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2000 DIGILAW 771 (AP)

GUGGILLA SANTHOSH REDDY v. State Of A. P.

2000-10-12

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

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RAMESH MADHAV BAPAT, J. ( 1 ) CRL. A No. 1221 of 2000 is filed by A1. , whereas Crl. A No. 1218 of 2000 is filed by a5 and A6. Originally A1. to A6 were tried by the Sessions Judge, Warrangal in sessions Case No. 739 of 1996 and they were convicted. Since both the appeals arise out of the one and the same judgment, they are being disposed of by this common judgment. ( 2 ) THE accused appellants were facing two charges. The first charge against A1. to A4 was under Section 302 read with section 34 IPC. The learned Sessions Judge found A1. guilty of the said charge and convicted him to suffer imprisonment for life and A1. so directed to pay a fine of rs. 25,000/- and in default to suffer simple imprisonment for one year and A2 to A4 were acquitted of the said charge. The second charge against A5 and A6 was under Section 302 read with Section 109 ipc and the learned Judge found them guilty of the said charges and sentenced them to suffer imprisonment for life and A1. so directed them to pay a fine of Rs. 10,000/- and in default, directed to suffer simple imprisonment for six months. ( 3 ) THE substance of the charge against the accused was that on 7-2-1996 while the deceased was returning from Gunturupalli, A1. to A4 armed with knives, stabbed the deceased indiscriminately and caused his death. ( 4 ) THE case of the prosecution is narrated briefly as follows: the deceased was the son of A5 and A6. PWs. 1 and 2 are the material uncles of the deceased. PW9 is the wife of the deceased. PW8 is the grandmother of the deceased and mother of A6 and mother-in- law of A1 and PW1. PW11 is the daughter of A5 and A6 and sister of the deceased. PW1 is the co-brother of A5. PW8 was having three daughters. A6 is her first daughter. Wife of PW1 is the second daughter. PW8 gave A1. l the property to her three daughters equally. The deceased who is her grandson i. e. , son of A6 used to stay at Jadcherla. After his marriage, the deceased was sent out of his house by his parents a5 and A6. The deceased went to pw8 and reported the matter to her. PW8 gave A1. l the property to her three daughters equally. The deceased who is her grandson i. e. , son of A6 used to stay at Jadcherla. After his marriage, the deceased was sent out of his house by his parents a5 and A6. The deceased went to pw8 and reported the matter to her. PW8 advised A6 to look after the deceased properly and gave him a share in the property. As no property was given, the deceased filed a civil suit, which ended in a compromise. In the compromise, ten acres of land was given to the deceased. Later on, A5 and A6 sold away of the property to A1. for lesser price, which was objected to by PW8 and the deceased. The deceased raised a civil dispute and obtained injunction order and he was in possession of the entire land. When the deceased learnt that a5 and A6 were at the house of A1. , he A1. ong with PW7, PW1 and others went there. There was an A1. tercation between A1. and the deceased and A1. tried to attack the deceased with an axe. The elders intervened and pacified the matter. This incident took place prior to the date of the incident in question. ( 5 ) ON 7-2-1996, the deceased A1. ong with PW14 consumed toddy in the toddy shop of PW15. According to PW16, who is the toddy vendor, the deceased and some others consumed toddy at 2. 15 p. m. and went away. At about 5. 00 p. m. , when PW1 was going to his fields, heard the shouts of pw2 from vagu (Stream ). PW1 rushed there and found the deceased lying dead with injury on his body. PW2 is A1. leged to have told PW1 that A1. and three others attacked the deceased and on seeing the dead body of the deceased, PW1 went to the police station and gave the first information Ex. P1. On the basis of Ex. P1, a case in Crime No. 14 of 1996 was registered under Section 302 read with Section 34 IPC and the copies of the FIR, Ex. P25 were sent to A1. l the concerned. ( 6 ) PW21, the Inspector of Police received the information from S. I. of Police, wardhannapet. P1. On the basis of Ex. P1, a case in Crime No. 14 of 1996 was registered under Section 302 read with Section 34 IPC and the copies of the FIR, Ex. P25 were sent to A1. l the concerned. ( 6 ) PW21, the Inspector of Police received the information from S. I. of Police, wardhannapet. On receipt of information, he proceeded to the scene of offence at 9-30 p. m. On 8-2-1996, he observed the scene of offence and prepared a sketch of the scene of offence and the same is marked as Ex. P19. He then held an inquest over the dead body. Ex. P 15 is the inquest report. Thereafter, the dead body was sent for post-mortem examination. ( 7 ) THE Professor of Forensic Medicine, Kakatiya Medical College conducted autopsy over the dead body and issued Ex. P 14 post-mortem report. As the said Professor retired from service and settled elsewhere, PW17, the Assistant professor, identified the handwriting and the signature of the doctor who conducted the autopsy under Ex. P 14. According to the doctor, the deceased died due to shock and haemorrhage due to multiple stab injuries. ( 8 ) ON 22-2-1991 A1. surrendered before the IV Additional Judicial First Class magistrate, Warrangal. PW21, the investigating Officer, obtained the police remand on A1. . On 6-3-1996, PW21 interrogated A1. in the presence of pw19 and recorded the confession, which is marked as Ex. P16 Pursuant to the confession, PW21 recovered MO1 under ex. P 17. MO1 was sent to Forensic Science laboratory and Ex. P22 is the report of the laboratory. On 18-3-1996, PW21 arrested a2 to A4 and recorded their confessional statements. And thereafter, he seized three knives under Ex. P24. Subsequently a5 and A6 were A1. so arrested. Statements of PWs. 2 to 5 and 8 were recorded under Section 164 Cr. PC and after completing the investigation, PW21 filed the charge-sheet. ( 9 ) THE case of the defence is of total denial. ( 