Andhra Pradesh High Court - Amravati
Bollavarapu Kanaka Raju Raju, W.G. ... vs State Of A.P., Rep. By P.P., Hyd on 27 July, 2020
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy, Ninala Jayasurya
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
&
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
Criminal Appeal No.1110 of 2014
JUDGMENT:(Per Hon'ble Sri Justice M. Satyanarayana Murthy)
1. The sole accused in S.C.No.420 of 2013 on the file of Principal District Judge, West Godavari, Eluru preferred this appeal under Section 374 (2) of Criminal Procedure Code (for short Cr.P.C), challenging the conviction recorded against him finding him guilty for the offence punishable under Section 302 of the Indian Penal Code (for short I.P.C) and sentenced him to undergo imprisonment for life and to pay fine of Rs.10,000/- with default sentence.
2. The case of the prosecution in nutshell is that the accused allegedly committed murder of his wife by name Bollavarapu Bhagyalaxmi @ Bhagyamma during broad day light in the house, causing grave injuries on her body. The accused is resident of Patha Mupparru village of Pedapadu Mandal, West Godavari District, married Bollavarapu Bhagyalaxmi @ Bhagyamma about 18 years prior to the incident. During their wedlock, they blessed with two daughters and one son by name Santhi Priya, Kinnera and Ganesh. After birth of son Ganesh, some disputes arose between the accused and his wife, she left the maternal house went to her paternal house, along with her children. Since then she stayed at her parents' house and brought up her children.
3. About 8 months prior to her death, Bollavarapu Bhagyalaxmi @ Bhagyamma performed the marriage of her elder daughter Santhi Priya. In that connection the accused came down and joined his wife, performed the marriage of their elder daughter Santhi Priya. Later both joined as workers in Kothuru jute mill. The accused was addicted to vices MSM,J and NJS,J 2 Crla_1110_2014 like drinking, started ill-treating his wife suspecting her character on the ground that she developed illicit intimacy with co-workers in the jute mill, used to beat her regularly.
4. While so on 10.01.2013 both wife and husband returned to house after attending their regular duty at about 10:30 a.m. At about 12:30 p.m. the accused picked up quarrel with his wife and in the angry mood with a view to kill her, he caused injuries with "penaka kathi" (tappers knife), pocked on her chest. Bollavarapu Bhagyalaxmi @ Bhagyamma fell down on the ground near the door way at the entrance of the house in a pool of blood, on receipt of injuries. On hearing cries, P.W.4 - Domathoti Rajeswari, a neighbor and P.W.5 - Domathoti Devamatha, co-sister rushed to the scene of offence found Bollavarapu Bhagyalaxmi @ Bhagyamma (hereinafter will be referred as deceased) in pool of blood. On coming to know about the incident, P.W.3 - Joshi Mary, Runjala Soudamani (defacto complainant) mother of the deceased and P.W.2 - Pitta Devamatha mother of P.W.3 - Pitta Joshy Mary @ Mariyamma rushed to the scene of offence, found the deceased in pool of blood. P.W.1
- Runjala Soudamani and P.W.2 - Pitta Devamatha shifted the injured in 108 ambulance to Government hospital, Eluru, by then the deceased in unconscious state. On the advice of the doctors in Government hospital, Eluru, the deceased was shifted to Government General Hospital, Guntur and admitted in the hospital at 8:30 am on 11.01.2013, but she succumbed to the injuries while undergoing treatment at about 9:00 am on the same day.
