and crop on a monthly salary. A-1 employed one Polisetti Venkanna @ Venkata Swamy @ Baddudu (hereinafter, referred to as "the deceased") in his place on a monthly salary of Rs.1,000/- providing food twice in a day. The deceased was paid salary for two months and thereafter, there was default in payment of salary for two months. After passage of four months, the cotton crop in the field was not up to the expectation in terms of yield and as such, Nookaraju and Prasad of Vizag left the crop and went to Vizag leaving the deceased unpaid the balance salary of two months. As A-1 employed the deceased in the fields of Nookaraju and Prasad, the deceased began pestering A-1 for the payment of his defaulted salary. A-1 paid the rest of the amount on behalf of Nookaraju and Prasad of Vizag by taking loan in the village. Even after payment of balance amount, the deceased used to pick up quarrels with A-1 frequently.
On 13.10.2011 evening, at about 5:30 P.M., while A-1 was returning home after leaving his daughter in a hostel at Tuni and when he came on to the gravel road of Raghavapatnam - Satyavaram, near the approach road junction of Kothuru, hamlet of Raghavapatnam, the deceased confronted A-1; picked up a verbal altercation deliberately and during the said altercation, A-1, who felt unsecured to his life in the hands of the deceased, attacked the deceased with a stick available thereby beating the deceased indiscriminately with that stick. As a result, the deceased died on the spot. After confirming his death, A-1 went to his field makam, brought one crow bar and spade. In the meanwhile, A-2, who is the son of A-1, and his friends - A-4 and another juvenile in conflict with law - Pothuri Chinnabbai (A-3) 3 CPK, J & JUD, J Crl.A.No.742 of 2013 came there. A-1 informed them as to what all happened. Later, all the accused carried the dead body to the nearby field channel on the road side, dug a grave and buried the corpse of the deceased therein with an intent to screen away the evidence of murder. Upon a report lodged by P.W.1 - Pallela Venkatareddy, the In-charge Village Revenue Officer of Raghavapatnam, a case in Crime No.95 of 2011 of Kotananduru Police Station came to be registered on 18.10.2011 at 7:00 P.M. for the offences punishable under Sections 302 and 201 read with 34 I.P.C. by P.W.9 - T.S.N.Raju and investigated into by P.W.10 - B.V.Subba Rao, C.I. of Police. During the course of investigation, the accused were arrested by police and produced before the Judicial Magistrate of First Class at Tuni. After completion of investigation, a charge sheet was laid against the accused for the offences punishable under Sections 302 and 201 read with 34 I.P.C. After obtaining necessary documents, a charge sheet came to be filed as P.R.C.No.33 of 2011 on the file of the learned Judicial Magistrate of First Class, Tuni, which was taken on file against A-1, A-2 and A-4 under Sections 302 and 201 read with 34 I.P.C.
3. On appearance, copies of the documents, as required under Section 207 Cr.P.C., were supplied to the accused.
4. The case was committed to the Court of the Sessions at Rajahmundry under Section 209(a) Cr.P.C. since the offences alleged were exclusively triable by the Court of Sessions. Accordingly, the same was made over to the Court of the learned IV Additional Sessions Judge at Kakinada for trial and disposal in accordance with law.
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5. Basing on the material available on record, charges under Sections 302 and 201 I.P.C. came to be framed against A-1 and under Section 201 I.P.C. against A-2 and A-4, read over and explained to them in Telugu for which, they pleaded not guilty and claimed to be tried. At this stage, it is to be noted that the case against A-3 was separated as he was juvenile by the date of commission of the offence.
6. To substantiate its case, the prosecution examined P.Ws.1 to 10 and got marked Exs.P-1 to P-14 and M.Os.1 to 4. Out of the ten witnesses examined by the prosecution, P.W.3 did not support the case of the prosecution and was treated hostile. After the closure of the 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 the prosecution witnesses to which they denied. No oral or documentary evidence was adduced on behalf of the accused.
7. In view of the evidence of P.Ws.1 and 2 and the confession leading to recovery of the dead body of the deceased coupled with extra judicial confession made by A-1 before the V.R.O., the learned Sessions Judge convicted the accused for the offences under Sections 302 and 201 I.P.C. and sentenced them as referred to above. Challenging the same, the present appeal is filed.
