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2020 DIGILAW 473 (TS)

Pola Sivaiah v. State of A. P.

2020-06-12

K.LAKSHMAN

body2020
JUDGMENT : Feeling aggrieved by the judgment, dated 11.07.2006, passed by the Special Judge for the trail of Offences under the Scheduled Castes and the Scheduled Tribes (Prevention Of Atrocities) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad in Sessions Case No.333 of 2005, the appellant - Accused No.3 preferred the present appeal. 2. Vide the aforesaid judgment, the trial Court found the appellant - accused No.3 guilty of the offence punishable under Section 212 of the Indian Penal Code, 1860 (IPC), and he was convicted and sentenced to undergo two (02) years Rigorous Imprisonment and to pay a fine of Rs.100/- and in default of payment of fine, to undergo two (02) months simple imprisonment for the said offence. It is relevant to note that the appellant - Accused No.3 was also charged for the offence punishable under Section 404 of IPC, but he was acquitted of the said offence. 3. The deceased - Smt. Mangani Savithramma was having an extra marital relationship with accused No.1 for about 20 years. She used to meet accused No.1 mostly at Jadcherla and used to spend with him. Accused No.4 - Smt. Balamani, a widow, used to move with the deceased and she is also having an illegal intimacy with appellant - Accused No.3 - Pole Shivaiah. The deceased addicted to all bad habits, like drinking toddy and illicit liquor in the company of the appellant - accused No.3 and accused Nos.1and 4. It is relevant to note that the appellant - accused No.3 and other accused are also having said all bad habits. 4. The deceased also used to quarrel frequently with her mother demanding the pension amount of her father to meet her expenses. Since about two years, the deceased reduced meeting accused No.1, upon which accused No.1 became wild against the deceased. 5. On 07.04.2005 in the morning, the deceased left her house and went to Badepalli on the pretext of getting treatment for her wound in Government Hospital. She met Accused No.4 and both of them went to the house of her mother (PW.2) and argued with her mother about pension amount. The deceased also demanded PW.2, her mother to give some amount to meet her expenditure. Thereafter, the deceased met accused Nos.2 and 4 in the evening at Subhash Chowk and all of them went to the toddy shop. 6. The deceased also demanded PW.2, her mother to give some amount to meet her expenditure. Thereafter, the deceased met accused Nos.2 and 4 in the evening at Subhash Chowk and all of them went to the toddy shop. 6. On the same day i.e., 07.04.2005 at about 7.30 p.m., accused No.1 went to Badepalli and met the deceased, Smt. Golla Parwathama, accused No.2 and the appellant - accused No.3 at Subhash Chowk. Then accused No.1 bought half bottle whisky from nearby Wine Shop i.e., Sri Venkateshwara Wine Shop, in which PW.10 was working, took all of them to Moosa Toddy compound wherein all of them consumed the whisky. At about 8.30 p.m., the appellant - accused No.3 met his concubine - Accused No.4 and pressurized accused No.1 to provide whisky. Then, accused No.1 purchased two quarter bottles of whisky and asked them to accompany him to railway track to have whisky. Then, PW.5 - Golla Parwathamma returned to her house, while the appellant - accused No.3 and other Accused and the deceased went along with railway track and halted at Km.No.94/9-12 behind Raghavendra Theatre, where accused Nos.1 and 2 and the deceased sat at one place and the appellant - accused No.3 and accused No.4 sat just away to them and started taking whisky. The deceased was in highly intoxicated condition and was out of mood to share the lust with accused No.1. Taking advantage of her condition, accused No.1 tried to lure accused No.2 and asked her to cooperate with him. Then, Accused No.2 refused to fulfill his desire on a plea that he is having illegal intimacy with the deceased for last about 20 years. At that particular point of time, accused No.1 expressed his anguish over the deceased as she was being away to him for the last two years and moving on her own accord and bore grudge against her and waiting for opportunity to see the end of the deceased. 7. Accused No.1 promised to do away with the life of the deceased and to give her ornaments to accused No.2 on which accused No.2 agreed to the proposal of accused No.1 to kill the deceased. While the deceased was in an inebriated condition, accused No.1 repeatedly hit the head of the deceased to railway track and caused severe bleeding head injury, resulting in her death. While the deceased was in an inebriated condition, accused No.1 repeatedly hit the head of the deceased to railway track and caused severe bleeding head injury, resulting in her death. It is also alleged by the prosecution that accused No.2 caught hold of the legs of the deceased and removed the gold ear tops weighing 3 grams and a pair of silver anklets weighing 40 tulas from the possession of the deceased. It is further alleged that accused Nos.3 and 4, who were present near the scene of offence, witnessed the incident and rushed to accused Nos.1 and 2. After confirming the death of the deceased, accused Nos.1 and 2 dragged the body in between the tracks and fled away. It is further alleged that on the same day night, accused Nos.1 to 4 went to Shadnagar and taken shelter in the undisclosed shopping complex for the night. Thereafter, accused Nos.3 and 4 provided shelter to accused Nos.1 and 2. 