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2008 DIGILAW 1087 (AP)

Parsineni Venkateswarlu v. State of A. P.

2008-12-22

K.C.BHANU, V.ESWARAIAH

body2008
JUDGMENT (Per V. Eswaraiah, J.) The appellant is the accused in S.C. No. 1 of 2004 on the file of the VI Additional District and Sessions Judge, Fast Track Court, Markapur. He was tried for the offences punishable under Sections 302 and 2011PC. The learned Sessions Judge found him guilty of the offence punishable under Section 302 IPC, convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 200/-, in default to suffer two months rigorous imprisonment. 2. The case of the prosecution, in brief, is that P.W. 3 is the brother-in-law and P.W. 4 is the husband of the deceased Mandla Subbamma (hereinafter referred to as 'the deceased'). The material witnesses, the deceased and the accused are resident of Kondepalli village. The accused had illicit intimacy with the deceased and in that connection, P.Ws. 3 and 4 chastised the deceased. On 28-08-2002, P.W. 12 Panchayat Secretary of Seethanagulavaram came to know that the dead body of the deceased was found on the road between Seethanagulavaram and Borugunthalapadu villages. He went there, saw the dead body of the deceased and sent a written report, drafted by the Assistant Panchayat Secretary, to Thadivaripalli Police, and the same was marked as Ex. P-14, on the basis of which, P.W. 13 Sub-Inspector of Police registered a case in Crime No. 30 of 2002 under Section 174 Cr.P.C. and issued Ex. P-16 FIR. On the same day, P.W. 13took up investigation. He visited the scene of offence, prepared observation report Ex. P-11 , drew rough sketch Ex. P-17 in the presence of P. W. 10 and another, held inquest over the dead body of the deceased in the presence of P .W. 12 and another under Ex. P-15 inquest report and recorded the statements of P.Ws. 2, 4, 12 and others. Thereafter, he visited Seethanagulavaram village and also recorded the statements of P .Ws. 8 and 9. On the next day, he recorded the statements of P.Ws. 1,3 and 6. On 28-08-2002, at about 2.00 p.m. P.W. 14 Medical Officer, Area Hospital, Markapur, conducted autopsy over the dead body of the deceased and opined that the cause of death was due to ingestion of insecticide poisonous substance 'Endosulfan'. At the time of postmortem examination, P .W. 14 had taken and preserved two vaginal semen's, two swabs from the vulvas stain and viscera and were sent to FSL. Ex. At the time of postmortem examination, P .W. 14 had taken and preserved two vaginal semen's, two swabs from the vulvas stain and viscera and were sent to FSL. Ex. P-27 is the FSL report. Ex. P-25 is the post mortem report and Ex. P-26 is the final opinion. On 31-08-2002, at about 6.00 p.m. on receipt of Ex. P-4 alleged extra judicial confession through P.Ws. 5 and 7, P.Ws. 13 altered the section of law to Section 3021PC, arrested the accused and issued altered FIR Ex. P-18. Thereafter, he recorded the statements of P.Ws. 5 and 7. On 01-09-2002, at the instance of the accused, P. W. 13 went to the scene of offence, prepared the scene of observation report Ex. P-5, drew the rough sketch Ex. P-24 and recovered zenax tablets empty strip M.O. 1, a bottle with a cap M.O. 2 and Atlas cycle M.O. 3 in the presence of P.Ws. 5 and 7. Then, the accused was sent to judicial custody. On 04-09-2002, at the instance of the accused, P.W. 13 seized the clothes of the accused under M.Os. 4 to 6 and pesticide tin M.O. 7 under Ex. P-20 in the presenceofP.W.11 and another. The material objects were sent to FSL. Thereafter, the accused was sent to NDA test. Ex. P-28 is the DNA report. After completion of investigation and after collecting the required documents, P.W. 15 Circle Inspector of Police filed the charge sheet. 3. The substance of the charges against the accused is that on 27-8-2002 at about 11.00 a.m. near Nallavagu, situated in Kondepalli village, the accused caused the death of one Mandla Subbamma by administering sleeping pills (Zenax) and pesticide for the offences punishable under Section 3021PC and thereafter, he carried the dead body of the deceased and placed on the way leading to Gorugunthalapad with an intention of screening himself from legal punishment for the offence punishable under Section 201 IPC. The plea of the accused is that of total denial. The accused denied the charges. 4. I n support of the case of the prosecution, the prosecution examined P. Ws. 1 to 15 and got marked Exs. P-1 to P-28 and M.Os. 1 to 10. 