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Andhra High Court · body

2009 DIGILAW 14 (AP)

Lam Prabhudas v. State of A. P.

2009-01-22

G.V.SEETHAPATHY, GOPAL REDDY

body2009
JUDGMENT (Per G.V. Seethapathy, J.) This criminal appeal is directed against the judgment dated 17-2-2006 in S.C. No. 579 of 2002 on the file of the VII Additional Sessions Judge (Fast Track Court), Guntur, wherein the appellants A-1 and A-2 were found guilty of the offence under Section 3021PC and convicted for the same and sentenced to undergo imprisonment for life and also to pay a fine of Rs. 500/- each and were also convicted of the offence under Section 2011 PC and sentenced to undergo rigorous imprisonment for three years each and to pay a fine of Rs. 200/- each. 2. Heard the learned counsel for the appellants/A-1 and A-2 and the learned Additional Public Prosecutor for the respondent-State. Perused the records. 3. The case of the prosecution in brief is as follows: The complainant P. W. 3 is the father of the deceased Oevarakonda Venkata Rao and Bharathi is the wife of the deceased. A-1 and the deceased are residents of Saripudi Village while A-2 is residing at Sanjeevaiahnagar, Guntur. A-1 was having illicit intimacy with one Velangini of Saripudi Village. The deceased warned A-1 against continuing such illicit intimacy, but A-1 did not stop the same. The deceased informed Velangini's husband about the illicit intimacy of his wife with A-1 whereupon. she was taken to her parents village. A-1 consumed poison and attempted to commit suicide, but some how survived. A-1 conspired with A-2 and hatched a plan to do away with the deceased. In pursuance to their plan, A-1 along with the deceased left the Village Saripudi on 11-02-2002 on the pretext of going to Guntur. P.W. 3 saw the deceased and A-1 going out of the house. Thereafter, P.W. 4 V. Srinivas in whose lands the deceased was working saw them and questioned the deceased as to why he has not come for the work and the deceased told him that he is going to his wife's place. A-1 and the deceased traveled in the auto of Marri Sreenu P.W. 14 to Medikonduru and boarded the bus and reached Guntur. P.W. 15 Vallabhapuram Anjaiah, and advocate's clerk saw the deceased in the company of A-1 and A-2 at the house of A-2 at Sanjeevaiahnagar at 9.00 p. m. when he went on the request of A-2 to go for cinema. P.W. 15 Vallabhapuram Anjaiah, and advocate's clerk saw the deceased in the company of A-1 and A-2 at the house of A-2 at Sanjeevaiahnagar at 9.00 p. m. when he went on the request of A-2 to go for cinema. A-2 informed P. W. 15 that his relations have come and, therefore, he could not come for cinema whereupon P.W. 15 returned. Subsequently, on the morning of 12-02-2002, the dead body ofthe deceased was found lying on the railway track with the head severed from the trunk between Nambur KM 2/15-16. P.W.2 K. Prabhakara Rao, Gangaman on noticing the dead body gave information to P.W. 1, the Assistant Station Master, Krishna Canal Railway Station, Tadepalli Mandai who recorded the same and sent copy thereof under Ex. P-1 to the Sub-Inspector, G.R.P. Tadepalli R.S. P.W. 10. The Sub-Inspector P.W. 10 registered the F.I.R., EX.P-8 in Crime No. 7 of 2002 under Section 174 Cr.P.C. Later, the case was reregistered under Ex. P-9 F.I.R. under Section 3021 PC and transferred to Pedakakani Police Station which was registered as Crime No. 37 of 2002 under Ex. P-1 O. As the deceased did not return home, P.W. 3 gave a report to the Sub-Inspector of Police of Medikonduru under Ex. P-2 on 18-02"2002 which was registered as a case of man missing under F.I.R. Ex. P-11 in Crime No. 20 of 2002. P.W. 13 the Inspector of Police, Railways visited the scene of offence situated between K.M. No. 2/15-16 and conducted inquest over the body of the deceased in the presence of mediators P.W. 6 and Saluri Rambabu L.W. 10. He also seized a leather pouch stained with blood under M.O. 5, bloodstained stone M.O. 6, control stone M.O. 7 and also Rs. 2/- currency note M.O. 9 and a pair of chap pals M. O. 8 from the scene of offence and got the same photographed under Ex. P-3. Ex. P-12 is the rough sketch of the scene of offence prepared by him. Thereafter, the dead body was sent to the Government Hospital, Mangalagiri for post mortem. P.W. 8, the Medical Officer who conducted the post mortem found eight spindle shaped incised wounds all over the body and issued post mortem report Ex. P-? opining that the death was due to multiple stab injuries on the vital organs like heart, lungs, spleen and left kidney. P.W. 8, the Medical Officer who conducted the post mortem found eight spindle shaped incised wounds all over the body and issued post mortem report Ex. P-? opining that the death was due to multiple stab injuries on the vital organs like heart, lungs, spleen and left kidney. During the course of investigation, A-1 and A-2 were arrested on 06-03-2002 at 3 p.m. near Budampadu Bypass Road junction in the presence of mediators P.W.? and another and at the instance of the accused, blood stained knife M.O. 1 used in the offence and also the blood stained lungi M.O. 2, banian M.O. 3 and full shirt M.O. 4 were seized from the house of A-2 at Sanjeevaiahnagar, Guntur at 6.30 p.m. under mediator report Ex. P-6. The blood stained objects were sent to the FSL and a report under EX.P-13 was received to the effect that the blood found on the material objects was of human in origin. The deceased was identified by P.W.3, the father and P. W. 5 the wife with the help of the photographs of the dead body Ex. P-3. Thus, according to the prosecution, A-1 bore grudge against the deceased as the latter informed the husband of Velangini about his illicit intimacy with Velangini and, therefore, hatched a plan along with A-2 and took the deceased to Guntur and killed him by stabbing with a knife and threw the dead body on the 'railway track to make it appear as if the death was caused due to run over by a train. 