8. On the complaint lodged by the Assistant Station Master, South Central Railways, Mahaboobnagar, a case was registered and investigated into the same. 9. After completion of the investigation, PW.15 filed charge sheet against the appellant - accused No.3 and other accused. 10. The learned II Metropolitan Magistrate, Secunderabad, took cognizance of the offences under Sections 302 and 379read 34 of IPC. After following the procedure, the learned Magistrate committed the case to the Court of Sessions. The learned Metropolitan Sessions Judge took the case on file and made over VI Additional Metropolitan Sessions Judge, Secunderabad for disposal. 11. The trial Court framed the charges under Sections 120-B and 302 read with 34 of IPC and 379 read with 34 of IPC against Accused Nos.1 and 2; charge under Section 212 of IPC against accused Nos.3 and 4 and charge under section 404 read with 34 of IPC against accused Nos.1 to 4. The appellant - accused No.3 denied the charges, pleaded not guilty and prayed for trial. 12. During trial, the prosecution has examined as many as 16 witness viz., PWs.1 to 16 and marked the documents as Exs.P1 to P16. MOs.1 and 2 were also exhibited during the course of trial. On behalf of the accused, no oral evidence or documentary evidence was adduced. 13. 12. During trial, the prosecution has examined as many as 16 witness viz., PWs.1 to 16 and marked the documents as Exs.P1 to P16. MOs.1 and 2 were also exhibited during the course of trial. On behalf of the accused, no oral evidence or documentary evidence was adduced. 13. After completion of trial and on appreciation of evidence, both oral and documentary, the trial Court found accused Nos.1 and 2 guilt of the charges under Sections 304 Part-II and 379 of IPC, while accused Nos.3 and 4 for the charge under Section 212 of IPC and accordingly, convicted them for the said charges imposing the sentences of imprisonment in the manner stated above. 14. Feeling aggrieved by the said conviction and imposition of sentences of imprisonment, accused No.3 preferred the present appeal. 15. Heard Mr. Karri Murali Krishna, learned counsel for the appellant - accused No.3 and the learned Public Prosecutor for the State appearing on behalf of the respondent. 16. Impugning the judgment, the learned counsel for the appellant would contend that there is no direct evidence in the present case. There is no eye-witness to the incident. He would further contend that the deceased was in highly intoxicated condition at the time of accident. According to him, the deceased has addicted to alcohol and he is having other bad habits, like drinking toddy and liquor and he is also having illicit intimacy with accused No.4. 17. He would further contend that the prosecution failed to establish that accused No.3 involved in the incident and committed the offence under Sections 212 of IPC. According to him, the trial Court without appreciating the contradictions which are serious in nature in the depositions of PWs.13 and 15, convicted the appellant only basing on the circumstantial evidence though there is no eye witnesses to the incident. 18. He would further contend that the trial Court failed to see that there are serious contradictions in the depositions of PWs.2 to 9, 11 and 12, even then, convicted the appellant. 18. He would further contend that the trial Court failed to see that there are serious contradictions in the depositions of PWs.2 to 9, 11 and 12, even then, convicted the appellant. He would further contend that the trial Court having held that evidence of PWs.2 and 4 that accused No.1 killed the deceased is an hear-say evidence and they are no direct witnesses to the occurrence, accused Nos.1 to 4 cannot be received as substantial piece of evidence, but it is one of the circumstances and accordingly recorded conviction for the offences under Section 212 of IPC. According to him, the trial Court erred in convicting the appellant for the said offence. 19. On the other hand, the learned Public Prosecutor would contend that the trial Court gave specific reasoning by referring the depositions of prosecution witnesses and documents as mentioned in the impugned judgment. Though there is no direct evidence, the trial Court by considering circumstantial evidence, recorded the conviction for the said offence. He would further contend that the trial Court is having power to record conviction even by relying upon circumstantial evidence. There is no circumstance/reason that warrants interference by this Court in the present appeal as the appellant - accused No.3 gave shelter to accused Nos.1 and 2 after taking place of the incident. 