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2020 DIGILAW 313 (AP)

Bojjagani Durga Prasad v. State of A. P.

2020-05-01

BATTU DEVANAND, C.PRAVEEN KUMAR

body2020
JUDGMENT : C. PRAVEEN KUMAR, J. 1. Heard Dr. Challa Srinivas Reddy, learned counsel for the appellants and the learned Public Prosecutor appearing for the respondent-State through Video Conference operating through Blue-jeans App. 2. A1 and A2 in S.C. No. 489 of 2014 on the file of the Court of the learned Sessions Judge, Guntur, are the appellants herein. Both of them were tried for the offences punishable under Sections 302 read with 34 IPC and 201 read with 34 IPC. By its judgment dated 10.07.2015, the learned Sessions Judge convicted and sentenced the accused to suffer imprisonment for life and to pay fine of Rs. 2000/- each, in default, to suffer rigorous imprisonment for two months each for the offence punishable under Section 302 read with 34 IPC. They were also convicted and sentenced to suffer rigorous imprisonment for three years and also to pay a fine of Rs. 1000/- each, in default, to suffer rigorous imprisonment for one month each for the offence punishable under Section 201 read with 34 IPC. The substantive sentences were directed to run concurrently. 3. The facts, as culled out from the evidence of the prosecution witnesses, are as follows: On 19.07.2013 at 04:00 p.m. while PW-1 Chinka Srilakshmi was at her office, Chattu Venkateswarulu (PW-2) and Matukoya Chitti Babu (LW-4) came to her and informed that they found a dead-body bundled in a thick cloth at a culvert leading from Thulluru to Amaravathi road. The culvert was underneath the road. She went to the culvert, saw the dead-body, immediately went to Thulluru police station and lodged a report with the Sub-Inspector of Police PW-10. Ex.P1 is the report given by PW-1, basing on which, a case in Crime No. 77 of 2013 came to be registered for the offence punishable under Section 302 IPC. Ex.P15 is the FIR. PW-11 Circle Inspector of Police took up further investigation. He visited the scene of offence situated near Harichandrapuram village. At 05:30 p.m., the Sub-Inspector of Police along with PW-1 came to the scene of offence and handed over copy of the F.I.R. to PW-11. After perusing the copy of the F.I.R. PW-11 recorded the statement of PW-1, observed the scene of offence in the presence of PW-1 and one Budi Sambasiva Rao (LW-17 not examined) and prepared an observation report which is marked as Ex.P2. After perusing the copy of the F.I.R. PW-11 recorded the statement of PW-1, observed the scene of offence in the presence of PW-1 and one Budi Sambasiva Rao (LW-17 not examined) and prepared an observation report which is marked as Ex.P2. He also prepared a rough sketch of the scene of offence which is placed on record as Ex.P16. PW-4, the photographer, took photographs of the deceased which are placed on record as Ex.P7. Though PW-11 enquired with the people, who were present there, none of them identified the dead-body. It is to be noted that the police, who arrived at the scene, opened the cloth bundle and examined the dead-body. They also noticed injuries on the body. Panchanama to that effect was prepared which is said to have been marked as Ex.P2. Before sending the body for post-mortem examination, PW-11 conducted inquest over the dead-body in the present of PW-1 and others. Ex.P3 is the inquest report. Thereafter, he sent the dead-body for conducting post-mortem examination. PW-9 Civil Assistant Surgeon, Amaravati conducted autopsy over the dead-body on 29.07.2013 between 04:00 P.M. and 06:00 P.M. and issued Ex.P14 -post-mortem report. According to the Doctor, the cause of death of the deceased was due to hypovolemic shock and excessive bleeding with multiple injuries. The time of death was between 7 and 10 days prior to the post-mortem examination. As nobody claimed the dead-body, PW-11 sent a requisition to the Gram Panchayat for its burial. He examined PWs. 2, 3 and others and recorded their statements. On 10.08.2013, while PW-11 was in the office, PW-5 Jasti Perma came to him and stated that the unknown dead-body of a male person is that of her foster son. He examined her and recorded the statement. When photographs were shown she identified the body as that of her foster son. Basing on the information furnished by PW-5, PW-11 went to Tadepalli and recorded the statements of PWs. 6, 7 and others. On 12.08.2013 at about 02:00 P.M. while he was at Tulluru police station, he received credible information about the accused. 4. Immediately, he secured the presence of mediators i.e. PWs. 1 and others, and after reaching Tadepalli Centre, noticed two persons trying to escape on seeing the police jeep. 6, 7 and others. On 12.08.2013 at about 02:00 P.M. while he was at Tulluru police station, he received credible information about the accused. 