4. On appearance of the accused, charges under Sections 302 and 201 IPC were framed against them for which they pleaded not guilty. In support of their case, the prosecution examined P.Ws. 1 to 17and marked Exs. P-1 to P-14 and M.O.S. 1 to 10. The accused did not adduce any oral or documentary evidence. The accused were examined under Section 313 Cr.P.C. explaining the incriminating circumstances appearing against them which they denied and reported no evidence on their behalf. On a consideration of the evidence available on record, the learned Sessions Judge found the appellants-accused guilty of the offences under Sections 302 and 201 IPC and convicted them for the same under Section 235(2) Cr.P.C. and imposed the sentences as stated above. Aggrieved by the same, the accused preferred the present appeal. 5. On a consideration of the evidence available on record, the learned Sessions Judge found the appellants-accused guilty of the offences under Sections 302 and 201 IPC and convicted them for the same under Section 235(2) Cr.P.C. and imposed the sentences as stated above. Aggrieved by the same, the accused preferred the present appeal. 5. The learned counsel for the appellants accused would submit that the prosecution relies upon only circumstantial evidence, more importantly on the circumstance of the deceased being last seen in the company of A-1 and A-2, but failed to establish the same and the 'prosecution also failed to establish that the weapon M.O. 1 was recovered from the possession of the accused. She would further submit that there is absolutely no motive alleged against A-2 for commission of the offence and the motive alleged even against A-1 is vague and feeble. The learned counsel for the accused would therefore contend that the prosecution having failed to establish the chain of circumstances that would result in pointing at the guilt of the accused, the learned Sessions Judge erred in convicting the accused. 6. The learned Additional Public Prosecutor appearing for the State on the other hand would submit that the testimony of P.W.3, P.W.4, P.W. 14andP.W. 15wouldsufficiently establish the case of the prosecution that the deceased was last seen in the company of A-1 and A-2 and coupled with the same, recovery of M.O.1 and blood stained clothes M.O. 2 to 4 from the house of A-2 which recovery was proved by the evidence of P.W. 7 is sufficient to establish the guilt of the accused. 7. It is not disputed that the deceased and A-1 are on friendly terms and both are residents of the same village Saripudi. A-2 who is also a native of the same village was stated to be residing at Sanjeevaiahnagar, Guntur at the time of the incident. According to the prosecution, A-1 was having illicit intimacy with one Velangini of the same village and that the deceased warned A-1 against continuing such illicit intimacy, but A-1 did not heed to the words of the deceased and thereupon, the deceased report the matter to the husband of Velangini and later, she was shifted to her parents village. According to the prosecution, A-1 was having illicit intimacy with one Velangini of the same village and that the deceased warned A-1 against continuing such illicit intimacy, but A-1 did not heed to the words of the deceased and thereupon, the deceased report the matter to the husband of Velangini and later, she was shifted to her parents village. The prosecution therefore alleges that A-1 bore grudge against the deceased as the deceased report to the husband of Velangini about the illicit intimacy of A-1 with Velangini. A-1 is stated to have made an attempt to commit suicide by consuming poison, but however survived. Curiously, even according to the prosecution, even after the attempt to commit suicide, A-1 continued his friendship with the deceased. If really A-1 bore grudge against the deceased because of the deceased disclosing to the husband of Velangini about his illicit relationship with Velangini, it is highly improbable and unbelievable that A-1 would have continued his friendship with the deceased, that too in spite of his making a futile attempt of suicide on that score. It is not the case of the prosecution that the deceased was in any way related to Velangini. The evidence on record does not disclose that A-1 was in fact having illicit relationship with Velangini or that the deceased informed her husband about the same. Neither Velangini nor her husband is examined