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2000 DIGILAW 429 (AP)

Ginni Appa Rao and another v. State Of A. P.

2000-06-26

D.S.R.VERMA, R.M.BAPAT, V.S.SIRPURKAR

body2000
RAMESH MADHAV BAPAT, J. ( 1 ) CRIMINAL Appeal No. 1624 of 1998 is filed by A-1, who had faced the trial in Sessions case No. 44 of 1995 before the First additional Metropolitan Sessions Judge, visakhapatnam. Criminal Appeal No. 1376 of 1998 is filed by A-2. He was also an accused No. 2 in Sessions Case No. 44 of 1995, which was decided by the First Addl. Metropolitan Sessions Judge, visakhapatnam. Since both the appeals arise out of a common judgment in Sessions Case no. 44 of 1995, they are disposed of by a common judgment. ( 2 ) ORIGINALLY A-1 and A-2 along with A-3 were tried in Sessions Case No. 44 of 1995. But A-3 was absconded and therefore his case was separated and numbered as sessions Case No. 55 of 1997. Only A-1 and a-2 faced the charges punishable under sections 449, 382, 394, 404 and 120 (B) read with Section 34, IPC. The first charge against a-1 and A-2 was under Section 449 read with 34, IPC for trespassing into the building of one Kommuru Annapurnamma (hereinafter referred to as deceased)". The second charge against A-l and A-2 was under Section 302 read with Section 34, IPC for causing the death of the deceased with common intention. The 3rd charge against a-1 and A-2 was under Section 382 read with section 34, IPC for committing theft of gold jewellery of the deceased after making preparation for causing the death by throttling. The 4th charge against A-1 and a-2 was under Section 394 read with section 34, IPC for causing hurt to the deceased while committing robbery. The 5th charge against A-1 and A-2 was under section 404 read with Section 34, IPC for dishonestly misappropriating certain property belonging to the deceased. The 6th charge against A-1 and A-2 was under section 120 (B) IPC to kill and to rob the jewellery of the deceased and also to misappropriate the same dishonestly. An additional charge framed against A-1 and -2 was under Section 412, IPC for dishonestly retaining the stolen property of the deceased. knowing that the same has been transferred by commission on dacoity. ( 3 ) ON evidence the learned Judge found a-1 guilty for the offences punishable under sections 302 and 412, IPC. An additional charge framed against A-1 and -2 was under Section 412, IPC for dishonestly retaining the stolen property of the deceased. knowing that the same has been transferred by commission on dacoity. ( 3 ) ON evidence the learned Judge found a-1 guilty for the offences punishable under sections 302 and 412, IPC. A-l was convicted for the offence punishable under Section 302, ipc and sentenced him to suffer imprisonment for life and also to pay a fine of rs. 5,000/ -. He was further convicted for the offence punishable under Section 412, IPC and sentenced him to suffer imprisonment for four (4) years and also to pay a fine of rs. 1,000/ -. Both the substantive sentences were made to run concurrently. On evidence the learned judge found A-2 guilty for the offence punishable under Section 412, IPC. He was convicted and sentenced to suffer imprisonment for four (4) years and also to pay a fine of Rs. 1,000/- in default to suffer imprisonment for three months. Both the accused were found not guilty of the offences punishable under Sections 419, 382, 394, 404 and 120 (B), IPC and therefore they were acquitted of the aforesaid offences. Further A-2 was not found guilty of the offence punishable under Section 302, IPC. ( 4 ) AGGRIEVED by the aforesaid convictions and sentences, both the accused-appellants herein have filed the present appeals. ( 5 ) THE prosecution story can briefly be narrated as follows: The deceased kommuru Annapurnamma was the wife of koammuru Appadu Dora, who was an ex-Minister in the State of Andhra Pradesh. P. W. 5 happened to be an Ex-Member of parliament and brother of the deceased s husband. The husband of the deceased died in the year 1985 and he executed a Will settling his share of property in favour of the deceased. The deceased had no children. It is stated that the deceased was having more than 60 tulas of gold on her person and other gold articles in the house. The deceased owned extensive properties worth Rupees two crores. She created a trust and she gave all the properties to the trust. The deed was unregistered. The deceased intended to register the said deed on 4-8-1992. ( 6 ) THE prosecution further states that p. W. 4 who happened to be the medical representative, was a close relation of the deceased. She created a trust and she gave all the properties to the trust. The deed was unregistered. The deceased intended to register the said deed on 4-8-1992. ( 6 ) THE prosecution further states that p. W. 4 who happened to be the medical representative, was a close relation of the deceased. He used to visit the house of the deceased very often on 2-8-1992 P. W. 4 visited the house of the deceased and called her but there