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2004 DIGILAW 1250 (AP)

Sheelam Prabhaker v. State Of A. P.

2004-10-27

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) HEARD Mr. P. Prasad, learned counsel representing the appellant and the learned additional Public Prosecutor. ( 2 ) THE case of the prosecution is that the accused (A-2) in S. C. No. 380 of 1996 on the file of the District and Sessions Judge, warangal is a close associate of one kesavulu, who was the 1st accused (A-1) in the case. The said Kesavulu was murdered and hence the matter stood abated as against the said Kesavulu-A-1. The deceased- sheelam Eswaramma is house wife and she is the sister-in-law of Kesavulu-A-1, who was murdered. The version of prosecution is that on 20-08-1995 at about 9. 30 a. m. in the house of P. W. 2 the said occurrence had taken place. There were ill feelings between the families of the decease and A-1. It is stated that Kesavulu-A-1 and his family members were indulging in illicit arrack business, for which the deceased and her husband objected and thereby Kesavulu- a-1 and his family members had a grudge against the deceased. While so, one day prior to the incident i. e. on 19-08-1995 the excise officials raided the house of Kesavulu- a-1 and found liquor of five liters. In that connection, the wife of Kesavulu-A-1 was arrested and a criminal case in crime No. 383 of 1994-95 under Section 34 of A. P. Excise act had been registered. Kesavulu-A-1 and his family members suspected that the deceased and her husband are responsible for the report and arrest of wife of Kesavulu- a-1. On the next day morning i. e. on the date of incident, Kesavulu-A-1 and the appellant- a-2 trespassed into the house of P. W. 2, when the deceased went there in order to use the telephone of P. W. 2, took up quarrel with her. In spite of intervention of P. W. 2, kesavulu-A-1 took up an iron dumble available in the house of P. W. 2 and beat the deceased on her head. Due to head injuries, she died instantaneously. The same was witnessed by P. Ws. 3 to 5. After the death of the deceased both the accused went away. ( 3 ) PROSECUTION had examined P. Ws. 1 to 8 and documents Exs. P-1 to P-8 were marked. On behalf of defence, neither witnesses examined nordocuments marked. Due to head injuries, she died instantaneously. The same was witnessed by P. Ws. 3 to 5. After the death of the deceased both the accused went away. ( 3 ) PROSECUTION had examined P. Ws. 1 to 8 and documents Exs. P-1 to P-8 were marked. On behalf of defence, neither witnesses examined nordocuments marked. On appreciation of evidence, the learned judge had arrived at a conclusion that the accused guilty of the offence punishable under Sections 450, 326 read with 34 IPC and accordingly sentenced him to undergo r. I. for a period of five years for the offence under Section 450 IPC and also sentenced him to undergo R. I. for a period of five years for the offence punishable under Section 326 read with 34 IPC and ordered both the sentences shall run concurrently. Hence the criminal Appeal. ( 4 ) SRI P. Prasad, learned Counsel appearing for the appellant-A-2 would contend that P. W. 1 is the informant. P. Ws. 2 and 5 are said to be the eye-witnesses. Since p. W. 5 did not support the version of the prosecution he was declared hostile witness. P. W. 2 deposed about the overacts of kesavulu-A-1, but nothing had been deposed against the appellant-A-2. Learned counsel also would submit that the only sentence deposed by P. W. 2 as against the present appellant-A-2 is that "at the time the accused caught hold of the deceased facilitating kesavulu to beat on her head. " Learned counsel also would point out that it is a material omission since the Investigating officer, who was examined as P. W. 8 specifically deposed that P. W. 2 did not state before him that the accused caught hold of the deceased facilitating Kesavulu to beat the deceased. Hence this is an improvement. Except this evidence there is no acceptable evidence available on record. The counsel also would further contend that to fasten liability under Section 34 IPC at least some evidence should be there and merely because the accused was also present on the fateful day at the house of P. W. 2, he cannot be convicted. The counsel also would submit that at any rate, the ingredients of the offences with which the accused was found guilty had not been satisfied by the prosecution and hence benefit of doubt to be given to the appellant-A-2. The counsel also would submit that at any rate, the ingredients of the offences with which the accused was found guilty had not been satisfied by the prosecution and hence benefit of doubt to be given to the appellant-A-2. ( 5 ) PER contra, the learned Additional Public prosecutor would submit thatthe very conduct of the appellant-A-2 is clear and categorical and hence for the overtacts attributed to the said Kesavulua-1, automatically the appellant-A-2 also would be liable to be convicted, in view of Section 34 of IPC. In this case, the evidence of P. W. 2 is clear and categorical. Learned Addl. Public Prosecutor also would point out that P. W. 2 specifically deposed that on the date of incident when several local