20. In view above, the only issue that falls for consideration by this Court is: whether the conviction recorded by the trial Court for the offence under Section 212 of IPC against the appellant - accused No.3 is sustainable, both on facts and in law? 21. PWs.11, 12, 13 and 15 are important witnesses. However, it is relevant to note that nothing was deposed by PW.1 against the appellant - accused No.3. PW.2, mother of the deceased, deposed that accused Nos.1 to 4 killed her daughter. She did not know the reason as to why the accused killed her daughter. However, she did not depose anything about harbouring of offender in the present case. Similarly, PWs.2, 3, 4, 5 and 6 did not depose anything about the said harbouring. 22. PW.11 - Mr. Murali Goud, owner of toddy shop, during cross-examination categorically admitted that the appellant – accused No.3 is resident of Jadcherla and that he is residing in Sriram Nagar of Jadcherla. The distance between his toddy compound and accused No.3 is about ½ kms. 22. PW.11 - Mr. Murali Goud, owner of toddy shop, during cross-examination categorically admitted that the appellant – accused No.3 is resident of Jadcherla and that he is residing in Sriram Nagar of Jadcherla. The distance between his toddy compound and accused No.3 is about ½ kms. He do not know the residential village of accused No.2 and that accused No.4 resides at Rajapur, Gollapalli as informed by her. Ippalapally is at a distance of 20 to 25 kms. from Jadcherla. He further admitted that Accused No.3 do not come alone with those women in the noon time to their shop. He do not know the name of another woman who accompanied accused Nos.2, 4 and the deceased. He do not know the name of fourth woman is Golla Parvathamma. He can identify the said woman who accompanied accused Nos.2, 4 and the deceased in the noon time if they shown to him. In the night at about 7.00 p.m., all the accused and deceased came to their shop. 23. PW.12 - Mr. Venkatesh, worker in the wine shop at Jadcherla, admitted in his cross-examination that accused No.3 is resident of Paata Bazaar of Jadcherla and that he and accused No.1 are their regular customers and that they visit their shop daily. He further admitted that accused and the deceased and another woman visited their shop on 07.04.2005 and purchased whisky and glasses. The police examined him at his shop and he knows the names of accused Nos.1 and 3. He did not tell any name of the accused to the police. He further admits that opposite to their wine shop, there is toddy compound and the accused and the deceased came to their shop on 7th day of a month, but he does not remember the exact month. 24. PW.13 - Mr. G. Saichandra Prasad, the S.I. of Police deposed that he assisted the Inspector of Police for further investigation including apprehension of all the accused, recording of confessions statement of accused No.1 and seizure of MOs.1 and 2. 25. PW.15 - Mr. 24. PW.13 - Mr. G. Saichandra Prasad, the S.I. of Police deposed that he assisted the Inspector of Police for further investigation including apprehension of all the accused, recording of confessions statement of accused No.1 and seizure of MOs.1 and 2. 25. PW.15 - Mr. D. Ramanjaneyulu, Inspector of Police, RPS, Kachiguda deposed that on 20.04.2005 he received information about suspected persons of the accused, then he secured the presence of mediators, went to the house of accused No.3 situated at Badepally village in Jadcherla and apprehended all the accused in the house of accused No.3 at about 11.00 a.m. He further deposed about the interrogation, confession by accused No.1 and recovery of MOs.1 and 2 which were pledged. 26. During cross-examination, he has admitted about the securing presence of mediators and his police party and then arrest of all the accused at the house of accused No.3 and recording the confessional statements etc. It is relevant to note that nothing contra was elicited by the appellant during cross-examination of PW.15. 27. The above stated facts would show that admittedly, there is no eye-witness to the incident. The entire case of the prosecution rests on circumstantial evidence. 28. In view of the specific contentions raised by both sides and also on perusal of evidence and the impugned judgment, it is relevant to mention the principles to be applied while dealing with a case of circumstantial evidence, the Hon’ble Supreme Court in Bodh Raj v. State of Jammu and Kashmir, AIR 2002 SC 3164 held as under: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 29. In view of the above said principles, it is relevant to note that minor contradictions did not endanger to the prosecution case. Therefore, the minor contradictions can be ignored provided that both the foundation and the super structure of the prosecution case can withstand the critical analysis of the judicial scrutiny. 