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2008 DIGILAW 163 (AP)

Mandla Ranga Swami v. State of Andhra Pradesh

2008-02-27

B.PRAKASH RAO, L.NARASIMHA REDDY

body2008
L. NARASIMHA REDDY, J :- This appeal under Section 374(2) of Cr.P.C. is filed by A1 to A4 in Sessions Case No.273 of 2004 on the file of the VI Additional District and Sessions Judge, (Fast Track Court), Markapur, being aggrieved by the judgment dated 13.2.2006 rendered by that Court. 2. All the accused were charged for the offence punishable under Section 302 read with 34 IPC, alleging that they have murdered one Nallabothula Srinivasulu at 7.30 p.m. on 11.12.2003. In the judgment under appeal, the trial Court, having held that the charge against the appellants-accused is proved, sentenced them to undergo imprisonment for life. Fine of Rs.200/- each was also imposed directing that in default of payment, they shall undergo, R.I. for one month. 3. The case against the appellants commenced with the submission of complaint EX.P7 by wife of the deceased. She stated that the brother of her husband by name Rasool had fallen in love with the daughter of Al and upon that AI, his sons A2 and A3, his relation A4 and other family members bore grudge against her husband-the deceased on the assumption that he helped Rasool in the affair. 4. On 11.12.2003, herself, her husband and brother-in-law Ganesh (PW.3) were said to have gone to the house of PWI her father-in-law. After spending sometime at that house, the said three persons, PWI and his daughter PW2 were said to be returning to the house of the deceased situated in the same colony at about 7.30 p.m. On noticing them, the accused as well as three others by name Gundaiah, Ranganayakulu and Nemilaiah, who were said to be waiting, attacked the deceased indiscriminately and Gundaiah was said to have pulled the legs of the deceased Srinivasulu making him to fall down and thereafter, the other accused attacked him indiscriminately. When cries were raised by PW.6 and others, the accused were said to have ran away from the place. Thereafter, they found Srinivasulu dead. She stated, the eloping of Rasool with the daughter of A.1 by name Ramadevi as well as the suspicion about the helping by the deceased as motive. 5. The police made an initial visit on the night to the village and thereafter, the investigation was taken up on the next morning. Inquest and post-mortem over the dead body were conducted. 6. 5. The police made an initial visit on the night to the village and thereafter, the investigation was taken up on the next morning. Inquest and post-mortem over the dead body were conducted. 6. In the FIR, as many as seven persons were shown as accused. During the course of investigation, A4, A5 and A6 were deleted and A7 came to be arrayed as A4. Charge was framed and the accused pleaded not guilty. The trial Court convicted and sentenced the accused. 7. Sri T. Bali Reddy, appearing on behalf of Sri O. Kailashnath Reddy, learned Counsel for the appellants, submits that though PWs.1 to 6 are examined as eyewitnesses, their evidence is unbelievable for more reasons than one. He contends that PW.6, who is the author and co-signatory of Ex.P7, the very basis for implicating the accused had disowned it and thereby no basis existed for the prosecution. He further contends that the evidence of P.W.1 exposed very serious infirmity viz., that he did not proceed to the police station at all, much less with PW.6. It is also his case that even after the prosecution has deleted the original accused Nos 4, 5 and 6, the evidence of the prosecution witnesses proceeded as though the said persons are also accused and thereby a serious inconsistency has cropped up. Learned Senior Counsel also has drawn the attention of the Court to the non-examination of the Rasool, who was said to have eloped with the daughter of A.1, particularly when a clear suggestion was made to the effect that the said lady is leading a happy married life with her husband. He contends that the very fact that the deceased was involved in several cases, so much so he was released on bail just 10 days prior to the incident, shows that he had many enemies and his death cannot be attributed to the accused. He further submits that there is inordinate delay in submitting the complaint itself. 8. The learned Additional Public Prosecutor submits that though P.W.6 turned hostile, there is consistency in the eyewitnesses' account of PWs. 1 to 5. He contends that the prosecution has proved beyond pale of doubt that the accused have caused the death of the deceased on account of their grudge against the deceased for helping his younger brother Rasool, in eloping with the daughter of A.1. 