Research › Search › Judgment

Andhra High Court · body

2012 DIGILAW 618 (AP)

Losula Venkatarao v. State of A. P.

2012-07-18

B.N.RAO NALLA, N.V.RAMANA

body2012
JUDGMENT (Per N.V. Ramana, J.) This Criminal Appeal, under Sec. 374(2) of the Code of Criminal Procedure, is filed questioning the conviction and sentence imposed against the appellant herein, by judgment dated 15-7-2008 passed in S.C. No. 66 of 2008 by the III Additional District and Sessions Judge, Kakinada. 2. The appellant was prosecuted for the offence punishable under Section 302 IPC. According to the prosecution, the appellant accused developed intimacy with the deceased namely Chinki Dongamma, after the death of her husband by name Latchanna, and was living with her in her house situated at Srungadhara village, Sankhavaram Mandal, East Godavari District, along with the children born to her through her late husband Latchanna. The accused, the deceased and her children raised cashew nut plants in reserve forest in an extent of one acre, situated in their village. When the accused claimed exclusive rights over the cashew nut crop, the deceased and her children objected to the same, and disputes arose between them on that issue. Ten days prior to the incident, the dispute was plated before the elders and the elders admonished the accused. Thereupon, the accused bore grudge against the deceased and started living separately from the deceased and her children. He waited for an opportunity to wreck vengeance against them. On the intervening night of 24/25-8-2007, at about 2.00 a.m., while the deceased was sleeping in her house, the accused came there armed with a knife, with an intention to kill the deceased. On hearing the noise, the deceased woke up an on noticing the accused armed with knife, she got frightened and tried to run away from there. The accused chased and caught hold of her and stabbed her with the knife on the rear side of the head, on the left shoulder and neck, due to which she sustained injuries and died on the spot. When the children of the deceased and other neighbours rushed to, the scene of offence, the accused ran away from there with the knife. On 25-8-2007, at about 1.00 p.m., P.W.1 lodged a report with the police, based on which the Sub-Inspector of Police, Annavaram, registered a case in Crime No. 109 of 2007 for the offence punishable under Section 302 IPC. The Inspector of Police, Prathipadu, took up investigation. On 25-8-2007, at about 1.00 p.m., P.W.1 lodged a report with the police, based on which the Sub-Inspector of Police, Annavaram, registered a case in Crime No. 109 of 2007 for the offence punishable under Section 302 IPC. The Inspector of Police, Prathipadu, took up investigation. He visited the scene of offence, got the scene of offence and the dead body of the deceased photographed, drafted scene of offence observation report and seized material objects in the presence of two mediators. He then held inquest over the dead body of the deceased, recorded the statements of the witnesses and sent the dead body of the deceased to Government Hospital, Prathipadu, for postmortem examination. He arrested the accused on 11-11-2007 at 3.30 p.m. near Durgamma Temple situated on the outskirts of Nellipudi village, Sankhavaram Mandal. The accused confessed to have committed the offence. The Inspector of Police recorded the confession of the accused in the presence of two mediators and seized the knife used by the accused in the commission of offence, at his instance. The Inspector of Police then produced the accused before the Court, which remanded him to judicial custody. He forwarded the seized material objects viz., blood stained cement pieces, control cement pieces and blood stained apparels of the deceased to the Chemical Examiner, RFSL, Vijayawada, for chemical analysis and opinion. After completion of investigation and after receipt of post-mortem examination report, he filed charge-sheet against the accused for the offence punishable under Section 302 IPC. 3. The Sessions Judge framed charge against the appellant-accused for the offence punishable under Section 302 IPC. The appellant pleaded not guilty for the said charge and claimed to be tried. 4. To prove the guilt of the appellant, the prosecution examined P.Ws. 1 to 10 and marked Exs. P-1 to P-11 and M.Os. 1 to7. The appellant adduced no evidence, either oral or documentary, in defence. 5. The Sessions Judge, having appreciated the entire evidence available on record, held the appellant guilty of the offence punishable under Section 302 IPC and convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 50/-, in default to undergo simple imprisonment for a period of ten days. 6. Questioning the said conviction and sentence imposed against him, the appellant accused preferred the present appeal. 7. 