30. The Hon’ble Supreme Court also held that the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. There must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 31. In view of the above legal principle, now coming to the case on hand, on the analysis of the entire evidence, the trial Court gave a specific finding that accused No.3 along with accused No.4 harboured accused Nos.1 and 2 by providing shelter in the house of appellant. 32. The learned Special Public Prosecutor would contend that in fact there are no discrepancies in the depositions of prosecution witnesses and even if there are, the same are minor in nature and the same can be ignored. He would further contend that as per the deposition of PW.15, the accused were arrested at the house of the appellant - accused No.3 and as per Exs.P2 and P3 – disclosure statement and seizure report respectively, accused were arrested at the house of appellant. By recording the said depositions, the trial Court gave a finding that the appellant - accused No.3 harboured the offenders i.e., accused Nos.1 and 2 by giving shelter in his house. 33. The above stated facts and also on perusal of the entire evidence, both oral and documentary, would show that the appellant - accused No.3 was present at the Railway Track, witnessed the incident and rushed to accused Nos.1 and 2. After confirming the death of the deceased, accused Nos.1 and 2 dragged the dead body of the deceased in between the railway tracks. After confirming the death of the deceased, accused Nos.1 and 2 dragged the dead body of the deceased in between the railway tracks. On the same night, accused Nos.1 to 4 went to Shadnagar, took shelter in the undisclosed shopping complex and later the appellant - accused No.3 provided shelter to accused Nos.1 and 2. 34. On the critical analysis of the entire evidence, the trial Court gave a finding that the prosecution has relied on circumstantial evidence as no direct evidence for the offence at the scene of offence to take into consideration of the scene of offence i.e., railway track where there are movements of public after midnight, the Court has to scrutinize the evidence carefully with the other circumstances of the case. Thus, the trial Court has scrutinized the evidence including the circumstantial evidence carefully and held that PW.2, mother, PW.4, husband of the deceased are important witnesses. The evidence of both the witnesses, PWs.2 and 4, that accused No.1 killed the deceased is a hear-say evidence; admittedly there are no direct witnesses to the occurrence. The piece of hear-say evidence of PW.2 and PW.4 that accused Nos.1 to 4 cannot be received is a substantial piece of evidence, but it is one of the circumstances, PW.2 and PW.4 as mother and husband of the deceased, gathered the information of cause of death of the deceased from PW.3 and PW.5 and other witnesses after the death of the deceased as they are close relatives of the deceased. The trial Court also gave a specific finding that the evidence of PW.3, relative of the deceased, that he saw the deceased with accused Nos.2 and 4 is consistent. The trial Court also gave a finding with regard to arrest, seizure of the material objections in disclosure of the accused, as per the disclosure statement and seizure report i.e., Exs.P2 and P3, the accused were arrested at the house of the appellant - accused No.3 supported the case of the prosecution and in view of the consistent evidence of PW.8, the minor discrepancy will not vitiate the case of prosecution. The trial Court also gave a finding that the prosecution has proved the seizure of MOs.1 and 2 and with regard to identification parade conducted by PW.15 - Investigating Officer, identifying the property. The trial Court also gave a finding that the prosecution has proved the seizure of MOs.1 and 2 and with regard to identification parade conducted by PW.15 - Investigating Officer, identifying the property. The trial Court also gave a finding that the statement of accused No.2 that accused Nos.3 and 4 committed the offence is not tenable since the confessional statement of co-accused i.e., accused No.2 against other accused cannot be received. With the said findings, the trial Court recorded the conviction against the accused including the appellant - accused No.3 herein. 35. This Court is satisfied with the reasons recorded by the trial Court in the impugned judgment against the appellant - accused No.3 for convicting him for the charge under Section 212 of IPC and that the appellant failed to establish any ground or reason to interfere with the said finding in the present appeal. 36. It is relevant to note that to attract the provisions of Section 212 of IPC, it is necessary to establish a commission of an offence, harbouring or concealing the person known or believed to be the offender, and such concealment must be with the intention of screening him from legal punishment as held by the Hon’ble Apex Court in Sanjeev Kumar v. State of Himachal Pradesh, AIR 1999 SC 782 . 