people gathered, the accused uttered that the deceased died therefore, they can go - so saying they left the place this would reveal the intention on the part of the appellant-A-2 also. Learned APP also had pointed out the other evidence available on record and would submit thatthe conviction and sentence imposed against appellant- a-2 are to be confirmed. ( 6 ) HEARD both the counsel. ( 7 ) P. W. 1-the brother of the deceased simply deposed about the disputes between the families. He deposed that he came to know that A-1 and A-2 killed his elder sister- deceased and that he went there and found the dead body of the deceased. Thereafter, he gave a report to the police. Ex. P-1 is the report. ( 8 ) P. W. 2 is the witness, on which strong reliance had been placed by the prosecution. P. W. 2 deposed that on 20-8-1995 at about 9. 00 a. m. the deceased came to her house forthe purpose of using telephone. When the deceased was in her house, A-1 and A-2 rushed to her house and A-1 -Kesavulu caught hold of her hair and started beating her saying that she was responsible for the arrest of his wife by police in illicit arrack business case. The deceased also started abusing them. P. W. 2 also deposed that she resisted both of them and again asked them to go away from her house. In the meanwhile, kesavulu became furious and picked up the iron dumble lying in her house and beat the deceased on her head. The deceased also started abusing them. P. W. 2 also deposed that she resisted both of them and again asked them to go away from her house. In the meanwhile, kesavulu became furious and picked up the iron dumble lying in her house and beat the deceased on her head. On sustaining injuries, the deceased fell on the ground and blood oozed out from her head. P. W. 2 also deposed that she raised cries and number of local people gathered there but the accused fled away on seeing them. Dasarisreenu, Shaker, pani, Saraiah and many others gathered in her house at the time of incident. When all of them gathered, the accused uttered that the deceased died therefore, they can go - so saying they left the place. M. O. 1 is the dumble. This witness was cross-examined. ( 9 ) P. WS. 3 and 4 simply deposed about the incident. P. W. 5 was declared hostile. P. W. 6 deposed about the inquest held over the dead body of the deceased and the seizure of M. O. 1. Ex. P-3 is the inquest report. P. W. 7 conducted Postmortem examination over the dead body of the deceased. ( 10 ) P. W. 8, Investigating Officer deposed about the details of investigation. During the course of cross-examination P. W. 8 specifically stated that in Ex. P-1 it is not mentioned that the accused caught hold of the deceased when Kesavulu beat her. He also stated that P. W. 2 did not state before him that the accused caught hold of the deceased facilitating Kesavulu to beat the deceased. He further stated that his investigation discloses that the accused was present with Kesavulu when he beat the deceased with M. O. 1 but did not disclose that the accused caught hold of the deceased facilitating Kesavulu to beat the deceased. This is what had been deposed by the investigating Officer-P. W. 8. ( 11 ) IT is pertinent to note that at the earliest point of time, no doubt the same was not mentioned since P. W. 1 was not an eye-witness. But however, when the statements were recorded by the Investigating Officer-P. W. 8, this crucial aspect had not been stated to the police and it is a material omission which had been proved through the investigating Officer-P. W. 8. But however, when the statements were recorded by the Investigating Officer-P. W. 8, this crucial aspect had not been stated to the police and it is a material omission which had been proved through the investigating Officer-P. W. 8. Except the said sentence in the deposition of P. W. 2, there is no other acceptable evidence. Apart from this aspect of the matter, the Criminal liability under Section 34 IPC also cannot be fastened in the matter for the reason that the evidence of P. W. 2 is that number of local people gathered there but the accused fled away on seeing them. He further deposed that Dasari srinu, Shekar, Pant, Saraiah and many others gathered in her house at the time of incident. When all of them gathered, the accused uttered that the deceased died therefore, they can go-so saying they left the place. A careful scrutiny of the evidence of P. W. 2, would throw a doubt whether on seeing the gathering the accused simply fled away or subsequent to the gathering also the accused waited there and being satisfied that the deceased was no more left the place. In view of this doubtful version of P. W. 2 and especially in the light of the material omission, i am of the opinion that the appellant-A-2 is entitled to the benefit of doubt. Accordingly, none of the ingredients of the offences with which the appellant-A-2 had been charged had been satisfied. Therefore, the appellant- a-2 is entitled to the benefit of doubt. ( 12 ) IN the result the Criminal Appeal is allowed by setting aside the Judgment in s. C. No. 380 of 1996 passed by the District and Sessions Judge, Warangal. Acquittal is hereby recorded. The bail bonds shall stand cancelled.