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2004 DIGILAW 761 (AP)

Public Prosecutor v. Uddala Rathaiah

2004-07-30

BIKSHAPATHY, S.R.K.PRASAD

body2004
( 1 ) THE State preferred the appeal assailing the judgment of the learned II Addl. District Judge, Nellore in S. C. No. 90 of 1995, dated:6. 7. 2001. ( 2 ) THE accused was tried by the learned Sessions Judge for the offences punishable under Sections 376, 302 and 201 IPC. However, he was not found guilty of the offence and accordingly he was acquitted by the judgment referred to above. The said judgment is called in question by the State in the present appeal. ( 3 ) THE case of the prosecution was that accused had discarded his wife about 6 months prior to the date of the incident. The deceased was about 16 Years of age and the accused was moving and following the deceased with an intention to satisfy his lust. Both the accused and deceased were the residents of Chavata Bheemavaram Village. On 5. 5. 1994 about 3. 30 p. m. the deceased went to fetch grass in the land situated on the western side of the village. The accused who was watching the movements alleged to have stopped the deceased at Donkadari at the well of Gollapalli Nagesh and after committing rape and thereafter pushed her into the well. Consequently the deceased died due to drowning and consequent Asphexia, P. W. 3 and P. W. 4 alleged to have seen the accused pushing the deceased in the well. P. W. 4 when confronted the accused, he gave evasive reply. When he went near the well he saw the dated body of the deceased and thereafter he went to the village and informed his relations. He also informed the Village Administrative Officer (P. W. 6) who along with others visited the scene of offence along with others. Next day he reported the matter to the police. Investigation was undertaken by the police and finally charge sheet was filed against the accused. ( 4 ) THE prosecution examined 13 witnesses and got marked Ex. P. 1 to P-18, Ex. D-1 to D-5 are the portions of 161 statement of P. W. 1, P. W. 3, P. W. 4 and P. W. 5, M. Os. 1 and 2 are material objects namely Langa, red colour jacket, white colour braw of the deceased. ( 4 ) THE prosecution examined 13 witnesses and got marked Ex. P. 1 to P-18, Ex. D-1 to D-5 are the portions of 161 statement of P. W. 1, P. W. 3, P. W. 4 and P. W. 5, M. Os. 1 and 2 are material objects namely Langa, red colour jacket, white colour braw of the deceased. The learned Sessions Judge after considering the evidence available both oral and documentary came to the conclusion that the prosecution failed to establish the offences alleged against the accused and accordingly acquitted the accused. As against this judgment, the present appeal has been preferred by the State. ( 5 ) THE learned Public Prosecutor submits that the judgment of the Court below is wholly illegal, contrary to the evidence on record and he submits that the findings recorded by the trial Court that there was no evidence to connect the guilt of the accused is absolutely misconceived. He submits that there is any amount of circumstantial evidence linking the accused in all material particulars. He further submits that the evidence of rape is amply available on record and thus he submits that the judgment of the trial Court is liable to be set aside and the accused is liable to be convicted for the offence under Section 302 and 376 IPC. ( 6 ) ON the other hand, the learned Senior Counsel appearing for the accused/respondent submits that the entire case rested on the circumstantial evidence and the link is totally missing in the case and the accused was sought to be implicated in the case and that the trial Court has correctly found that the offence has not been made out against the accused. Therefore, the judgment is quite legal and valid and the same is not liable to be interfered with. ( 7 ) THE point that arises for consideration is whether the judgment of the trial Court is sustainable both on facts and law? ( 8 ) THE evidence of P. Ws. 3 and 4, who are alleged to have been seen the incident is relevant in this regard. P. W. 3 is the brother of the deceased. According to him, on the date of the incident in the afternoon about 3-30 p. m. the deceased (sister) went to the fields of his uncle for fetching the grass. 3 and 4, who are alleged to have been seen the incident is relevant in this regard. P. W. 3 is the brother of the deceased. According to him, on the date of the incident in the afternoon about 3-30 p. m. the deceased (sister) went to the fields of his uncle for fetching the grass. After half an hour, he also went to his field to attend the agricultural work while he was passing through the Donka dari, he heard the cries Amma from the southern side. Therefore, he went towards that direction and saw the accused pushing the deceased into the well. After crossing Donka, he stopped the accused, who was going on bicycle asking him why he has pushed his sister and the accused replied recklessly go and see in the well. Thereupon, he went to the well, the deceased was lying dead in the well and immediately he went to the house and informed his father. Even prior to that, P. W. 4 also informed father of P. W. 3. Thereafter he informed about the incident to Village Administrative Officer (P. W. 6 ). He went to the spot and informed the village servant to guard the scene. He also gave a statement to the police and the statement was recorded by the police on the next day. His statement was also recorded by the Magistrate under Ex. P-1. P. W. 4 is related to P. W. 3 being cousin. According to him, he was watching the crop at the well belonging to Nagesh. When he heard crying Amma and saw the accused pushing the deceased into the well. After witnessing the incident rushed back to the house and informed the grand father P. W. 2, P. W. 1 and others. Thereafter, P. W. 3 also came and informed about the incident. Police also recorded his statement on the next day. His statement was also recorded by the Magistrate under Ex. P-2. Village Administrative Officer was examined as P. W. 6, to whom on 5. 