5. P.W.1 - Runjala Soudamani, reported the incident to the police who recorded her statement at Government hospital, Eluru (Ex.P.1) and the same is registered as a case in Cr.No.6 of 2013 for the offence MSM,J and NJS,J 3 Crla_1110_2014 punishable under Section 307 I.P.C. After registering the FIR T.V Hema Sunadar, H.C, Eluru II town P.S visited the scene of offence in the presence of P.W.13 - Ramanujam Atchuta Seetha Ramachandra Murthy and Nunna Nagaraju (L.W.14), observed the scene of offence, recovered blood stained earth and controlled earth from the scene of offence under the cover of observation report (Ex.P5). He also got photographed the scene of offence, examined Pitta Joshy Mary @ Mariyamma (P.W.3), Domathoti Rajeswari (P.W.4), Domathoti Devamatha (P.W.5), Kurma Ranga Rao (P.W.6), Runjala Sobhan Babu (P.W.7) and Pitta Sadhu (P.W.8), recorded their statements under Section 161 (3) Cr.P.C. While the investigation is going on, Ch.Kondala Rao, S.I of police (P.W.17) received death intimation from Government General Hospital, Guntur, altered section of law from Section 307 to 302 I.P.C, handed over investigation to Inspector of Police, Eluru Rural Circle, who in turn visited the scene of offence again and recorded the statements of Runjala Soudamani (P.W.1), Domathoti Rajeswari (P.W.4) and Domathoti Devamatha (P.W.5), visited Government General Hospital, Guntur, held inquest over the dead body of the deceased at 4:00 pm on 11.01.2013 in the presence of Ramanujam Atchuta Seetha Ramachandra Murthy (P.W.13), Nunna Nagaraju (L.W.14) and Pitta Devamatha (P.W.2), got photographed the dead body through a photographer, prepared inquest panchanama (Ex.P5) wherein, on the basis of the statements of blood relations and eye witnesses, they opined that the apparent cause of death was due to hack injuries found on the body of the deceased. Later the dead body was sent for postmortem examination. Dr. A. Ramesh Babu, Assistant Professor Forensic Medicine, Guntur Medical College (P.W.14) conducted autopsy over the dead body of the deceased and issued postmortem certificate (Ex.P.9).
MSM,J and NJS,J 4 Crla_1110_2014
6. The Inspector of Police, Eluru Rural Circle arrested the accused on 15.01.2013 at about 1:00 pm on the road leading to Patha Mupparru at Kothuru village in the presence of Ramanujam Atchuta Seetha Ramachandra Murthy (P.W.13) and Konde Lazar (L.W.15). On interrogation, the accused disclosed his identity and made a confession that he thrown penaka kathi (M.O.4) in the bushes and assured that he will show it, if, anybody accompany with him, the same was reduced into writing vide Ex.P.6. The accused led the Inspector of Police and the above mediators to the bushes and picked out penaka kathi (M.O.4) from the bushes near bus shelter at new colony of Patha Mupparru village, produced the same before Ramanujam Atchuta Seetha Ramachandramurthy (P.W.13) and Konde Lazar (L.W.15), the same was seized under the cover of mediators report drafted at 10:00 am on 15.01.2013 (Ex.P7). The material objects recovered from the scene of offence and other items were sent to RFSL for chemical examination along with letter of advise. On receipt of postmortem certificate and RFSL report, the Inspector of Police concluded that there is prima facie material that the accused committed the offence and filed charge sheet before the jurisdictional Magistrate who in turn after following necessary procedure committed the case to Sessions Division, West Godavari. The Sessions Judge registered the same as sessions case and took up for trial.
7. The Sessions Court upon securing the presence of the accused, on hearing Additional Public Prosecutor and defence counsel, framed a sole charge for the offence punishable under Section 302 of I.P.C, explained the same to the accused in Telugu, he pleaded not guilty and claimed to be tried.
MSM,J and NJS,J 5 Crla_1110_2014
8. During trial, on behalf of prosecution, P.W.1 to P.W.18 were examined, marked Exs.P1 to P17, and M.O.1 to M.O.8.
9. After closure of prosecution evidence, accused was examined under Section 313 of Cr.P.C, explaining the incriminating material that appeared against him, he denied the same and reported no defence evidence.
10. Upon hearing the argument of both the counsel and on consideration of the material on record, the Sessions Court held that the accused committed grave offence of murder of his wife, convicted and sentenced him to undergo imprisonment for life and to pay fine of Rs.10,000/- with default sentence as stated supra.
11. Aggrieved by the conviction passed against the accused and sentence imposed on him, the accused preferred this appeal on various grounds.
12. The main grounds urged by the accused are that the Sessions Court failed to consider the testimony of the witnesses in proper perspective as the alleged direct witnesses Domathoti Rajeswari (P.W.4) and Domathoti Devamatha (P.W.5) did not support the case of prosecution and in their cross examination with the permission of the Court, the Public Prosecutor could elicit nothing. Relying on a stray sentence in the examination-in-chief of Domathoti Rajeswari (P.W.4) and Domathoti Devamatha (P.W.5), without considering the entire evidence is a grave illegality. It is further contended that mere proof of motive and recovery of penaka kathi (M.O.4) and other material objects from different places is not sufficient to rope the accused with the offence MSM,J and NJS,J 6 Crla_1110_2014 punishable under Section 302 I.P.C. Thus, the Sessions Court committed a grave error in finding the accused guilty, requested to set aside the conviction recorded against the accused and the sentence imposed on him for the offence punishable under Section 302 I.P.C.
