Andhra HC (Pre-Telangana)
Kurakula Narayana And Two Ors. vs State Of Andhra Pradesh Rep. By The ... on 6 February, 2008
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. This case presents certain extraordinary facts and thereby the relevant questions.
2. The appellants herein were arrayed as A-1, A-4 and A-7 in S.C. No. 298 of 2003 on the file of the learned VI Additional District and Sessions Judge, (F.T.C.), Markapur, together with A-2, A-3, A-5, A-6, and A-8 to A-16. They were tried for various charges, referable to Sections 147, 148, 452, 302, 302 read with Section 149, 506 and 201 of the Indian Penal Code (for short 'IPC'). During the trial, A-14 died and the case against him abated. The trial Court acquitted A-2, A-3, A-5, A-6, A-8 to A-13, A-15 and A-16, but, however, found the appellants guilty of the offences punishable under Sections 302, 201, 148 and 452 IPC.
3. For the offence punishable under Section 302 IPC, the appellants herein were sentenced to suffer imprisonment for life and to pay a fine of Rs. 200/- each, in default, to suffer simple imprisonment for two months. Sentence of rigorous imprisonment for two years and a fine of Rs. 100/- each, in default, simple imprisonment for one month, was imposed for the offence punishable under Section 201 IPC. Though the appellants were convicted for the offence punishable under Sections 148 and 452 IPC, no separate sentence was awarded. All the sentences were directed to run concurrently.
4. The case against the appellants and other accused commenced with the submission of a complaint, marked as Ex.P-1, by P.W.1 on 17-07-2001 at 3.30 p.m. He stated that when he went to Akkapalem village at mid day on 17-07-2001, P.W.2, Chinna Galamma, reported that during the last night i.e. at 9 p.m. on 16-07-2001, while her husband by name China Kotaiah was in the cot along with the children, A-1 to A-9 and some others have trespassed into the house, armed with the axes, spears, hurled bombs, and took away her husband from that place. Thereafter, A-1 is said to have hacked China Kotaiah on his neck and A-7 stabbed him on the stomach with the spear and A-4 hacked him with axe on the neck, on the road, in front of the house. The other accused are said to have shouted inciting the said accused, to kill China Kotaiah.
5. P.W.2 is said to have further informed P.W.1 that after causing fatal injuries, all the accused have taken away her husband to a center, near Ramalayam, and burnt the body by pouring petrol. Her attempts to rescue her husband from the hands of accused were said to have become futile. In Ex.P-1, it was further mentioned that P.W.2 reported the incident to her co-daughter-in-law, P.W.3, her mother-in-law, P.W.4, and certain others. She said to have informed P.W.1 that remnants of the dead body including the ashes were taken away by the accused. On receiving this report, police registered F.I.R. marked as Ex.P-11 and forwarded the same to the concerned Judicial First Class Magistrate.
6. The investigation was taken up by the Circle Inspector of Police, P.W.11. Various persons, expected of having any knowledge about the occurrence, were examined. The place of occurrence was inspected and ultimately charges were framed. Additional charges were also framed under Sections 3 and 5 of the Explosive Substances Act (for short 'the Act'). The appellants and other accused pleaded not guilty. The trial Court rendered its judgment in the manner as above.
7. Sri C. Padmanabha Reddy, learned senior counsel for the appellants, submits that this is one of the rare cases where even the corpus delecti was not available and the tone and tenor of evidence clearly suggests that a story was woven, to protect the accused in another case viz., S.C. No. 33 of 2003 on the file of the same Court, in relation to an incident which occurred on the same day and to implicate the accused in the present case. He contends that it is too unnatural and unbelievable that an incident of this nature, if really occurred, was not reported to the police, almost for one day, and that the machinery of law was set on motion, on a report from a Village Administrative Officer, who is a resident of different village. The learned senior counsel further submits that it is next to impossibility, that the body of a human being was turned into ashes by using only petrol, in the presence of the villagers and that the ashes and the skeleton were packed in a gunny bag, and taken away. It is also his case that the so-called deceased is none other than the brother of the Sarpanch of the village and everything proceeded as though the said Sarpanch has absolutely no knowledge about the death of his brother. Learned senior counsel has extensively referred to the evidence of P.Ws.1, 2 and 11 and submits that there are several contradictions, to belie the whole case of the prosecution.
