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2007 DIGILAW 1151 (AP)

Akula Somaiah v. State of Andhra Pradesh

2007-11-26

GOPALA KRISHNA TAMADA

body2007
JUDGMENT: - In all eleven persons were tried as A-1 to A-11 in S.C.No.336 of 1997 on the file of the Court of the I Additional Sessions Judge, Nalgonda, for the offences punishable under Sections 364, 302, 302 read with 109 and 201 of the Indian Penal Code, 1860. The learned I Additional Sessions Judge, while acquitting A-7 to A-11 of all the charges and acquitting A-1 to A-6 of the charge punishable under Section 302 read with 149 and 201 of IPC, however, found A-1 to A-6 guilty of the charge punishable under Section 364 of IPC and accordingly convicted and sentenced them to undergo rigorous imprisonment for ten years and also to pay a fine of Rs.500/- each in default to suffer simple imprisonment for a period of two months each. Questioning the said judgment dated 17-11-2000; A-1 to A-6 preferred the present appeal. 2. The substance of the charge framed against the accused by the trial Court is that A-1 to A-11 on the night of 02-10-1996 at the outskirts of Ravulapally Thonda abducted one Akula Komaraiah to cause his death and accordingly caused his death. 3. The case of the prosecution as culled out during the course of evidence, is as follows- (i) One Upendra, who was given in marriage to one Akula Komaraiah (hereinafter called as 'the deceased'), died at Bombay in the house of the deceased in suspicious circumstances. Coming to know of the death of the wife of the deceased, Upendra, all the accused who are closely related to her and PW-1, who is the brother of the deceased, went to Bombay and brought her dead body. The deceased also accompanied the dead body of his wife Upendra, but after reaching the village, he absconded and all the accused went in search of the deceased. As they could not find out the deceased they forced PW-1 to state the whereabouts of the deceased and threatened him with dire consequences and on that PW-1 stated that the deceased is in the house of his maternal aunt. On the basis of the said information all the accused took PW-1 to his maternal aunt, where the deceased was found getting down from a lorry. Thereupon, all the accused took him in a white car to Kukkadam village. As PW-1 was left alone, he returned to his village by walk on the same night. On the basis of the said information all the accused took PW-1 to his maternal aunt, where the deceased was found getting down from a lorry. Thereupon, all the accused took him in a white car to Kukkadam village. As PW-1 was left alone, he returned to his village by walk on the same night. Later, as his brother did not turn up even after three days, suspecting some fowl play, PW-1 went to Tirumalagiri Police Station on 05-10- 1996 and lodged a report with the Sub Inspector of Police, who was examined as PW-15 about the abduction of his brother on 02-10-1996. (ii) On the basis of Ex.P1, report, PW-15 registered a case in Crime No.78 of 1996 against the accused for an offence punishable under Section 365 of IPC and submitted copies of first information reports to all the concerned. The report given by PW-1 was exhibited as Ex.P1 and the first information report was exhibited as Ex.P22. On the same night, PW-15 examined PW-1 and recorded his statement at the police station itself and later visited the scene of offence at Thonda village and prepared scene of offence panchanama in the presence of PWs.7 and 8. On the next day morning PW-15 visited Gottiparty village and examined one Akula Ushaiah (LW-2), who is the father of PW-1 and the deceased, and PWs.2 and 4 i.e. co-brother of PW-1, and maternal uncle of the deceased and PW-1, respectively, and recorded their statements under Section 161 of the Code of Criminal Procedure, 1973. On information that A-5 is moving at Nagaram crossroads, PW-15 proceeded to that place, arrested him on 06-10-1996 and recorded his confessional statement in the presence of PWs.9 and 10. (iii) In the meanwhile, the Inspector of Police, who was examined as PW-11 visited the village and based on the confessional statement made by A-5, PWs.11, 15 and their staff along with PWs.9 and 10 proceeded to Pedacheruvu in Kukkadam village, where A-5 showed them a tied gunny bag floating in the water of the tank. PW-15 with the help of PW-5 and others lifted the gunny bag from out of the water and having opened the gunny bag found the dead body of the deceased. The confessional statement of A-5 was marked as Ex.P24. PW-15 with the help of PW-5 and others lifted the gunny bag from out of the water and having opened the gunny bag