13. During hearing the learned counsel for the appellant/accused Smt A. Gayatri Reddy would contend that except proof of motive and recovery of penaka kathi (M.O.4), on the basis of confession leading to discovery, no other circumstances are proved, but the Sessions Court based on one stray sentence in the examination-in-chief of Domathoti Rajeswari (P.W.4) and Domathoti Devamatha (P.W.5) without reading the entire evidence has concluded that the accused committed the grave offence of murder punishable under Section 302 I.P.C and if the evidence of Domathoti Rajeswari (P.W.4) and Domathoti Devamatha (P.W.5) is read as a whole, there is absolutely no material to conclude that the accused committed the offence punishable under Section 302 I.P.C. Though the prosecution is under the obligation to prove its case beyond reasonable doubt by adducing cogent and satisfactory evidence, the Sessions Court without insisting the prosecution to prove the case set up by it, made out a different case and recorded conviction against the accused and sentenced him illegally. Hence, the conviction and sentence under the calendar and judgment in S.C.No.420 of 2013 dated 28.04.2014 are illegal, requested to set aside the same.
14. Whereas, the learned Additional Public Prosecutor supported the calendar and judgment in all respects, requested to confirm the conviction and sentence passed by the Sessions Court.
MSM,J and NJS,J 7 Crla_1110_2014
15. Considering rival contentions, perusing the material available on record, the point for determination is:
Whether the accused caused injuries on the body of the deceased with penaka kathi (M.O.4 - Tapper's Sickle) with an intention to kill her knowing that those injuries are sufficient to cause death in ordinary course of events, if not, whether the conviction recorded against the accused and the sentence imposed upon him by the Sessions Court be sustained?
19. 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 MSM,J and NJS,J 8 Crla_1110_2014 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 on record to assure his guilt (vide Kamlesh Prabhudas Tanna & Anr v. State Of Gujarat1). 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.
20. POINT:
The case of the prosecution is not only based on direct evidence, but also based on circumstantial evidence. When the direct evidence is sufficient to prove the case of the prosecution, the circumstantial evidence looses its importance. Therefore, it is the duty of this Court to re-appraise the entire evidence to find out the complicity of the accused for the grave offence punishable under Section 302 I.P.C, uninfluenced by the findings of the Sessions Court.
21. The unnatural death of the deceased due to hack injuries on her body and the scene of offence are not in dispute. The unnatural death due to hack injuries is supported by the oral evidence of Domathoti Rajeswari (P.W.4), Domathoti Devamatha (P.W.5) and medical evidence of Dr.A. Ramesh Babu (P.W.14), postmortem certificate (Ex.P9) and death intimation (Ex.P14) coupled with the statement of Runjala Soudamani (P.W.1) (Ex.P1). Therefore, this Court is not required to decide the nature of death, since, the death of the deceased is homicidal.
22. The case of the prosecution as narrated above is totally based on the direct evidence of Domathoti Rajeswari (P.W.4) and Domathoti 1 (2013) 15 SCC 263 MSM,J and NJS,J 9 Crla_1110_2014 Devamatha (P.W.5) who are the neighbours of accused and deceased.
The house of Domathoti Rajeswari (P.W.4), the house of accused and deceased are intervened by three houses. Domathoti Rajeswari (P.W.4) testified as follows:
"One year prior to the death of the deceased, the deceased and accused used to live in Kotha colony. The accused and deceased used to dispute each other and I do not know the reason for their dispute. Bhagya Lakshmi is no more now as she died on 10.01.2013. the accused killed his wife Bhagya Lakshmi. On the day of incident, I went to field to attend coolie work and returned to my house at 2:30 pm on that day. While I was returning to my house from field, one old lady informed me that the accused killed his wife. Immediately, myself and four others rushed to the house of the accused and deceased. We found pool of blood at the threshold of the house of Bhagya Lakshmi".
The Public Prosecutor cross examined Domathoti Rajeswari (P.W.4), but could elicit nothing in support of the prosecution case, except confronting her previous statement recorded under Section 161 (3) Cr.P.C (Ex.P3). Therefore, the evidence of Domathoti Rajeswari (P.W.4) is clear that one old lady informed her that the accused killed his wife and she is not a direct witness to the occurrence of incident.
23. Similarly, Domathoti Devamatha (P.W.5) is another neighbor whose house is three houses away to the house of accused and deceased testified as follows:
"I do not know the relationship between the deceased and accused. But I used to see them while they were going to jute mill for attending work. Bhagya Lakshmi is no more now. On the day of incident i.e. on 10.01.2013, I went to field to attend coolie work and returned to my house at 2:15 pm. I notice police at the house of accused. I went to the house of accused, MSM,J and NJS,J 10 Crla_1110_2014 I came to know that the accused hacked his wife. Due to fear, while I was coming back to my house, police called me and examined me".
