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2004 DIGILAW 1282 (AP)

Varrikuppala Srisailam v. State Of A. P.

2004-11-02

G.BIKSHAPATHY, S.R.K.PRASAD

body2004
G. BIKSHAPATHY, J. ( 1 ) THE appeal is directed against the judgment of the learned VI Additional metropolitan Sessions Judge, Secunderabad in S. C. No. 67 of 2002, by which all the three accused viz. , Varrikuppala Srisailam, varikuppala Yadagiri and Ponnam Sudhakar were tried for the offence punishable under section 302 read with Section 34 of the indian Penal Code (for brevity I. P. C.) and they were convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/-, in default, to suffer simple imprisonment for one month each. ( 2 ) THE sub stance of the charge against the accused is that on the night of 05-07-2001, with an object of doing away with the life of the deceased, they took him in a tractor and killed him near the dairy farm. Thus, they committed the offence punishable under Section 302 read with Section 34 of i. P. C. ( 3 ) THE case of the prosecution as unfolded during the trial is as follows: the deceased one P. Narsing Rao, belongs to Hakimpet village. Accused also hail from Hakimpet village. P. W. 4 P. Vinod and P. W. 5 P. Vijay Kumar are the sons of deceased Narsing Rao. P. W. 5 was working as a cleaner of the bus. On 04-07-2001, at about 9-00 p. m. , when P. W. 5 was cleaning the bus, he is alleged to have passed urine by the aside of the tractor of A-1, which was objected by A-1, and there was altercation between A-1 and P. W. 5. It is the case of the prosecution that A-1 abused P. W. 5 in filthy language. The said incident was informed by p. W. 5 to his father namely the deceased. On the next day evening, the deceased and his sons went to the accused and questioned as to why P. W. 5 was insulted and abused. On that, there were some heat exchange of words, but however, the villagers intervened and settled the matter. Thereupon, P,ws. 4 and 5 went to their house and informed to their mother-P. W. 3 about the compromise. After some time, the deceased returned to his house in a drunken condition and left the house thereafter wearing the uniform. However, he did not return back. P. Ws. 3 to 5 made searches and on 07-07-2001 one mr. Thereupon, P,ws. 4 and 5 went to their house and informed to their mother-P. W. 3 about the compromise. After some time, the deceased returned to his house in a drunken condition and left the house thereafter wearing the uniform. However, he did not return back. P. Ws. 3 to 5 made searches and on 07-07-2001 one mr. Agamayya-P. W. 17 informed then that the dead body of the deceased was found in gandhi Hospital mortuary. Thereupon, P. W. 6, who is running STD Booth, also informed that after compromise, the accused and deceased Narsing Rao took drinks, and he asked them not to drink at booth. At that time, it was raining and there was power cut. Thereafter, the accused and deceased left in a tractor. P. W. 7 is the resident of Devarymjal, shamirpet Mandal. He was also one of the persons to speak to the compromise. After compromise, he came to know on 07-07-2001 the deceased has been died. P. W. 9 is also one of the persons to compromise the matter on 05-07-2001 at hotel Sai Bhavan. P. W. 11 is also the resident of Hakimpet, who stated that after effecting the compromise at STD Booth, the deceased and accused had drink and left the place on a tractor. On 07-07-2001, at about 3. 00 p. m. , p. W. 1 informed to the police to the effect that the dead body of a male was lying inside the dairy farm. Ex. P-1 is the report signed by p. W. 1. On the basis of the said report, a crime was registered in Cr. No. 157 of 2001 for the offence punishable under Section 302 ipc and investigation was taken up by p. W. 15 the Sub-Inspector of Police, bowenapalli. He visited the scene of offence and took the photographs vide Exs. P-2 to p-9. Thereafter, he shifted the body to Gandhi hospital Mortuary for safe custody. He summoned panchayatdar-P. W. 4 and others and seized one Allwyn watch M. O-1, one pair of chappals M. O-2 and M. 0. 3 bloodstains earth and controlled earth under the panchanama of Ex. P-10. He prepared rough sketch of the place of offence Ex. P-16. One mr. Agamaiah-P. W. 17, came during the enquiry process and he identified the dead body of Narsing Rao and he contacted the family members of the deceased. After some time, P. Ws. 3 bloodstains earth and controlled earth under the panchanama of Ex. P-10. He prepared rough sketch of the place of offence Ex. P-16. One mr. Agamaiah-P. W. 17, came during the enquiry process and he identified the dead body of Narsing Rao and he contacted the family members of the deceased. After some time, P. Ws. 3 and 4 came to the mortuary and confirmed the identity to the deceased and their statements were recorded by P. W. 16. On the next day P. W. 16 conducted inquest over the dead body. During the inquest, he examined P. Ws. 5, 6 and others. Thereafter, the post-mortem was conducted and Ex. P-27 is the postmortem report. On 14-7-2001, he received information and arrested A-1 and A-2, who were coming in a tractor and seized the said