8. The short point for determination is:
"Whether the prosecution proved its case beyond all reasonable doubt against the accused of the offences punishable under Sections 302 and 201 I.P.C. and whether the judgment of the trial Court is correct, legal and proper or not?"
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9. POINT:-
Before proceeding further, it is to be noted that there are no eye witnesses to the incident and the case rests on circumstantial evidence. In a case of circumstantial evidence, the prosecution has to prove all the circumstances relied upon and the circumstances so proved should form a chain of events connecting the accused with the crime. In the instant case, only two circumstances are relied upon by the prosecution to connect the accused with the crime. They are i) the extra judicial confession made by A-1 before P.W.1 and ii) the recovery of dead body allegedly to be that of the deceased at the instance of A-1.
10. P.W.1 set the law into motion by giving a report basing on the information furnished by P.W.2. Even P.W.2, in his evidence, never deposed about witnessing the incident. According to him, some villagers informed him about the quarrel between A-1 and the deceased and thereafter, the accused buried the body of the deceased. None of the villagers who have informed P.W.2 about the incident were examined by the prosecution. Even the family members of the deceased have not identified the dead body as that of the deceased.
11. The first circumstance relied upon by the prosecution is the extra judicial confession said to have been made by A-1 before P.W.1. The evidence of P.W.1 disclose that on 20.10.2011, at about 8:00 A.M., A-1 came to him while he was in V.R.O's office, Raghavapatnam and informed him stating that on the fateful day while he was returning to his house after dropping his daughter in the school, the deceased way laid and disputed with the wages 6 CPK, J & JUD, J Crl.A.No.742 of 2013 paid and pelted a hill stone against him. A-1 pushed the deceased with his hand as a result of which, the deceased fell down. Thereafter, A-1 picked up a stick available in the nearby bushes and beat the deceased leading to his death. Thereafter, he buried the body with the assistance of A-2 to A-4. This statement of A-1 was said to have been reduced into writing and the signature of A- 1 was obtained. After recording the statement, A-1 was taken to Kotananduru Police Station. It is stated that the said statement was signed by P.W.2 as well. Ex.P-2 is the written report said to have been lodged by P.W.1.
P.W.1 was cross examined at length. In his cross examination, he admits that his statement was recorded by the police on 20.10.2011 and that he traced and lifted the dead body on the same day at 4:00 P.M. He further admits that except his oral testimony, he did not sign in any proceedings which show that A-1 confessed before him about killing the deceased and burying the dead body in panta bode located by the side of the said gravel road. However a suggestion that Exs.P-1 to P-4 proceedings were prepared in the police station at the instance of the police was denied. He further admits that at the time of preparation of Ex.P-1, the Sub Inspector of Police was present and at the time of preparing Ex.P-2, Inspector of Police was present. It was further stated that half an hour after lodging Ex.P-2, they proceeded to the scene of offence. The Inspector of Police recorded his statement for about half an hour and the scene of offence is at a distance of 40 kms from Kotananduru Police Station.
12. P.W.2 also claims to have been present at the time when A-1 came to the V.R.O's office and confessed about the commission of 7 CPK, J & JUD, J Crl.A.No.742 of 2013 offence before P.W.1. According to him, on 20.10.2011, A-1 appeared before P.W.1 while he was with him in V.R.O. Office at Raghavapatnam and confessed that he killed the deceased. P.W.1
- Revenue Inspector was also present there. P.W.2 and P.W.1 took A-1 and handed him over at Kotananduru Police Station. P.W.1 presented Ex.P-2 before the police in which he also signed. He further states that Ex.P-2 was drafted after A-1 was handed over in the police station. According to him, P.W.1 drafted mediators' report - Ex.P-2 in which he signed. On 20.10.2011, at 12 noon, P.W.2, P.W.1, Revenue Inspector, Doctor, Tahsildar and Circle Inspector of Police proceeded to the scene of offence situated between Raghavapatnam and Satyavaram near Kothuru and lifted the dead body. Till then, they did not go to the scene of offence. In the cross examination, he further admits that A-1 did not narrate anything specifically to him as deposed in the chief examination but he heard while he was narrating to the Inspector of Police.