Similarly, the Public Prosecutor though obtained permission to cross examine the witness, could elicit nothing except confronting her previous statement recorded under Section 161 (3) Cr.P.C (Ex.P4). In the cross examination the contents of Ex.P4 were read over and the witness denied those contents confronted to her. Therefore, Domathoti Rajeswari (P.W.4) and Domathoti Devamatha (P.W.5) were declared hostile, as they did not support the prosecution case.
24. The Sessions Court surprisingly based on the evidence of Domathoti Rajeswari (P.W.4) and Domathoti Devamatha (P.W.5) concluded that the accused committed murder of his wife, causing hack injuries on her body with penaka kathi (M.O.4 - Tapper's Sickle) in para No.24 of the judgment, the Sessions Court observed that though Domathoti Rajeswari (P.W.4) and Domathoti Devamatha (P.W.5) who are eye witnesses turned hostile, their testimony is consistent to some extent that the accused killed his wife. On the strength of stray sentence in the examination-in-chief, without reading the evidence as a whole, the Sessions Court erroneously concluded that the accused caused death of his wife.
25. Undoubtedly the evidence of hostile witnesses can be relied on to some extent. But it has to be scrutinized with great care and circumspection. The evidence of a witness who has been declared as hostile can be relied if there is some other material on the basis of which the said evidence can be corroborated. More so, part of that evidence of a witness as contained in the examination-in-chief which remains MSM,J and NJS,J 11 Crla_1110_2014 unshaken even in the cross examination is fully reliable, though the witness has been declared as hostile. (Vide: Devraj v. State of Chhattisgarh2).
26. Thus, the overall view of the courts is that when the witness turned hostile, if part of the evidence of a hostile witness which supports the prosecution case and part of the statement remains unshaken even after cross examination, and corroborated by any other evidence, the court can rely on the statement of those witnesses, though turned hostile. But in the present facts of the case at one stage Domathoti Rajeswari (P.W.4) and Domathoti Devamatha (P.W.5) stated that the accused killed his wife, but in the next sentence itself their testimony is clear that they were informed by an old lady that the accused killed his wife, while they were returning to their house after attending agricultural coolie work in the field. Therefore, on reading of entire evidence of Domathoti Rajeswari (P.W.4) and Domathoti Devamatha (P.W.5), at best their evidence is hear-say evidence, they are not direct witnesses to the incident of murder of the deceased by the accused. In such case, placing reliance on a stray sentence without reading the later part of the evidence in the examination-in-chief by the Sessions Court is erroneous. If the entire evidence in the examination-in-chief is read as a whole, information of causing death of the deceased by the accused is only hear- say evidence as they received information from an old lady, while they were returning to their house after attending agricultural coolie work in the field. Hence, hear-say evidence is inadmissible for the following reasons.
(a) the person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility; 2 AIR 2016 SC 3498 MSM,J and NJS,J 12 Crla_1110_2014
(b) truth is diluted and diminished with each repetition, and
(c) if permitted, gives ample scope for playing fraud by saying "someone told me that". Thus statement of witnesses based on information received from others is inadmissible. (Vide: Kalyan Kumar Gogoi v. Ashutosh Agnihotri3) If these testes are applied to the present facts of the case, it is clear that Domathoti Rajeswari (P.W.4) received information as to the cause of death of the deceased from an old lady, similarly, Domathoti Devamatha (P.W.5) also. Therefore, at best their evidence is hear-say and it is inadmissible, the same can be rejected by applying the principles laid down in the above judgment. The Sessions Court believed the statements of Domathoti Rajeswari (P.W.4) and Domathoti Devamatha (P.W.5) to the extent of causing death of his wife, by the accused making certain observations in para Nos.19 to 21 of the judgment. Though the observation of the Sessions Court that the court can rely on part of evidence of the hostile witnesses, the court is required to read the entire testimony of witness to come to such conclusion. Even then corroboration is required to such evidence of hostile witness. But in the present case no independent witness corroborated the testimony of Domathoti Rajeswari (P.W.4) and Domathoti Devamatha (P.W.5). Therefore, placing reliance on the testimony of Domathoti Rajeswari (P.W.4) and Domathoti Devamatha (P.W.5) by the Sessions Court is an apparent error on the face of the record. Hence, rejecting the evidence of Domathoti Rajeswari (P.W.4) and Domathoti Devamatha (P.W.5) as it is inadmissible and though admissible they are not wholly reliable witnesses. Consequently, recording of conviction based on a stray sentence in the examination-in-chief of Domathoti Rajeswari (P.W.4) and 3 (2011) 2 SCC 532 MSM,J and NJS,J 13 Crla_1110_2014 Domathoti Devamatha (P.W.5) by the Sessions Court is illegal and erroneous.