tractor. P. W. 14 and one Kumar were summoned and in their presence, confessional statements of A-1 and A-2 were recorded, which led to the recovery of M. Os. 6 to 8 and also at the residence of the accused M. Os 10 to 13 were seized under Exs. P-12 and P-13 panchanamas. On 2-8-2001, A-3 was remanded to judicial custody. ( 4 ) AFTER completion of the investigation, he filed charge-sheet in the Court of XI metropolitan Magistrate, Secunderabad, who registered the same as P. R. C. No. 55 of 2001. As the offence under Section 302 is exclusively triable by the Court of Session, the case was committed to the Court of session, who registered the same as S. C. No. 67 of 2002 and thereafter it was made over to VI Additional Metropolitan Sessions judge, Secunderabad, for trial and disposal according to law. ( 5 ) AFTER hearing the prosecution and the accused, the learned trial Judge framed the charge against the accused for the offence punishable under Section 302 read with section 34 of IPC. The accused pleaded not guilty and claimed to be tried. ( 6 ) IN support of the case of the prosecution, 19 witnesses were examined and Exs. P-1 to p-27 were marked and M. Os. 1 to 13 are the material objects marked for prosecution. The accused pleaded not guilty and claimed to be tried. ( 6 ) IN support of the case of the prosecution, 19 witnesses were examined and Exs. P-1 to p-27 were marked and M. Os. 1 to 13 are the material objects marked for prosecution. The learned trial Judge, after considering the evidence available on record, recorded a finding that the prosecution has been able to establish the guilt of the accused for the offence punishable under Section 302 read with Section 34 of IPC and accordingly convicted and sentenced them as detailed above by a judgment dated 19-12-2002. The said judgment is assailed in this appeal by the accused-appellants. ( 7 ) THE learned Senior Counsel appearing for the appellants-accused (A-1 to A-3) submits that the finding recorded by the trial court basing on the circumstantial evidence is wholly unsustainable in law and inasmuch as, there are any amount of inconsistencies in the evidence of prosecution witnesses and there was no link of chain of evidence and that the evidence adduced by the prosecution witnesses is self-contradictory. Under those circumstances, the learned counsel would submit that the judgment of the trial Court is wholly unsustainable and the same is liable to be set aside, and he also referred to certain decisions, which will be considered during the course of discussion. ( 8 ) ON the other hand, the learned Public prosecutor submits that the evidence as adduced by the prosecution witnesses, even though it is circumstantial evidence, it is quite clinching and convincing. The guilt of the accused is sufficiently established beyond reasonable doubt. The presence of the deceased and accused was established in the compromise and thereafter they had a drink and afterwards, the deceased went to his house, changed his dress and the deceased again joined the accused and they went in the tractor of A-1 on 5-7-2001 at about 10. 30 p. m. and the dead body was found only on 7-7-2001 at about 5. 00 p. m near the grape garden of P. W. 1. Therefore, the deceased was seen last in the company of the accused on 5-7-2001 and thereafter only his dead body was found and therefore, the accused is under obligation to explain the cause of the death. 00 p. m near the grape garden of P. W. 1. Therefore, the deceased was seen last in the company of the accused on 5-7-2001 and thereafter only his dead body was found and therefore, the accused is under obligation to explain the cause of the death. Since the accused did not place any material to satisfactory explain the death of the deceased, the trial Court has correctly found them guilt of the charges and hence, the judgment of the trial Court is quite convincing and sustainable in law. Therefore, he prays to dismiss the present criminal appeal. ( 9 ) HEARD both the learned counsel on record and their arguments at length. ( 10 ) THE learned trial Judge convicted the accused on the basis of circumstantial evidence. It is now well settled by the Supreme court in a catena of decisions that:"where a case rests squarely on circumstantiai evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstance from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstance. " [see Was pandurang Patil v. State of maharashtra]. In the said decision, the Supreme Court referred to various other decisions touching the point right from 1952, wherein, in Bhagat Ram v. State of punjab, it was held that:"where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. "in Bodh Raj v. State of Jandk, the Supreme court observed that:"the last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of a guilt in those cases. " ( 11 ) IN the light of the principle settled by the Supreme Court, it has to be considered whether the prosecution has been able to establish the guilt of the accused on the basis of the circumstantial evidence. It is on record that on 4-7-2001, there was some altercation between P. W. 5 and A-1, wherein P. W. 5 alleged to have urinated near the bus, which was objected by A-1 and that a scuffle was referred by P. W. 5 to his father-the deceased. On that basis, the next day i. e. , on 5-7-2001, when P. Ws. 4, 5 and the deceased went to the house of A-1 and asked him as to why he abused P. W. 5, there was some altercation between the parties. At that point of time, other persons including P. W. 6, P. W. 7, p. Ws. 10 and 11 intervened and it is also on record that afterthe matter was compromised between the parties, P. Ws. 4 and 5 went to their house and thereafter deceased went to the house and after changing his dress by wearing the uniform, he again left at 10. 