to show the same. "the prosecution does not disclose as to how long prior to the incident the alleged disclosure was made by the deceased to the husband of Velangini. The motive alleged by the prosecution against A-1 is too remote and too vague so as to base conviction. Insofar as A-2 is concerned, there is absolutely no motive alleged against him and there is no reason as to why he would have conspired with A-1 to kill the deceased when he has admittedly no axe to grind against the deceased. Simply because A-2 happened to be the native of the same village, it cannot for a moment be believed that he would have joined hands with A-1 to do away with the deceased when he has no grievance or grudge or enmity against the deceased nor any occasion to have common cause with A-1 as against the deceased. Simply because A-2 happened to be the native of the same village, it cannot for a moment be believed that he would have joined hands with A-1 to do away with the deceased when he has no grievance or grudge or enmity against the deceased nor any occasion to have common cause with A-1 as against the deceased. Under the circumstances, it must be held that the prosecution has miserably failed to establish the motive for the• offence on the part of the accused. Admittedly there is no direct evidence to prove the alleged offence and when the prosecution depends on the circumstantial evidence, the absence of sufficient motive assumes significance and importance. In the present case, it must be held that the prosecution has failed to establish any motive on the part of the accused to commit the offence, the motive alleged againstA-1 having been found to be too emote and does not inspire any confidence. 8. The prosecution mainly relies upon the circumstance that the deceased was last seen in the company of A-1 and A-2. In that connection, the prosecution relies upon the evidence of P.W. 3, P.W. 4, P.W. 14 and P.W. 15. P.W. 3 is none other than the father of the deceased. According to him, on 11-02-2002 at about 11 a.m. A-1 came to his house and took the deceased along with him to Guntur. Subsequently, P. W. 3 has not seen the deceased alive. P.W. 4 is an agriculturist at Saripudi in whose fields the deceased and A-1 are said to be working. According to him, on that day in the evening he found the deceased and A-1 in the village and asked them why they have not come for the work and the deceased told him that he was going to his wife. P.W. 4'sevidence is however silent as to at what time he saw the deceased and A-1 in the village, but he stated that it was evening time. P.W. 14 is M. Sreenu, an auto driver. According to him, on 11-02-2002 at about3 p.m. the deceased and A-1 boarded his auto at Saripudi and on the way at Yelavarthipadu Village, they stopped the auto and went into a toddy shop and came back after ten minutes and again got into the auto and reached Medikonduru at about 3.30 or 4.00 p.m. where they boarded a bus to go to Guntur. It is not known at what time the deceased and A-1 reached Guntur. P. W. 15 is an advocate clerk at Guntur. According to him, he had acquaintance with A-2 who was an accused in some other cases and he met A-2 at 6 p.m. near Sankar Vilas Centre, Guntur and A-2 asked him to come to his house in the night so that they can go to cinema and at about 9 p.m. P. W. 15 went to the house of A-2 at Sanjeeevaiah nagar where he found A-1 and the deceased in the house of A-2. According to P.W. 15, the deceased was related to him. A-2 is said to have told P. W. 15 that because his relations have come, he is unable to come to cinema and, therefore, P.W. 15 returned. The testimony of P.Ws. 3 and 4 even if accepted would only go to show that on the morning of 11-02-2002 A-1 and the deceased left the house of the deceased and in the evening they left the village and P.Ws. 14's evidence would show that the deceased and A-1 traveled in his auto to reach Medikonduru where they boarded the bus to go to Guntur. 9. Subsequently, P.W. 15 claims to have seen the deceased in the company of A-1 and A-2 at the house of A-2 at about 9 p.m. The dead body of the deceased was found on the railway track on the next morning Le., on 12-02-2002 at about 9 a.m. The person who is said to have last seen the deceased in the companyofA-1 andA-2isP.W.15about12 hours prior to finding the dead body of the deceased. P. W. 5 is therefore a crucial witness to prove the prosecution case. It is however to be noted that P. W. 15 has nowhere stated in his earlier statement under Section 161 Cr.P.C. during investigation that he has seen the deceased and A-1 in the house of A-2 on the night of 11-02-2002. As per his version in the statement under Section 161 Cr.P.C. A-2 informed him that his friends have come from Saripudi after a long time and, therefore, he was unable to come for the cinema. P.W. 15 denied to have stated before the police as contained in Ex. D-1 to the effect that A-2 was talking to two persons. As per his version in the statement under Section 161 Cr.P.C. A-2 informed him that his friends have come from Saripudi after a long time and, therefore, he was unable to come for the cinema. P.W. 15 denied to have stated before the police as