found the dead body of the deceased. The confessional statement of A-5 was marked as Ex.P24. PW-15 conducted panchanama over the dead body of the deceased in the presence of PWs.9 and 10 and the said panchanama was marked as Ex.P25. (iv) Since it is a clear case of murder, the police filed a Memo before the trial Court to alter the Section of law from 365 to 302 of IPC and the said alteration Memo was exhibited as Ex.P26. Later the Inspector of Police, Thungathurthy, who was examined as PW-11, took up the investigation from PW-15, conducted inquest over the dead body of the deceased on 06-10-1996 in the presence of PWs.9 and 10. During the course of inquest, PW-11 seized the clothes of the deceased along with gunny bag and a granite stone, to which the said gunny bag was tied. The black pant worn by the deceased was marked as MO-1, the blue colour underwear was marked as MO-2, white full-hands shirt was marked as MO-3, white banian was marked as MO-4, gunny bag was marked as MO-5 and a granite stone was marked as MO-6. Ex.P17 is the seizure-cum-inquest report. PW-11 also examined PW-5, LW-7 and PW-6 and recorded their statements and thereafter, the dead body of the deceased was sent for postmortem examination to the Government Hospital at Suryapet. The Civil Assistant Surgeon, who was examined as PW-12 on the requisition from the Station House Officer, Thungathurthy, conducted autopsy over the dead body of the deceased and issued postmortem certificate and the same was exhibited as Ex.P19. PW-11 visited the scene of offence, conducted observation panchanama in the presence of PWs.9 and 10 and the same was marked as Ex.P18. On the next day, A-5 was produced before the Magistrate, who in turn remanded him to judicial custody. On 19-10-1996 on information, the Inspector of Police, Thungathurthy, who was examined as PW-14, arrested A-7 and A-11 and they were remanded to judicial custody on 28-10-1996. Thereafter, A-6, A-8 and A-9 were arrested on 05-11-1996 and on the next day they were remanded to judicial custody. A-1 surrendered before the Magistrate and thus was remanded to judicial custody. On 19-10-1996 on information, the Inspector of Police, Thungathurthy, who was examined as PW-14, arrested A-7 and A-11 and they were remanded to judicial custody on 28-10-1996. Thereafter, A-6, A-8 and A-9 were arrested on 05-11-1996 and on the next day they were remanded to judicial custody. A-1 surrendered before the Magistrate and thus was remanded to judicial custody. The crime vehicle was seized on 13-03-1997 and the statement of the owner of the vehicle i.e. PW-13 was recorded. After completion of the entire investigation, PW-14 filed the charge sheet against all the accused for the offences punishable under Sections 364, 302, 201 and 302 read with 109 of IPC. 4. In order to bring home the guilt of the accused, the prosecution pressed into service the evidence of PWs.1 to 15 and got marked Exs.P1 to P33. PWs.2, 3, 7,9, 10 and 13 were declared hostile and did not support the case of the prosecution. The plea of the accused is one of total denial. On the basis of ocular and documentary evidence as observed supra, the trial Court while holding that all the accused are not guilty of the offence punishable under Sections 302, 201 and 302 read with 109 of IPC, however, found these appellants - A-1 to A-6 alone guilty of the offence punishable under Section 364 of IPC. 5. Heard Sri C. Padmanabha Reddy, learned senior counsel appearing for appellants and the learned Additional Public Prosecutor. 6. Learned Senior Counsel contended that there is absolutely no legal evidence to substantiate either the charge under Section 302 or under Section 364 of IPC. According to him, though the trial Court has rightly concluded that the appellants are not guilty of the offence punishable under Section 302 of IPC, has wrongly applied the provisions of Section 364 of IPC and thus convicted them for the act of abduction, which is not at all warranted. According to him, when once the trial Court holds that the appellants are not guilty of the offence punishable under Section 302 of IPC, it cannot hold that the appellants are guilty of an offence punishable under Section 364 of IPC. According to him, when once the trial Court holds that the appellants are not guilty of the offence punishable under Section 302 of IPC, it cannot hold that the appellants are guilty of an offence punishable under Section 364 of IPC. According to him, when once the case under Section 302, or under Section 302 read with 109 of IPC is not established, it is deemed that a case under Section 364 of IPC is also not established, but