was no response. It is further stated that on 3-8-1992 in the morning hours p. W. 8, who was the tenant of the deceased, pressed the calling bell to switch on the motor but there was no response. P. W. 8 sent a word to P. W. 4 and P. W. 4 visited the house of the deceased once again. P. W. 4 in turn informed P. W. 2 about the same. P. Ws. 2 and 4 went to the house of the deceased. It is stated that the deceased was residing on the first floor. After going there, P. Ws. 1 and 2 tried to open the door but it was locked from inside. Immediately P. W. 1 went to IV Town police Station, Visakhapatnam and gave first Information Ex. P-1. P. W. 9, the S. I. of. Police, VI Town (L and O) Police Station, visakhapatnam, received FIR and came along with P. W. I to the house of the deceased P. W. 9 got the door broke open in the presence of P. W. 10, who is a resident of ananthanagar. It is further stated that the deceased was found on the cot in the room. P. W. 42, the C. I. of Police, IV Town Police station, Visakhapatnam, registered the case in Cr. No. 349/92 of IV Town Police Station, which is produced on record as Ex. P-26. ( 7 ) IN the meanwhile P. W. 43, the Inspector of Police, North Central Crime Station, visakhapatnam, was entrusted with the investigation into Cr. No. 349 / 92 of IV Town police Station. After receiving the FIR, p. W. 43 visited the scene of offence and conducted inquest over the dead body of the deceased in the presence of P. W. 20 and others. Ex. P-2 is the inquest report. P. W. 43 prepared a rough sketch, which is produced on record as Ex. P-27. After receiving the FIR, p. W. 43 visited the scene of offence and conducted inquest over the dead body of the deceased in the presence of P. W. 20 and others. Ex. P-2 is the inquest report. P. W. 43 prepared a rough sketch, which is produced on record as Ex. P-27. P. W. 40 is the photographer, who had taken snaps after the death of the deceased. They are marked as Exs. P-24 and P-25. ( 8 ) THE prosecution further states that p. W. 22, Head Constable, escorted the dead body of the deceased to the mortuary at King george Hospital, Visakhapatnam. P. W. 21, who happened to be the Associate Professor, andhra Medical College, Visakhapatnam, conducted autopsy over the dead body of the deceased. He opined that the deceased died due to Asphyxia due to throttling. As per his observation, he issued post-mortem certificate, which is produced on record as ex. P-3. ( 9 ) THE prosecution further states that p. W. 42 conducted further investigation and recorded the statements of P. W. 6, who was a servant maid in the house of the deceased. P. W. 6 stated that A-1, who is a painter, came to the house of the deceased twice. The investigating Officer also examined P. W. 16, registered Medical Officer and friend of the deceased, who talked to the deceased on phone from 3-00 to 3-30 p. m. on 2-8-1992. The Police also examined P. W. 19 an Artist, who stated that when she went to the house of the deceased in the afternoon on 2-8-1992, she found A-1 in the house of the deceased. During the course of investigation, P. W. 43 recorded the statements of various persons relating to the offence. Thus, on completion of investigation, he filed the charge-sheet. ( 10 ) THE defence of the accused is of total denial. It is also suggested by the accused by way of defence that the incident did not take place in the manner suggested by the prosecution. ( 11 ) THE learned Judge relying upon the evidence of P. Ws. 16 and 19 convicted A-1 and sentenced him to suffer imprisonment for life and also to pay a fine of Rs. 5,000/- for the offence punishable under Section 302, ipc. ( 11 ) THE learned Judge relying upon the evidence of P. Ws. 16 and 19 convicted A-1 and sentenced him to suffer imprisonment for life and also to pay a fine of Rs. 5,000/- for the offence punishable under Section 302, ipc. He was also convicted for the offence punishable under Section 412, IPC and sentenced him to suffer R. I. for four years and to pay a fine of Rs. 1,000/ -. A-2 was convicted for an offence punishable under section 412, IPC and sentenced him to suffer imprisonment for four years and to pay a fine of Rs. 1,000/ -. Aggrieved by the order of conviction and sentence, the present appeals have been filed by the accused-appellants. ( 12 ) THE learned Counsel Mr. T. Niranjan reddy appearing on behalf of the appellants submitted at the Bar that even the entire evidence reliedby the prosecution accepts as it is, no offence is disclosed. The learned counsel further submitted that in fact the accused is a third person, he had no interest in the property of the deceased. Initially the investigation went on thinking that P. W. 5 had an eye over the estate of the deceased. ( 13 ) WE proceed to scrutinise the evidence of the prosecution witnesses so as to ascertain whether he prosecution was able to establish the link between the offence and the accused. ( 14 ) IN order to prove the fact that the deceased died homicidal death, the prosecution led the