contained in Ex. D-1 to the effect that A-2 was talking to two persons. The testimony of P.W. 15 that he went inside the house of A-2 and found A-1 and the deceased there and even asked the deceased why he has come there is clearly an improvement and embellishment resorted to at the time of giving evidence. Lf really P.W.15 found the deceased and A-1 in the house of A-2, there is absolutely no reason as to why he has not stated so when his statement was recorded under Section 161 Cr.P.C. especially when according to him the deceased was related to him and he has even questioned the deceased as to why he came there. The said omission on the part of P.W. 15 to state before the police at the earliest point of time during the investigation about his seeing the deceased in the company of A-1 at the house of A-2 on the night of 11-02-2002 cuts at the root of the prosecution case and the said omission pertains to a vital and material aspect of the prosecution case. In the light of such material omission, the improvement and embellishment made by P.W. 15 while giving the evidence before the Court by stating for the first time that he saw the deceased in the company of A-1 at the house of A-2 and even talked to the deceased cannot be given any value or weight. The testimony of P. W. 15 therefore suffers from a major infirmity owing to material omissions and contradictions in his evidence with reference to his earlier statement under Section 161 Cr.P.C. pertaining to the crucial aspect of the prosecution case that cuts at the root of the prosecution version itself. When once P.W. 15's evidence is taken out of reckoning on account of the infirmities it suffers from, there remains no other evidence to establish the theory of the deceased having last seen in the company of A-1 and A-2. When once P.W. 15's evidence is taken out of reckoning on account of the infirmities it suffers from, there remains no other evidence to establish the theory of the deceased having last seen in the company of A-1 and A-2. The evidence of P. W. 3, P. W. 4 would only go to show that the deceased left the village along with A-1 on the morning of 11-02-2002 and the said circumstance alone is not sufficient to accept the prosecution case that the death of the deceased was caused by the accused. The prosecution has therefore failed to establish the important circumstance relied upon by them namely that the deceased was last seen in the company of A-1 and A-2. 12. No doubt, the FSL report Ex. P-13 shows that the origin of the blood found on M.Os.1 to 4 was of human but the group of the blood is not determined and there is no evidence placed by the prosecution to show that the blood found on M.Os. 1 to 4 was of the same group as of the deceased. As the prosecution is relying upon circumstantial evidence alone, it is necessary to establish each and every circumstance connecting the accused with the commission of the alleged offence. Even the clothes M.Os 2 to 4 were not shown to P.W. 3, the father and P.W. 5, the wife of the deceased for being identified by them as belonging to the deceased. It is not the evidence of P.Ws. 3 and 5that M.Os. 2to4 were shown to them and they identified them as belonging to the deceased. According to them, they identified the deceased only from the photographs Exs. P-3 but not the clothes M.Os. 2 to 4. In the absence of such evidence proving the identity of the clothes M.Os. 2 to 4 as belonging to the deceased, the seizure of M.Os. 2 to 4 from the house of A-2 even if true is of no avail as it is not shown to be in any way connected with the deceased or the alleged offence. The seizure of M.Os. 1 to 4 the other circumstance relied upon by the prosecution is also not duly established. 13. The medical evidence on record also does not throw any light as to the cause of the death of the deceased. The seizure of M.Os. 1 to 4 the other circumstance relied upon by the prosecution is also not duly established. 13. The medical evidence on record also does not throw any light as to the cause of the death of the deceased. However, P.W. 8 the Civil Assistant Surgeon who conducted the post mortem and issued Ex. P-1 post mortem report opined that the death was due to multiple stab injuries caused by laceration of vital organs like heart, lungs, spleen and left kidney. It is to be noted that the head of the deceased was found severed from the trunk. The evidence of P. W. 8 and the post mortem report Ex. P-? is silent about the probable cause for severance of t' "} head from the trunk. As per the inquest report Ex. P-4, the apparent cause of death was noted as the severance of the head from the trunk due to run over by the train. The medical evidence of P. W. 8 coupled with Ex. P-1 is to the effect that the cause of the death is on account of multiple stab injuries. The prosecution has not established as to whether the death was on account of the severance of the head due to run over by a train or on account of the stab injuries in view of the conflicting versions appearing in the inquest report EX.P-4 and the post mortem report Ex. P-7. There is no direct evidence as to who caused the stab injuries and there is also no evidence as to who handled