27. Coming to the other evidence available on record, Runjala Soudamani (P.W.1), the mother of the deceased, but she is not direct witness to the incident. At best her evidence is sufficient to conclude that the death of the deceased is homicidal and that she received information from Pitta Joshy Mary @ Mariyamma (P.W.3). When we advert to the evidence of Pitta Joshy Mary @ Mariyamma (P.W.3), it is clear that she only noticed a gathering at the house of the accused and deceased on 10.01.2013 at about 12:30 pm and on being asked, somebody told that the body of injured is in pool of blood, immediately she informed the same to her mother Pitta Devamatha (P.W.2) who in turn advised her to inform the same to Runjala Soudamani (P.W.1). Therefore, she is not an eye witness to the occurrence, so also, Pitta Devamatha (P.W.2) who received information from Pitta Joshy Mary @ Mariyamma (P.W.3) about the incident of death. Hence, the testimony of Runjala Soudamani (P.W.1), Pitta Devamatha (P.W.2) and Pitta Joshy Mary @ Mariyamma (P.W.3) is of no use to establish the guilt of the accused by the prosecution beyond reasonable doubt.
28. Kurma Ranga Rao (P.W.6) is resident of Kotha colony of Patha Mupparru village, Pedapadu Mandal who is working as a servant under one G. Narasimha Rao. He went to fish tank on 10.01.2013 and returned to house for lunch. At that time, he observed the presence of police at the house of the accused and deceased and on enquiry he came to know that the accused hacked his wife with knife and went to police station. Once again he stated that he came to know through villagers that the accused hacked his wife with a knife and that the accused was not present in his MSM,J and NJS,J 14 Crla_1110_2014 house. This piece of evidence is also of no use to the case of prosecution, since he was not a direct witness and he was informed by some of the villagers whose names are not spoken by the witness. Runjala Sobhan Babu (P.W.7), Pitta Sadhu (P.W.8) and Runjala Ravikiran (P.W.9) consistenly stated that they came to know about the cause of death of the deceased by her husband i.e. accused while they were returning home. Hence, their testimony needs no further consideration to decide the guilt of the accused as they are not direct witnesses.
29. As discussed above, the evidence of Domathoti Rajeswari (P.W.4) and Domathoti Devamatha (P.W.5) is inadmissible as their evidence is hear-say. Even otherwise, their evidence is not consistent as to the cause of death and they are not direct witnesses to the incident. More so, their testimony is not corroborated by any independent testimony. Hence, we are of the view that recording conviction against the accused based on a stray sentence without reading the evidence of Domathoti Rajeswari (P.W.4) and Domathoti Devamatha (P.W.5) as a whole is an illegality committed by the Sessions Court.
30. In view of our foregoing discussion, we find no direct evidence to establish the guilt of the accused and the prosecution failed to prove the guilt of the accused by adducing direct evidence.
31. The prosecution also relied on two circumstances i.e. motive and seizure of penaka kathi (M.O.4 - Tapper's sickle), based on the confession of the accused leading to discovery under the cover of mediators report (Ex.P7).
MSM,J and NJS,J 15 Crla_1110_2014
32. No doubt motive is relevant under Section 8 of the Indian Evidence Act. 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 Bihar4, 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 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.
33. The evidence of Runjala Soudamani (P.W.1) is consistent that as the accused deserted his wife, she returned to her paternal home, after giving birth to a male child, but when the deceased performed the marriage of her elder daughter Santhi Priya, the accused joined his wife and performed marriage. Thereafter, started living together while working 4 AIR 1994 S.C. page 2420 MSM,J and NJS,J 16 Crla_1110_2014 in a jute mill, but he suspected her character on the ground that she developed illicit contact with co-workers. Therefore, he allegedly decided to do away with her life. The said fact is supported by the evidence of Runjala Soudamani (P.W.1) and Runjala Ravikiran (P.W.9). when the testimony of Runjala Soudamani (P.W.1) and Runjala Ravikiran (P.W.9) is consistent to establish the motive of the accused to kill his wife, the same can be accepted as the learned counsel for the accused could elicit nothing in their cross examination. Hence, the prosecution was able to establish the motive of the accused to kill his wife, on suspicion that she developed illicit contact with co-workers.
