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2022 DIGILAW 16 (AP)

Gampa Srinivasa Rao, Visakhapatnam v. P. P. , Hyd

2022-01-04

C.PRAVEEN KUMAR, K.MANMADHA RAO

body2022
JUDGMENT: C.Praveen Kumar, J. The sole accused in Sessions Case No.114 of 2012 on the file of the learned VII Additional Sessions Judge (Fast Track Court), Visakhapatnam, is the appellant herein. He was tried for an offence punishable under Section 302 of Indian Penal Code (‘I.P.C.’) for causing the death of one Gampa Narsimha Naidu (hereinafter referred to as ‘the deceased’) on the morning of 07.03.2011 between 7:00 A.M. and 7:30 A.M., in the water channel passing through the paddy crop of the deceased. Vide judgment, dated 30.01.2015, the learned Sessions Judge convicted the accused for the offence punishable under Section 302 I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for six months. 2. The facts, as disclosed in the evidence of the prosecution witnesses, are as under: PW.1 is the son and PW.2 is the wife of the deceased. The accused, deceased and PW.3 are their relatives. All of them are residents of Vakapadu Village. A day prior to the incident, the accused is said to have raised a dispute with the deceased, regarding usage of water and also grazing of cattle in his fields. On 07.03.2011 at about 7:00 A.M., while PW.3 was proceeding towards aqua farms, he along with one Yesu (LW.7) observed the accused and the deceased quarrelling with each other. On seeing the same, PW.3 and LW.7 proceeded towards the said place and while they were getting down from the bund, the accused and deceased separated from each other and started proceeding on the road. Thereafter, PW.3 went to his work place and after half an hour PW.3 and LW.7 came back on the same route for collecting palm leaves. On the way they met PW.4. PW.3 enquired PW.4 about the incident, which took place in the morning to which PW.4 informed to PW.3 that he observed the accused going on his cycle but did not notice the deceased. Thereafter, PWs.3, 4 and 7 proceeded on the road to collect palm leaves and on the way they observed the dead body of the deceased lying in the water channel. Immediately they took out the dead body from the water channel and placed the same on the bund. Thereafter, PWs.3, 4 and 7 proceeded on the road to collect palm leaves and on the way they observed the dead body of the deceased lying in the water channel. Immediately they took out the dead body from the water channel and placed the same on the bund. According to PW.5, he heard a loud voice from the lands of the deceased and accused, which are situated side by side, but did not interfere with their quarrel and continued to work in his field. Later, he saw the body of the deceased on the road. On 07.03.2011, PW.1 lodged a written report with PW.11 - S.I. of Police, basing on which a case in Crime No.25 of 2011 came to be registered for the offence punishable under Section 302 I.P.C. Ex.P.12 is the F.I.R. PW.12 – C.I. of Police, who took up investigation, visited the scene of offence and prepared an observation report vide Ex.P.4 and also a rough sketch of the scene under Ex.P.13 in the presence of PW.7. He also recorded the statements of PWs.1 to 4 and 8. Thereafter, he conducted inquest over the dead body in the presence of PWs.6, 10 and others. Ex.P.3 is the inquest report. After completing inquest proceedings, the body was sent for post-mortem examination. PW.9 – Assistant Professor, Andhra Medical College, Visakhapatnam conducted autopsy over the body of the deceased and opined that the death was due to asphyxia due to drowning associated with pressure over the neck. Ex.P.10 is the postmortem report. It is said that on 09.03.2011 at about 2:00 P.M. the accused approached PW.10 – Village Revenue Officer and confessed about the commission of the offence, which was reduced into writing. The same is placed on record as Ex.P.11. Thereafter, PW.10 took the accused to PW.12 – C.I. of Police, who effected the arrest of the accused. After collecting all necessary documents, a charge sheet came to be filed, which was taken on file as P.R.C.No.20 of 2011 on the file of Judicial First Class Magistrate, Yelamanchili. 3. On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. After collecting all necessary documents, a charge sheet came to be filed, which was taken on file as P.R.C.No.20 of 2011 on the file of Judicial First Class Magistrate, Yelamanchili. 3. On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court of Sessions, the matter was committed to the Sessions Court under Section 209 Cr.P.C. Basing on the material available on record, charge as referred to above came to be framed, read over and explained to the accused in Telugu, to which, the accused pleaded not guilty and claimed to be tried. 