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2020 DIGILAW 730 (AP)

Thamala Gunnayya v. State of A. P.

2020-11-24

AKULA VENKATA SESHA SAI, K.SURESH REDDY

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JUDGMENT : Akula Venkata Sesha Sai, J. 1. Accused No. 1 in Sessions Case No. 59 of 2013 on the file of the Court of Special Judge for Trial of Cases under S.Cs and S.Ts (POA) Act-cum-Additional District and Sessions Judge, Vizianagaram, is the appellant in the present Criminal Appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973. 2. By way of judgment, dated 03-02-2014, the learned Sessions Judge convicted the appellant/accused No. 1 for the offence punishable under Section 302 IPC and acquitted the accused No. 2 and 3. 3. The case of the prosecution, in nutshell, is as follows:- Accused Nos. 1 and 2 are sons of Accused No. 3. According to the case of the prosecution, Pw.1 is the elder brother of the deceased-Sukuru Kannya and marriage of Accused No. 1 with Pw.10 took place at the instance and mediation of the deceased. Festival of Samalamma had taken place at Kudumuru Village of Pachipenta Mandal in the year 2013. On 20-02-2013, Pw.1, deceased-Sukuru Kannayya and Pw.2 went to the said festival along with ten other villagers and when Pw.1 was seeing the Burrakatha, the deceased left the place in the middle of the programme by informing that he was leaving to the house and Pw.2, who is the cousin sister of Pw.1, informed at about 6.00 A.M that she found the dead body of the deceased near a drumstick tree in the field of one Majji Latchamma and also found bleeding injuries on the dead body and by that time Pw.1 was still at the programme in the Jatara and on hearing the same, she went to the scene of offence and found the dead body of the deceased and later she went to the house and brought the deceased's parents, who also found the dead body of the deceased so also blood injury on the back side of the head of the deceased. Thereafter, Pw.1 went to Pachipenta Police Station and lodged Ex. P-1 report where the statement of Pw.1 was recorded by the police. 4. After conclusion of investigation by the Inspector of Police, Salur Circle-Pw.12 filed a charge sheet under Section 302 r/w.34 IPC against Accused Nos. 1 to 3. 5. In order to substantiate its case, prosecution examined Pws.1 to 12 and exhibited Exs. P-1 to P-11 apart from Mos.1 to 4. 4. After conclusion of investigation by the Inspector of Police, Salur Circle-Pw.12 filed a charge sheet under Section 302 r/w.34 IPC against Accused Nos. 1 to 3. 5. In order to substantiate its case, prosecution examined Pws.1 to 12 and exhibited Exs. P-1 to P-11 apart from Mos.1 to 4. On defense side, nobody was examined nor any documents were marked. 6. The learned Sessions Judge framed the following point for consideration:- Whether the Accused Nos. 1 to 3, with a common intention to kill the deceased Kannayya, caused the death of him, by beating him with a stout bamboo stick? 7. By way of the judgment, impugned in the present Criminal Appeal, the learned Sessions Judge found Accused No. 1 guilty of the offence punishable under Section 302 IPC and inflicted the sentence for "life", while acquitting Accused Nos. 2 and 3. Hence, the present Criminal Appeal. 8. Heard Smt. C. Vasundhara Reddy, learned counsel for the appellant and Sri Dhushyanth Reddy, learned Additional Public Prosecutor for the State. 9. It is contended by the learned counsel for the appellant that the impugned judgment is highly erroneous, contrary to law, weight of evidence and probabilities of the case and the learned Sessions Judge grossly erred in convicting the appellant/accused No. 1 in the absence of any eye witnesses for the occurrence of the offence. It is also submitted that the evidence of Pws.1 and 2 is full of contradictions and inconsistencies. It is further submitted that the extra judicial confession said to have been made by the accused before Pw.7-Village Revenue Officer cannot be the basis for convicting the appellant herein in the absence of any corroboration. It is submitted that the motive alone, even if the evidence to the said effect is available, cannot be the sole basis for convicting the accused. The case of the prosecution is completely devoid of evidence. According to Doctor's evidence also, who was examined as Pw.9, the cause of death also can be attributed to fall from a height and meeting rough surface earth or stone. In support of her submissions and contentions, the learned counsel for the appellant placed reliance on the following judgments:- 1. Balbir Singh vs. State of Punjab 1999 (2) ALD (Crl.) 482. 