37. In the case on hand, as discussed above, the appellant - accused No.3 was present along with other accused and deceased at the toddy shop, bus stand and railway track. He had witnessed the incident. He has given shelter in unknown shopping complex at Shadnagar and thereafter at his house to accused Nos.1 and 2 and that the appellant is aware of the death of the deceased and the consequences. 38. The depositions of prosecution witnesses are corroborative in nature and specific. Thus, in the absence of contra evidence and also the fact that the appellant - accused No.3 failed to disprove anything from the cross-examination of prosecution witnesses, this Court is of the view that the appellant - accused No.3 gave shelter to accused Nos.1 and 2 (offenders) and, thus harboured them. Thus, the appellant - accused No.3 committed the offence under Section 212 of IPC. Therefore, this Court is of the view that there is no circumstance/reason that warrants interference with the impugned judgment passed by the trial Court in so far as conviction is concerned. 39. Thus, the appellant - accused No.3 committed the offence under Section 212 of IPC. Therefore, this Court is of the view that there is no circumstance/reason that warrants interference with the impugned judgment passed by the trial Court in so far as conviction is concerned. 39. The learned counsel for the appellant - accused No.3 would submit that the appellant is coolie and that there was no mens rea/intention for cause of the death of the deceased and giving shelter to Accused Nos.1 and 2 and consequences thereof. He would further submit that the deceased, appellant - accused No.3 and other accused were highly intoxicated condition at the relevant point of time. He would further submit that the appellant - accused No.3 was in jail for a considerable period and he has to look after his family. With the said submissions, the learned counsel for the appellant prayed to take a lenient view on the quantum of sentence of imprisonment. In this regard, it is relevant to note that by the judgment dated 22.07.2016 in Crl.A. No.1014 of 2006 preferred by accused No.1 in the present crime, the High Court of Judicature at Hyderabad, confirmed the conviction against accused No.1 and sentence of imprisonment imposed by the trial Court against accused No.1 for each of the offences was modified as that of the period which the accused No.1 has already undergone under each offence. It is relevant to note that this Court is having power to record sentence of imprisonment for a lesser period by giving special reasons in writing and the said principle is also held by the Hon’ble Apex Court. It is also relevant to note that accused No.2 filed Criminal Appeal No.968 of 2006, which is also disposed of today, in which this Court also confirmed the conviction recorded by the trial Court, but however, modified the sentences of imprisonment imposed on her for the charges under Sections 304 Part-II and 379 of IPC as that of the period which accused No.2 has already undergone under each offence. 40. In view of the above submissions, discussion supra and considering the entire evidence, both oral and documentary, and also the impugned judgment, it can be seen that the accused and the deceased hail from rural area of Mahabubnagar District, poor families and they are illiterates. They were addicted to intoxication and other bad habits, like illicit relations etc. 40. In view of the above submissions, discussion supra and considering the entire evidence, both oral and documentary, and also the impugned judgment, it can be seen that the accused and the deceased hail from rural area of Mahabubnagar District, poor families and they are illiterates. They were addicted to intoxication and other bad habits, like illicit relations etc. in the manner stated above. It is a classic case of people hails from rural background, living in poverty and illiterates, suffering from various social evils, like intoxication, poverty, illiteracy etc. As discussed above, the deceased and the accused were in intoxication condition, accused No.1 was having illegal intimacy with the deceased for the last 20 years, the appellant - accused No.3 is having illegal intimacy with accused No.4. All of them were eking out their livelihood as coolies/daily wage labour. They have committed the said offences in the said circumstances and in the intoxication condition. Therefore, this Court is inclined to modify the sentence imposed by the trial Court. 41. Therefore, the conviction recorded by the learned Special Judge against the appellant - accused No.3 for the offence under Section 212 of IPC in S.C. No.333 of 2005 is confirmed. However, the sentence of imprisonment imposed by the trial Court against the appellant - accused No.3 for the said offence is modified as that of the period which the appellant - accused No.3 has already undergone under the said offence. 42. Accordingly, the Criminal Appeal is allowed in part. As a sequel, miscellaneous applications, if any, pending in the appeal shall, stand closed.