5. The learned Sessions Judge mainly based on the deposition of P. Ws. The plea of the accused is that of total denial. The accused denied the charges. 4. I n support of the case of the prosecution, the prosecution examined P. Ws. 1 to 15 and got marked Exs. P-1 to P-28 and M.Os. 1 to 10. 5. The learned Sessions Judge mainly based on the deposition of P. Ws. 3 and 4 and the DNA report and found the accused guilty of the offence under Section 302 IPC by drawing inference under Section 106 of the Indian Evidence Act, 1872 (for short 'the Act') that the accused is found responsible for the death of deceased. 6. Heard the rival contentions of both the learned counsel. 7. Sri C. Padmanabha Reddy, learned senior Counsel appearing for the appellant, submits that there is no direct eyewitness to the prosecution case and that the case rests on the circumstantial evidence. He further submits that the circumstances relied upon by the prosecution are not proved and even if proved, they are holding insufficiently and even if they are holding to base a conviction, P .Ws. 1,2,4, to 9 did not support the case of the prosecution as they were declared hostile. He further submits that M.Os. 4 to 7 were recovered by P. W. 13 after arrest of the accused and the mediators did not support the said recoveries and therefore, the learned Sessions Judge should have rejected the evidence of P.W. 13 with regard to recovery of M.Os. 4 to 7. He further submits that Ex. P-28 DNA report is not admissible in evidence, as the author of the report is not examined as one of the scientific experts named under Section 293 Cr.P.C. and therefore, the conviction of the accused, which is mainly based on the interested testimony of P.Ws. 3 and 4, is illegal and unsustainable. He also submits that there is no evidence that the accused was last seen in the company of the deceased to invoke Section 106 of the Act and therefore, the conviction is unsustainable and is liable to be set aside. 8. On the other hand, the learned Public Prosecutor submits that the evidence with regard to the illicit intimacy of the accused with the deceased is consistent and that though there is no eyewitness, there was an illicit intimacy with the deceased, and Ex. 8. On the other hand, the learned Public Prosecutor submits that the evidence with regard to the illicit intimacy of the accused with the deceased is consistent and that though there is no eyewitness, there was an illicit intimacy with the deceased, and Ex. P-28 DNA report clearly established that the biological fluid present on the saree of the deceased is of a female origin and the biological fluid (semen) present on the langa of the deceased is the source of the accused and therefore, the learned Sessions Judge has rightly held that the burden of proving the fact is on the accused, as such, it cannot be said that the learned Judge has committed any illegality and based upon the evidence available on record, he has rightly found the accused guilty of the offence under Section 302 IPC. 9. P.W. 12, who is the Panchayat Secretary of Seethanagulavaram village, gave a report Ex. P-14 on 28-8-2002 at 8.00 a.m. stating that the dead body of the deceased was found on the road between Sethanagulavaram and Borugunthalapadu villages, and police registered a case under Section 174 Cr.P.C. He did not know anything about the cause of death or about the deceased and the accused. Though he stated in his chief-examination that he gave Ex. P-14, which was drafted by the Assistant Panchayat Secretary, to Tahadivaripalli Police, and attested the inquest report Ex. P-15 on 28-8-2002, he stated in his cross-examination that he does not know who drafted the inquest report. He also stated that he does not know the accused and also about the illicit intimacy between the accused and the deceased. P.W. 1 who is the villager of the deceased, deposed that though she knew the accused, she does not know the relationship between the accused and the deceased and the cause of death. She turned hostile. P.W. 2, who is a resident of Seethanagulavaram, deposed that he does not know the accused and the deceased, and he acted only to guard the dead body. He being the talari in the village, when he came to know about the dead body in the village limits, he informed P.W. 12. P.W. 3, who is the brother-in-law of the deceased, stated that he knew the accused, who had illicit intimacy with the deceased and in that connection, himself and his brother P.W. 4 chastised the deceased. He being the talari