2. Morigondi Sampurna vs. State of A.P. 2019 (2) ALT (CRL.) 186 (A.P) 3. Boya Akuthota Nagaraju vs. State and Ors. In support of her submissions and contentions, the learned counsel for the appellant placed reliance on the following judgments:- 1. Balbir Singh vs. State of Punjab 1999 (2) ALD (Crl.) 482. 2. Morigondi Sampurna vs. State of A.P. 2019 (2) ALT (CRL.) 186 (A.P) 3. Boya Akuthota Nagaraju vs. State and Ors. 2018 (2) ALD (CRL) 326 (A.P) 4. Ramesh Baburao Devaskar and Ors v. State of Maharashtra 2008 CRL.L.J 372 10. On the contrary, strenuously opposing the Appeal and supporting the judgment under challenge, it is contended by the learned Additional Public Prosecutor that the prosecution successfully established the guilt of the Accused No. 1/appellant herein, as such, interference of this court is not warranted under Section 374(2) Cr.P.C. It is also the submission of the learned Additional Public Prosecutor that the genuineness and the validity of the extra judicial confession made by the accused before Pw.7-Village Revenue Officer cannot be doubted in view of the corroboration of the same by the evidence of other witnesses. It is further submitted by the learned Additional Public Prosecutor that since the prosecution successfully established the motive behind the commission of offence, the impugned judgment cannot be faulted. 11. In the above backdrop, now the points that emerge for consideration of this court are:- 1. Whether the prosecution established the guilt of the appellant/accused No. 1 beyond reasonable doubt? 2. Whether the impugned judgment warrants any interference of this court? 12. Admittedly, in the instant case, there is no eye witness for the alleged offence and the entire case of the prosecution rests on 'circumstantial evidence and the confession statement said to have been made before Pw.7-Village Revenue Officer. Therefore, thorough verification and meticulous analysis of the entire material available on record are required to be undertaken for arriving at a just conclusion. 13. P.W. 1 is no other than the elder brother of the deceased. According to P.W. 1, on coming to know about the information as to the death of his brother, he went to the police station, where Ex. P.1 statement was recorded. In Ex. P.1 statement, he stated that he is a resident of Kudumuru Village of Bodduru Gram Panchayat, Pachipenta Mandal and he has one elder brother, one younger brother and a sister and they were celebrating Somalamma festival on 19.02.2013. P.1 statement was recorded. In Ex. P.1 statement, he stated that he is a resident of Kudumuru Village of Bodduru Gram Panchayat, Pachipenta Mandal and he has one elder brother, one younger brother and a sister and they were celebrating Somalamma festival on 19.02.2013. On the occasion of said festival, during night time, he went to watch Sanyasamma Burrakadha, which was being played in their village along with his brother (deceased). He further deposed that in the early hours of 20-02-2013 at 6.00 a.m. one Smt. Palamara Gowramma/Pw.2, resident of Vetaganivalasa Village came to him and informed that the brother of Pw.1 was found dead near drumstick tree and on getting the said information, he along with his father went there and saw the dead body. According to Pw.1, earlier in connection with illegal intimacy with the wife of one Thamala Gunnayya (Accused No. 1), deceased was attacked by Thamala Gunnayya, Thamala Bodayya and Thamala Pandayya, who are residents of the village of Pw.1. He also stated that Thamala Bodayya S/o. Pandayya, Thamala Pandayya, S/o. late Puttayya killed the deceased. He also stated that they have no enmity with the others in the village nor the villagers nearby and nobody had any necessity to kill their elder brother. The above statement of Pw.1 was recorded by the police and was registered as a case in Cr. No. 11 of 2013 on the file of Pachipenta Police Station for the offence punishable under Sections 302 read with 34 of IPC. Pw.1 stated that on the fateful day, he along with the deceased and Pw.2 went to the festival function and when he was seeing Burrakadha, the deceased left the place in the middle saying that he was leaving to the house and at about 6.00 a.m. Pw.2 who is the cousin sister of Pw.1 informed Pw.1 that she found the dead body of the deceased near drumstick tree in the field of one Smt. Majji Latchamma and according to Pw.1, he found the blood injuries on the deceased also and according to Pw.1 he went to the scene of offence and later went to the house and brought his parents who also found the dead body of the deceased. In the chief examination, he also deposed that two months prior to the date of offence, his brother returned to the house with injuries and told that all the accused beat him on the ground that the deceased had illicit intimacy with the wife of accused No. 1 and thereafter a dispute was raised before Pws.4 and 5 and L.W. 9. It is also clear from the cross examination of P.W. 1 that Burrakadha started at about 9.30 p.m. and the deceased left the place at about 1.00 a.m. or 2.00 a.m. from Burrakadha and Burrakadha lasted till 7.00 a.m. on the next day. He further stated that P.W. 2 left Burrakadha place at about 7.00 a.m. It is also his evidence that the deceased is an active person, participating in all the village politics and marriage alliances etc., and there is every possibility to have the enemies to the deceased brother. 