30 p. m. on the same day and he was not seen thereafter and he did not return home. P. W. 17 gave information to the family members of the deceased that the dead body of the deceased was found in the Gandhi hospital Mortuary. Then only they identified the dead body. ( 12 ) THE question that falls for consideration is whether the incriminating material as put forth by the prosecution will be able to link the accused with the deceased and whether there is any break of chain in the evidence as adduced by the prosecution? ( 13 ) P. W. 3, the wife of the deceased, had categorically narrated the incident, which took place on 4-7-2001 and 5-7-2001. ( 13 ) P. W. 3, the wife of the deceased, had categorically narrated the incident, which took place on 4-7-2001 and 5-7-2001. It is also her case that her husband (deceased) came in a heavily drunken condition to the house at 10. 30 p. m. and thereafter he changed the dress and left, but he did not inform where he was going. P. Ws. 4 and 5 also deposed to the same effect. ( 14 ) IT is sought to be projected by the prosecution that the accused and the deceased went in a tractor after the compromise had taken place and he was killed by the accused near the dairy farm. To establish this, the evidence of P. W. 6 was sought to be pressed into service. P. W. 6 only stated that after compromising the matter, the accused and Narsing Rao took drinks and they went to the STD booth. At that point of time, he asked them not to consume the drink. Later, all of them went away and he came to know on 8-7-2001 that the deceased was killed. There is no evidence to the effect that after the compromise, the deceased went to his house, changed the dress and again came back and joined the company of the accused. But however, P. W. 9 in the examination in chief stated that he was also a party to the compromise and after the compromise, which took place near the STD booth, when he went again to the hotel to collect the sale proceeds, he found that the deceased Narsing Rao and accused were consuming drink at STD booth of one Jagan p. W. 6. Thereafter, all of them including deceased left on the tractor of A-1 towards secunderabad. But in the cross-examination, he however, stated that he found that the deceased at 10. 00 p. m. and he denied the suggestion that the deceased went to the house at 10. 30 p. m. and left the house without informing his wife. He did not know whether the deceased went to the house or not. P. W. 10 also in the same words affirms the compromise, which took place between the parties. He was a Plumber in the Gram panchayat, Hakimpet. At the time of compromise, P. Ws. 10, 9, Mr. Masood, ramakrishna and others were present. He did not know whether the deceased went to the house or not. P. W. 10 also in the same words affirms the compromise, which took place between the parties. He was a Plumber in the Gram panchayat, Hakimpet. At the time of compromise, P. Ws. 10, 9, Mr. Masood, ramakrishna and others were present. The deceased had drinks with the accused beside the STD booth of P. W, 6. After that, the accused persons and the deceased left in the tractor of A. 1 towards Secunderabad. Thereafter, they did not find the deceased and the tractor of the accused. In the cross- examination he denied a suggestion that at 10. 30 PM the deceased went to the house and left the house without informing his wife. The deceased after changing his dress again came to the accused. He further stated that the deceased went to his house and came back and joined the company of the accused, but the solitary evidence of P. W. 10 uncorroborated by the evidence of other witnesses, who are present at the STD booth including P. W. 6, did not say that the deceased went to his house, changed the dress and again joined the company of the accused. Therefore, it is highly doubtful that the deceased after going to the house and after changing the dress, whether he joined the company of the accused or whether he went any other place and the same is not borne out by the evidence available on record. Added to this, the medical evidence is also not supporting the case of the prosecution. Autopsy was conducted by P. W. 19 and he found the following injuries on the dead body:-" (1) Cut laceration 3 x 0. 5 cms. x bone deep over left parietal region scalp 8 cms above left ear in coronal plane. (2) Triangular cut laceration 6 cms x 1 cms x cranial cavity over left side of occiptal region of scalp4cms. behind left ear base directed posteriorly. (3) Cut laceration 2. 