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2007 DIGILAW 1166 (AP)

Puvvala Venkatesh v. State of A. P.

2007-11-29

B.PRAKASH RAO, L.NARASIMHA REDDY

body2007
JUDGMENT (Per L. Narasimha Reddy, J.) The accused in Sessions Case No. 130 of 2004 on the file of II Additional Sessions Jude (Fast Track Court), Parvathipuram is the appellant. He was tried for the offence of committing murder of one Madangi Nageswara Rao on 27-06-2004 at a village by name, Rayaghada Jammu. The trial Court convicted him for the offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life. Fine of Rs. 1,000/- was also imposed and in default of payment thereof, he was directed to undergo simple imprisonment for six months. 2. The prosecution stated that the deceased and the appellant resided in neighbouring premises and on 27 -06-2004, the appellant is said to have spoiled the house of the deceased by spitting and pouring urine, in a drunken condition. The wife of the deceased, P.W. 2, is said to have gone to river for washing clothes and when she returned, she noticed the spoiled condition of the house and on being informed that the appellant caused the same, she is said to have accosted him. It was alleged that the appellant threatened her. 3. The deceased came to the house around 8.00 p.m on that day and P.W.2 is said to have narrated the developments to him. Thereupon, the deceased went and questioned the appellant as to why he has spoiled the premises and threatened P.W.2. This is said to have resulted in an enragement of the appellant and hitting the deceased with an axe. The deceased is said to have died on account of the said injury. 4. The incident was reported in the Police Station at 9.00 a.m. on the next day, through Ex. P-1. The same resulted in registration of a case. Thereafter, inquest was conducted vide Ex. P-2 and an observation report, Ex. P-3 was drawn. Postmortem was conducted on 29-06-2004 and the certificate in relation thereto was marked as Ex. P-11. 5. The investigation conducted by P.W.10, Circle-Inspector of Police, is said to have revealed that the incident was witnessed by P.W.1, a neighbour, and P.W. 2, the wife of the deceased. The appellant was apprehended on 30-06-2004 together with axe, marked as M.O.1, and the panch witness for the same is P.W. 6. The trial Court held that the appellant committed the offence of murder and imposed the punishment, mentioned above. 6. The appellant was apprehended on 30-06-2004 together with axe, marked as M.O.1, and the panch witness for the same is P.W. 6. The trial Court held that the appellant committed the offence of murder and imposed the punishment, mentioned above. 6. Smt. Gayatri Reddy, learned counsel for the appellant submits that the evidence of P.W.1 if read carefully, would clearly disclose that he did not witness the occurrence at all, and there are contradictions in his evidence. She further contends that there is any amount of contradiction between the evidence of P.W.1 on the one hand and P.W.2, wife of the deceased, on the other. Another aspect, the learned counsel points out is about the alleged recovery of M.O.1 by making reference to the evidence of P.Ws. 1, 6 and 10. She has also submits that the non-examination of the doctor, who conducted postmortem etc., is fatal to the case of the prosecution. 7. Learned Additional Public Prosecutor, on the other hand, submits that there is a clear eyewitness account of the incident and the findings recorded by the trial Court do not warrant any interference. He contends that though a cursory reading of the deposition of P.W.1 may give rise to suspicion, a careful scrutiny thereof would reveal that he too has witnessed the occurrence and the small contradiction as regards M.O.1 is not material. 8. According to the version presented by the prosecution, there existed two eyewitnesses to the incident. The circumstances that are said to have lead to the occurrence have already been stated in the preceding paragraphs. The occurrence is said to have been seen by two eyewitnesses viz., P.Ws.1 and 2. Therefore, it needs to be seen, as to whether the prosecution had established its case. 9. P.W.1 stated that he has not only witnessed the occurrence but also caught hold the appellant with the help of two others. He deposed that after apprehending the appellant, they tied him, but he escaped. He stated that the axe, marked as M.O.1, used in the offence was recovered by them from the house of he appellant and handed over the same to the police in the presence of villagers. The relevant portion of his chief examination reads as under: "We caught hold of the accused and handed over the accused to the Police. Immediately after the catching, he was tied and subsequently the accused was escaped. The relevant portion of his chief examination reads as under: "We caught hold of the accused and handed over the accused to the Police. Immediately after the catching, he was tied and subsequently the accused was escaped. On the next day morning of the incident, I saw M.O.1 axe which was at the house of the accused. In the presence of the villagers, we went to the house of the accused and brought M.O.1 from the house of the accused and handed over the same to the Police. Axe was not in the hands of the accused when we caught hold of the accused. I witnessed when the accused was beating the deceased Nageswara Rao with M.O.1. The accused ran away towards west." However, in the cross-examination, he stated somewhat different viz., "At the time of the incident, we were at the house of one Gopala Rao. I saw the incident standing at the verandah of the house of Gopla Rao. After hearing the cries of the wife of Nageswara Rao we came to the scene of offence. At that time accused was not present at the scene of offence. The wife of the deceased informed me that the accused came and beat the deceased and went away." If one superimposes these two paragraphs, a clear contradiction becomes evident. Therefore, it cannot be stated that P.W.1 has witnessed the occurrence at all. 19. P.W. 2 is the wife of the deceased. Her evidence does not at all agree with any of the versions of P.W.1, referred to above. One significant aspect is that she has stated that the deceased did not receive any bleeding injuries on the date of occurrence, but the blood started oozing only on the next day. The relevant portion of the deposition is as under: "At the time of incident the deceased did not succumb bleeding injury. On the next day morning blood came from the nose of the deceased. As the accused beat the deceased with axe I thought that my husband died due to that beat. Immediately after beating my husband fell down and died. While I was crying the neighbourers came and I informed that the accused beat my husband and due to that deceased died." 11. Further, she stated that except herself, no one was present, when the appellant attacked the deceased with the axe. Immediately after beating my husband fell down and died. While I was crying the neighbourers came and I informed that the accused beat my husband and due to that deceased died." 11. Further, she stated that except herself, no one was present, when the appellant attacked the deceased with the axe. This has totally ruled out the very presence of P.W.1 at the scene of offence. These contradictions naturally give rise to a serious doubt as to the truthfulness of the evidence of P.W.2 also. 12. The recovery of M.O.1 is another facet, which throws any amount of doubt as to the correctness of the theory put forwarded by the prosecution. It has already been pointed out that P.W.1 stated that himself and certain others have apprehended the accused, soon after the occurrence on 27 -06-2004 recovered M.O.1, and handed over the same to the police. However, in the charge sheet and during the course of trial, it was pointed out that M.O.1 was recovered on 30-06-2004 under a panchanama, to which P.W.6 is a witness. The investigating officer, P.W.10 also deposed that he recovered M.O.1 on 30-06-2004, while apprehending the appellant. This material contradiction is another important suspicious circumstances. 13. Therefore, this Court is of the view that the contradictions pointed out above are sufficient to throw doubt upon the truthfulness of the version of the prosecution, and accordingly, the benefit of doubt deserves to be extended to the appellant. 14. In the result, the appeal is allowed and the conviction and the sentence ordered against the appellant are set aside. He shall be set at liberty forthwith, if he is not required in any other case. The fine amount, if any, paid by the appellant shall be refunded to him after expiry of appeal time.