the trial Court wrongly interpreted the provisions of Section 364 of IPC and thus convicted the appellants of the said offence. The entire evidence, according to learned Senior Counsel, is only to the effect that the presence of the deceased was required for the purpose of conducting final rites of the wife of the deceased, who died under suspicious circumstances at Bombay. When such is the case, the trial Court is not justified in convicting the appellants for the offence under Section 364 of IPC. Learned senior counsel further contended that the entire case rests on the evidence of PWs.1, 4, 9 and 10 and according to him PWs.1 and 4 are none other than the father and maternal uncle of the deceased respectively and PWs.9 and 10, who were present throughout i.e. at the time of arrest and recording of confessional statement of A-5, conducting of observation panchanama and inquest over the dead body of the deceased did not support the case of the prosecution. In the absence of any legal evidence, the trial Court ought not to have convicted the appellants even for the offence punishable under Section 364 of IPC. 7. The learned Additional Public Prosecutor while opposing the submissions submitted that there is a clear motive to the appellants in abducting the deceased as his wife Upendra died unnaturally in his house at Bombay. All the circumstances, according to the learned Additional Public Prosecutor, clearly reveal that the deceased was abducted by the appellants and thereafter his dead body alone was found and hence, the trial Court is justified in convicting the appellants for the offence under Section 364 of IPC. 8. All the circumstances, according to the learned Additional Public Prosecutor, clearly reveal that the deceased was abducted by the appellants and thereafter his dead body alone was found and hence, the trial Court is justified in convicting the appellants for the offence under Section 364 of IPC. 8. PW-1 is the brother of the deceased, PW-2 is the co-brother of PW-1, PW-3 is a resident of Gottiparty village, PW-4 is the maternal uncle of PW-1 and the deceased, PW-5 is the Village servant of Kukkadam village, PW-6 is the photographer, PWs.7 and 8 are residents of Thonda village, who acted as mediators and observation report was marked as Ex.P8, PWs.9 and 10 are the persons before whom all the proceedings i.e. inquest, confession by A-5, discovery of the dead body at the instance of A-5 and the second scene of offence panchanama were record recorded. PW-11 is the Inspector of Police, Thungathurthy at the relevant point of time, PW-12 is the doctor, who conducted autopsy, PW-13 is the owner of the crime vehicle, and PWs.14 and 15 are the police officials. Though the prosecution pressed into service, PWs.1 to 15, the entire case rests on the evidence of PWs.1, 4, 9 and 10 alone. 9. In the light of the same, this Court looked into the evidence of PWs.1, 4, 9 and 10. PW-1 is none other than the brother of the deceased and PW-4 is the maternal uncle of the deceased and PW-1. Though they are interested in the deceased, if their evidence is trustworthy the Courts can accept their evidence. No doubt, PWs.9 and 10 were present throughout the proceedings i.e., at the time of arrest and recording of confessional statement of A-5, recording of observation report and inquest mahazar, but they did not support the case of prosecution and their evidence is to the effect that police obtained their signatures on papers at police station and they were not taken to the tank, where the dead body of the deceased was lifted. Hence, the prosecution declared them hostile. There remains the evidence of PWs.1 and 4 and no doubt, they are interested in the deceased, but on that score their evidence cannot be discarded. 10. In the evidence of PWs.1 and 4, nowhere it is stated that the accused abducted the deceased with an intention to kill him. Hence, the prosecution declared them hostile. There remains the evidence of PWs.1 and 4 and no doubt, they are interested in the deceased, but on that score their evidence cannot be discarded. 10. In the evidence of PWs.1 and 4, nowhere it is stated that the accused abducted the deceased with an intention to kill him. What was stated by PW-1 is that all the accused forced him to state the whereabouts of the deceased and when he informed them that the deceased is in the house of his maternal aunt, the accused took him in a white car to the house of the said maternal aunt, where the brother of the deceased was found getting down from a lorry. He further stated that thereafter the accused left him and took the deceased with them. Similarly, PW-4 also stated that some of the accused came to his village, Thonda, and took the deceased in a car to Gottiparty village and thereafter the deceased was murdered, as his wife committed suicide. He also stated that A-1 to A-6 abducted the deceased while he was getting down from the lorry. 