34. The other circumstance relied on by the prosecution is recovery of penaka kathi (M.O.4) based on the confession allegedly made by the accused leading to discovery. The evidence of Ramanujam Atchuta Seetha Ramachandra Murthy (P.W.13) and the investigating officer is relevant to decide the present circumstance. Ramanujam Atchuta Seetha Ramachandra Murthy (P.W.13) is the witness who was present at the time of observation of scene of offence and seizure of controlled earth (M.O.1) and blood stained earth (M.O.2) under the cover of observation report (Ex.P5). On 15.01.2013 he went to police station on being called by the investigating officer, while he was attending to his work in his office as V.R.O. Accordingly, he went to police station at 10:30 am, on the same day, he along with Konde Lazar (L.W.15), Ch.Kondala Rao, S.I of Police (P.W.17) and M. Sudhakara Rao, Inspector of Police (P.W.18) and their staff went to Kothuru in a police jeep, when they reached near Jesus statue situated at Kothuru village, one person was trying to ran away. On suspicion, the police stopped the jeep and caught hold of the said person, on interrogation he disclosed his identity and confessed that MSM,J and NJS,J 17 Crla_1110_2014 he killed his wife with a knife, immediately M. Sudhakara Rao (P.W.18) arrested him. During the course of interrogation, the accused assured that he will show the knife used for commission of the offence which was kept near burial ground of Patha Mupparru village, if anybody accompany him. The same is reduced into writing. On the same day on being lead by the accused, Ramanujam Atchuta Seetha Ramachandra Murthy (P.W.13), Konde Lazar (L.W.15), Ch.Kondala Rao, S.I of Police (P.W.17) and M. Sudhakara Rao, Inspector of Police (P.W.18) went to burial ground of Patha Mupparru village, there the accused picked out penaka kathi (M.O.4 - Tapper's sickle) from the bushes, produced the same before M. Sudhakara Rao (P.W.18), the same was seized under the cover of mediators report (Ex.P7). They also seized towel (M.O.3) under mediators report (Ex.P7) in the presence of the said mediators. In the cross examination of Ramanujam Atchuta Seetha Ramachandra Murthy (P.W.13), the learned counsel for the accused could elicit nothing about discovery of penaka kathi (M.O.4 - Tapper's sickle) despite lengthy cross examination and suggesting that towel (M.O.3) and penaka kathi (M.O.4
- Tapper's sickel) were not recovered at the instance of the accused, based on his confession leading to discovery and the witness denied the same. Even assuming for a moment, that the prosecution is able to establish that the accused produced penaka kathi (M.O.4) before Ramanujam Atchuta Seetha Ramachandra Murthy (P.W.13) and M. Sudkakara Rao (P.W.18) and its seizure under the cover of mediators report (Ex.P7) it is one of the strong circumstance to conclude that the accused is the person who caused death of the deceased. But in fact the case of the prosecution is based on both direct evidence and circumstantial evidence, but proof of recovery of towel (M.O.3) and penaka kathi (M.O.4 - Tapper's sickle) under the cover of mediators MSM,J and NJS,J 18 Crla_1110_2014 report (Ex.P7) by itself is not sufficient to rope the accused with grave offence punishable under Section 302 I.P.C, since recovery evidence is not substantive piece of evidence, it is only one of the circumstances to complete the links in the chain of circumstances to arrive to an unerring conclusion that the accused committed the offence.
35. Time and again 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. (See: Brijesh Mavi Vs. State of NCT of Delhi5)
36. In view of the law declared by the Apex Court, recovery of crime weapon by itself is not sufficient to rope the accused with the offence. More so, when the weapon was referred to RFSL for chemical examination and when blood detected on towel (M.O.3) and penaka kathi (M.O.4) by the expert, is of human origin, but blood group could not be detected on any of the items analyzed by the chemical analyst vide RFSL report (Ex.P17). If the chemical analyst report shows that the blood group on M.O.3 and M.O.4 and other items analyzed by the chemical analyst is that of the deceased, it is sufficient evidence to rope the accused with the offence.
