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2005 DIGILAW 280 (AP)

A. Lakshmi v. State Of A. P.

2005-03-23

BILAL NAZKI, L.NARASIMHA REDDY

body2005
BILAL NAZKI, J. ( 1 ) BOTH the accused in Sessions Case no. 202 of 1999 before the Il-Additional District and Sessions Judge, Ranga Reddy District, at N. T. R. Nagar, Hyderabad were tried for the offences under Sections 302 read with 34 ipc and 201 IPC. both of them were found guilty and sentenced to rigorous imprisonment for life and also to pay a fine of Rs. 1,000/- each, in default to simple imprisonment for a period of six months for the offence under section 302 read with 34 IPC. They were further sentenced to rigorous imprisonment for three years and also to pay a fine of rs. 500/- each, in default to simple imprisonment forthree months for the offence under Section 201 IPC. ( 2 ) THE present appeal is filed by accused no. 1 Accused No. 2 has not filed any appeal. ( 3 ) THE substance of the charge against the accused was that on 20th August, 1998, after 10. 00 p. m and before midnight, at moosapet, both the accused along with one venkateshwar Rao in furtherance of their common intention, caused the death of husband of accused No. 1, A. Laxaman. They further caused disappearance of evidence by shifting the dead body from the house of accused No. 1 and throwing the body into a pit. It may also be worthwhile to note that venkateshwar Rao was not found by the investigating agency and was not even arraigned as an accused in the charge sheet. ( 4 ) ON the basis of these allegations, charges were framed against the accused, read over and explained to them they pleaded not guilty and claimed to be tried. ( 5 ) PROSECUTION examined 14 witnesses and exhibited 14 documents. ( 6 ) LEARNED senior counsel appearing for the appellant-assucsed No. 1 submits that there is no evidence againstboth the accused and as a matter of fact, it was a clear case of acquittal and learned Sessions Judge has relied on evidence, which is not admissible and convicted the accused. ( 6 ) LEARNED senior counsel appearing for the appellant-assucsed No. 1 submits that there is no evidence againstboth the accused and as a matter of fact, it was a clear case of acquittal and learned Sessions Judge has relied on evidence, which is not admissible and convicted the accused. ( 7 ) ON the other hand, learned Public prosecutor tried to defend the judgment of the trial Court and submits that there were two circumstances against accused No. 1 and those circumstances were that the deceased and accused No. 1 were together in the house of the deceased at the time of occurrence and the wire which was used for the commission of the offence was recovered at a disclosure made by accused No. 1. He submits that the chance fingerprints, which were found on some objects, were found to be the fingerprints of accused No. 1. He further submits that against accused No. 2 also there were two circumstances. One circumstance was that a knife was recovered at his disclosure and the second circumstance was that accused No. 1 had made payments to accused No. 2. ( 8 ) IN the light of these arguments, we discuss the evidence that was placed before the trial Court. P. W. 1 is the younger brother of the deceased. He stated that the first accused was the wife of the deceased. He knew the second accused as well. Second accused was a mason and he had constructed the house of the witness as well as of the deceased. House of the deceased and the witness were in the some plot of land and were side by side. He stated that on the date of occurrence at about 7. 00 a. m, when he was coming out from his house, somebody informed him that his brother had died and his dead body was brought to his house. He went to the house of his brother and saw the dead boy of his brother. He made enquires from the first accused as to how his brother had died. She told him that she did not know anything about the whole affair. He also made enquiries about the children of the deceased and accused No. 1 and also about his father, who was staying with the deceased. He made enquires from the first accused as to how his brother had died. She told him that she did not know anything about the whole affair. He also made enquiries about the children of the deceased and accused No. 1 and also about his father, who was staying with the deceased. Accused No. 1 told him that her children had gone to Kukatpally on the previous night and his father after taking meals in the evening had gone out of house and had slept in a school which was opposite to their house. According to this witness, he was not satisfied with the explanation offered by the first accused about the absence of her children and his father, so he suspected her that she had planned the murder of his brother. He further stated that prior to the