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2005 DIGILAW 389 (AP)

Maddikunta Shivaiah v. State Of A. P.

2005-04-21

BILAL NAZKI, L.NARASIMHA REDDY

body2005
L. NARASIMHA REDDY, J. ( 1 ) THE appellants are brothers. Both of them, as Al and A2 in S. C. No. 315 of 1999 on the file of the III Additional District and Sessions judge, (Fast Track Court), Medak at Sanga reddy, were charged with the offence under section 302 I. P. C. , for committing the murder of one_mailagari Laxmaiah. The Trial Court found them guilt of the offence and sentenced them to undergo imprisonment for life. They were also sentenced to pay a fine of Rs. 100/-, each, and in default, to suffer rigorous imprisonment for six months. ( 2 ) PWS. 2 and 7 are brothers of the deceased, Laxmaiah. PW-1 is his maternal uncle, and PW-3 is the son of PW-1. All of them, as well as the appellants herein, are the residents of Venkatapur Village. It was alleged that the appellants have committed the murder of the deceased, Laxmaiah, at about 8:00 a. m. , on 19-5-1999, by beating with sticks. The motive for committing the murder is said to be that the deceased invited the wife of the 1st appellant, for consuming the toddy, and thereby he bore grudge against the deceased. The complaint, Ex. P-1, about the occurrence, was submitted by PW-1. It was alleged that at about 8:00 a. m. , on that day, he went to the hotel of M. D. Sophi, and was taking tea. The deceased came there, and was standing in between the toddy shop, of one Rukma goud, and Kirana shop, of one Sailu, PW-4. In the meanwhile, the appellants are said to have attacked the deceased with sticks, and when PW-4 and his elder brother sought to intervene, the appellants threatened them, and took the deceased along with them, even while beating with sticks. They are said to have laid the deceased, in front of the house of one Talari Devaiah, and did not allow anyone to rescue him. After some time, the younger brother of the deceased, pw-7, is said to have come and taken the deceased in an injured condition, to the government Hospital at Sadasivpet, where he was declared dead. ( 3 ) THE prosecution examined PWs. 1 to 13 and marked Exs. P-1 to P-10. After some time, the younger brother of the deceased, pw-7, is said to have come and taken the deceased in an injured condition, to the government Hospital at Sadasivpet, where he was declared dead. ( 3 ) THE prosecution examined PWs. 1 to 13 and marked Exs. P-1 to P-10. On appreciation of the oral and documentary evidence before it, the Trial Court convicted the appellants for the offence under section 302 I. P. C. , and sentenced them to undergo imprisonment for life and to pay fine of Rs. 100/-, each, through its judgment dated 23-11-2002. ( 4 ) SRI C. Padmanabha Reddy, learned senior Counsel for the appellants submits that there is no evidence, worth its name, to substantiate the charge against the appellants. He contends that the testimony of P. W. I is not supported by any other witness, and most of the so-called eyewitnesses, or circumstantial witnesses, have turned hostile. He submits that the failure to examine some of the material witnesses is fatal. He also contends that there was enormous delay in submitting the complaint, and since it was not properly explained, a presumption needs to be drawn to the effect that the intervening time was utilized in planning, to implicate the appellants. ( 5 ) LEARNED Public Prosecutor, on the other hand, submits that though some of the witnesses examined by the prosecution have turned hostile, the evidence of PW-1, the eye-witness, is cogent and consistent. He submits that non-examination of a person, who is said to have witnessed the offence, does not invalidate the evidence of other witnesses, nor does it weaken the prosecution. It is alleged that, having regard to the distance between the place of occurrence and the police Station, it cannot be said that there was any avoidable delay, in submitting the complaint. ( 6 ) OF the 13 witnesses, examined by the prosecution, PWs. l, 3, 4 and 6, are said to be the eye-witnesses. Out of them, pws. 4 and 6 have turned hostile. PW-2 is the brother of the deceased, and he came to know about the incident, soon after its occurrence. PW-5 is the woman (Talari buchamma), before whose house the actual murder is said to have been committed. She too has turned hostile. PW-7 (Mallagari nagaiah), is another brother of the deceased. He is not an eye-witness to the incident. PW-2 is the brother of the deceased, and