5. 1994 at about 6. 30 p. m. P. W. 3 and some others came to his house and informed that the dead body of the deceased was in the well of Nagesh. He went there and saw the dead body. Since it became night, next day he went to police station and gave a complaint Ex. P-2 report. 5. 1994 at about 6. 30 p. m. P. W. 3 and some others came to his house and informed that the dead body of the deceased was in the well of Nagesh. He went there and saw the dead body. Since it became night, next day he went to police station and gave a complaint Ex. P-2 report. He also posted Village Servants at the well on the night of 5. 5. 1994. Next day police have conducted inquest on the dead body of the deceased and also made observations on the scene of offence. He is one of the panchayatdars among others. The Doctor, who conducted post mortem examination on 7. 5. 1994 at about 10-30 a. m. and found the following injuries on the body of the deceased. External Injuries:1. An abrasion below left ear of size 3cm x 1cm 2. An abrasion on left cheek size 2 cm x 1cm 3. Swelling of the right eye present, pupil normal. 4. An abrasion on lateral aspect of left thigh 3 cm x 2 cm 5. An abrasion 1 below right knee joint size 2 cm x 1 cm all the injuries were anti-moritam in nature. 1. Public area: No injuries. 2. Vaginal tare in posterior fornix of size 1 cm x 05 cm x 0. 5 cm 3. Congestion of inner aspect of vaginal wall. 4. An abrasion of outer aspect of vaginal wall. 5. Tears both labia mazora and labia minora present. 6. Blood stained liquid from vagina present. Other findings:1. Blood stained liquid present in both nostrils and mouth. 2. No hanging marks. 3. Hyoid bone intact. 4. Both Lung cavities: had blood stained fluid and oedematous present and also cynoses present. 5. Uterus: Normal size. He stated that after receiving F. S. L. report he opined that the cause of death was drowning and consequent Asphexia, subsequent to forcible rape. Ex. P-7 is the final report. ( 9 ) P. W. 12 is the Sub-Inspector of Police. He registered the F. I. R. in Crime No. 32 of 1994 initially under Section 174 Cr. P. C. Later he went to the village Choutabheemavaram, inspected the scene of occurrence and prepared the scene of offence observation report. After conducting necessary formalities, the dead body was sent for post mortem. The Section of law was also altered from 174 Cr. P. C. to 306 IPC. P. C. Later he went to the village Choutabheemavaram, inspected the scene of occurrence and prepared the scene of offence observation report. After conducting necessary formalities, the dead body was sent for post mortem. The Section of law was also altered from 174 Cr. P. C. to 306 IPC. On 12. 5. 1994 he arrested the accused in the village and after receiving post mortem report, Section 376 IPC was also added. ( 10 ) P. W. 13 is the Circle Inspector of Police. He took up further investigation on 26. 6. 1994, further he recorded the statements of P. Ws. 3,4 and the father of the deceased and P. W. 5. Since there was variation in the statements of the P. Ws. 3 and 4, he got the statements of the above persons recorded under Section 164 of Cr. P. C. by the concerned Magistrate. Thereafter, again Section of law was altered to Section 376 and 302 IPC. ( 11 ) P. WS. 1 and 2 are not material witnesses. In as much as, their evidence is hearsay. They only stated that few days prior to the incident, the accused was trying to move with the deceased to have illicit intimacy. ( 12 ) THE learned Public Prosecutor submits that the case depends entirely on the circumstantial evidence and in this case chain of circumstances are so knit that they are corroborated wholly in material particulars. He submits that illegal intimacy developed by the accused was spoken to by P. Ws. 1 and 2. The act of pushing the deceased by the accused was seen by P. Ws. 3 and 4. Evidence of rape is established by the medical examination. Therefore, the motive, conduct of the accused before and after incident, discovery of the dead body, traces of rope were established by circumstantial evidence. Hence, the learned trial Judge ought to have convicted the accused thereby erred in acquitting the accused. ( 13 ) IT is to be noted that for a crime to be proved, it is not necessary that the crime must be seen to have committed and must in all circumstances proved by the direct ocular evidence by examining those who had actually seen the commission of offence. It can also be proved by the circumstantial evidence. The factum of probendum may be established indirectly by means of certain inferences drawn from the evidentiary value. It can also be proved by the circumstantial evidence. The factum of probendum may be established indirectly by means of certain inferences drawn from the evidentiary value. In other words, though not direct