death of his brother, the first accused had demanded that the deceased should transfer his house to her name. She often used to quarrel with her husband. He found injuries on the neck, stomach, chest and testicles of his deceased brother. He found a wire mark around the throat of the deceased. On the terrace of the house of the deceased, he found the empty liquor bottles and mixture. He also found bloodstains on the terrace. By observing the injuries and the objects on the terrace, he suspected that the first accused might has been responsible for the murder of the deceased. When he narrated his suspicion to the first accused, she looked at him angrily. Thereafter, he went to the police station, kukatpally, there, he gave a written complaint, ex. P-1. In his cross-examination, he stated that after six months of marriage of the deceased with the first accused, there were no visits by him to the house of the deceased and the deceased also did not visit his house except for some functions. He, however, stated that he was on talking terms to his brother. His brother had told him twice about the demand being made by the first accused to transfer the house in her name. He also stated that when the occurrence took place, one Sathyam was the tenant in the house of the deceased. Only a common wall separated his house from the house of his deceased brother. This witness has not said anything about the occurrence. He also stated that when the occurrence took place, one Sathyam was the tenant in the house of the deceased. Only a common wall separated his house from the house of his deceased brother. This witness has not said anything about the occurrence. He has only expressed his suspicion against accused No. 1. About accused No. 2, he has not even expressed a suspicion. ( 9 ) P. W. 2 is another brother of the deceased. He stated that he knew the second accused as he had constructed the house of p. W. 1 and the deceased. He resides separately in a separate house in Janatha nagar, which was two furlongs away from the house of the deceased. P. W. 1 informed him at about 7. 30 a. m. about the death of his brother. Immediately, he went to the house of his brother. He found two stab injuries on the neck of the deceased and one stab injury on his stomach. He also found a ligature mark around the neck of the deceased. He also got suspicion that the first accused might has been responsible for the death of the deceased, because she had sent away her children from her house on the previous night. He also stated that the first accused and the deceased used to quarrel. The evidence of this witness also does not help the prosecution in establishing the guilt of the accused. ( 10 ) P. W. 3 is the son of the deceased and accused No. 1. He stated that his father had died four years before. Two days prior to the death of his father, he and his younger sister geetha requested their mother to allow them to go to the house of their aunt namely sridevi, who lived at Kukatpally. On second day, after they went to the house of Sridevi, son of Sridevi informed them that their father had been killed. Then they came back to their house and found the dead body of their father at their house. He was told that somebody had killed his father. In his cross-examination, he stated that there was a three-day holiday and whenever they had holidays, they used to go to the house of Sridevi or children of sridevi used to come to their house. ( 11 ) P. W. 4 is anotherchild of the deceased and accused No. 1. He was told that somebody had killed his father. In his cross-examination, he stated that there was a three-day holiday and whenever they had holidays, they used to go to the house of Sridevi or children of sridevi used to come to their house. ( 11 ) P. W. 4 is anotherchild of the deceased and accused No. 1. She stated that three days prior to the date of death of her father, she and P. W. 3 had gone to the house of sridevi aunty at Kukatpally. He aunt s sons had informed them about the death of their father, then they came back and found the body of their father. She also stated that she knew the second accused. He had constructed their house and second accused used to visit their house now and then even after completion of construction of the house. ( 12 ) P. W. 5 was the tenant of the deceased and the first accused for about three years from 1995. He stated that the deceased died in 1998 and at that time also he was his tenant. He did not know the second accused. In the morning at about 7. 