in the village, when he came to know about the dead body in the village limits, he informed P.W. 12. P.W. 3, who is the brother-in-law of the deceased, stated that he knew the accused, who had illicit intimacy with the deceased and in that connection, himself and his brother P.W. 4 chastised the deceased. Even after that also, the deceased continued her illicit relations with the accused. He is not an eye witnesses, but he stated that on the date of incident, he saw the deceased while going to Nallavagu at about 12.00 noon, but he did not see the accused going towards Nallavagu after the deceased, but he came to know that the accused also went to Nallavagu on the date of the incident at about 12.30 p.m. He came to know about the death of the deceased by 6.00 p.m. and he proceeded there and found the dead body. He was also declared hostile, but in the examination by the Pubic Prosecutor, he stated that the statement given before the police is correct. The case of the accused is that there was no illicit intimacy between him and the deceased and only on suspicion, P.Ws. 3 and 4 beat the deceased and by reason of the II treatment meted out to her, the deceased committed suicide by taking poison. P. W. 4 is the husband of the deceased. He admitted that the accused had illicit intimacy with the deceased and he chastised the accused as well as the deceased, but they did not care his words. He also declared hostile. P. W. 5, who is a Panchayat Secretary, acted as a panch witness for Ex. P-5 mediatornama drafted for observation of scene of offence and seizure of material objects. He was turned hostile and did not support the seizure of material objects. P.W. 7, the mediator for Exs. P-5 and P-7, also did not support the case of the prosecution and turned hostile. The other witnesses, who said to have been stated that the accused was carrying the deceased in unconscious state, were also turned hostile and none of them supported the case of the prosecution. P. W. 12 is the witness for sending report to the police and also attesting the inquest report. The other witnesses, who said to have been stated that the accused was carrying the deceased in unconscious state, were also turned hostile and none of them supported the case of the prosecution. P. W. 12 is the witness for sending report to the police and also attesting the inquest report. P. W. 13, who is the Sub-Inspector of Police, conducted the investigation and recorded the extra judicial confessional statement of the accused in the presence of P.Ws. 5 and 7, who did not support the case of the prosecution and that the seizure of the shirt of the accused and pesticide tin from his house is not proved. It is the case of the accused that the material objects are all planted by the police and therefore, none of the witnesses supported the case of the prosecution. There is no dispute that the deceased died by the reason of insecticide poisonous substance 'Endosulphan' . 10. The question that arises for consideration is as to who administered the poison to the deceased and whether the deceased herself committed suicide by taking poison or there are any circumstances to show that the accused caused the death of the deceased. 11. The findings of the trial Court are that the deceased was induced by the accused to come to Nallavagu on the date of incident; and that both the accused and deceased met at Nallavagu; and that accused had sexual intercourse with the deceased twice; and that by playing treachery and by using force tied the hands of the deceased with his pant behind her back and then made her to swallow zenax tablets and also the pesticide brought by him in glass bottle and the, the deceased fell unconscious and then carried her to the bus stand center to Seethanagulavaram and laid the dead body on the metal road after she lost her breathe and escaped from the village, are all perverse, and not based upon any evidence direct or circumstantial. Those findings appear to have based upon surmises and conjectures, which cannot be basis for conviction. The conviction appear to be a moral one, and it is not based upon any legal evidence. Those findings appear to have based upon surmises and conjectures, which cannot be basis for conviction. The conviction appear to be a moral one, and it is not based upon any legal evidence. The other finding that the deceased proceeded to Nallavagu in the noon time on the date of incident and accused followed her is established by the evidence of P.W.3, is totally