he came to know about the incident, soon after its occurrence. PW-5 is the woman (Talari buchamma), before whose house the actual murder is said to have been committed. She too has turned hostile. PW-7 (Mallagari nagaiah), is another brother of the deceased. He is not an eye-witness to the incident. On being informed by one Ratnamma, that the deceased was attacked, he went to the place of occurrence and took the deceased to the Government Hospital, sadasivpet. PWs. 8 and 10, are said to be circumstantial witnesses, but have turned hostile. PW-9 is a witness to the inquest panchanama. PWs. 11 and 12 are investigating Officers, and PW-13 is the doctor, who conducted the post-mortem. In this case, much would depend on the acceptability of the evidence of PWs. 1, 2 and 3. ( 7 ) ACCORDING to PW-1, he went to the hotel of one Sophi at 7:30 a. m. , on the day of occurrence, to have tea. Deceased, nephew of this witness was said to be present in the vicinity, between the Toddy shop of rukma Coud (not examined) and Kirana shop of Sailu (PW. 4 ). He said that, while he was taking tea, A-1 and A2 came there and attacked the deceased with sticks. The deceased is alleged to have fallen on the road, on being attacked. He stated that the appellants 1 and 2 dragged the deceased to a neighbouring colony, at a distance of 10 yards, from the place where he has fallen, and laid him before the house of PW-5. He deposed that he rushed to the spot, where the deceased was lying, but the appellants tried to beat him. Then, he immediately rushed to the Police Station, to submit a complaint. He got Ex. P-1, complaint, drafted by one Mr. Mal Reddy. ( 8 ) PW-7 is said to have come later, and (hereafter, both of them have shifted the deceased to the hospital, Sadasivpet, where he was declared dead. PW-1 stated that the occurrence was witnessed by PWs. 2, 3, 4, 6 and Sophi, the owner of the tea-stall. In the chief-examination, he did not speak about the motive. Mal Reddy. ( 8 ) PW-7 is said to have come later, and (hereafter, both of them have shifted the deceased to the hospital, Sadasivpet, where he was declared dead. PW-1 stated that the occurrence was witnessed by PWs. 2, 3, 4, 6 and Sophi, the owner of the tea-stall. In the chief-examination, he did not speak about the motive. ( 9 ) IN the cross-examination, he stated that he gave the complaint at the Police station at 8:30 a. m. The Police enquired sophi, the owner of the tea-stall, about the incident, as well as one Rukma Goud, proprietor of the neighbouring toddy shop. He stated that the deceased had 5 wives, and one of them, by name, Prameelamma, was present, and she came, when the deceased died. It was elicited through him that the deceased was involved in a murder case and in several theft cases. He has also stated that about 100 persons gathered at the time of quarrel, at the hotel of Sophi. ( 10 ) PW-2 is one of the brothers of the deceased. He stated that he was working under one Mr, Rukma Goud, to work in his fields and toddy shop. He deposed that on the day of occurrence, by the time he came to the shop, he found several persons, who have gathered on the road, and later on, came to know that his brother, Laxmaiah, was attacked by the appellants and was dragged up to the house of Talari Devaiah (husband of PW-5 ). According to him, he proceeded to the house of Devaiah, and found the dead body of the deceased, and there, he caught hold of A-l, and questioned why he beat his deceased brother. On that A-2 is said to have challenged him, stating that, he is prepared to sell his land to fight the litigation. Therefore, he is said to have left the 1st appellant (A-l), and proceeded to Sadasivpet, to report the same to his brother, PW-7. On finding that PW-7 was not at his house, he came out and there his sister met him at Gandhi Chowk, and questioned as to the reason, for which he came to Sadasivpet. He informed the fact that the deceased was beaten to death by appellants. Meanwhile, PW-7 proceeded to the place of occurrence; brought the deceased to the hospital. On finding that PW-7 was not at his house, he came out and there his sister met him at Gandhi Chowk, and questioned as to the reason, for which he came to Sadasivpet. He informed the fact that the deceased was beaten to death by appellants. Meanwhile, PW-7 proceeded to the place of occurrence; brought the deceased to the hospital. The version presented by pw-2, to certain extent, corroborates the evidence of PW-1. Further details would be dealt with, a little