00 a. m, the first accused came to him and informed him that the dead body of her husband was found at a distance of about 25 to 30 yards from her house. He went there and found the dead boy of Laxman. Later the dead body of laxman was shifted to the house of the first accused. During the lifetime of Laxman, the first accused and the deceased were on cordial terms. In his cross-examination, he stated that after the death of Laxman, P. W. 1 asked him to vacate the house and therefore, he vacated the house. During the lifetime of laxman, he used to pay rents to him. After his death, for some months, son of the deceased collected rents from him and later p. W. 1 collected rents from him. ( 13 ) P. W. 6 stated that he knew the accused as well as the deceased. On the date of occurrence at 7. 00 a. m, he saw a gathering in front of his house. He found dead body of laxman at a distance of 100 yards from his house. This witness was, however, declared hostile. ( 13 ) P. W. 6 stated that he knew the accused as well as the deceased. On the date of occurrence at 7. 00 a. m, he saw a gathering in front of his house. He found dead body of laxman at a distance of 100 yards from his house. This witness was, however, declared hostile. ( 14 ) P. W. 7 is the panch witness to the panchanama prepared at the scene of offence, which was exhibited by him as ex. P-3. He was also present at the time of inquest and he exhibited inquest report as ex. P-4. He stated that on the terrace of the house of Laxman, they found some bloodstains. Police seized some mixture pockets, Me Dowell whisky bottle with a little liquor therein and bricks containing bloodstains. He identified the two bricks that were seized from the terrace as M. 0. 1. Madhu (L. W. 9) was also present along with him and he signed Exs. P-3 and P-4. In his cross- examination, he stated that he was an illiterate. Police Constable scribed Exs. P-3 and P-4. The contents of Exs. P-3 and P-4 were not read over to him before he signed. He went to the place of occurrence along with other people who had gathered there. As he was present at the site, he was taken as a panchayathdar. He did not know the contents of Exs. P-3 and P-4. He signed at the instance of the police. ( 15 ) P. W. 8 was a witness to the recovery of M. O. 2-knife, which alleged to have been recovered at the disclosure made by accused no. 2. He turned hostile. ( 16 ) P. W. 9 was also projected as a witness to the recovery of knife. He also turned hostile. ( 17 ) P. W. 10 is the fingerprint expert. He stated that he had 31 years of experience in the science of fingerprints, therefore, he was qualified in forming an opinion. He stated that he had received an empty liquor bottle with a requisition from police, Kukatpally for examination of chance prints on that bottle. He also received the fingerprints of A. Lakshmi (accused No. 1) and of Sali Narsing Rao (accused No. 2) from the Sub-Inspector of police, Kukatpally, for comparison of those fingerprints with the chance prints found on the empty liquor bottle sent to him. He also received the fingerprints of A. Lakshmi (accused No. 1) and of Sali Narsing Rao (accused No. 2) from the Sub-Inspector of police, Kukatpally, for comparison of those fingerprints with the chance prints found on the empty liquor bottle sent to him. On 28-8-1998 he compared the chance fingerprints found on the empty liquor bottle with the admitted fingerprints of A. Laskshmi and Sali Narsing Rao. There were three fingerprints of right index, right middle and right ring. Those chance fingerprints on the bottle were marked as A, A-1 and A-2 respectively. The fingerprints of Narsing Rao i. e. , right index, right middle and right ring finger were marked by him as S1, S1 (a) and s1 (b) respectively. On examination, hefound a, A-1, A-2 identical with S1, S1 (a) and s1 (b ). He gave report Ex. P-7. He also compared the fingerprints of Lakshmi sent to him by the police, Kukatpally with the chance fingerprints found on the bottle, but none of her fingerprints were tallied with the chance fingerprints on the bottle. ( 18 ) P. W. 11 is the witness to the seizure of wire. He stated that four years before on a day in the evening he was called by the police, Kukatpally to the police station. From the police station, he went in an auto to the house of the first accused. When he reached the house of the first accused the Inspector of Police was present in her house. The inspector of Police told him that Lakshmi produced a wire, which was used for the commission of the offence The panchanama was drafted at the place, which was read over to him. He signed in that panchanama. The said panchanama, which was prepared and signed by him, was Ex. P-11. He could identify the wire, which was seized by the police, and the said wire was M. O. 3. The first accused gave M. O. 3 in the presence of the inspector of Police. Now, according to this witness the Inspector of Police was already present in the house of the first accused when he was taken to the house. No statement was made by the accused before him and according to him the Inspector of Police told him that Lakshmi had produced