5 cms x 0. 5 cms x cranial cavity over left side of occiptal region of scalp 3 cms. below the injury No. 2 and parallel to it. (4) Cut laceration 7 cms. x 0. 5 cms. x bone deep over left temporo occiptal region 2 cms. behind left ear and 1. 5 cms. below the injury No. 3. (5) Cut laceration 1. 5 cms x cranial cavity over left side of occiptal region of scalp 3 cms. below the injury No. 2 and parallel to it. (4) Cut laceration 7 cms. x 0. 5 cms. x bone deep over left temporo occiptal region 2 cms. behind left ear and 1. 5 cms. below the injury No. 3. (5) Cut laceration 1. 5 cms. x 0. 5. cms. x bone deep left side of occiptal region of scalp 1. 5 cms. behind injury No. 3. (6) Cut laceration of 2. 5 cms x 0. 5 cms. x cranial cavity over occipital region of scaip below occipital protuberance oblique. (7) Contusion of 2. 5 cms. x 1. 5 cms. over left Zygoma. (8) Cut laceration 1. 5 cms. x 0. 5 cmsxx bone deep over right mastoid 2 cms. behind right ear transverse. (9) Contusion of scalp 16x10 cms. over left pareito-temporo occipital region. (10) Contusion of left temporalis muscle. (11) Communated fracture 12 x 7 cms. over left pareito-tempero-occipital region underlying dura born liquefied brain matter coming out. Fissure fracture extended along occipital crest on to right temporal bone. Fracture middle cranal fossa from meatus to meatus. (12) Contusion of scalp 3 x 2 cms. over middles of occipital region. (13) Contusion of 4 x 2 cms. over left side of chest between 5th and 6th ribs in mid clavicular line. Note: (1) Margins of cut laceration, slightly irregular contused. (2) Contusion red in colour. (3) All the above injuries ante mortem in nature. P. W. 19 opined that the cause of death was homicidal head injury and the appropriate time of death was about 2 to 3 days prior to the autopsy. He furthe agreed that none of the injuries were possible with the sharp edged weapon, and M. O. 7 was tried to be projected to establish the injuries appearing on the body of the deceased. ( 15 ) FURTHER, we find that the entire confession of the accused was marked in ex. P-12, which is contrary to Section 27 of the EVIDENCE ACT, 1872. Be that as it may, even the knife and the iron rod were found to be not having human blood, except the granite stone and the earth, which was seized from the scene of the offence was only identified as having human blood. P-12, which is contrary to Section 27 of the EVIDENCE ACT, 1872. Be that as it may, even the knife and the iron rod were found to be not having human blood, except the granite stone and the earth, which was seized from the scene of the offence was only identified as having human blood. Thus, we find that there is any amount of missing links in the chain of evidence. As rightly contended by the learned senior Counsel for the appellants that the last seen theory is wholly inapplicable to the facts of the present case. Admittedly, the deceased was last seen in his house on 5-7-2001 at 10. 30 p. m. and there after the dead body was found on 7-7-2001 at 3 p. m. , there is any amount of time lag and delay and it cannot be said that he was in the company of the accused. Even there is no evidence to establish that he was last been in the company of the accused, much less at the place of occurrence, except the solitary evidence of. W. 10, whose evidence without there being any corroboration, cannot be relied on and most important witness connected the circumstances to rely on the circumstantial evidence is P. W. 6 and P. W. 6 is very much silent as to the deceased going to his house, hereafter changing the dress and again oining the accused. When the entire incidence of compromise and taking drinks took place at the STD booth, it is for P. W. 10 to explain as to how the incident had taken place, but he did not state anything about the accused returning back from the house and going in the tractor of A-1 along with the accused. When the circumstantial evidence is being relied on, the test as propounded by the Supreme Court has to be strictly construed and any lacuna in the link of evidence should go to the advantage of the accused. ( 16 ) IN the case on hand, we find that the presence of the deceased after the compromise was only seen in the house itself and thereafter his presence was not seen either at the scene of offence or at the scene of compromise or in the company of the accused. Under those circumstances, it will be most unsafe to rely on the evidence of the prosecution witnesses. Under those circumstances, it will be most unsafe to rely on the evidence of the prosecution witnesses. Thus, we find the case of the prosecution suffers from inherent improbabilities and incredible evidence. Under those circumstances, we find that the prosecution is not able to establish the guilt of the accused beyond reasonable doubt. ( 17 ) ACCORDINGLY, we set aside the judgment of the learned Judge and acquit the accused of the charges framed against them. The accused shall be set aside at liberty forthwith, if they are not required in any other case. ( 18 ) THE Criminal Appeal is accordingly allowed.