evidence of P. W. 43 and also the evidence of P. W. 20. P. W. 43 was the inspector of Police in that area where the deceased was found lying. P. W. 43 visited the scene of offence and conducted inquest over the dead body of the deceased in the presence of P. W. 20. The inquest report is produced on record as Ex. P-2. ( 15 ) AFTER the inquest was over, the dead body was sent to King George Hospital, visakhapatnam. P. W. 21, the Associated professor from Andhra Medical College, visakhapatnam, conducted the autopsy over the dead body of the deceased. P. W. 21 found the following external injuries on the person of the deceased. (1) Bruising of 10 x 6 cm. on left side of the head and face starting from left frontial region of head extending below to the 12 cm. P. W. 21 found the following external injuries on the person of the deceased. (1) Bruising of 10 x 6 cm. on left side of the head and face starting from left frontial region of head extending below to the 12 cm. below to the left eyes. (2) An oblique abrasion of 1 x 0. 25 cm. present on the right side of the root of the nose. (3) An oval abrasion of 0. 5 x 0. 25 cm. below the left lower eye lids. (4) Brusing of whole nose. (5) Semi lunar finger nail marks of 1 x 0. 25 cm. present on right part of upper neek 9 cm. behind the front mid line of the neck. (61 Diffuse bruising whole of the right side of neck at the level of thyroid cartilage just to the front mid line of neck. (7) An oval bruising of 5 x 2 cm. on the right front of the neck at the level of thyroid certilage just to the front line of neck. (8) Brusing 7x2 cm. on left back of the neck starting from back mid-line of neck and passing upwards. ( 16 ) ON internal examination he found the following internal injuries on the person of the deceased. (1) Bruising of tissues underneath the external injuries described above. (2) Bruising of both thyroid glands and over lying mucles. (3) Transverse fracture of right side upper horn of the thyroid certilage with displacement bruising around the site of fracture. (4) Bruising of the tissues on the back surface of thyroid cartilages. ( 17 ) THE Doctor opined that the deceased died due to Asphyxia due to throttling. As per his observation, he issued post-mortem certificate Ex. P-3. ( 18 ) CONSIDERING the evidence relied by the prosecution, we have no hesitation in holding that the prosecution did prove that the deceased died homicidal death. ( 19 ) IN order to prove the guilt to the home of the accused, the prosecution keep reliance on the evidence of P. Ws. 1 to 43. The prosecution produced certain documents and they were marked as Exs. P-1 to P-28. ( 20 ) P. W. I happened to be the grandson of the deceased and the son of P. W. 3. P. W. 2 happened to be the husband of P. W. 3. P. W:3 happened to be the deceased sister s daughter-in-law. 1 to 43. The prosecution produced certain documents and they were marked as Exs. P-1 to P-28. ( 20 ) P. W. I happened to be the grandson of the deceased and the son of P. W. 3. P. W. 2 happened to be the husband of P. W. 3. P. W:3 happened to be the deceased sister s daughter-in-law. P. W. 4 is the cousin of p. W. 1. P. W. 5 is the brother of the husband of the deceased. P. W. 6 is the servant maid of the deceased. P. W. 7 is the Executive engineer working at Simhachalam devasthanam. P. W. 8 is the tenant of the deceased. P. W. 9 is the Police Officer, who registered the Firstlnformationex. P-1 given by P. W. 1 and he was also a person responsible for opening the door of the deceased in the presence of panch witnesses. P. W. 10 is the panch witness when the police people broke open the door of the deceased. P. W. 11 is the previous tenant of the deceased. P. W. 12 is an Artist, who visited the house of the deceased number of times. P. W. 13 is the driver of the deceased. P. W. 14 is the goldsmith. P. W. 15 is the Record assistant in Devupalli High School, who visited the house of the deceased number of times. P. W. 16 is the Medical Officer, who was the friend of the deceased. P. W. 17 is a person, who acquainted with the deceased. P. W. 18 is the maternal aunt of A-1. P. W. 24 is the Mobile Magistrate, who conducted the test identification parade in the presence of p. Ws. 16 and 19. P. Ws. 26 to 36 are the persons with whom the accused-appellants herein alleged to have pledged the gold ornaments. P. Ws. 37 to 39 and P. W. 41 were collegues of A-1 doing business of painting along with A-1. P. W. 40 is the photographer. P. W. 42 is the Inspector of Police. P. W. 43 is the Investigating Officer. This is all the evidence, which the prosecution could bring on record. ( 21 ) OUT of these witnesses only two witnesses speak of the presence of the accused on the date of the incident. P. W. 16 is one of such witnesses. P. W. 42 is the Inspector of Police. P. W. 43 is the Investigating Officer. This is all the evidence, which the prosecution could bring on record. ( 21 ) OUT of these witnesses only two witnesses speak of the presence of the accused on the date of the