Research › Search › Judgment

Andhra High Court · body

2005 DIGILAW 1068 (AP)

Matri Suribabu v. State Of A. P.

2005-11-11

K.C.BHANU, T.MEENA KUMARI

body2005
T. MEENA KUMARI, J. ( 1 ) THE present appeal is preferred by the appellants A1 and A2 aggrieved by the conviction and the sentence imposed by the learned District and Sessions Judge, Visakhapatnam, in sessions Case No. 39 of 2002, on 29-7-2003, for the offence punishable under Section 302 read with Section 34 IPC. ( 2 ) THE case of the prosecution, in brief, is as follows : ( 3 ) A2 is the cousin brother of the deceased Singru. Al and A2 are brothers- in-law inter se. The deceased and the accused are the residents of Bhoomiboddu village. In respect of an extent of Ac. 1. 36 cents of land in S. No. 30/4, for which D form patta was given to the deceased in the year 1993, there was a dispute between the deceased and A2. ( 4 ) WHILE so, on 6-7-1999, when the deceased and his son (P. W. I) were attending to agricultural operations in the land, A2 came there and raised objection and also threatened to kill them. on the same day, in the evening, the deceased had gone to the village, viz. , G. Modugulla Shandy and while he was returning on the same day at about 7. 00 p. m. , the accused waylaid at vanthala Nandu s Banana Garden and attacked the deceased. A-1 pierced an arrow at the right side waist region and A2 dealt him with an axe on the right fore arm. Vanthala Bikunu, who was coming along with deceased Singru identified the accused and raised alarm. Then, both the accused ran away from that place. The deceased ran towards his house and fell down nearby. The wife and son of the deceased rendered him first aid. He died at about 10. 00 a. m. , on 7-7-1999 at his house. Basing on the report of Vanthala Bikunu, the police took up investigation. ( 5 ) AFTER filing the charge-sheet, the learned Mandal Executive Magistrate, G. Madugula, committed the case to the Court of Sessions. The then learned Principal sessions Judge framed charges against the accused. A1 admitted the offence whereas a2 denied the offence. Hence, the case was split up against Al and it was numbered as Sessions Case No. 106 of 2002. The case was proceeded against A2 and as many as 9 witnesses were examined. The then learned Principal sessions Judge framed charges against the accused. A1 admitted the offence whereas a2 denied the offence. Hence, the case was split up against Al and it was numbered as Sessions Case No. 106 of 2002. The case was proceeded against A2 and as many as 9 witnesses were examined. ( 6 ) AT that stage, the successor to the learned Judge has framed a charge under section 302 I. P. C. against Al and a charge under Section 302 read with 34 IPC and section 324 IPC against A2 on the ground that it required de novo trial. Both the accused denied the commission of offence. Hence, the case against Al, which was split up on an earlier occasion, was merged with the main case and the trial was taken up and P. W. 10 was examined. ( 7 ) IN order to substantiate its case, the prosecution in all examined 10 witnesses and exhibited Exs. P-1 to P-21 besides the material objects as M. Os. l to 5. No oral or documentary evidence has been adduced on behalf of the accused. ( 8 ) AFTER completion of 313 Cr. P. C, examination and on appreciation of oral and documentary evidence, the Court below found the appellant-Al guilty of the offence under Section 302 read with Section 34 IPC and sentenced them to suffer life imprisonment. Having aggrieved by the same, the appellants- accused preferred the present appeal. ( 9 ) THE learned Counsel for the appellants contended that there is no direct evidence available to implicate the accused for the reason that the person, who accompanied the deceased, has not been examined by the investigating agency in spite of the fact that he was alive at the time of investigation. It is further contended that the evidence of P. Ws. l and 2 goes to show that P. W. I found the arrow, removed it and bandaged it, but they did not make any attempt to shift him to the hospital. It is contended that even if the circumstantial evidence is taken into consideration, it does not support the version of the prosecution case and therefore, the accused are entitled to be acquitted. It is contended that even if the circumstantial evidence is taken into consideration, it does not support the version of the prosecution case and therefore, the accused are entitled to be acquitted. ( 10 ) ON the other hand, the learned public Prosecutor submitted that there is a clear motive for the accused to commit the offence in question and, therefore, there are no such grounds warranting any inference by this Court with the well-reasoned judgment of the trial Judge. ( 11 ) WE have perused the entire material on record and the judgment impugned herein. ( 12 ) ON a perusal of the entire material on record, the first and foremost questions that arise for consideration in this case are : (1) Motive (2) Circumstantial evidence (3) Procedural irregularities. Motive : ( 13 ) THE alleged eye-witness to the occurrence viz. , Vanthala Bikunu was alive