50/-, in default to undergo simple imprisonment for a period of ten days. 6. Questioning the said conviction and sentence imposed against him, the appellant accused preferred the present appeal. 7. We have heard the counsel for the appellant and the Additional Public Prosecutor for the State and perused the judgment under appeal and other material available on record. 8. The point that arises for consideration in the present appeal is whether the prosecution could establish the guilt of the accused for the offence punishable under Section 302 IPC beyond all reasonable doubt? 9. P.Ws. 1 and 2 are the sons of the deceased. P.W.3 is the neighbour of the deceased. P.W.4 is a village elder, who along with other village elders conducted meeting with regard to the dispute between the accused and the deceased in connection with cashew nut crop raised in one acre of reserve forest. P.W.5 is the photographer who took photographs of the scene of offence and the dead body of the deceased. P.W.6 is the mediator for the scene of offence observation report and inquest panchanama. P.W.7 is the mediator for arrest of the accused, his confession and seizure of crime weapon by the Investigating Officer. P.W.8 is the doctor who conducted autopsy over the dead body of the deceased and issued post-mortem examination report. P.W.9 is the S.I. of Police, Annavaram, who registered the case and issued FIR. P.W. 10 is the Investigating Officer. 10. According to the prosecution, the accused developed intimacy with the deceased, after the death of her husband, and was living with her in her house, along with the children born to her through her deceased husband. The accused, the deceased and her children raised cashew nut plants in the reserve forest in an extent of one acre situated in the village. When the accused claimed exclusive rights over the cashew nut crop, disputes arose between the accused and the deceased and her children, and the matter was referred to village elders, who admonished the accused. Thereupon, the accused, having bore grudge against the deceased and her children, started living separately from them, and killed the deceased on the intervening night of 24/25-8-2007, by stabbing her with a knife. 11. To speak about the motive for the accused to kill the deceased, the prosecution examined P.Ws. 1 to 4. 12. P.Ws. Thereupon, the accused, having bore grudge against the deceased and her children, started living separately from them, and killed the deceased on the intervening night of 24/25-8-2007, by stabbing her with a knife. 11. To speak about the motive for the accused to kill the deceased, the prosecution examined P.Ws. 1 to 4. 12. P.Ws. 1 and 2, who are the sons of the deceased, spoke about their raising cashew nut plants in the reserve forest in an extent of one acre, the dispute that arose between them and the accused on account of the accused claiming exclusive rights over the cashew nut crop, the village elders conducting a meeting to resolve the dispute between them about ten days prior to the incident, and the accused threatening them to do away with their lives. P.W.3, who is the neighbour of the deceased, also spoke about the said dispute between the accused and the deceased and P.Ws. 1 and 2 as regards the cashew nut crop raised in one acre of reserve forest, and deposed that the accused did not hear the advice of the elders and he was threatening the deceased and P.Ws. 1 and 2 to do away with their lives. P.W.4 is the elder in the village. He deposed about his advising the accused along with other elders, when the dispute between the accused and the deceased and her children as regards cashew nut crop, was referred to them for mediation. He stated that the accused did not hear their advice and he used to threaten the deceased and her children that he would do away with their lives. 13. Though P.Ws. 1 to 4 spoke about the dispute between the accused and the deceased and her children in connection with cashew nut crop raised in one acre of reserve forest by them, attributing motive for the accused to kill the deceased, but as can be seen from the evidence of P.W.1, in his cross-examination by the defence counsel, he has categorically stated that the accused has taken care of them as a father and except the dispute as regards the said cashew nut crop, there were no other disputes between them. He also stated that the accused performed his marriage, by obtaining loan of Rs. 10,000/- from one Relangi Nageswararao. He also stated that the accused performed his marriage, by obtaining loan of Rs. 10,000/- from one Relangi Nageswararao. Having regard to these categorical statements made by P.W.1, it is highly doubtful that the accused, who has taken care of the children of the deceased with whom he was cohabitating and also performed the marriage of P.W.1 by raising loan, would kill the deceased on account of the dispute that arose regarding the cashew nut crop raised in reserve forest. Further, the evidence on record does not reveal that any report was lodged with the police either by the deceased or by P.Ws. 1 and 2 about the accused threatening them to do away with their lives in connection with the dispute regarding cashew nut crop. Hence, we are of the considered opinion that the prosecution could not prove the motive for the accused to kill the deceased, beyond all reasonable doubt. 