incorrect and perverse because P. W. 3 categorically stated that he did not see the accused going towards Nallavagu after the deceased proceeded to Nallavagu. He only stated that he came to know that the accused also went to Nallavagu on the date of incident. That statement is hearsay evidence which is not admissible under law. No doubt, after he was declared as hostile, P.W. 3 admitted in the cross-examination by learned Public Prosecutor that he stated before police that the accused also went towards Nallavagu after the deceased went and he saw the same. There cannot be any dispute that a statement given to police during investigation cannot be used for any other purpose, except for contradicting the witness. The statement given to the police is not an evidence, so as to place reliance on it. In view of the fact that he was declared hostile to the prosecution, the same cannot be used as evidence to the prosecution unless the same is corroborated with other evidence on record on material particulars. But, there is no such evidence on record. Drawing inference by trial Court that accused killed the deceased by invoking Section 106 of Evidence Act is totally incorrect. Section 106 of Evidence Act comes into play only after prosecution proved its case beyond all reasonable doubt for the charge leveled against him. At best any fact which is exclusively within the knowledge of accused, if not proved, can be taken as additional like so as to lend assurance to the case of prosecution. 12.ln the instant case, even assuming that there was illicit intimacy between the deceased and the accused, there is no direct evidence or even circumstances to show that the accused administered poison to the deceased. Similarly, no circumstances would indicate that the accused purchased poison so as to administer to the deceased and the question of bringing to body from Nallavagu to bus stand does not arise. Similarly, no circumstances would indicate that the accused purchased poison so as to administer to the deceased and the question of bringing to body from Nallavagu to bus stand does not arise. There was no evidence that the accused was seen in the cOll1pany of the deceased prior to the incident or at the time of the incident or immediately after the incident. Only after his arrest, M.Os. 4 to 7 were recovered based on his alleged confessional statement. No doubt human blood was noticed by serologist on M.O. 4 but it is not shown to be the same blood of deceased. M.Os. 5 and 6 were subjected to DNA finger printing test but they were not suitable for analysis. Recovery of M.O. 7 cannot be said to be incriminating against the accused, because, at times like M.O. 7 would be available with agriculturists. Insofar as Ex. P-28 DNA report is concerned, the learned senior counsel contended that as per Section 293 Cr.P.C., the said report cannot be considered as the author of the report is not examined in Court to prove the contents. The 5aid contention appears to be correct, because, the person who gave Ex. P-28 cannot come Under purview of Section 293(4) Cr.P.C. Even issuing Ex. P-28 is taken as evidence, the same cannot be incriminating circumstance. It is the case of the prosecution that there was an illicit intimacy between the deceased and the accused and they were meeting now and then. Therefore, we are of the opinion that by reason of Ex. P-28, it cannot be said that the accused administered the poisonous substance to the deceased, merely because the biological fluid present on the langa of the deceased is the source of the blood sample of the accused. At best that gives rise to a suspicion that there was a scope for accused to administer poison to the deceased. But suspicion however strong cannot take place of legal proof. 13. In view of the facts and circumstances of the case, we are of the view that the prosecution has failed to prove the guilt of the appellant-accused beyond all reasonable doubt. 14. Accordingly, the Criminal Appeal is allowed, and the conviction and sentence recorded in S.C. No. 1 of2004onthefileofthe VI Additional District and Sessions Judge (Fast Track Court), Markapur, dated 08-08-2006 against the appellant are set aside. 14. Accordingly, the Criminal Appeal is allowed, and the conviction and sentence recorded in S.C. No. 1 of2004onthefileofthe VI Additional District and Sessions Judge (Fast Track Court), Markapur, dated 08-08-2006 against the appellant are set aside. He shall be released forthwith if he is not required in any other case.