8. The learned Additional Public Prosecutor submits that P.W.2, the wife of the deceased, has graphically described the various acts resorted to by the accused and there is nothing unnatural about her evidence. He further contends that the evidence of P.W.2 is supported by that of the other witnesses, such as P.Ws.3 to 6. He contends that the delay in submission of the report is on account of the fact that within few hours before the incident, another murder has taken place and out of fear of retaliation, almost every male in the village has fled away from their residences. He further submits that the contradictions, pointed out in the evidence of P.Ws.1, 2 and 11 are trivial in nature and they cannot constitute the basis, to interfere with the finding recorded by the trial Court.
9. The brief introduction of P.Ws.1 to 6 has already been furnished. P.Ws.5 and 6 are the owners of the houses in the neighbourhood of the house of the deceased. They have spoken to the some effect, as stated by P.W.2, wife of the deceased. P.W.8 is the witness for the arrest of A-1 to A-7 and A-14. P.W.9 is the photographer. P.W.10 has spoken to the grant of sanction, for prosecution of the offence under Sections 3 and 5 of the Act. P.W.11 is the Circle Inspector of Police, who investigated the case. P.W.12 is the Sub Inspector of police, who registered the case.
10. Inasmuch as the dead body itself was not available, the steps such as conducting the inquest and postmortem, did not take place in this case. Most of the exhibits relate to the rough sketch and mediatornama etc. In view of the submissions made on behalf of the appellants and on behalf of the State, the following questions arise for consideration in this appeal, viz.;
1. Whether there is delay in filing of the complaint as well as forwarding of the FIR to the trial Court?
2. Whether the evidence on record is sufficient to sustain the conviction and sentence against the appellants herein?
11. The facts of the present case have some relation, with another case viz., Criminal Appeal No. 166 of 2006, which arose out of Sessions Case No. 33 of 2003 on the file of the same trial Court. Elections to the Panchayat organizations in the District were held in the month of July 2001. The poling took place on 16-07-2001 and the counting was to take place on the next day. On 16-07-2001, one person by name China Narayana, the younger brother of A-1, the 1st appellant herein, was murdered. The complaint in that case was submitted by P.W.1 herein, at about 3 p.m. on 17-07-2001. Within half an hour, i.e. at 3.30 p.m. on 17-07-2001, Ex.P-1 in this present case, was submitted by P.W.1. According to the contents of Ex.P-1, the murder of Chinna Kotaiah, the husband of P.W.2, has taken place at 9 p.m. on 16-07-2001. The distance between the village and the police station is 15 kilometers. It is quite possible that P.W.2 was grief stricken and she cannot be expected to go to the police station during night hours. However, it is not in dispute that the brother of her husband is a Sarpanch and there are several neighbours to her. None of them have reported the matter to the police during that night. Even telephonic information was not passed on.
12. P.W.1 is a Village Administrative Officer of Akkapalem. He is a resident of different village and he came to Akkapalem only late in the morning on 17-07-2001. P.W.2 is said to have informed him about the incident during midday. Thereafter P.W.1 is said to have proceeded to the site, verified the matter, drafted Ex.P-1 and presented it in the police station.
13. In view of the fact that two incidents of murder have taken place on account of political rivalries that too on the eve of election, any delay in reporting of incidents is prone to be used, to mediate, or plan to settle scores, by the respective parties. The delay in the instant case is about 20 hours. Everything possible can be thought of and planned during this time. One of the factors, which weighed with this Court in Criminal Appeal No. 166 of 2006 in allowing that appeal was the delay in filing the complaint. In addition to the said infirmity, another factor becomes relevant in this case. Though Ex.P-1 is said to have been received by P.W.12, in the police station at 3.30 p.m. on 17-07-2001, the FIR was sent to the Court of Judicial First Class Magistrate, Markapur at 8.30 a.m. on the next day i.e. 18-07-2001. The result is that the cognizance of the offence is taken nearly two days after the incident. The delay on both these aspects is so enormous that it is absolutely fatal to the case of the prosecution. The first question is answered accordingly.