14. So far as the commission of offence by the accused is concerned, the prosecution, to prove that the accused has caused the death of the deceased, relied upon the evidence of P.Ws. 1 to 3. 15. P.W.1 is the elder son of the deceased. He deposed that on the date of incident, the accused came to their house at about 8.00 p.m. and picked up a quarrel with them. On the same day at 02.00 hours, the accused tied a rope around the neck of his mother and dragged her and when she raised cries, he woke up and saw the accused dragging his mother with the rope. His mother somehow got herself released from the hands of the accused and started running. The accused caused an injury on the neck and head of his mother. The incident happened near the house of one Gendra Verri Babu on the cement road. His mother fell on the road and the accused ran away from that place along with the knife. In the morning, he went to the Village Revenue Officer and informed about the incident, who asked him to report the matter to the police. Thereupon, he got the report prepared by a known person in the village and lodged it with the police of Annavaram. 16. In the morning, he went to the Village Revenue Officer and informed about the incident, who asked him to report the matter to the police. Thereupon, he got the report prepared by a known person in the village and lodged it with the police of Annavaram. 16. The evidence of P.W.1 that the accused tied a rope around the neck of the deceased and dragged her and the deceased got herself released from the hands of the accused and that he witnessed the same, is an improvement from EX. P-1 report lodged by him. In EX. P-1 report, he did not mention about the same. He simply stated that he found a nylon rope tied around his mother's neck. He also did not mention in Ex. P-1 report that the incident took place near the house of Gendra Verri Babu on the cement road. In fact, he admitted that he did not mention in Ex. P-1 the exact spot where the attack on the deceased was made. It was also not explained by P.W.1 as to why he did not lodged report till 1.00 p.m. on the next day, though the incident occurred at 2.00 a.m. and the Village Revenue Officer advised him to report the matter to police in the morning itself. Further, P.W.10 Investigating Officer, in his cross-examination, has categorically stated that P.W.1 neither stated before him nor mentioned in Ex. P-1 that the accused threatened him and other family members and that the accused tied a rope around the neck of the deceased and dragged her and she got herself released from the hands of the accused and started running. P.W.10 has also categorically stated that P.W.1 did not state before him about his witnessing the accused causing injury on the neck of the deceased. Thus, the evidence of P.W.1 is full of omissions and commissions, and does not inspire confidence of this Court. 17. Further, while P.W.1 claimed to be the first person to reach the deceased at the scene of offence, P.W. 3, who is said to be the neighbour of the deceased and who is said to have witnessed the accused running away with a knife in his hands and the deceased lying on ground with injuries on her neck, has categorically stated in his cross-examination that, after he reached the spot, he called P.W.1 and others. Thus, there is discrepancy between the evidence of P.W.1 and P.W.3 as to who reached the scene of offence first. 18. Another witness to spoke about the incident is P.W.2, who is the younger son of the deceased and younger brother of P.W.1. He deposed that on the date of incident, at 2.00 a.m., the accused came to their house and took his mother out of the house. His mother raised cries and on hearing the same, himself, P.W. and others woke up and saw his mother running ahead of the accused and the accused was carrying a knife in his hand. The accused caught hold of his mother and inflicted two injuries with the knife on the back of her neck and head. The accused ran away from the place along with the knife, and his mother fell on the ground. Contrary to his statement that the accused took his mother out of the house, P.W. 2 again stated in his chief-examination itself that his mother was sleeping outside the house near the threshold. Further, he stated in his cross-examination that by the time he woke up and went towards the place from where he heard the cries of his mother, the accused already inflicted an injury to his mother and he inflicted the second injury in his presence, which