13. From the evidence of these two witnesses, it is clear that the statement said to have been recorded by P.W.1 from A-1 in the V.R.O. office is not based on record. The two statements which are placed on record i.e., Exs.P-2 and P-3 reflect the confession made by A-1 recorded in the presence of the police officer. From the evidence of this witness, it is also clear that the statement of A-1 disclosing the commission of the offence, which came to be recorded by P.W.1, has not seen the light of the day. Though P.W.1 states that he reduced the same into writing, but the same is not placed on record. The statements, which are marked as Exs.P-1, P-2 and P-3, are the report given by P.W.1 on 18.10.2011 i.e., much prior to the alleged extra judicial confession made by 8 CPK, J & JUD, J Crl.A.No.742 of 2013 A-1 (Ex.P-1), written report lodged by P.W.1 on 20.10.2011 (Ex.P-2) and the confession of A-1 before police under mediators' report (Ex.P-3). P.W.1 is the scribe of the mediators' report in which P.W.1, P.W.2, A-1 and Circle Inspector signed. Ex.P-3 is the relevant admissible portion of the mediators' report, dated 20.10.2011. P.W.1, in his cross examination, admits that at the time of Ex.P-1, the Sub Inspector of Police was present and at the time of Ex.P-2, Inspector of Police was present. It would be useful to extract the evidence of P.W.1 in that regard in his own words which is as under:
".... At the time of Ex.P1, S.I. of Police was present and at the time of Ex.P2, Inspector of Police was present..."
Apart from that, a perusal of Ex.P-2 would show that his statement was signed by the Sub Inspector of Police and A-1 as well. Hence, it cannot be said that an extra judicial confession was made by A-1 before P.W.1 out of free will and voluntarily.
14. Coming to Ex.P-2, it is to be noted that it is a written report lodged by P.W.1 with the police. Strangely, the said statement contains the signature of A-1, P.W.1 and P.W.2. This also cannot be admitted in his evidence as P.W.1 admits that at the time of recording Ex.P-2, Inspector of Police was present. Therefore, this statement also cannot be treated as an extra judicial confession, since the presence of Inspector of Police at the time of recording extra judicial confession does not arise as it was made in the office of P.W.1.
15. Coming to Ex.P-3, this statement also cannot be treated as an extra judicial confession, since the same came to be signed by 9 CPK, J & JUD, J Crl.A.No.742 of 2013 the Inspector of Police. Obviously, Exs.P-2 and P-3 appear to have been recorded in the police station, as observed by us earlier. If really there was any statement recorded in the office of P.W.1 and if the same was reduced into writing, nothing prevented the prosecution party from marking the said document.
16. Apart from that, P.W.1 admits that except his oral testimony, he did not sign in any proceedings where A-1 confessed before him about killing the deceased and burying the dead body in the panta bode located by the side of the said gravel road. Viewed from above, a doubt arises as to whether really A-1 made any extra judicial confession admitting his guilt. At this stage, it is also to be noted that P.W.9, who registered the F.I.R., deposed that on 20.10.2011, in the morning hours, P.W.1, P.W.2 and A-1 came to police station and presented Ex.P-2 before him, but as held earlier, the admission of P.W.1 was to the effect that the Inspector of Police was present at the time of Ex.P-2. Therefore, on one hand, P.W.2 speaks about his presence at the time of recording Ex.P-2, but the same is silent in the evidence of P.W.1. Even assuming that P.W.2 is present at the time of recording the confession, there is a variance with regard to narration of events of A-1 to P.W.1. It is also to be noted here that P.W.2, in his evidence, categorically states that Ex.P-2, which is now claimed to be extra judicial confession, was drafted after A-1 was handed over in the police station. It would be relevant to extract the evidence in chief of P.W.2 on this aspect which is as under:
"... P.W.1 presented Ex.P2 before Police in which, I also signed. Ex.P2 was drafted after A1 was handed over in the police station...."
10 CPK, J & JUD, J Crl.A.No.742 of 2013 Having regard to the circumstances referred to above, a doubt arises as to whether really there was any extra judicial confession made by A-1 before P.W.1.