4. In support of its case, the prosecution examined PWs.1 to 12 and got marked Exs.P.1 to Ex.P.16. Out of 12 witnesses examined by the prosecution, PW.3 did not support the prosecution case and was declared hostile by the prosecution. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied, however, no evidence was adduced in support of his plea except marking Ex.D.1. 5. Though there are no eye witnesses to the incident, the learned Sessions Judge convicted the accused, (1) relying upon the evidence of PWs.3 to 5, (2) the extra judicial confession made before PW.10 and (3) the accused being last seen in the company of the deceased. Challenging the same, the present appeal came to be filed. 6. Sri G.Vijaya Saradhi, learned counsel for the appellant, would submit that there are no eye witnesses to the incident and the circumstances relied upon by the prosecution are not proved. He further submits that when once PW.3 did not support the prosecution case, the entire fabric of the case collapsed and even the extra judicial confession cannot be made the basis to convict the accused, having regard to the admissions elicited in the cross-examination of PW.10. 7. On the other hand, learned Public Prosecutor opposed the same contending that though there are no eye witnesses to the incident, the material available on record amply establish the involvement of the accused in the crime. 8. The point that arises for consideration is: “Whether the prosecution was able to prove the guilt of accused for the offence punishable under Section 302 I.P.C. beyond all reasonable doubt?” 9. 8. The point that arises for consideration is: “Whether the prosecution was able to prove the guilt of accused for the offence punishable under Section 302 I.P.C. beyond all reasonable doubt?” 9. As seen from the record, PW.1 is the son and PW.2 is the wife of the deceased. PW.1 in his evidence deposed that on the date of the incident at about 6:30 A.M., he went to his agricultural fields and at about 7:30 A.M. received a call informing him about the incident. Accordingly, he informed the same to his mother and thereafter all of them reached the scene of offence where they noticed dead body of the deceased with injuries on his face upto the neck. They also noticed the body lying on the bund of the agricultural fields. According to him, PW.3 informed about accused and deceased quarrelling with each other; accused attacking the deceased and then throwing the body in the water channel. From the above, it is clear that PW.1 is not an eye witness to the incident and the source of information is PW.3. But, however, his evidence is to the effect that there were some disputes between the accused and deceased in connection with flow of water particularly during plantation season and a day prior to the incident, a dispute was raised by the accused, and the deceased questioned the accused as to why he is interfering with the flow of water into their lands. On which the accused threatened the deceased proclaiming dire consequences. PW.1 cross-examined at length. But nothing useful is elicited to discredit his testimony with regard to the location of the land of the accused and the deceased and disputes with regard to flow of water and also lodging of a report by him. 10. PW.2 is the wife of the deceased. She is also not an eye witness to the incident. On the other hand, her evidence is to the effect that at about 7:00 or 7:30 A.M., PW.1 informed her about the incident. Pursuant to which, all of them visited the scene of offence and noticed the deceased lying on the bund of agricultural land with injuries on his face upto the neck and mud on the dead body. She also speaks about the information furnished by PW.3 with regard to incident in question. Pursuant to which, all of them visited the scene of offence and noticed the deceased lying on the bund of agricultural land with injuries on his face upto the neck and mud on the dead body. She also speaks about the information furnished by PW.3 with regard to incident in question. Apart from that, the evidence of PW.2 also shows existence of disputes between the accused and the deceased with regard to flow of water and also the dispute, which occurred a day prior to the date of incident. Therefore, the evidence of PW.2 is only hearsay and the source of information with regard to the incident proper is from PW.3. 