is inconsistent with his earlier statement in chief-examination that the accused caught hold of his mother and inflicted two injuries with the knife on the back of her neck and head. 19. Though P.W.2 denied the suggestions that he did not state before police that the accused came to their house at 02.00 hours and took his mother out of the house and that the accused caught hold of his mother and inflicted two injuries on her with a knife and his mother was sleeping outside the house at the threshold, but P.W.10 Investigating Officer has categorically stated in his cross-examination that P.W.2 did not make the aforesaid statements before him. P.W.10 also stated that P.W.1 did not state before him that in the incident that took place at 8.00 p.m. at his house, the accused threatened him and other family members. 20. In view of the non-corroboration of the evidence of P.Ws. 1 and 3 with each other and the omission and commissions in the evidence of P.Ws. P.W.10 also stated that P.W.1 did not state before him that in the incident that took place at 8.00 p.m. at his house, the accused threatened him and other family members. 20. In view of the non-corroboration of the evidence of P.Ws. 1 and 3 with each other and the omission and commissions in the evidence of P.Ws. 1 and 2, as noted above, we are of the considered opinion that it would not be safe to rely upon their evidence to connect the accused with the crime. 21. P.W.5 is the photographer, who photographed the scene of offence and the dead body of the deceased, and P.W.6 is the mediator for the scene of offence observation report and inquest held over the dead body of the deceased. In their cross-examination, they admitted that there were no electric bulbs or tube light affixed to the poles seen in EX.-P-2 photographs. The incident occurred at about 2.00 a.m. and there having been no lighting at the scene of offence, P.Ws. 1 and 2 witnessing the deceased running ahead of the accused and the accused chasing her and inflicting injuries to her with knife, cannot be believed. 22. Further, P.W.6 has categorically admitted in his cross-examination that in Ex. P-4 inquest report, against the names mentioned at Sl. Nos. 1 to 6 of column 1-B, it was mentioned that they are relations of the deceased and there was no mention that they are direct witnesses to the incident. He also admitted that it was mentioned at column No. 15 in Ex. P-4 inquest report, that the accused himself got the dispute between him and the deceased referred to the elders, which is contrary to the evidence of P.Ws. 1 and 2 that the deceased got the dispute between them referred to the elders. He further admitted that there was no mention in column No. 15 of EX. P-4 that the accused picked up a quarrel with the deceased in the night before the actual incident. 23. Another circumstance-relied upon by the prosecution to connect the accused with the commission of crime, is the confession of the accused before P.W.10 Investigating Officer and seizure of knife used by him in the commission of offence, at his instance, in the presence of P.W.7 while a perusal of Ex. 23. Another circumstance-relied upon by the prosecution to connect the accused with the commission of crime, is the confession of the accused before P.W.10 Investigating Officer and seizure of knife used by him in the commission of offence, at his instance, in the presence of P.W.7 while a perusal of Ex. P-5 mediators report for arrest of the accused shows that the Investigating Officer, on information, proceeded along with his staff and mediators to the place where the accused was apprehended, P.W.7, who acted as mediator for arrest of the accused, his confession and seizure of M.O.4 knife, has stated in his evidence that by the time he was stopped by the police near Durgamma temple, the accused was in the custody of police. Thus, the presence of P.W.7 at the time of arrest of the accused by P.W.10 Investigating Officer is doubtful. 24. For the foregoing discussion, we are of the considered opinion that the evidence available on record does not connect the accused with the commission of the crime, and the prosecution failed to establishes the charge under Section 302 IPC against the accused, beyond all reasonable doubt. Therefore, the conviction and sentence imposed by the Sessions Judge against the appellant-accused cannot be sustained and is liable to be set aside. 25. In the result, the criminal appeal is allowed. The conviction and sentence imposed against the appellant-accused, by judgment dated 15-7-2008 passed in S.C. No. 66 of 2008 by the III Additional District and Sessions Judge, Kakinada, for the charge under Section 302 IPC is hereby set aside. The accused is acquitted for the said charge and he shall be set at liberty forthwith, if he is not required in any other case and the fine amount if any paid by him shall be refunded to him.