14. Coming to the evidence of Pw.2, from whom Pw.1 received the information about the death, in the chief examination, Pw.2 stated that at about 10.00 p.m., the deceased Kannayya told that he was leaving to the house and left the place of Burrakadha and all the three accused followed the deceased from the said place. She also stated that at about 6.00 a.m. she left Burrakadha place to go to the house at Vetaganivalasa Village and on the way she noticed the dead body of the deceased near a drumstick tree and again she went to Burrakadha programme and informed the same to Pw.1 and Pw.1 went from the place to inform the same to his parents. 15. It is very much evident from a perusal of the evidence of Pws.1 and 2 that there is a glaring variation about various timings as mentioned supra. According to Pw.1, the deceased left the place of Burrakadha at about 1.00 a.m or 2.00 a.m. But, according to P.W. 2, at about 10.00 p.m., the deceased left the place of Burrakadha and all the three accused followed him. This contradiction, in the considered opinion of this Court, is undoubtedly fatal to the case of the prosecution. It is also important to note that Ex. P.1 statement is absolutely silent as to the presence of Pw.2 at Burrakadha programme. It is also very much clear from a reading of Ex. This contradiction, in the considered opinion of this Court, is undoubtedly fatal to the case of the prosecution. It is also important to note that Ex. P.1 statement is absolutely silent as to the presence of Pw.2 at Burrakadha programme. It is also very much clear from a reading of Ex. P.1 that in view of the illegal intimacy of deceased with Pw.10 (wife of Gunnayya-Accused No. 1), it was alleged that all the accused killed the deceased. It is also pertinent to note that Ex. P.1 is also absolutely silent as to the deceased leaving for Burrakadha programme and the aspect of accused following. It is also crucial to note that Pw.1 during the course of cross examination categorically stated that the deceased was an active person participating in all the village politics and marriage alliances and there might be possibility to have the enemies to the deceased. In fact, Pw.3, the father of the deceased, also deposed about the same. Coming to the evidence of Pw.4- According to him, he is a village elder of Kudumuru Village and he came to know about the death of the deceased through Pw.1 and he deposed that the panchayatdars opined that the accused got suspicion against the wife of Accused No. 1 for illicit connection with the deceased and the consequential offence. During the course of cross examination, he also spoke about the possibility of the deceased having enemies in the village. 16. Pw.10, who is no other than the wife of Accused No. 1, stated that Accused No. 1 used to beat her and all the accused harassed her, attributing illicit connection to her with the deceased. It is evident from her evidence that she spoke about the motive only and the evidence also shows that Accused No. 1 and Pw.10 are at loggerheads. 17. The prosecution mainly relied upon the evidence of Pw.7. Pw.7 is a Village Revenue Officer and by the time of giving evidence he was working at Padmapuram Village and previously he worked as Village Revenue Officer of Gotturu Village from 2012 to 2013. According to Pw.7, on a telephonic call from Pachipenta Police on 20-02-2013 about the dead body, he went to the Village and he found a dead body in the land of Majji Latchamma and he acted as an attestor for Ex. According to Pw.7, on a telephonic call from Pachipenta Police on 20-02-2013 about the dead body, he went to the Village and he found a dead body in the land of Majji Latchamma and he acted as an attestor for Ex. P4-Scene Observation Report along with Lw.12 and he spoke about he seizure of M.Os.1 to 3. According to Pw.7, on 22-02-2013 while he was at the office of Mandal Revenue Officer, Pachipenta at about 6.30 a.m. all the accused came to him and confessed about the offence and he recorded Ex. P.5-confession statement and thereafter he handed over Accused Nos. 1 to 3 to Pachipenta Police and also handed over Ex. P.5-confession statement. It is very much clear from