10 ) IN order to establish the guilt of the accused, prosecution examined PWs. 1 to 21 and marked Exs. Pl to P25. Out of 21 witnesses, who were examined, PWs. 2, 3, 4, 5, 6, 15, 16, and 20 turned hostile and they did not support the case of the prosecution. ( 10 ) IN order to establish the guilt of the accused, prosecution examined PWs. 1 to 21 and marked Exs. Pl to P25. Out of 21 witnesses, who were examined, PWs. 2, 3, 4, 5, 6, 15, 16, and 20 turned hostile and they did not support the case of the prosecution. Therefore, we have to see whether the prosecution could bring home the guilt of the accused through the mouth of the other witnesses. ( 11 ) IN order of establish the fact that deceased died homicidal death, prosecution relied upon the evidence of PW21, who was the investigating officer and who conducted the inquest over the dead body of the deceased in the presence of pw18. PW18 had attested the inquest report Ex. P 15. ( 12 ) AFTER the inquest was over, the dead body was sent to Dr. S. S. Hari Prasad, who was the Professor of the Forensic medicine of the Kakatiya Medical College and since he has retired, his signature was proved by PW17 and the autopsy report was marked as Ex. P 14. Considering the evidence lead by the prosecution on the point of homicidal death, we hold that the prosecution was able to prove that the deceased died homicidal death. ( 13 ) IN order to establish the guilt of A1. for the offence punishable under section 302 IPC, the learned Sessions judge has assigned some reasons, which are totally illegal. The learned Judge has formulated certain points in order to hold A1. guilty. As far as motive is concerned, the learned Judge held that there is clinching evidence inasmuch as there is a dispute between the deceased and A1. regarding some landed property. The learned judge further held that prior to the main incident, A1. attempted to attack the deceased, but they were separated by the intervention of the elders and A1. had proclaimed that he would kill the deceased and that he was waiting for an opportunity to commit the crime. As far as the evidence part which was lead by the prosecution in the present case is concerned, the learned Judge had relied on the statement of PW2, (who is A1. leged to have been an eye-witness to the incident), recorded under Section 164 Cr. PC by the magistrate and marked as Ex. P2, as gospel truth for convicting the accused, even though he turned hostile. leged to have been an eye-witness to the incident), recorded under Section 164 Cr. PC by the magistrate and marked as Ex. P2, as gospel truth for convicting the accused, even though he turned hostile. ( 14 ) THE learned Judge should note that statement recorded under Section 164 of cr. PC by the Magistrate cannot be taken as substantive evidence and as it is only a previous statement, it can be used by the defence for the purpose of contradiction under Section 145 of the Indian Evidence act. The learned Judge had thus committed a gross mistake by relying on Ex,p2 statement recorded under Section 164 Cr. PC and such practice should be stopped forthwith. The learned Judge referred to column Nos. 3 and 4 of the inquest report ex. P15, in which PW2 was shown as direct eye-witness to the incident, and had taken that into consideration for convicting the accused. This is A1. so totally a wrong approach to the problem. Inquest report by itself is not a substantive piece of evidence and it can be used only for corroboration to the evidence of panch witnesses when examined in the Court. Therefore, that part of the observation of the learned Judge is totally erroneous. ( 15 ) AS stated earlier the eye-witnesses are only PWs. 2 to 6, but they did support the case of the prosecution in any manner. If their evidence is excluded, then nothing remains to involve A1. in the crime. Therefore, we hold that the conviction and sentence recorded by the learned Sessions judge on erroneous supposition of law is liable to be set aside and it is accordingly set aside. ( 16 ) AS far as the case of A5 and A6 are concerned, the learned Judge had adopted very strange reasons for convicting them. The learned Judge attributed some motive to A5 and A6, as there was a civil dispute between the deceased on one hand the a5 and A6 on the other. As a matter of fact the deceased is the son of A5 and A6. It is true that there was some litigation between them for the reason that A5 and a6 did not want to give any share in the property to their son i. e. , the deceased. As a matter of fact the deceased is the son of A5 and A6. It is true that there was some litigation between them for the reason that A5 and a6 did not want to give any share in the property to their son i. e. , the deceased. Here it has to be seen that the property in question was given to A6 by her parents, still she did not want to give any share to her son. Under these circumstances it cannot be said that they were interested in killing their own son by abetting A1. to kill him. ( 17 ) THE learned Sessions Judge while commenting on the conduct of A5 and A6 observed that much prior to the incident in question when A1. tried to attack the deceased, A5 and A6 who were present there, maintained silence. Maintaining silence was taken as the basis by the learned Judge for convicting A5 and A6, that too in an incident which had occurred much prior to the incident in question. Such reasoning of the learned judge is totally erroneous and, therefore we hold that there is absolutely no evidence against A5 and A6 to connect them with the crime. ( 18 ) CONSIDERING the entire evidence on record, we hold that the order of conviction recorded against A1. in Crl. A No. 1221 of 2000 is totally erroneous and similarly the order of the conviction recorded against a5 and A6 in Crl. A No. 1218 of 2000 is A1. so erroneous. Therefore, both the appeals are A1. lowed and the order of conviction and sentence recorded against the accused appellants in both the appeals is hereby set aside and they are directed to be set at liberty forthwith if not required in any other case. Fine if any paid, shall be refunded.