11. PW.3 was declared hostile by the prosecution as he did not support the case of the prosecution. But, his evidence categorically discloses that on the date of incident, he noticed the accused and the deceased quarrelling with each other. On observing the same, both of them got down the bund to reach them but in the meanwhile both of them separated from each other and proceeded on the road. PW.3 claims to have gone to his work place and returned back with an half an hour on the same route, at which time, he noticed the dead body lying in water channel. At that stage, PW.3 was declared hostile by the prosecution. All the suggestions given to witness were denied except to the extent of certain omissions in his earlier statement made before police. 12. Coming to the evidence of PW.4, he in his evidence deposed that about three years back in the morning at 7:00 A.M., while he was going to attend his coolie work towards the aqua farms, noticed the accused going on cycle with wet clothes. At that point of time, PW.3, who was coming in opposite direction, informed that the accused and deceased were quarrelling with each other and thereafter, only one of them was visible. PW.3 took PW.4 to the scene of offence where they observed the body of the deceased lying in the water channel. They lifted the dead body of the deceased and placed the same on the bund in a supine position. They noticed a black contusion mark over the neck and multiple scratches on the face. 13. PW.5 also deposed on the same lines as that of PW.4. They lifted the dead body of the deceased and placed the same on the bund in a supine position. They noticed a black contusion mark over the neck and multiple scratches on the face. 13. PW.5 also deposed on the same lines as that of PW.4. But his evidence is to the effect that he heard loud voice from the lands of the deceased and accused. But he did not interfere in their quarrel and involve himself in his work. Some time thereafter, he heard voice of PWs.3 and 4 and leaving of the accused from the scene of offence. When he reached the scene, he noticed the dead body of the deceased placing on the bund by PWs.3 and 4. 14. From the above, it is clear that the evidence of PWs.1 to 5 show existence of some minor disputes between the accused and deceased with regard to flow of water and raising of dispute a day prior to the date of incident. Insofar as the incident proper is concerned, the same is said to have taken place in the morning at 7:00 A.M. or 7:30 A.M. Though PW.3 was projected as an eye witness to the incident, he did not support the prosecution case. But his evidence shows that he noticed the accused and deceased quarrelling with each other and half an hour later noticed the body of the deceased in the water channel along with PW.4. Things would have been different had the incident of tracing the body or noticing the body in a water channel took place long after noticing the quarrel between accused and deceased. In fact, the evidence of PW.4 shows that the accused was leaving the place with wet clothes, on his cycle. 15. However, during the course of investigation, some material aspects were not stated in their statements recorded by the police under Section 161 Cr.P.C. For instance, PW.4 did not state about he noticing the accused going on cycle with wet clothes. PW.2 also did not state in her earlier statement about the dispute being raised on previous day by the accused, with regard to flow of water. Similarly, the earlier statement of PW.4 is silent about he meeting PW.3, who was coming in opposite direction and also about PW.3 informing him about quarrel that took place in the morning. PW.2 also did not state in her earlier statement about the dispute being raised on previous day by the accused, with regard to flow of water. Similarly, the earlier statement of PW.4 is silent about he meeting PW.3, who was coming in opposite direction and also about PW.3 informing him about quarrel that took place in the morning. Similarly, PW.5 in his earlier statement failed to mention the quarrel between the accused and the deceased. 16. Be that as it may, we are of the view that these omissions, in the earlier statements of the witnesses do not go through the route of the case for more than one reason. Firstly, the fact that the accused and deceased were quarrelling with each other stands established through evidence of PW.3, who though declared hostile did not rescind from the said fact. The evidence of PW.3 and the evidence of other witnesses show that half an hour prior to noticing the body of the deceased lying in water channel, both of them were quarrelling with each other. That being so, the accused and deceased being seen together just prior to incident stands established being doubt. As the body was traced within an half an hour, which being very proximate to the time of quarrel, it can be held without any doubt that the accused was responsible for the incident in question. 