the knife M.O. 1 which is alleged to have been used in the commission of the offence. There is no evidence also on record to show that there is possibility of causing severance of the head with the said knife M.O. 1 whose length is stated to be only 11 inches. Under those circumstances, merely on the basis of the opinion expressed in Ex. P-7 that the death was due to multiple stab injuries, no conclusion can be reached that the death was in fact on account of the stab injuries alone in view of the other version appearing in the inquest report Ex. P-4 that the death was on account of the head being severed due to run over by the train. The prosecution has in fact not even established where exactly the offence has taken place. P-4 that the death was on account of the head being severed due to run over by the train. The prosecution has in fact not even established where exactly the offence has taken place. As per the inquest report Ex.P-4, the dead body was found lying on the railway track with stab injuries and also with the severance of the head. It is not clear from the evidence on record as to whether the deceased was stabbed to death before his body was brought and laid on the railway track or whether the deceased died only on account of being run over by the train. The exact scene of offence and the time of offence are also shrouded in mystery as there is no evidence to establish the same. 14. It is well settled that in a case where the prosecution seeks to rely upon the circumstantial evidence, it is incumbent on their part to establish all the necessary circumstances that would form a chain leading to the invariable conclusion that the offence is committed by the accused alone and none else. In Gambhir v. StateofMaharashtra1, the Supreme Court held as under: "When a case rests upon circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else." 15. In Padala Veera Reddy v. State of A.P., and others?-, the apex Court laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: 1. The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; 2. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. 3. The circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and non else; and 4. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. 3. The circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and non else; and 4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 16. In State of UP. v. Ashok Kumar Srivastava, the apex Court held that 'great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted'. It was also held that 'the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilty'. 17. In C. Chenga Reddy v. State of A.P.3, the apex court held as follows: "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." 18.ln a recent decision in Ravindra Reddy Shaik Khader Mastharf, the apex Court not as follows: "It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances." 19. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances." 19. The principles laid down in the above decisions have been reiterated by the apex Court recently in 'Kusuma Ankama Rao v. State of Andhra Pradesh in Cr. A. No. 185 of 2005 dated 07-07-2008. In the above case, the apex Court made a reference also to a decision in Ram reddy Rajesh Khanna Reddy v. State of A.P.5 wherein it was held that "the last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of it becomes impossible. Even is such a case, the Courts should look for some corroboration." 20. In the light of the principles laid down in the above decisions and on the facts and circumstances of the present case, it must be held that the prosecution failed to establish the circumstances relied upon by them, more importantly the circumstance of the deceased last seen in the company of A-1 and A-2 and the alleged recovery of M.Os. 1 to 4 from the house of A-2. The prosecution also failed to establish the motive alleged against A-1 to cause the death of the deceased. The Evidence produced by the prosecution is too scantly to be relied upon and base a conviction thereon. 21. Under those circumstances, on reappraisal of the entire evidence on record, it is held that the conviction of the appellants A-1 and A-2 for the offences under Sections 302 and 2011PC and the sentences imposed against them by the learned Sessions Judge are not sustainable and they are accordingly set aside. 22. 21. Under those circumstances, on reappraisal of the entire evidence on record, it is held that the conviction of the appellants A-1 and A-2 for the offences under Sections 302 and 2011PC and the sentences imposed against them by the learned Sessions Judge are not sustainable and they are accordingly set aside. 22. In the result, the impugned judgment dated 17-02-2006 in S.C. No. 579 of 2002 on the file of the VII Additional Sessions Judge (Fast Track Court), Guntur is set aside and consequently, the appellants A-1 and A-2 are found not guilty of the offences under Sections 302 and 201 I PC with which they are charged and they are acquitted under Section 235(1) Cr.P.C. The appellants A-1 and A-2 shall be set at liberty forthwith, if they are not required in any other case. The fine amount paid by them shall be refunded.