4. Immediately, he secured the presence of mediators i.e. PWs. 1 and others, and after reaching Tadepalli Centre, noticed two persons trying to escape on seeing the police jeep. They apprehended them and when questioned, both of them confessed commission of the offence and also disclosed the concealment of clothes of the deceased and the knife used in the commission of offence. The statements of both the accused were said to have been recorded. The admissible portion of the statement is marked as Ex.P4 and the articles seized pursuant to confession marked as M.Os.1 to 3. After completing the investigation, PW-11 filed the charge-sheet which was taken on file as P.R.C. No. 72 of 2013 on the file of the Court of the Additional Judicial Magistrate of First Class, Mangalagiri. 5. On appearance of the accused, documents as required under Section 207 Cr.P.C. were furnished to the accused and since the case is exclusively triable by the Court of Sessions, the same was committed to the Court of Sessions Judge, Guntur. 6. On appearance of the accused, charges under Sections 302 read with 34 IPC and 201 read with 34 IPC came to be framed, read over and explained to them in Telugu, to which, they pleaded not guilty and claimed to be tried. 7. To substantiate its case, the prosecution examined PWs. 1 to 11 and got marked Exs.P1 to P16 and M.Os.1 to 4. 8. After the closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses, to which, they denied, however they did not adduce any evidence in support of their case. 9. Relying upon the evidence of the prosecution witnesses the learned Sessions Judge convicted and sentenced the accused as mentioned above. Challenging the same, the present appeal is filed. 10. Dr. Challa Srinivasa Reddy, learned counsel for the appellants, would contend that there are no direct witnesses to the incident and the circumstances relied upon by the prosecution do not form chain of events connecting the accused with the crime. According to him, not even a single circumstance relied upon by the prosecution is proved. 11. 10. Dr. Challa Srinivasa Reddy, learned counsel for the appellants, would contend that there are no direct witnesses to the incident and the circumstances relied upon by the prosecution do not form chain of events connecting the accused with the crime. According to him, not even a single circumstance relied upon by the prosecution is proved. 11. The same is opposed by the learned Public Prosecutor contending that though the main witness did not support the prosecution case, but still the evidence of PWs. 1 to 3 gets ample corroboration from the evidence of other witnesses, more particularly, the evidence of the Investigating Officer in connecting the accused with the crime. 12. Now, the point that arises for consideration is whether the prosecution was able to prove the guilt of the accused for the charged offences beyond all reasonable doubt? 13. As stated earlier, there are no eye-witnesses to the incident and the case rests on circumstantial evidence. It is to be noted that in a case based on circumstantial evidence, the prosecution has to prove each of the circumstance relied upon by them and the circumstances so proved should form a chain of events connecting the accused with the crime. 14. As seen from the record, in all, the prosecution examined eleven witnesses, out of whom, much stress is laid on the evidence of PWs. 1 to 8. 15. PW-1 was working as a Village Revenue Officer at Harichandrapuram village. Her evidence is only to the effect that on 19.07.2013 at 04:00 P.M. while she was in office, she received information about the dead-body bundled in a thick cloth, at a culvert leading from Thulluru to Amaravathi road. Pursuant thereto, she lodged a report with the police setting the law into motion. Thereafter, she participated in the proceedings conducted by the police like inquest, panchanama for the scene of offence, arrest of the accused and recovery of the material objects basing on the confession made by the accused. Though she was cross-examined at length, in our view, nothing came to be elicited to disprove lodging of the report by her, conduct of inquest and panchanama of scene of offence. 16. Though she was cross-examined at length, in our view, nothing came to be elicited to disprove lodging of the report by her, conduct of inquest and panchanama of scene of offence. 16. The evidence of PW-1, does not establish culpability and the involvement of the accused in the crime for the reason that she only speaks about setting the law into motion, and thereafter, acting as panch witness in all the subsequent police proceedings. 17. Coming to the evidence of PW-2, he was also working as Village Servant, Harichandrapuram. According to him, he noticed the dead-body wrapped in a cloth. He along with others informed the same to PW-1 and accompanied her to the place where they saw the dead-body. His evidence also does not in any way connect or inculpate the accused with the commission of offence. 