to the point in issue, but consist of evidence of various other facts, which is closely associated with the facts in issue, which taken together they formed a chain of circumstances from which the existence of principal fact can be legally inferred or presumed. It has been consistently held by the Supreme court that where the cases rest squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which the inference to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown closely connected with the principal fact sought to be inferred from those circumstances (See:vilas Pandurang Patil Vs. State of Maharashtra (2004 AIR S. C. W. 3441 ). ( 14 ) IT is beyond doubt that the conviction can also be based solely on circumstantial evidence, but it should be tested by the touchstone of law relating to circumstantial evidence laid down by the Supreme Court right from 1952. ( 15 ) IT will be useful to extract some of the principles laid down with regard to the conclusion of the guilt of the accused solely based on the circumstantial evidence. ( 16 ) IN Hanumant Govind Narundkar vs. State of M. P. AIR 1952 S. C. 343. it was observed thus: it is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. ( 17 ) WHETHER the case depends on the conclusion drawn from the 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. (See: Bhagat Ram, vs. State of Punjab (1954 CRL. L. J. 645=air 1954 S. C. 621 ). The Supreme Court in C. Chenga Reddy vs. State of A. P. 1996 (10)S. C. C. 193, it was observed thus: 21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. ( 18 ) IN Padala Veera Reddy vs. State of A. P. AIR 1990 S. C. 79. , it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: 1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) 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 none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. ( 19 ) IN State of U. P. vs. Ashok Kumar Srivastava 1992 Crl. L. J. 1104, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. ( 20 ) A reference may be made to a later decision in Sharad Birdhichand Sarda vs. State of Maharashtra AIR 1984 S. C. 1622. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be prove; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. ( 21 ) THUS, the aforesaid decisions will give a definite clue as to under what circumstances, circumstances evidence can be relied on to find the guilt of the accused beyond reasonable doubt. ( 21 ) THUS, the aforesaid decisions will give a definite clue as to under what circumstances, circumstances evidence can be relied on to find the guilt of the accused beyond reasonable doubt. ( 22 ) IN the instant case, the learned Public Prosecutor submits that the prosecution relied on the following circumstances in support of its case; a) Motive namely the accused has developed inclination to have illegal intimacy and started moving towards her for the last 10 to 15 days prior to the date of the incident; b) The conduct of the accused immediately before the incident and immediately after the incident also supports the guilt of the accused that he followed the deceased on the date of the incident; c) When P. W. 3 objected for pushing the deceased into the well he responded evasively and recklessly and d) In the medical evidence, it was found that the victim had suffered a forcible rape. ( 23 ) THE learned counsel for the respondent-Accused submits that there was no consistency in the evidence adduced by the prosecution witnesses. Even in respect of the so called eye witnesses, their evidence cannot be relied on as they changed their version from time to time. Even the motive has not been established except the bald statement of P. Ws. 1 and 2 to the effect that the accused was moving closely so as to have an illegal intimacy as was revealed by the deceased. There is no reason why they could not bring to the notice of the elders in Harijanwada, where members of Gollapally family were in majority and according to the evidence on record, there was only one family belonging to the accused. Therefore, the lower Court has correctly appreciated the evidence. ( 24 ) IT is no doubt true that the medical evidence reveals that there were abrasions and lacerations on the dead body of the deceased and the medical evidence also of the opinion that there was a forcible rape. But, the question is whether accused has committed rape. But however, before going into this aspect, the evidence of so-called eye witnesses P. W. 3, who is none-else-than the brother of the deceased after seeing the incident and after questioning the accused near Donkadari immediately came to their father and other relations including P. W. 1 and informed them about the incident. But however, before going into this aspect, the evidence of so-called eye witnesses P. W. 3, who is none-else-than the brother of the deceased after seeing the incident and after questioning the accused near Donkadari immediately came to their father and other relations including P. W. 1 and informed them about the incident. Thereafter, he went to the Village Administrative Officer (P. W. 6) and told that the deceased fell in the well and this statement made by the Village Administrative Officer to the police on 6. 5. 1994 at 8 a. m. wherein it has been stated that the P. W. 2 and other village harijans stated that the daughter of Veeraiah (deceased) fell in the well on the evening of 5. 5. 