during the course of investigation, so that his statement was recorded under Section 164 Cr. P. C. But, he was no more by the time of conducting the trial. Therefore, the entire case relies upon the circumstantial evidence. ( 14 ) IN a case of this nature, motive assumes a vital role. Therefore, it has to be examined as to whether there was any motive for commission of the offence basing on the evidence available on record and the circumstances relied on by the prosecution. ( 15 ) IN this regard, according to the prosecuting, there was a dispute between the deceased and the accused with regard to the land in question. The prosecution has relied upon the evidence of P. W. 1, P. W. 4 and Exs. P-2 and P3 in this regard. ( 16 ) P. W. I, who is the son of the deceased stated that his father was granted patta in respect of the land to an extent of Ac. 1. 36 cents in Sy. No. 30/4 and they have been cultivating the same. The testimony of P. W. 4, Mandal Revenue officer, goes to show that the patta was granted in respect of the land in dispute in the year 1993. Exs. P-3 also goes to show the same. ( 17 ) FROM the tenor of the above evidence, it is clear that the land was assigned under Ex. P-3 to the deceased in the year 1993. The incident took place in the year 1999. Exs. P-3 also goes to show the same. ( 17 ) FROM the tenor of the above evidence, it is clear that the land was assigned under Ex. P-3 to the deceased in the year 1993. The incident took place in the year 1999. No explanation was given by the prosecution as to why the accused prevented the deceased and P. W. I from cultivating their land by threatening them, after a period of nearly six years from the date of patta. The investigation is silent as to what are the circumstances or the reasons that have compelled the accused to pick up a quarrel in the year 1999 with regard to a patta land that was assigned to the deceased in the year 1993. ( 18 ) IN this view of the matter, we have no hesitation to hold that the prosecution has miserably failed to place any reliable material on record or the circumstances to show that there was a motive on the part of the accused for the commission of the offence prior to the incident except making a bald allegation that there was a dispute between the accused and the deceased with regard to the patta land that was assigned to the deceased. ( 19 ) CIRCUMSTANTIAL Evidence : 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 to 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 the 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. ( 20 ) IN this regard, the evidence of p. W. I is relevant for consideration. P. W. I is no other than the son of the deceased. ( 20 ) IN this regard, the evidence of p. W. I is relevant for consideration. P. W. I is no other than the son of the deceased. According to him, on the date of incident in the morning, while the deceased and himself were attending to the agricultural operations in their land, A2 came there and picked up a quarrel and threatened the deceased to kill him. The testimony of P. W. I is also silent as to the reason or the circumstances under which the accused went to the extent of threatening to kill. ( 21 ) IN his cross-examination, he deposed that it is not true to say that he has not stated before the police or Mandal executive Magistrate that both the accused came to the field and hurled threats at his father. The evidence of P. W. I is not consistent as to the presence of A1 at the time of quarrel in the morning on the date of incident. ( 22 ) ADMITTEDLY, the incident in question occurred at 7. 00 p. m. , near the tope of one vanthala Nandu while the deceased was returning from a shandy along with one bikunu. Generally, in the fields of the villages, darkness prevails immediately after the sun set whereas the darkness prevails in the topes due to the mass of trees and the bushes, even before the sun set. If that being the case, it is not known as to how the deceased or Bikunu, who accompanied him, could identify the accused at the time of the alleged incident which took place at 7. 00 p. m. , near the tope in question. The prosecution has failed to cover up this lach by way of placing relevant material or evidence on record. ( 23 ) ACCORDING to P. W. 1, after completion of their dinner, the deceased came to the house shouting aloud along with Bikunu. He saw an arrow pierced into the body of the deceased at the stomach right region and also an axe injury on his light fore arm. He removed the arrow and put the bandage. When he questioned, the deceased told him that A2 inflicted axe injury and A1 inflicted arrow injury. P. W. 1 also deposed that Bikunu told him that the offence had taken place near the plantain garden of one Vanthala Nandu. He removed the arrow and put the bandage. When he questioned, the deceased told him that A2 inflicted axe injury and A1 inflicted arrow injury. P. W. 1 also deposed that Bikunu told him that the offence had taken place near the plantain garden of one Vanthala Nandu. P. W. I removed broken part of arrow and put bandage to both injuries. He further deposed that his father informed