17. At this stage, learned Public Prosecutor relied upon the extra judicial confession made before PW.10. 18. PW.10 was working as Village Revenue Officer in Vakapadu. On 09.03.2011, at about 2:00 P.M., in the afternoon, the accused came to his house and confessed about his involvement in the commission of offence. He also speaks about the deceased pressing his neck a day prior to the incident in connection with their red gram fields, which are situated side by his fields, and in connection of the same, on the next day, a quarrel took place in between him and the deceased. The confession also discloses that the deceased tried to press his neck in the water channel but subsequently he over-poured him and caused his death. The said statement of the accused was recorded and the same is placed on record as Ex.P.11. After obtaining signature of accused, he surrendered the accused before the C.I. of Police. Though PW.11 was cross-examined, nothing useful came to be elicited to disbelieve the same. The said statement of the accused was recorded and the same is placed on record as Ex.P.11. After obtaining signature of accused, he surrendered the accused before the C.I. of Police. Though PW.11 was cross-examined, nothing useful came to be elicited to disbelieve the same. On the other hand, suggestion given that the accused is his relative was denied by him. 19. Though, extra-judicial confession is a weak piece of evidence, the Hon’ble Supreme Court has time and again held that, if the confession is made before a person, who is reliable, and trustworthy the same can be taken as one of the circumstance in the chain of events connecting the accused with the crime. 1) At this stage, it would be appropriate to refer to the judgment of the Hon’ble Supreme Court in Siva Kumar v. State By Inspector of Police, (2006) 1 Supreme Court Cases 714; (2006 1 Supreme Court Cases (Cri) 470, wherein, the admissibility of extra judicial confession made before the Village Revenue Officer came to be considered. Though Rule 72 of the Madras High Court prohibits Village Magistrate from reducing or writing any confession or statement whatever made by an accused person after the Police investigation has begun, however, held that the said rule has lost all its significance in view of the fact that under the Code of Criminal Procedure or any other statute or statutory regulations, the village headman is not a Village Magistrate and that the Village Administrative Officer, has not been conferred with any power of a Magistrate by reason of the provisions of the Code of Criminal Procedure or otherwise and that he has no role to play in any manner with the investigation of a criminal case and accordingly held that, Rule 72 of the Criminal Rules of Practice has become redundant and nugatory. Holding so, the Hon’ble Apex Court held that they do not see any reason why an extra-judicial confession made before a Village Administrative Officer be not accepted, if it satisfies the test of credibility. It would be appropriate to extract the same, which is as under: “35. Criminal Rules of Practice and Orders, 1931 of the Madras High Court was issued by the High Court in exercise of its power conferred by Article 227 of the Constitution of India. Rule 72 of the Rules reads thus: "72. Village Magistrates not to record confession. It would be appropriate to extract the same, which is as under: “35. Criminal Rules of Practice and Orders, 1931 of the Madras High Court was issued by the High Court in exercise of its power conferred by Article 227 of the Constitution of India. Rule 72 of the Rules reads thus: "72. Village Magistrates not to record confession. - Village Magistrates are absolutely prohibited from reducing or writing any confession or statement whatever made by an accused person after the Police investigation has begun." 36. The said rule has lost all its significance in view of the fact that now under the Code of Criminal Procedure or any other statute or statutory regulations, the village headman is not a village Magistrate. The post of a Village Magistrate since 1973 does not exist. 37. The Village Administrative Officer, it has not been shown, has been conferred with any power of a Magistrate by reason of the provisions of the Code of Criminal Procedure or otherwise. It has also not been shown that he exercises any judicial or quasi-judicial function. Indisputably he has no role to play in the matter of an investigation in a criminal case. 38. The Village Magistrates evidently, under the new Code of Criminal Procedure, are not empowered to record any confession or statement either in terms of Section 162 or Section 164 of the Code of Criminal Procedure. 