later. ( 11 ) PW-3 is the son of PW-1 and brother-in-law, by courtesy, of the deceased. He deposed that at about 8:30 a. m. , on the day of occurrence, he was going over the road, from his house, and he observed noise, nearby the toddy shop of Rukma Goud, and kirana shop of PW-4, Saiiu. The deceased was present there, and he asked this witness, as to where he was going, that he purchased beedies at the shop of PW-4, and was going on his way. In the meanwhile, A-1 came there, armed with a stick, and beat the deceased on his head. The witness caught hold of A-1, and immediately A-2 came and pulled the deceased by putting his towel around his neck and dragged him, upto the house of PW-5. A-2 is said to have come back and challenged him, stating that they have offered toddy to the wife of the 1st appellant; and that they have the capacity to quarrel with the deceased; the witness and others, even by selling their land. He said that he left A-l and went to their old bouse and informed the incident to their brother-in-law, Nagaiah (PW-7), who in turn, had brought one Auto, to the place, where the deceased was lying dead. The appellants are said to have left the place. He claimed that himself and PW-7 have taken the deceased to the hospital, where he was declared dead, and the body was brought to the place nearby the house of PW-5. ( 12 ) IN the cross-examination, he stated that he saw the commission of the offence, when he was coming back, after purchasing the Beedies. He admitted that he did not state about the incident, to the Police. ( 13 ) PW-7 is another brother of the deceased. He runs an auto. ( 12 ) IN the cross-examination, he stated that he saw the commission of the offence, when he was coming back, after purchasing the Beedies. He admitted that he did not state about the incident, to the Police. ( 13 ) PW-7 is another brother of the deceased. He runs an auto. He stated that he returned to the village by 9:00 a. m. , and one ratnamma (not examined), informed him about the attack on his brother, by appellants. He is said to have rushed to the place, immediately, and taken the deceased, who was lying in front of the house of PW-5, to the Hospital, where he was declared dead. His version is mostly of hearsay nature. ( 14 ) PW-11 is the Inspector of Police. His role is confined to mostly the arrest of accused etc. PW-12 is the Sub-Inspector of police, who received the complaint from pw-1 and registered Crime No. 90 of 1999, under Section 302 I. P. C. He stated that, soon after receiving the complaint, he issued F. I. R. and forwarded to the Magistrate, visited the scene of offence and conducted scene of offence panchanama, in the presence of PWs. 9 and 10. He also conducted the inquest on the dead body of the deceased, and sent the same to the post-mortem examination. ( 15 ) IN the cross-examination, he admitted that the complaint was received at 12:00 Noon, and that the offence has taken place at 8:00 a. m. The distance between the place of occurrence and the police Station is 5 Kins. He admitted that there is a frequent conveyance between those two places. He has also stated that he did not receive any intimation from the government hospital about the deceased, having been brought to that place. He admitted that the complaint sent by him was received by the Magistrate only at 7:15 p. m. , through P. C. 1658. It was elicited through him that PW-1 did not state in the 161 statement, that when he intervened at the scene of offence, to rescue the deceased, the appellants attempted to beat him, and ran away from the place. He has also admitted that PW-1 did not state about PWs. 4 to 6 also witnessed the incident. He denied the suggestion that PW-2 was not an eye-witness, but was only created by recording his evidence. He has also admitted that PW-1 did not state about PWs. 4 to 6 also witnessed the incident. He denied the suggestion that PW-2 was not an eye-witness, but was only created by recording his evidence. ( 16 ) IT was suggested to this witness that in the complaint submitted at 8:30 a. m. , pw-1 stated that no one was responsible for the death of the deceased, and this witness has suppressed the said complaint. He admitted that PW-3 did not state that when he was going nearby the toddy shop, he found A-l questioning the deceased, or that he purchased beedies in the shop, and thereafter found A-l attacking the deceased. Similar omissions or contradictions, as the case may be, in relation to other witnesses, which are very substantial in