incident. P. W. 16 is one of such witnesses. P. W. 16 happened to be the lady Doctor and friend of the deceased. On the date of the incident, she received a telephonic call from the deceased between 3-00 and 3-30 p. m. When the telephonic conversation was going on, the deceased told her sister s daughter-in-law to send Biryani for her. Then the deceased was talking with P. W. 16. P. W. 16 wanted to go to the house of the deceased for eating Biryani. Then the deceased told her that she would join her for lunch. While the phone conversation was going on with the third party, she uttered words " Yevadu Lakshmi" and the deceased alleged to have asked the person named as "lakshmi" to open the door. ( 22 ) THE prosecution led the evidence of p. W. 16 to establish the fact that one lady by name Lakshmi was in the house of the deceased at about 3-00 or 3-30 p. m. This is all the evidence as far as P. W. 16 is concerned. ( 23 ) THEN we have the evidence of P. W. 19. who happened to be the daughter of the tenant of the deceased. P. W. 19 was interested in giving Radio Programmes at least once in a year. She went to the house of the deceased at about 3-00 or 3-30 p. m. on 2-8-1992 to inform that her Radio programme will be broadcasted at 8-00 p. m. on 2-8-1992. After ringing the door bell, one person came out and informed P. W. 19 that the deceased was talking on phone and so saying the said person went inside the house even the outer door was not opened and therefore P. W. 19 went back for her own work. This evidence was led by the prosecution inorder to establish the fact that a-l was in the house of the deceased at the relevant time. Thus, we have the evidence of two witnesses, which are contradictory with each other. This evidence was led by the prosecution inorder to establish the fact that a-l was in the house of the deceased at the relevant time. Thus, we have the evidence of two witnesses, which are contradictory with each other. This is all the evidence, which the prosecution has produced on record to prove the fact that the deceased was seen in the company of the accused a little prior to her death. But we hold that this evidence is not at all sufficient. ( 24 ) THERE is no other evidence brought against the accused No. 1 to hold him guilty of an offence punishable under Section 302, ipc. Therefore, we acquit him of the said charge. ( 25 ) A-L and A-2 were also charged for an offence punishable under Section 412, IPC. In our considered view that the charge framed against the accused-appellants herein under Section 412, IPC itself was unnecessary. In order to bring guilt to the home of the accused of the offence punishable under Section 412, IPC, it must be established that the accused-appellants were in possession of gold ornaments immediately after the offence but the said fact is absent in the record but in the evidence from the mouth of the prosecution witnesses that at the instance of A-l and A-2 the gold ornaments were recovered from the possession of P. Ws. 26 to 36 and they were also identified by the witnesses who were acquainted with the deceased. Therefore, we hold that the charge under Section 412, IPC "has to be removed and the accused will be entitled for an acquittal under the same charge. But the accused can be held liable for an offence punishable under Section 411, ipc. If a person immediately after the commission of the theft found to be in possession of articles, the presumption is that he is a receiver of stolen property. In the present case, it is not the prosecution case that the accused-appellants herein had acquired the gold articles belonging to the deceased, which were obtained by some body by committing murder with dacoity. ( 26 ) CONSIDERING the entire evidence on record, we hold that the convictions and sentences recorded by the First Addl. Metropolitan Sessions Judge, visakhapatnam in Sessions Case No. 44 of 1995 against A-1 and A-2 under Section 302 and 412, IPC respectively are hereby set aside. ( 26 ) CONSIDERING the entire evidence on record, we hold that the convictions and sentences recorded by the First Addl. Metropolitan Sessions Judge, visakhapatnam in Sessions Case No. 44 of 1995 against A-1 and A-2 under Section 302 and 412, IPC respectively are hereby set aside. They are acquitted of the said offences. But they are found guilty of an offence punishable under Section 411, IPC and " therefore they are convicted and sentenced to suffer R. I. for three years and to pay a fine of Rs. 1,000/- each in default to suffer S. I. for three months each. ( 27 ) BOTH the appeals are allowed to the extent indicated above. ( 28 ) IT is reported that A-2 is on bail. Therefore, the First Addl. Metropolitan sessions Judge, Visakhapatnam is directed to issue N. B. W. forthwith against A-2 for securing his presence and for undergoing the substantive sentence imposed upon him. ( 29 ) OFFICE is directed to issue a copy of this order to the First Addl. Metropolitan sessions Judge, Visakhapatnam for taking necessary action against A-2.