a wire, which was used for the commission of the offence. Now, according to this witness the Inspector of Police was already present in the house of the first accused when he was taken to the house. No statement was made by the accused before him and according to him the Inspector of Police told him that Lakshmi had produced a wire, which was used for the commission of the offence. ( 19 ) HENCE, there is no difficulty in accepting the contention of learned senior counsel for the appellant that the evidence of this witness is not at all admissible. ( 20 ) P. W. 12 is the Doctor, who conducted post-mortem examination overthe dead body of the deceased and found the following injuries. External injuries:1. Ligature mark over the neck at the level of thyroid cartilage 29 cms, horizontally placed, fresh bleeding. 2. V-sharp abrasion over the left hand 3. A stab wound over the left side of the chest 3x1 cms, 16 cms below the left side of the nipple. Mix-Clavicular left side. 4. Stab wound over the back 2 1/2 x 1 cms from neck to injury 14 cms 5. Stab wound over the back left side 2 1/2x 1 cms, 18 cms below the inquiry number above. 6. Lacerated wound over the left side of the face 9 cms length 1 cm x deep internal injuries:1. Left lung collapsed 2. Stab injuries over the stomach in his cross-examination, he stated that when he commenced the post-mortem examination, the dead body was washed and clothes and been removed from the body. Therefore, he could not say there was any blood oozing from the mouth, nose and ears of the deceased. The tongue and eyes of the deceased were not protruding. The ligature mark showed signs of fresh bleeding. He did not find any alcohol in the body of the deceased. ( 21 ) P. W. 13 is the investigation officer. He narrated the story of conducting the investigation in the case and of seizures. In his cross-examination he stated that P. W. 6 had stated before him in his Section 161 cr. P. C. statement that the dead body of laxman was found in a pool of blood. ( 22 ) P. W. 14 is the Inspector of Police and another investigating officer. He stated that he arrested accused No. 2-Nursing Rao at his residence at Moosapet in the presence of panch witnesses P. Ws. P. C. statement that the dead body of laxman was found in a pool of blood. ( 22 ) P. W. 14 is the Inspector of Police and another investigating officer. He stated that he arrested accused No. 2-Nursing Rao at his residence at Moosapet in the presence of panch witnesses P. Ws. 8 and 9. The second accused, in pursuance of his statement ex. P-5, produced a knife-M. O. 2 from his house in the presence of panchas ( 23 ) WE have discussed the evidence in detail. There is no direct evidence against any of the accused. Even the circumstances on which the prosecution relied have also not been proved. The only circumstance which is there is against accused No. 2. that the chance fingerprints found on the bottle were compared with the admitted fingerprints of accused No. 2 and they tallied. Whereas the fingerprints of accused No. 1 did not tally with the chance fingerprints found on the bottle. ( 24 ) LEARNED senior counsel appearing for the appellant submits that the so-called admitted fingerprints were not taken in the presence of a Magistrate and therefore, the evidence given by the fingerprint expert could not be relied upon. In this connection, he relied on a judgment reported in Mohd. Aman and another v. State of Rajasthan. The Supreme Court while considering the mandate of Identification of prisoners Act, in para 8, held as under:"even though the specimen fingerprints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take fingerprints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a magistrate. "to the same effect, he had also relied on a judgment of this Court reported in Manepalli anjaneyulu and others v. State of A. P. ( 25 ) AGAINST appellant-accused No. 1 there is no circumstance. However, learned Public prosecutor submits that the deceased and accused No. 1 were together in the house and the children of the deceased and accused no. However, learned Public prosecutor submits that the deceased and accused No. 1 were together in the house and the children of the deceased and accused no. 1 were dispatched by accused No. 1 to the house of a relation two days before. We have perused the statements of these children, who have stated that it was usual for them to the house of their aunt when they had holidays. They have also stated that during holidays, children of their aunt sometimes would also visit their house. Therefore, we do not feel that this is a sufficient circumstance to come to a conclusion that a plot was hatched by accused No. 1 to get rid of her husband. There is also no evidence to show that on the date of occurrence, the deceased was in his house. Neither the prosecution