1994 and when he went there, he found the deceased died. P. W. 3 deposed that he had seen the accused pushing the deceased into the well. But in the earliest statement to the P. W. 6 he stated that the deceased fell in the well and did not say that she was pushed in the well by the accused. In the statement recorded by the Sub-Inspector of Police on 6. 5. 1994, P. W. 3 stated that he saw the accused along with the deceased and he made cries then they ran away. After that when the accused was confronted by P. W. 3 and asked about the incident for which he has not given any correct answer. Thereafter, he went in search of his sister and found in the well. The accused used to follow his deceased sister, with that insult, the deceased might have committed suicide by falling in the well and that was his suspicion. These two contractions are Exs. D-2 and D-3. ( 25 ) THE Circle Inspector of Police also got recorded the statement of P. W. 3 on 29. 6. 1994 under Section 164 Cr. P. C. wherein he had stated that while he was preceding through Donkadari, he heard the cries Amma. When he turned and saw, the accused pushed the deceased into the well and when he questioned the accused as to why he did so, the accused replied go and see in the well. So also, the case of P. W. 4, when the statement was recorded on 6. 5. When he turned and saw, the accused pushed the deceased into the well and when he questioned the accused as to why he did so, the accused replied go and see in the well. So also, the case of P. W. 4, when the statement was recorded on 6. 5. 1994 while he was watching the field at about 5 p. m. he heard the cries of his junior paternal uncle (P. W. 3) and saw the deceased was running along with the accused towards the well. Therefore, he returned back to the house at night and thereafter he heard that the deceased died in the well of Nagesh. But, in his statement before the Magistrate under Section 164 Cr. P. C. he stated that the deceased raised alaram and when he saw as to why she was crying, the accused pushed the deceased into the well, he went to the house and informed the people. Thus, there is any amount of inconsistency in the evidence of these two witnesses. If really, P. W. 3 has seen that the accused dragging and pushing the deceased in the well and subsequently he saw the dead body of the deceased in the well, nothing could have prevented from stating the same to P. W. 6. But, however, P. W. 6 in his complaint has stated that P. W. 3 and others have informed him that the deceased fell in the well and there is no mention to the effect that the deceased was thrown into the well by the accused. Therefore, neither the motive has not been established, nor the evidence of the eye witnesses is not consistent and they have changed their versions from time to time. ( 26 ) UNDER those circumstances, we find that it is most unsafe to rely on the circumstances evidence, as there is any amount of missing links and suspicious nature of evidence. Even though there is evidence as to the offence of rape alleged to have been committed on the deceased, there is no iota of evidence as to the accused committing rape. Even though there is evidence as to the offence of rape alleged to have been committed on the deceased, there is no iota of evidence as to the accused committing rape. ( 27 ) IN appeal against acquittal, the High Court has the same power which the trial Court has in examining the evidence and if it comes to the conclusion that the view taken by the trial Court was unreasonable or against the weight of the evidence, it could set aside the findings recorded by the trial Court. But, however, reappreciation of the evidence is limited to finding out whether the trial Judge has misappreciated any part of the evidence or not. But the reappreciation of evidence with a view to substitute the views of the appellate court for that of the trial Court is not permissible. ( 28 ) HOWEVER, there is no embargo on the appellate court reviewing the evidence upon which and Order of acquittal is based. Generally, the Order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored a duty is cast upon the appellate Court to reappriciate the evidence in a case where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused committed any offence or not (See: Bhagwan Singh vs. State of M. P. (2003 (3) S. C. C. 21 ). ( 29 ) THE principle has to be followed by the appellate court against the judgment of the acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is compelling reason for interference (State of Rajasthan vs. Rajaram 2003 (2) A. L. D. (Crl) 444 (S. C. ). If the impugned judgment is clearly unreasonable, it is compelling reason for interference (State of Rajasthan vs. Rajaram 2003 (2) A. L. D. (Crl) 444 (S. C. ). ( 30 ) UNDER those circumstances, we are of the considered view that the trial Court has properly appreciated the evidence and conclusions drawn are reasonable. Thus, the impugned judgment does not warrant any interference. ( 31 ) IT is general impression gained by the Society that the accused are not properly dealt with and that in most of the cases they are being acquitted. Thus, the accused have become menace to the society. That impression cannot be a ground to convict the accused. In the absence of any legally acceptable dependable and reliable evidence to find the accused is guilty of the offence beyond reasonable doubt would be nothing but uprooting the basic principles of criminal jurisprudence. Accordingly, the Appeal is dismissed. No costs.