a perusal of the impugned judgment that the learned Sessions Judge placed heavy reliance on Ex. P.5-confession statement said to have been recorded by Pw.7. While referring to the said confession statement, it is contended by learned counsel for the appellant that the extra judicial confession is a very weak piece of evidence and in the absence of any corroboration, the same cannot be relied upon. It is also the submission of the learned counsel for the appellant that though the alleged incident took place on 19-02-2013, the alleged Ex. P.5-confession statement was recorded on 22-03-2013 and the said delay is also fatal to the case of prosecution. It is the further submission of the learned counsel for the appellant that in the absence of any prior acquaintance with Pw.7, the learned Sessions Judge ought not to have relied upon the said Ex. P-5-confession statement without any corroboration. In this context, it may be appropriate to refer to the judgment cited by the learned counsel for the appellant in the case of Balbir Singh (first supra) the Hon'ble Apex Court at Para.3 of the said judgment held as under:- The only evidence against the appellant was an extra judicial confession stated to have been made by the appellant before the Sarpanch of the village, the dying declaration of Sukhwinder Kaur recorded by the Police on 10.12.1990 and the dying declaration recorded by the judicial Magistrate on 11.12.90. Both the Trial Court and the High Court relied upon the two dying declarations and also the extra judicial confession for the purpose of convicting the accused. Both the Trial Court and the High Court relied upon the two dying declarations and also the extra judicial confession for the purpose of convicting the accused. It was submitted by the learned Counsel for the appellant that the Courts below have committed a grave error in relying upon the extra judicial confession as it was highly improbable that in absence of any relationship with the sarpanch or for any other good reason, the appellant would have gone to the Sarpanch and confessed that he had purchased the poisonous tablets which led to the death of Sukhwinder Kaur. If what the Sarpanch has deposed was really true, the investigating officer would have then tried to find out from whose shop the tablets were purchased. No such attempt was made. The evidence of Sarpanch is not such as could have been accepted without any independent corroboration. Even the trial Court and the High Court have not considered the said extra judicial confession as sufficient to prove the guilt of the appellant. It has been regarded as a piece of evidence furnishing independent corroboration to the dying declarations. An extra judicial confession even if believed is considered a very weak piece of evidence and ordinarily is not accepted without independent corroboration. In this case, it was of a doubtful character and therefore it was wrong to rely upon it and hold that it afforded good corroboration to the dying declarations. 18. In the case of Morigondi Sampurna (second supra) a Division Bench of this Court at Para Nos. 26 and 27 of the judgment, held as under:- The only other circumstance left is the extra judicial confession made by accused No. 1 before P. W. 15. P.W. 15 is no other than the Village Revenue Officer of Markapur, who was working there since last four years. According to him, on 9-9-2011 at about 11:00 a.m. accused No. 1 is said to have approached him and made a confession admitting her guilt, which came to be recorded under Ex. P-13 and thereafter, along with the accused No. 1, a report was handed over to the police. It is to be noted that, though P.W. 15 in his evidence speaks about the extra judicial confession made by accused No. 1, but however, his admissions in the cross examination establish that he was a total stranger. P-13 and thereafter, along with the accused No. 1, a report was handed over to the police. It is to be noted that, though P.W. 15 in his evidence speaks about the extra judicial confession made by accused No. 1, but however, his admissions in the cross examination establish that he was a total stranger. It would be appropriate to extract the relevant admissions in his cross-examination, in his own words, which are as "I do not have prior acquaintance with A-I. In my service I did not help to A-I and her family members personally any time. For the first time I came to know the identity of A-I and about her relationship with deceased boy's family on 9-9-2011. I did not prepare any rough note, I directly recorded the confession of A-I. In four or five cases belonging to Markapur Town P.S. I recorded extrajudicial confession....." From the admissions made by P.W. 15, two things pop up, namely, accused No. 1 was a stranger to P.W. 15 and secondly he was a stock witness of Markapur Town Police Station. Apart from that, even in the present case, he acted as a mediator to the observation of scene of offence, inquest report, panch for seizure of M.Os.1 to 5 and also for arrest of the accused. Therefore, it is improbable to believe that accused No. 1, who is a stranger and who has no prior acquaintance with P.W. 15, would have gone to him and made an extrajudicial confession admitting her guilt. 