37. Yet, another lacuna in the evidence is that the accused allegedly hacked his wife with penaka kathi (tapper's sickle) which is referred to RFSL and examined by analyst is only a curved knife blade without handle. If really, the accused caused injuries with M.O.4 - penaka kathi 5 2012 (2) ALD (Cri.) page 865 (SC) MSM,J and NJS,J 19 Crla_1110_2014 (Tapper's sickle), it is difficult to cause such grave injuries with a knife without handle, for the reason that holding such tappers knife without handle and causing deep cut injuries is not possible. Hence, it is difficult to connect penaka kathi (M.O.4) with the crime. On this ground also the testimony of Runjala Ravikiran (P.W.9) with regard to recovery of weapon cannot be connected with the offence. Though recovery of penaka kathi (M.O.4) is proved, when the same cannot be connected with the offence, recovery will have no consequence and mere proof of such recovery of penaka kathi (M.O.4), under the cover of mediators report (Ex.P7) is not sufficient to connect the accused with the offence.
38. Weapon allegedly used in the commission of offence is M.O.4 - Penaka Kathi (Tapper's sickle). Generally, Tapper's sickle (M.O.4) is a curved knife with heavy weight having wooden handle. If an injury is caused with such a weapon, the depth of injury may vary from place to place since it is a sharp edged weapon with heavy weight with curve. Only curved portion of the tapper's sickle is a sharp edged portion, the other part of the sickle is blunt portion. The tip of the tapper's sickle will not be sharp. In view of the nature of the weapon, we have to examine whether the injuries referred in Ex.P.9 - Postmortem certificate could be caused with M.O.4 - tapper's sickle or not.
39. The following are the injuries found by P.W.14 - Doctor on the body of the deceased during postmortem examination as noted in Ex.P.9.
1. A cut lacerated injury present over right side of the frontal area of the head, 5 cm in length with 4 sutures intact, antero posteriorly directed, reddish in colour.
2. A cut lacerated injury present over right side of the parietal area with 5 sutures intact of 6 cm in length, antero posteriorly directed, reddish in colour.
MSM,J and NJS,J 20 Crla_1110_2014
3. A stab injury present over right side of the upper part of the chest below the clavicular region of 1 cm in length with one intact suture. On reflection of the skin, right side of the neck structures and muscles are found congested and contused. 20 cc of blood clot is present over right side of the neck.
4. A pressure abrasion present over left side of the face and neck, 3 cm below the left ear, measuring 8x1 cm size, transverse, wedge shaped, the base at the posterior side and the apex with tailing at the anterior side, posteroanteriorly directed, reddish in colour, associated with a cut lacerated injury of 4x0.5 cm size, the base at the posterior side and the apex with tailing at the anterior side, posteroanteriorly directed, reddish in colour with tailing at both the ends of the wounds, extending from the left ear to the left side of the mouth, which are parallel to each other one above the other.
5. A stab injury present 2 cm below and behind the left ear of 3x1 cm size, transverse, scalp deep and red in colour. On reflection of the scalp, red colour haematoma is found over inner layers of left side the scalp. Subdural haematoma of 10 cc is present over right side of the brain. Subarachnoid haemorrhage is present over both cerebral hemispheres.
40. First injury is a lacerated injury present over right side of the frontal area of the head, 5 cm in length with 4 sutures intact.
Second injury is a lacerated injury present over right side of the parietal area with 5 sutures intact of 6 cm in length, antero posteriorly directed, reddish in colour. Injury Nos.3 and 5 are stab injuries at different places of the body.
MSM,J and NJS,J 21 Crla_1110_2014 Size of the injury No.3 is not even noted in Ex.P.9 - Postmortem report, whereas size of injury No.5 is noted as 3x1 cm without noting the depth of the injury. If stab injury is caused with M.O.4 - tapper's sickle, the same must be in triangular or 'V' shape, but no details were noted in Ex.P.9 - postmortem report as to whether injury Nos.3 and 5 could have been caused with M.O.4 - Tapper's sickle or not. Public Prosecutor even did not show the weapon M.O.4 - Tapper's sickle to P.W.14 - Dr.A.Ramesh Babu in his examination-in-chief to find out whether the injuries found on the body of the deceased could be caused with such weapon or not. Doctor's evidence is sufficient to know the cause of death and time of death, but not with regard to the nature of weapon with which the injuries were caused. Since the wounds are already sutured by doctor at Eluru, the case sheet maintained in Eluru Hospital and examination of Doctor, who treated the injured initially and sutured was not brought on record. The doctor at Eluru Hospital is the best person to speak about nature of injuries and whether those injuries could have been caused with M.O.4 - tapper's sickle or not, but he was not examined.
Even in the cross-examination also, except putting a bald suggestion that some of the injuries could not have been caused with M.O.4 - tapper's sickle, nothing was elicited.