one Sanyasirao about the manner in which he sustained the injuries. He deposed that on the next day morning his mother had gone to Maddula banda Village and brought elders like vanapalli Laxmayya and Nookala Padalu and two more and then, the deceased informed those elders also that A2 axed him and A1 hit him with arrow. Immediately after the death of the deceased, one Bikunu went to police station and presented a report. Police came to their house. P. W. I handed over the arrow removed from the body of his father to the police. The testimony of P. W. I is not corroborated by P. W. 2. P. W. 2 stated in his evidence that Bikunu and Koteswara rao (P. W. 1) have gone to Police Station. ( 24 ) P. W. 3, who is a village elder, deposed that nearly 4 years ago on one wednesday at about 7 a. m. , mother of p. W. 1 came to their village and enquired for the village panchayat member. On that, he asked her as to what he could do. She told him that her husband was injured by a1 hitting with an arrow and A2 with an axe. Then, he along with Krishna Murthy and some elders have gone to Bhoomiboddu village. ( 25 ) THE investigating officer has failed to examine the wife of the deceased. Admittedly, the deceased was alive for about 10 or 12 hours. It is not known as to what has prevented the son of the deceased either to bring his father to the hospital or to give a report to the police immediately after the alleged incident without waiting till the arrival of the alleged elders and till the death of the deceased. ( 26 ) WE have perused the F. I. R. , from which column-3 clearly goes to show that the offence occurred between 7 and 8 p. m. , night on 6-7-1999. ( 26 ) WE have perused the F. I. R. , from which column-3 clearly goes to show that the offence occurred between 7 and 8 p. m. , night on 6-7-1999. Column-5 goes to show that the distance between the police station and the village in question, is 4 K. Ms. Column-6 goes to show the name of the complainant as Vanthala Bikunu. ( 27 ) IF really, the deceased was alive for about 12 hours, it is quite unnatural to say that P. W. 1 and his mother waited till the arrival of the elders and till the death of the deceased without giving any report and without making any effort to bring the deceased to the hospital. In this view of the matter, the evidence of P. W. I, who is no other than the son of the deceased, appears to be far from truth. No explanation is forthcoming as to why either P. W. 1 or his mother could not give the police report instead of Vanthala Bikunu. ( 28 ) THUS, the failure on the part of p. W. I and his mother in giving the report immediately after the alleged incident and bringing the deceased to the hospital and the failure to explain as to how the said bikunu could identify the accused at the time of incident near a tope and the failure to prove the motive for the offence by the prosecution, are all fatal to the case. Procedural Irregularities : ( 29 ) WE have perused the judgment impugned, from which some procedural irregularities are found. The judgment impugned goes to show that the then learned sessions Judge framed the charges against a1 and A2 and when they were questioned, a1 pleaded guilty, but A2 denied. Thereupon the then learned Sessions Judge having coming to the conclusion that the admission. of A1 can be accepted only when the doctor is examined, split up the case against him. We feel that this observation made by the then learned Sessions Judge, amounts to a procedural irregularity as contemplated under Section 229 of Cr. P. C. ( 30 ) WHEN the case was split up against a1, the trial was proceeded against A2 and p. Ws. 1 to 9 were examined. We feel that this observation made by the then learned Sessions Judge, amounts to a procedural irregularity as contemplated under Section 229 of Cr. P. C. ( 30 ) WHEN the case was split up against a1, the trial was proceeded against A2 and p. Ws. 1 to 9 were examined. At that stage, the then learned Sessions Judge has merged the case against Al along with the main case after the completion of chief examination and cross-examination of P. Ws. l to 9 and proceeded with the case. In this regard, we have no hesitation to hold that it also amounts to the procedural irregularity as contemplated under Section 319 Cr. P. C. and apart from that, it also leads to deprive the opportunity of Al to cross-examine the witnesses. ( 31 ) FOR the reasons stated in the foregoing paragraphs, we have no hesitation to hold that the learned Sessions Judge, has failed to consider all these aspects. The prosecution has also miserably failed to prove the guilt of the accused beyond all reasonable doubt. Therefore, the conviction and the sentence imposed against Al and A2 are liable to be set aside. ( 32 ) IN the result, the criminal appeal is allowed setting aside the conviction and the sentence imposed against the appellants accused 1 and 2 by the learned District and sessions Judge, Visakhapatnam in Sessions case No. 39 of 2002, on 29-7-2003. However, it is made clear that the appellants-accused shall be set at liberty forthwith, if they are no longer required in any criminal case.