1 to 5. He contends that the prosecution has proved beyond pale of doubt that the accused have caused the death of the deceased on account of their grudge against the deceased for helping his younger brother Rasool, in eloping with the daughter of A.1. Learned Public Prosecutor further contends that the minor inconsistencies in the evidence on trivial aspects cannot constitute the basis for reversing the judgment of the trial Court. 9. Of the 13 witnesses examined by the prosecution, P.W.1 and P.W.5 are the parents, P.Ws.2 and 4 are sisters, P.W.3 is f the brother, P.W.6 is the wife and P.W.7 is the father-in-law of the deceased. P.W.8 is a witness for inquest. P.W.9 is the witness for the arrest of the accused and P.W. 10 is the witness for seizure of certain material objects. P.W.11 is the S.I. of Police, who received the complaint and registered the case and P.W.I2 is the Investigating Officer. Autopsy on the dead body was conducted by P.W.13. The documentary evidence contains Exs. P1 to P11 and Ex.D1. While EX.P1 is the complaint said to have been given by P.W.6, EX.P3 is the inquest, EX.P7 is the first information report and Ex.P 11 is the post-mortem certificate. 10 The incident is said to have taken place at 7.30 p.m. on 11.12.2003. The complaint-Ex.P1 was said to have been given to police in the police station at 11.00 p.m. on the same day. The distance between police station and place of offence is five kilometers. In view of the fact that there were some elements of faction in the village, valid explanation was necessary for such delay. However, this question pales into existence, in view of the fact that P.W.6, the author of the complaint has disowned it and she was declared hostile. The effect thereof need to be considered at a later stage. 11. The motive attributed by the prosecution to the accused for commission of offence is that the younger brother of the deceased, by name Rasool had eloped with the daughter of A.I, by name Ramadevi, about three months prior to the date of incident. It was alleged that the accused felt that it was the deceased, who helped his younger brother to elope with Ramadevi. Except this, there is no other motive suggested to the accused. It was alleged that the accused felt that it was the deceased, who helped his younger brother to elope with Ramadevi. Except this, there is no other motive suggested to the accused. Therefore, it was obligatory on the part of the prosecution to lead evidence to substantiate this plea. The best person to speak about it was Rasool himself. In case he was not available for prosecution, necessary explanation ought to have been offered by the Investigating Officer. From the perusal of the evidence on record and in particular that of P.W.12, the Investigating Officer it emerges that not even an effort was made in that direction. They have chosen to examine almost all the -members of the family, but not the person who is said to have brought about a frozen war between the two families. The failure of- the prosecution in this regard will naturally invite an inference provided under Section 114(g) of the Evidence Act. 12. According to the prosecution, the incident occurred right in the presence of P.Ws.1, 2, 3 and 6. PWs.4 and 5 were said to be inside the house and even while the occurrence was in progress they were said to come to the scene. All of them were stated to have identified the accused. P.W.1 did not state anything about the existence of streetlights. It is only through other witnesses that existence of light was elicited. While according to P.W.1, the neighbours gathered on hearing their cries, his daughter, P.W.2 stated that the neighbours did not gather during the commission of offence. P.W.I stated that the occurrence went on for half an hour. His daughter stated that it went on for 15 minutes. The common case of all these witnesses is that Gundaiah originally (A4) pulled the legs of the deceased and made him to fall. Thereafter, the other accused, numbering about six, have attacked the deceased. Prosecution itself falsified this version by deleting Gundaiah (A4) and two others A5 and A6, from the array of accused, on finding that those three accused were found to be present at different places at relevant point of time. In a way, it can be said that the prosecution has removed the very basis for the evidence of PWs.1 to 5. In a way, it can be said that the prosecution has removed the very basis for the evidence of PWs.1 to 5. If the presence of original accused Nos4, 5 and 6 is ruled out and substantial version presented by A.1 to A.5 i.e. PWs.1 to 5, even though consistent, ceases to be trustworthy. 