41. When the Public Prosecutor examined the Doctor, it is for the prosecution to elicit whether the injuries found on the body of the deceased could have been caused with M.O.4 - tapper's sickle or not. In the absence of evidence of Doctor that the injuries referred in Ex.P.9 - postmortem report could have been caused with M.O.4 - tapper's sickle or not, it is difficult to connect the weapon without handle to the offence.
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42. It is for the prosecution to elicit from the Doctor, whether the injuries found on the dead body could have been caused with the weapon with which they recovered in pursuance of the confession leading to discovery. Obviously for one reason or the other, the Public Prosecutor before the trial Court did not elicit from P.W.14 - Doctor that the injuries could have been caused with M.O.4 - tapper's sickle. Taking into consideration of nature of injury Nos.3 and 5 and in the absence of details as to shape of the stab injury including the depth of injuries, it is difficult to connect M.O.4 - Tapper's sickle with the offence with which the accused was charged. Hence, mere recovery of M.O.4 - tapper's sickle based on confession leading to discovery is of no consequence. On this ground also, the case of the prosecution cannot be accepted, but the trial Court without considering various aspects, as discussed above, found the accused guilty treating the recovery of M.O.4 - tapper's sickle is one of the strongest circumstances to connect the accused with the offence erroneously. Hence, the finding of the trial Court is liable to be set aside.
43. It is a settled law that when the case of the prosecution is based on circumstantial evidence, the prosecution has to prove each and every circumstance to complete links in the chain of circumstances by adducing cogent and satisfactory evidence and that the proved circumstances directly point out the guilt towards the accused and inconsistent with the innocence.
44. 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 MSM,J and NJS,J 23 Crla_1110_2014 accused and any circumstance consistent with innocence of accused, he is entitled to benefit of doubt. (vide Kishore Chand v. State of Himachal Pradesh6) 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 touchstone of law relating to circumstantial evidence laid down by Supreme Court (vide Syed Hakkim & another v. State7).
Similarly, in G.Parshwanath v. State of Karnataka8, 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 fully established, 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 with Nasreen v. State of Karnataka9; Jagroop Singh Vs. State of Punjab, 6 (2013) 15 SCC 263 7 2009 Cr.L.J. page 1891 8 5 AIR 2010 S.C. page 2914 9 AIR 2011 SC page 1585 MSM,J and NJS,J 24 Crla_1110_2014 Inspector of Police, Tamil Nadu Vs. Balaprasanna10 Shaik Khadar Basha v. State of Andhra Pradesh11, the same principle was reiterated.
The Supreme Court in Trimukh Maloti Kikran v. State of Maharashtra12, 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".
45. Applying the principles to the present facts of the case, the prosecution only proved motive and recovery of penaka kathi (M.O.4), which cannot be connected with the offence, for the reasons recorded in the earlier paras. Though the prosecution relied on both direct and circumstantial evidence, it has miserably failed to establish its case by direct evidence, so also circumstantial evidence. Though the prosecution proved the first circumstance of motive which is not a substantive piece of evidence and recovery of penaka kathi (M.O.4) which cannot be connected with the crime, it is difficult to this Court to sustain the conviction recorded by the Sessions Court. Therefore, those proved circumstances are not sufficient to find the accused guilty for the grave 10 2009(1) ALD (Crl.) page 113 11 8 2009(1) ALD (Crl.) page 859 (AP) 12 (2006) 10 SCC 681 MSM,J and NJS,J 25 Crla_1110_2014 charge for the offence punishable under Section 302 I.P.C. Hence, the conviction recorded against the accused by the Sessions Court and the sentence imposed upon him, finding him guilty for the offence punishable under Section 302 I.P.C is hereby set aside, finding him not guilty for the said charge. Accordingly, he is liable to be acquitted.
46. In the result, the Criminal Appeal is allowed setting aside the conviction recorded by the Principal District & Sessions Judge, West Godavari, Eluru vide judgment in S.C.No.420 of 2013, dated 28.04.2014 against the appellant/accused and the sentence imposed upon him for the offence punishable under Section 302 of I.P.C, while finding the accused not guilty for the said offence. Accordingly, he is acquitted for the said charge. The appellant/accused be set at liberty forthwith, if he is not required in any other crime. The fine amount, if any, paid by the appellant/accused shall be refunded to him.
42. Consequently, miscellaneous petitions, pending if any in the appeal, shall stand closed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY _______________________________ JUSTICE NINALA JAYASURYA Dated.27.07.2020 RVK/Ksp