17. The next circumstance relied upon by the prosecution is burying the dead body at the instance of A-1. As stated above, after making the alleged confession before the police, A-1 is alleged to have led the raid party to the place where the body was exhumed and then, the inquest was held. After conducting the inquest, the body was sent to post mortem examination. It is to be noted here that none of the relatives were examined for identification of the dead body. Further, A-1 is said to have led the raid party after his confession on 20.10.2011 morning and the body was said to have been recovered at 4:00 P.M. on 20.10.2011. That being the position, the requisition received by the doctor who conducted post mortem - P.W.5 from Mandal Executive Magistrate, Kotananduru, requires a special mention. Though in the evidence in chief, P.W.5 states that on 20.10.2011, he received a requisition from the Mandal Executive Magistrate, Kotananduru to conduct post mortem examination over the dead body of the deceased, a perusal of Ex.P-9 - Post Mortem Report would show that in column No.4, it was mentioned as if he received the requisition at 12 noon on 19.10.2011 for conducting inquest after the body was exhumed. Though the learned Public Prosecutor tried to contend that the same was due to a mistake, a clarification ought to have been taken from the doctor while he was examined in the Court. Things would have been different had he not been examined, but when he was examined, the clarification should have taken from him with 11 CPK, J & JUD, J Crl.A.No.742 of 2013 regard to the correct time of his requisition from the Mandal Executive Magistrate to conduct post mortem examination.
18. Apart from that, it is to be noted that no proper evidence was adduced with regard to the identification of the dead body as that of the deceased and also as to the time of death. The incident in question was said to have been taken on 18.10.2011 and the post mortem was conducted on 20.10.2011. According to the doctor, the approximate time of death was one week plus or minus three days prior to his examination, which would mean that the death was not on 18.10.2011, as alleged by the prosecution. Apart from that, it is also to be noted that while the case of the prosecution was that the deceased was beaten with a stick, the evidence of post mortem doctor shows usage of crow bar.
19. Though the prosecution tried to establish the identity of accused through P.W.8 - Tahsildar, his evidence does not establish the same. According to him, on 20.10.2011, at 12 noon, as per the requisition of the Inspector of Police, he proceeded to the scene of offence i.e., road leading to Raghavapatnam to Satyavaram along with V.R.O., Village Servant and Mandal Revenue Inspector. The Circle Inspector of Police brought A-1 to the scene of offence. The scene of offence was with shrubs and weed. There was a canal and they removed all the weed and found the earth in higher level. They noticed insects coming out of the heap. The heap was cleared and a dead body was traced. The body was totally swollen and it was without hair and eye brows. They noticed head injury and crush injury on the right side of the chest. They also noticed another injury below the said crush injury. There were two other 12 CPK, J & JUD, J Crl.A.No.742 of 2013 crush injuries on the back. Nose was also found crushed. Insofar as the identification is concerned, in the cross examination, he admits that except on 20.10.2011, he did not attend on any other subsequent dates in this crime. He further states that he did not examine the relatives of the deceased. Witness adds that through villagers, he identified the body as that of the deceased. It would be useful to extract the relevant portion which reads as under:
"Except on 20.10.2011, I did not attend on any other subsequent dates in this crime. I did not examine the relatives of deceased. Witness adds that through villagers, I identified the dead body as that of deceased."
20. In the evidence of P.W.8, he categorically states that through villagers, he identified the body of the deceased but as observed by us earlier, none of the family members were examined. Even P.W.6, who is a resident of Anakapalle and knew the deceased, A-1 and A-2, was not asked to identify the dead body of the deceased.
21. In view of the above findings, we hold that the circumstances relied upon by the prosecution are not proved and they do not connect the accused with the offences alleged. As the prosecution failed to prove its case beyond all reasonable doubt against the appellants/A-1, A-2 and A-4 for the offences punishable under Sections 302 and 201 I.P.C. and as such, the judgment of the trial Court is liable to be set aside.
22. In the result, the conviction and sentence recorded by the learned IV Additional Sessions Judge at Kakinada vide judgment, dated 13.08.2013, in Sessions Case No.95 of 2012 against the appellants/A-1, A-2 and A-4 for the offences punishable under Sections 302 and 201 I.P.C. are set aside. As appellant Nos.2 and 13 CPK, J & JUD, J Crl.A.No.742 of 2013 3/A-2 and A-4 are already on bail, appellant No.1/A-1 shall be released forthwith if he is not required to be detained in any other crime. Fine amount, if any, paid by the appellants/A-1, A-2 and A-4 shall be refunded to them.
23. Accordingly, the Criminal Appeal is allowed.
Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR _______________________ JUSTICE J.UMA DEVI Date : 11.11.2019 AMD 14 CPK, J & JUD, J Crl.A.No.742 of 2013 121 THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE MS JUSTICE J.UMA DEVI 0 CRIMINAL APPEAL No.742 of 2013 Date : 11.11.2019 AMD