nature, were elicited through this witness. He admitted that he did not seize the cloths on the dead body of the deceased. He claimed ignorance as to the existence of any cases against the deceased. ( 17 ) IF the depositions of PWs. 1 to 3 are examined in the context of Ex. P-1, complaint, and the deposition of PW-12, it becomes clear that the very presence of pw-2, it the scene of offence, is doubtful. There is no consistent version as to the occurrence or about the reaction of these witnesses. PW-1 stated that both the accused attacked the deceased with sticks. PW-3, on the other hand, stated that the deceased was first attacked by A-1, and when he caught hold of A-l, A-2 dragged the deceased by putting his towel around the neck of the deceased upto the house of PW-5. He further stated that A-2 came back and challenged him stating that they did so, because, the deceased offered toddy to the wife of A-1. This was not spoken to, or corroborated by PWs. l and 2. ( 18 ) IF one goes by the testimony of pw-2, he had arrived at the scene of offence after the deceased alleged to have beaten by A-l and A2. He is said to have been informed of this, by PWs. l and 3. PWs. l and 3 do not speak about PW-2, questioning A1 about the incident; nor pw-2 has spoken about the fact that A-l came to PW-3 and challenged him, about the acts, said to have been restored to, by them. He is said to have been informed of this, by PWs. l and 3. PWs. l and 3 do not speak about PW-2, questioning A1 about the incident; nor pw-2 has spoken about the fact that A-l came to PW-3 and challenged him, about the acts, said to have been restored to, by them. ( 19 ) ANOTHER important aspect of the matter is that, PW-3 stated that he informed pw-7 about the incident and thereafter PW-7 brought the auto to the place, where the deceased was lying dead. In his evidence, pw-7 said that, he was informed of the incident, by one Ratnamma (not examined ). This witness did not speak anything about pw-3, either, as regards furnishing of information, or otherwise. ( 20 ) PWS. 1, 2 and 3 are closely related to the deceased. Their evidence is prone to be partisan. It is true that in the absence of any independent witnesses, their evidence can be relied upon. PW-1 categorically stated that he took tea. at the relevant point of time, in the hotel of one Mr. Sophi, and that the said Sophi had witnessed the occurrence. For reasons best known to it, the prosecution did not choose to examine this witness. In state of A. P. v. P. V. Jaggo, AIR 1971 SC 1586 , the Supreme Court held that non- examination of material witnesses, by the prosecution, leads to inference; that such a witness, if examined, did not support the version of prosecution. ( 21 ) ANOTHER independent witness, who was present at the scene of offence, even according to PWs. l and 3, is PW-4, the owner of a Kirana shop. He turned hostile. Hence, there exists a serious lacuna, in the matter of connecting the accused to the offence, in the murder of the deceased. ( 22 ) FURTHER, there is enormous delay in submitting the complaint. PW-12 stated that he received the complaint at 12:00 Noon; whereas the incident took place at 8:00 a. m. The time of receiving the complaint, viz. , 12:00 Noon, becomes doubtful, for the reason that the Magistrate received the F. I. R. only at 7:15 p. m. The distance between the police Station and the place of the Court is 18 KMs. , and both the places are on the busy national highway. , 12:00 Noon, becomes doubtful, for the reason that the Magistrate received the F. I. R. only at 7:15 p. m. The distance between the police Station and the place of the Court is 18 KMs. , and both the places are on the busy national highway. It should take hardly one hour for the F. I. R. , to reach the learned Magistrate. From the fact that it was received by the Magistrate at 7:15 p. m. , it can safely be inferred that the F. I. R. was prepared, latest by 6:00 p. m The delay between 8:30 a. m. to 6:00 p. m. remains unexplained. The distance, between the place of occurrence and the Police Station, is just 5 KMs. , and both the places are wellconnected. This delay, of more than ten hours, is sufficient to vitiate the entire prosecution, and at any rate, to extricate the accusec from the charge. ( 23 ) FOR the foregoing seasons, the appeal is allowed. The sentence and conviction ordered against the appellants is set aside. They shall be released forthwith, if they are not required in any other cases. The fine, if any, paid, shall be refunded.