19. In the instant case also, Pw.7 is a stranger to the accused and no material is forth coming as to their acquaintance earlier. It is also pertinent to note that Pw.7 acted as a witness for the scene observation report and inquest also. 20. In the case of Boya Akuthota Nagaraju (third supra) a Division Bench of the composite High Court at para. 32 of the judgment held as under:- Yet another relevant strong circumstance is the time of giving such statement. In the present facts of the case, the alleged incident took place on 15.04.2008 at about 11.00 a.m. and the extra judicial confession made to PW. 12 in the presence of Pw.14 was allegedly made at 7.30 a.m. on 17.04.2008 i.e., after a gap of nearly two days. In the present facts of the case, the alleged incident took place on 15.04.2008 at about 11.00 a.m. and the extra judicial confession made to PW. 12 in the presence of Pw.14 was allegedly made at 7.30 a.m. on 17.04.2008 i.e., after a gap of nearly two days. Then what are the circumstances which lead the accused to approach PW.12 and gave such statement, though he had acquaintance with PW. 14, who is another VRO, is not explained anywhere. The time gap between the incident and the alleged extra judicial confession made by the accused is a strong circumstance to disbelieve the said confession. There are a good number of reported cases on the point, but the principle can safely be read from a judgment of the Apex Court in Balwinder Singh vs. State of Punjab AIR 1996 SC 607 , wherein the Court the following observations: "The manner in which the extra-judicial confession is alleged to have been made and the silence of PW. 3 for three days in disclosing the same to the police even though she had admittedly been with the police between 21st and 23rd March, 1984 renders it unsafe to rely upon the statement." 21. In the instant case also, admittedly there is a delay of two (2) days in recording the Ex. P.5 confession statement. 22. In the case of Ramesh Baburao Devaskar (fourth supra), the Hon'ble Apex Court in Para. 22 of the judgment held as under:- Proof of motive by itself may not be a ground to hold the accused guilty. Enmity, as is well-known, is a double edged weapon. Whereas existence of a motive on the part of an accused may be held to be the reason for committing crime, the same may also lead to false implication. Suspicion against the accused on the basis of their motive to commit the crime cannot by itself lead to a judgment of conviction. 23. In the instant case also, even assuming that the evidence of Pw.10 proved the motive, the same cannot be the sole basis for convicting the accused in the absence of sufficient material on record. Admittedly, there are contradictions in the evidence of Pws.1 and 2 and in the absence of any proper corroboration, the extra judicial confession i.e., Ex. P-5 cannot form the sole substratum to come to a conclusion against the accused. Admittedly, there are contradictions in the evidence of Pws.1 and 2 and in the absence of any proper corroboration, the extra judicial confession i.e., Ex. P-5 cannot form the sole substratum to come to a conclusion against the accused. In the considered opinion of this court, the prosecution failed to establish all the links which can connect the appellant/Accused No. 1 with the commission of offence. 24. For the aforesaid reasons, the prosecution failed to establish the guilt of the appellant/Accused No. 1 beyond all reasonable doubt and the Criminal Appeal is liable to be allowed. In the result, the Criminal Appeal is allowed by setting aside the conviction and sentence recorded under Sections 302 IPC, vide judgment dated. 03-02-2014 in S.C. No. 59 of 2013 on the file of the Court of Special Judge for Trial of Cases under S.Cs and S.Ts (POA) Act-cum-Additional District and Sessions Judge, Vizianagaram and the appellant/accused No. 1 is found not guilty for the offence, for which he was charged, and he is accordingly acquitted of the same. The appellant/accused No. 1 shall be released forthwith, if he is not required in any other cases. Fine amount, if any, paid by the appellant/accused No. 1 shall be refunded to him. Miscellaneous Petitions, if any, pending in this Criminal Appeal, shall stand closed.