18. PW-3 was working as an Executive Officer, Gram Panchayat, Amaravati. According to him, in the month of July, 2013, one constable came to him and asked him to send workers for cremating the dead-body. The workers cremated the dead-body. His evidence as stated earlier only refers to cremation of body since no family members came forward claiming the dead-body. 19. Insofar as the evidence of PW-4 is concerned, he was running Photo Studio by name Padmalaya Studio at Thulluru Main Bazaar. On 19.07.2013, he was called by Tulluru police, pursuant to which, he proceeded to the scene of offence and took photographs of dead-body which are marked as Ex.P7. 20. The next four witnesses namely PWs. 5 to 8 were examined by the prosecution to prove the theory of last seen and the involvement of the accused in the commission of offence. 21. PW-5, who is a trans-gender, deposed that she bought a boy when he was infant of three days from Mumbai and handed him over to one Mastan of Tadepalli, who is the father of A1. Mastan brought up the child with the money sent by PW-5. It is stated that Mastan married a lady belonging to Yerukala Caste and through her he begot two sons and two daughters. Mastan does business in cloths whereas his son A1 - Durga Prasad was a driver. The death of Saleem alias Samson had occurred about two years ago. While he was alive he met with an accident and was admitted in Manipal Hospital. Mastan does business in cloths whereas his son A1 - Durga Prasad was a driver. The death of Saleem alias Samson had occurred about two years ago. While he was alive he met with an accident and was admitted in Manipal Hospital. Then, PW-5 came down to Tadepalli from Mumbai for his surgery to his leg. During the treatment, Saleem was infected with HIV and it was also learnt that he loved a girl belonging to Yerukala Caste. It is stated that PW-5 visited Tadepalli from Mumbai 18 days after the death of Saleem. After reaching Tadepalli, PW-5 saw the photographs of the dead-body published in the news paper and identified him as Saleem. It is to be noted that PW-5 was neither examined by the police nor her statement was recorded by the police. At this stage, the witness was declared as hostile. 22. The evidence of this witness categorically shows that PW-5 came to Tadepalli 18 days after the incident and nothing incriminating was spoken to or elicited in her evidence. 23. PW-6 was examined to speak about the accused being last seen in the company of the deceased on the night of 18.07.2013 and about the previous grudges, but strangely, this witness did not support the prosecution case and was declared hostile. In fact, he categorically stated that he does not know anything about Samson @ Saleem. Though the learned Public Prosecutor cross-examined him at length, but nothing has been elicited to show that he saw the accused and the deceased together. All the suggestions given to him with regard to the motive of the accused and the accused and the deceased being last seen together, were denied. The entire content of the statement recorded by the police under Section 161 Cr.P.C. was denied by him. 24. Similar is the evidence of PW-7 who was also examined to speak about the accused being last seen in the company of the deceased. He went back from his earlier statement in toto and denied to have given such a statement before the police. 25. Coming to the evidence of PW-8, he, in his evidence, deposed that he worked as Gangman in the Railways and later discontinued. He admits that he does not have a car and that the car bearing No. ABD 8980 does not belong to him. 25. Coming to the evidence of PW-8, he, in his evidence, deposed that he worked as Gangman in the Railways and later discontinued. He admits that he does not have a car and that the car bearing No. ABD 8980 does not belong to him. According to him, there was no occasion of Tulluru Police seizing the Car bearing No. ABD 8980 in front of his house in the presence of panch witness. He also deposed that he does not know A1 and that he is not employed as driver at any time. He was also subjected to lengthy cross-examination wherein he denied what all has been stated earlier before the police. All the suggestions made to him were denied. 26. Hence, from the above, it is clear that four witnesses examined by the prosecution i.e. PWs. 5 to 8, to depose on the circumstances relied upon by them namely motive and the accused being last seen in the company of the deceased, failed to support the case of the prosecution. These four witnesses did not support the prosecution case and all the suggestions given to them in the cross-examination, were denied. Therefore, in the absence of any legal evidence, it can be said that the two circumstances namely motive and the accused being last seen in the company of the deceased relied upon by the prosecution, are not proved, as such, we hold that it is a fit case where the prosecution failed to adduce evidence connecting the accused with the crime. 27. Hence, the Criminal Appeal is allowed setting aside the conviction and sentence imposed on the appellants - A1 and A2 vide judgment dated 10.07.2015 in S.C. No. 489 of 2014 on the file of the Court of the learned Sessions Judge, Guntur and the appellants are directed to be released from jail forthwith if they are not required in any other case. 28. As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.