nor the defence has proved that the deceased was in the house. Though the whole prosecution story discloses that the occurrence took place in a room of the house and even in the charge, it was stated that the offence took place in the bedroom, it is on record that no bloodstains were found in the bedroom of the house. Bloodstains were found only on the terrace. Learned Sessions judge has relied on what has been stated in the charge sheet and there is no evidence for the findings given by learned Sessions Judge that accused No. 1 had managed that accused no. 2 and Venkateshwar Rao arrived in the house of the deceased before the deceased and she kept them at the terrace, offered them liquor and then when the deceased arrived, she informed them that the deceased had come and they would have committed the murder. There is absolutely no evidence for such a finding. Therefore, we have no doubt in our mind that the appellant-accused no. 1 deserves to be acquitted. ( 26 ) ACCUSED No. 2 had not filed any appeal. Learned senior counsel, Sri C. Padmanabha reddy, submits that even in the absence of an appeal, if the Court comes to a conclusion that there is no evidence against accused no. 2, the Court is not powerless to record the acquittal of accused No. 2 as well. ( 26 ) ACCUSED No. 2 had not filed any appeal. Learned senior counsel, Sri C. Padmanabha reddy, submits that even in the absence of an appeal, if the Court comes to a conclusion that there is no evidence against accused no. 2, the Court is not powerless to record the acquittal of accused No. 2 as well. ( 27 ) IN support of his contention he has relied on the judgments of the Supreme court reported in Suresh Chaudhary v. State of Bihar and Gurucharan Kumar and another v. State of Rajasthan. ( 28 ) THE Supreme Court was dealing with s. L. Ps. in these cases and held that if the court reaches to the conclusion that conviction of any accused was not possible, the benefit of doubt must be extended to the co-accused similarly situated though he had not challenged the order of conviction by way of an appeal. ( 29 ) WE feel that if an acquittal could be ordered with regard to the convicts who had not filed an appeal in a S. L. P, it could equally be done while the High Court was deciding a criminal appeal. In another judgment of the Supreme Court reported in Krishna and another v. Krishnaveni and another at para 7, it was held as hereunder:"it is seen that exercise of the revisional power by the High Court under section 387 read with Section 401 is to call for the records of any inferiorcriminal court and to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court and to pass appropriate orders. The Court of Sessions and the Magistrates are inferior criminal courts to the High Court and Courts of Judicial Magistrate are inferior criminal courts to the Sessions judge. Ordinarily, in the matter of exercise of power of revision by any high Court, Section 397 and section 401 are require to be read together. The Court of Sessions and the Magistrates are inferior criminal courts to the High Court and Courts of Judicial Magistrate are inferior criminal courts to the Sessions judge. Ordinarily, in the matter of exercise of power of revision by any high Court, Section 397 and section 401 are require to be read together. Section 397 gives powers to the High Court to call for the records as also suomotu power under Section 401 to exercise the revisional power on the grounds mentioned therein i. e. , to examine the correctness, legality or propriety of any finding, sentence or order, recorded of passed and as to the regularity of any proceedings of such inferior court, and to dispose of the revision in the manner indicated under section 401 of the Code. The revisional power of the High Court merely conserves the power of the High Court to see that justice is done in accordance with the recognized rules of criminal jurisprudence and that its subordinate courts do not exceed the jurisdiction or abuse the power vested in them under the Code or to prevent abuse of the process of the inferior criminal courts or to prevent miscarriage of justice. "since we have not found any evidence against accused No. 2, though he has not filled any appeal, we exercise our powers under sections 397 and 401 Cr. P. C. and order the acquittal of accused No. 2 as well along with the appellant. ( 30 ) THE criminal appeal is allowed. The conviction and the sentences passed in sessions Case No. 202 of 1999 by learned il-Additional District and Sessions Judge, ranga Reddy District at N. T. R. Nagar, hyderabad, against the appellant-accused no. 1 as well as against accused No. 2-Sali narsing Rao, S/o Narsimha are set aside and both of them are acquitted of the charges. They shall be released from custody forthwith, if not required in any other case.