14. Coming to the second question, it has already been pointed out that the machinery of law was set in motion with the submission of complaint, Ex.P-1, by P.W.1. The complaint gave a description of the manner in which the incident has taken place. Names of A-1 to A-9 were mentioned and specific acts were attributed to the appellants herein. Even according to Ex.P-1, the complaint was submitted only on the basis of the information furnished by P.W.2. In the chief examination itself, P.W.1 is somewhat wavery as to the narration of the incident and mentioning of names in Ex.P-1. His chief examination runs as under:
L.W.2 narrated the incident to me. L.W.2 did not mention the names of the assailants by narrating the incident to me. The Ld. A.P.P. gave Ex.P-1, report, to the witness and asked him to go through it and stated whether the names of assailants are mentioned or not. Having gone through the contents of Ex.P-1, the witness states. L.W.2 mentioned the 9 names while narrating the incident to me and I mentioned the same in Ex.P-1. The witness volunteers, I could not remember earlier since the incident was taken place about 2 years ago.
15. The witness is said to have inspected the scene of occurrence and noticed broken pieces of glass, small stones etc. He is also said to have noticed ashes at the compound wall of one Mr. Musalayya. Neither P.W.1 nor any investigating officer has chosen to collect, much less preserve ashes said to have been noticed by them. P.W.1 admitted that he did not take any signature or thumb impression of P.W.2. He stated that initially he prepared one draft and thereafter, made a fair of it, in the form of Ex.P-1.
16. It is relevant here to examine the veracity of this witness by making a reference to the evidence of P.W.11, the Investigating Officer. It is apt to extract the relevant portion of the cross-examination of P.W.11, which had the bearing upon the evidence of P.W.2 as well as Ex.P-1, which reads as under:
P.W.2 did not state before me that A-12 poured petrol on the body of the deceased and A-13 litted fire to it. P.W.2 did not state before me that the accused filled gunny bag with ash and carried away. P.W.2 also did not state before me that there was current supply to their house and also the existence of street lights in the bazar. P.W.2 did not state before me that she could not give report immediately due to lack of conveyance. P.W.2 did not state before me that she went in opposite to P.W.1 and narrated the incident at Akkapalem. P.W.2 did not state before me the names of A-10 to A-16. P.W.2 did not state that A-10 and A-11 instigated the other accused to hack and kill the deceased. P.W.2 did not specifically state that A-1 hacked the deceased on the back of the neck. P.W.2 did not state that she caught hold the waist of the deceased prior to the commission of offence. P.W.2 did not state that A-12 did not come to their house when the deceased was dragged and that he subsequently joined with the accused at the place of burning of the dead body.
17. When almost every aspect, spoken to by P.W.1, mentioned in Ex.P-1, is belied by the answers given by P.W.11 in the cross-examination, it becomes necessary to search for a more reliable evidence to convict the appellants herein.
18. P.W.2, the wife of the deceased, is said to be an eyewitness. She has narrated virtually whatever is contained in Ex.P-1. In her chief-examination, she named only some of the accused and did not mention the names of rest of the others. She is said to have raised cries when the accused have trespassed into house. Several neighbours are said to have gathered. According to her evidence, she was threatened only when she tried to intervene while the appellants herein were attacking her husband. Thereafter, her husband, in an injured condition, was said to have been dragged up to Ramalayam. She admitted that she did not meddle with the accused at that place. The accused are said to have poured petrol on the body of the deceased and set him on fire. She is not sure whether her husband is dead or alive by the time, the accused were said to have set him on fire. Even according to her, the burning of the body has taken place for one hour and that nobody had threatened her or other persons standing nearby. In her own words:
Neither myself nor anybody tried to put-off the flames. The bones were remained unburnt whereas the flesh of the body turned into ashes. One hour was taken to burnt the dead body of the deceased. We were not threatened at Ramalayam nor the accused attempted to drive us from that place. A-5 and A-8 filled the gunny bag with bones and ashes.