13. It was already pointed out that the starting point for the prosecution to proceed against the accused was the submission of complaint EX.PI by P.W.6, the wife of the deceased. In his deposition, P.W.1 stated that they not only accompanied P.W.6 to the police station, but also had signed on EX.P7 along with his daughter-in-law. A perusal of EX.P7 however discloses that it does not contain the signature of P.W.1. Further P.W.6 categorically stated that she has informed to the police on telephone about the incident and did not go to the police station to submit the complaint. She further stated that police enquired her and to them, she stated that she did not witness the incident. She however stated that though EX.P7 contains her signature, she does not know the contents thereof. It was obviously on account of this version, P.W.6 was declared hostile and the prosecution is not able to elicit anything substantial from her. 14. It is no doubt true that the medical evidence in the form of post-mortem report Ex.P 11 discloses that there are as many as 21 injuries on the dead body. However, from the evidence of P.Ws.1 to 5, it is difficult to attribute such injuries to any specific accused. 15. There is serious inconsistency as to the time at which the police arrived at the scene of occurrence. Even according to the prosecution, the complaint was received at 11.00 p.m. and it is only thereafter that the steps were taken for the registration of the case, posting the constable on the scene etc. P.W.2 stated that the police arrived at the scene at 10.00 p.m. So is the case with P.W.6. Several omissions and inconsistencies were elicited through the Investigating Officer P.W.12. He stated that none of the witnesses have informed him that there was any illumination of streetlights at scene of offence. His further evidence in the cross-examination reads thus : "The witnesses did not state specifically that the accused used hunting sickles in commission of offence. Several omissions and inconsistencies were elicited through the Investigating Officer P.W.12. He stated that none of the witnesses have informed him that there was any illumination of streetlights at scene of offence. His further evidence in the cross-examination reads thus : "The witnesses did not state specifically that the accused used hunting sickles in commission of offence. The witness volunteers the witnesses stated that the accused used hunting knives in commission of offence. It is true the names of the some of the accused other than A.1 to A4 were deleted on the ground that they were falsely implicated. P.W.l Subbarayudu did not give any report to me. P.W.2 did not specifically state that A.3 hacked the deceased on his both hands. P.W.3 did not state before me that the accused threatened them to kill if they raise any cries at the time of offence. P.W.3 did not state that he can identify the weapons of offence if shown to him. P.W.4 did not specifically state that P.W.1 and P.W.6 raised cries at the time of offence. P.W.4 did not state before me that the accused retreated towards Porumamilla side." 16. These admissions on the part of P.W.12 belied the evidence of P.Ws.1 to 5. 17. Though as many as five eyewitnesses were examined, the deposition of an independent witness would have added some strength, since P.Ws.1 to 5 are parents, brother and sisters of the deceased. Further, much was elicited about the background of the family of P.W.1. It emerged that his eldest son Subbarayudu was killed in a bomb blast. The deceased himself faced several criminal cases and in fact, was released on bail just ten days before the occurrence. As to the plea that another son of P.W.1 by name Rasool eloped with the daughter of A.1, RamaDevi a suggestion was made to the effect that RamaDevi is very happily leading marital life with her husband. When a ghastly incident of this nature had taken place, it is natural that several neighbours would gather and failure to examine an independent witness would have its own effect. 18. It was mentioned in the chargesheet that Rasool, son of P.W.1 was married to another woman. Even if there was any difficulty in prosecuting the said gentleman, nothing prevented the prosecution, to examine his wife. 19. 18. It was mentioned in the chargesheet that Rasool, son of P.W.1 was married to another woman. Even if there was any difficulty in prosecuting the said gentleman, nothing prevented the prosecution, to examine his wife. 19. When so many infirmities exist, it is not on safe to convict almost the entire family of the accused No.1. The suggested motive itself is remote in nature and was not of spoken to, by any witness connected with it. Submission of EX.P7 is shrouded in mystery. The evidence of principal witnesses is almost neutralized with the deposition of the Investigating Officer, P.W.12. 20. In the result, the conviction and the sentence imposed by the learned VI Additional District and Sessions Judge, Markapur, against the appellants-A1 to A4 for the offence under Section 302 IPC vide Calendar and judgment in Sessions Case No.273 of 2004, dated 13.2.2006 are set aside and the appellants-A1 to A4 are hereby acquitted of the said charge. 21. The appellants-A1 to A4 shall be set at liberty forthwith, unless their detention is needed in any other crime. 22. Accordingly, the criminal appeal is allowed.