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2007 DIGILAW 1113 (AP)

Nesam Subbarao @ Subbayya v. State

2007-11-13

D.S.R.VERMA, K.C.BHANU

body2007
D.S.R. VARMA, J:-Heard the learned Counsel appearing for the appellant-accused as well as the learned Public Prosecutor, appearing for the respondent-State. 2. Appellant is the sole accused in the sessions case. 3. This criminal appeal, by the accused (through jail), under Section 374(2) Cr.P.C., is directed against the judgment, dated 20.3.2006, in Sessions Case No.5 of 2005, passed by the VI Additional Sessions Judge (Fast Track Court), East Godavari at Rajahmundry, convicting the accused for the offence punishable under Section 302 IPC and sentencing him to suffer imprisonment for life and also to pay a fine of Rs.1,000/-, in default to suffer rigorous imprisonment for six months. 4. The gravamen of the charge is that, on 24.7.2000, at about 9.00 a.m., at the Tapioca garden of P.W.4, in Marripalem Village, the accused intentionally did commit the murder of one Nesam Chittemma (the deceased) by beating her with stones. 5. The case of the prosecution, in brief, is that, on 24.7.2000, when the deceased went to Tapioca garden of P.W.4, for coolie work, along with others, P.Ws.l to 3, and weeding the grass, the accused suddenly attacked the deceased with a knife and attempted to hack her by catching hold of her hair; that, though PWs.l to 3 stopped the accused and snatched away the knife from him, the accused had managed to pick up the stones and hit the deceased indiscriminately and caused severe bleeding injuries, resulting in the instantaneous death of the deceased; that, having witnessed the brutal murder, PWs.I to 4 ran away towards other fields along with the knife and that the accused absconded from the scene of offence. 6. It is the further case of the prosecution that, later, P.W.l1, the Village Administrative Officer, Bolagonda, on gathering information, visited the scene of offence and presented a report, EX.P.12 to the police, Rampachodavaram Police Station, basing on which a case in Crime No.71 of 2000 was registered against the accused, for the offence punishable under Section 302 IPC and that PW.l2 took up investigation and, after conducting inquest over the dead body of the deceased, he sent the dead body of the deceased to the Government Hospital, Rampachodavaram, for postmortem examination. After completion of all the necessary formalities, police laid the charge-sheet against the accused for the offence punishable under Section 302 IPC. 7. After completion of all the necessary formalities, police laid the charge-sheet against the accused for the offence punishable under Section 302 IPC. 7. When a charge under Section 302 IPC was framed, read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 8. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 12 and got marked Exs.P.1 to P.17 and M.Os.1 and 7 on its behalf. 9. After closure of evidence on behalf of the prosecution, when the accused was examined under Section 313 Cr.P.C., with reference to the incriminating material found against him, in the evidence of the prosecution witnesses, he denied the same, but no witnesses were examined and no documents were marked on his behalf. 10. While dealing with this criminal appeal, we do not feel it necessary to go into the merits of the case with reference to the evidence on record. 11. The record reveals that, as per the prosecution, PWs.l to 4 are the eyewitnesses to the incident and the other witnesses are only hearsay and circumstantial witnesses. 12. But, it is important to note that all the witnesses, including the eye-witnesses i.e., P.Ws.1 to 4, who were examined/l on behalf of the prosecution, were declared hostile, as such, their evidence is of no consequence in any aspect and respect. 13. Further, the Court below, despite the fact that all the prosecution witnesses turned hostile, in to, had relied upon the 161 Cr.P.C., statements ofP.Ws.1 to 3, which were marked as Exs.P.1 to P.3, respectively, and held that the said statements were believable and can be relied upon. 14. The exact reasoning, at Paragraph No.26 of the judgment, recorded by the Court below, for convicting the accused is thus: “.... In the circumstances, their respective 161 Cr.P.C. statements, which are marked as Exs.P.1 to P.3, respectively, is believable and can be relied upon. EX.P.1 is the 161 Cr.P.C. statement of Somalamma, P.W.1, wherein it is further clearly mentioned that on 24.7.2000 at about 9.00 a.m. while herself, the deceased, P.Ws.2 and 3 were weeding grass, the accused suddenly attacked the deceased with a knife........... ..." 15. The aforesaid is the only reasoning, recorded by the Court below, for convicting the accused, in spite of the fact that all the witnesses, examined on behalf of the prosecution, turned hostile. 16. ..." 15. The aforesaid is the only reasoning, recorded by the Court below, for convicting the accused, in spite of the fact that all the witnesses, examined on behalf of the prosecution, turned hostile. 16. It is rather a rudimentary principle in criminal adjudication that 161 CLP.C., statements cannot be relied upon. The purpose of relying upon 161 CLP.C. statements is only to a very limited extent. 17. It appears, the learned Judge, who presides over the Court below, is not aware of these fundamental aspects, while dealing with a Sessions Case. Though we are not keen in making any observations, still, we ire compelled to observe that the way in which the matter was dealt with by the learned Judge shows her perceptive incapability and it further shows that the learned Judge was totally a novice in criminal adjudication. 18. For the foregoing reasons, the criminal appeal is liable to be allowed. 19. In the result, the criminal appeal, filed by the appellant-sole accused, is allowed, setting aside the conviction and sentence imposed on him for the offence punishable under Section 302 IPC as per the judgment, dated 20.3.2006, in Sessions Case No.5 of2005, passed by the VI Additional District and Sessions Judge (Fast Track Court), East Godavari at Rajahrnundry. Consequently, the appellant-accused shall be released forthwith, if not required in any other case. The fine amount, if any, paid by the accused shall be refunded to him. 20. Registry is directed to forward a copy of this judgment to the learned Judge, by name, who presided over the Court below, at the time of disposal of Sessions Case No.5 of 2004, by judgment, dated 20.3.2006, wherever she may be working now and in any capacity.