19. It was not even alleged that the appellants or other accused have gathered firewood to burn the body of the deceased. It is just unimaginable that a human body can be reduced to ashes exclusively by using petrol. At the most, serious burn injuries may result and the flesh may get contracted to the bones with the burn, if petrol alone was used. Further pouring of petrol on a burning object would naturally lead to injuries to the person attempting to pour it, that too intermittently for one hour.
20. Assuming that the appellants and other accused are successful in reducing the flesh of the body of the deceased to ashes through petrol alone, it is just next to impossibility that the skeleton would be reduced pieces. In fact, the skeleton together with its joints, is expected to remain intact, whatever be decomposed in the nature of the flesh attached to it.
21. P.W.2 stated that after reducing the body of the deceased to ashes, the appellants and other accused have put the bones and ashes into a gunny bag and took away the same. In this context, it needs to be kept in mind that P.W.1 visited the place where the alleged burning has taken place and she said to have noticed ashes and soon thereafter, the police had arrived. However, no attempt was made to take the sample or preserve the ashes, for verification, during the course of investigation. Even according to P.W.2, the ashes were spread in an area of 5X2', by the time, the police visited the scene of offence. Failure of the prosecution to preserve the ashes for testing it has its own consequences.
22. P.W.3 is the co-daughter-in-law of the P.W.2, and P.W.4 is their mother-in-law. These witnesses have almost repeated whatever was stated by P.W.2. It is just unimaginable that hundreds of villagers remained silent spectators, if in fact, the body of individual either in dead or semi-dead condition was being burnt, right on the main road. The type of commission, or the resistance even by strangers to such acts, is not difficult to imagine.
23. We do not hesitate to express our opinion that if at all a crime of this magnitude has taken place, severe punishment deserves to be awarded to the culprits. But the record of this case discloses that the case was registered only with a view to neutralize the effect of the murder, which was the subject matter of S.C. No. 33 of 2003. It is noteworthy that the younger brother of the 1st appellant herein was the deceased in that case. Specific allegation was made in that case to the effect that the murder was caused by the persons belonging to Telugu Desam Party, under the leadership of Yerraiah, husband of P.W.3.
24. It is unnatural that Yerraiah, the Sarpanch of the village and leader of political party in the area, did not take any steps at least in the matter of submitting a complaint, when his own brother was said to have been murdered. Specific suggestions were made to P.Ws.11 and 12 to the effect that the whole story was fabricated to implicate the complainants and their associates in S.C. No. 33 of 2003. Further, when P.W.1 himself was not sure as to the source of information, for the names mentioned in Ex.P-1, and when there is unexplained delay of about 20 hours in submitting Ex.P-1 and about 15 hours in forwarding the F.I.R. by the police to the nearest criminal court, it is not at all safe to convict the appellants herein.
25. There is no corpus delicti in this case. Inquest and postmortem, conducted in a case of murder, would help the prosecution and the Court, to establish link between the occurrence and the accused. Though absence of a dead body cannot by itself render conviction impossible, the evidence in such cases must be so strong and reliable that it must make good, the deficiency caused due to non availability of the corpus delicti. Unfortunately in this case, the evidence is very weak. The number of missing links is more than the available ones, which in fact, are very meager, in number as well as their content.
26. Time and again this Court and the Hon'ble Supreme Court held that the evidence of witnesses in cases, arising out of enmity, or from faction in villages, must be scrutinized with great caution. We are convinced that the conviction against the appellants cannot be sustained in law. The accused are found not guilty of the charges framed against them.
27. Accordingly, we allow the appeal and set aside the conviction and sentence against the appellants. They shall be set at liberty, at once, unless they are needed in any other case. The fine amount paid, if any, is ordered to be refunded.