11. Coming to the provisions of law, kidnapping, abduction, slavery and compulsory labour are dealt with under Sections 359 to 374 of IPC. As the offence alleged against the appellants is abduction, it may be apt to refer to the definition of abduction, provided for under Section 362 of IPC, which reads as follows-- "Abduction._ Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person." 12. According to the said provision of law, whoever by force compels or by any deceitful means induces any person to go from any place is said to abduct that person. Abduction is not an offence by itself and it should be followed by some other act such as to murder or with an intention to secretly and wrongfully to confine a person, or inducing a woman to compel her marriage etc, or in order to subject person to grievous hurt, slavery etc. The offence with which we are concerned is dealt with under Section 364 of IPC. The offence with which we are concerned is dealt with under Section 364 of IPC. According to the said provision of law, whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. So, the prosecution shall establish the fact that the deceased was abducted in order to murder. As stated supra, the witnesses i.e. PWs.1 and 4, nowhere in their evidence have deposed that the intention of the appellants in abducting the deceased was in order to murder him. In the absence of any such evidence in my considered view, the prosecution could not establish that the appellants are guilty of the offence punishable under Section 364 of IPC and the Court also cannot convict them as if they have committed the said offence punishable under Section 364 of IPC. 13. Further in Ex.P1 report given by PW-1 on 05-10-1996, basing on which the criminal law is set in motion, it is stated that the above persons abducted the deceased by suspecting that the deceased is responsible for the death of his sister-in-law Upendra. Further, according to PW-1, the said abduction of his brother i.e. the deceased is that his presence is necessary for the funeral of Upendra, who died unnaturally. Neither in the report given by PW-1 nor in the evidence of PWs.1 and 4, it came out that the deceased was abducted in order to murder him. As already observed, in the absence of any evidence to that effect, this Court is of the view that it may not be proper to convict the appellants as if they have committed an offence punishable under Section 364 of IPC. If the evidence of murder was not believed, there was practically nothing before the Court to show that the object for which the deceased was taken away was that he might be murdered or placed in danger of being murdered. If the evidence of murder was not believed, there was practically nothing before the Court to show that the object for which the deceased was taken away was that he might be murdered or placed in danger of being murdered. Of course, there are certain circumstances which tried to establish the guilt of the appellants i.e. abduction of the deceased, finding the dead body of the deceased in a bank would lead to the inference that the appellants might be responsible for the death of the deceased. As the State did not prefer any appeal against the said judgment whereby the appellants were acquitted of the charge punishable under Section 302 of IPC, this Court is unable to go into that aspect as to whether the said circumstances are sufficient to come to the conclusion that the appellants are responsible for the death of the deceased. As stated supra, none of the witnesses i.e. PWs.1 and 4 and the report Ex.P1 do not say that the deceased was abducted in order to murder and the trial Court acquitted the appellants of the charge punishable under Sections 302 and 302 read with 109 of IPC, this Court is unable to come to the conclusion that the appellants are guilty of the offence punishable under Section 364 of IPC. Had the State preferred an appeal against the said judgment passed by the trial Court, acquitting the appellants of the charge under Section 302 of IPC, probably it would have been a different story. 14. Accordingly, the criminal appeal is allowed and the conviction and sentence imposed on A-1 to A-6 in S.C.No.336 of 1997, vide judgment dated 17-11- 2000, by the Court of the I Additional Sessions Judge, Nalgonda, are set aside. Bail bonds of the appellants shall stand cancelled.