39. For all intent and purport, therefore, Rule 72 of the Criminal Rules of Practice has become redundant and nugatory, logical corollary whereof would be that there does not exist any embargo for an accused person to make an extra-judicial confession before a Village Administrative Officer. 40. We do not, thus, see any reason as to why such an extra-judicial confession could not be made before a Village Administrative Officer. With a view to exclude the admissibility of the confession made before a person, he must be a police officer. A Village Administrative Officer does not answer the descriptions. While carrying out his duty to inform the Police or the magistrate in terms of Section 40 of the Code, the village headman does not act as a public servant removable only by or with the sanction of the local government nor he acts in his capacity as Magistrate. Pregada Balanagu v. Krosuru Kotayya, AIR 1937 Mad 578 . 41. While carrying out his duty to inform the Police or the magistrate in terms of Section 40 of the Code, the village headman does not act as a public servant removable only by or with the sanction of the local government nor he acts in his capacity as Magistrate. Pregada Balanagu v. Krosuru Kotayya, AIR 1937 Mad 578 . 41. We, for the reasons stated hereinbefore, are of the opinion that the extra-judicial confession by the Appellant before the Village Administrative Officer was not inadmissible and, thus, could be relied upon. 43. In Mujeeb and another v. State of Kerala, AIR 2000 SC 591 , whereupon again Mr. Sampath relied, the prosecution failed to prove even the circumstances pointed out to the guilt of the Appellant. 44. Extra-judicial confession may or may not be a weak evidence. Each case is required to be examined on its own fact. In Sidharth v. State of Bihar, [JT 2005 (12) SC 310], a Division Bench of this Court held: " ... He had also made extra-judicial confession to PW-8 Arko Pratim Banerjee. The confession made by appellant Arnit Das was not under any inducement, threat or promise and is voluntary in nature. Therefore, it is perfectly admissible under the Evidence Act." 45. In Piara Singh and Others v. State of Punjab, (1977) 4 SCC 452 , this Court observed: "The learned Sessions Judge regarded the extra judicial confession to be a very weak type of evidence and therefore refused to rely on the same. Here the learned Sessions Judge committed a clear error of law. Law does not require that the evidence of an extra judicial confession should in all cases be corroborated. In the instant case, the extra judicial confession was proved by an independent witness who was a responsible officer and who bore no animus against the appellants. There was hardly any justification for the Sessions Judge to disbelieve the evidence of Balbir Singh particularly when the extra judicial confession was corroborated by the recovery of an empty from the place of occurrence." 46. Yet again in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 it was stated: "19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. Yet again in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 it was stated: "19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility." [Emphasis supplied] 47. For the reasons aforementioned, the courts below must be held to have correctly come to the conclusion that the prosecution case has been proved as against the accused in view of the extra-judicial confession of the Appellant before the Village Administrative Officer, recovery of the air gun from Pappannan Thottam canal, the conduct of the Appellant and that he was last seen with the deceased.” 2) In Gura Singh v. State of Rajasthan, 2001 (2) SCC 205 it was held by the Hon’ble Apex Court that: “Extra-judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. That the evidence in the form of extrajudicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. It is not open to the court trying the criminal case to start with presumption that extra-judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession.” 20. In view of the ratio laid down in the judgments of the Hon’ble Supreme Court in Siva Kumar’s case [cited 1 supra] and Gura Singh’s case [cited 7 supra] and as the statement came to be made before the Village Revenue Officer was without any inducement or threat, and in the absence of any material to show that it was brought into existence by the prosecution, we see no reason to disbelieve the extra judicial confession made before the Village Revenue Officer. 21. Sri G.Vijaya Saradhi, learned counsel appearing for the appellant, would contend that the statement of Village Revenue Officer – PW.10 cannot be accepted for the reason that PW.10 is living in Dharmavaram and the accused was not having any acquaintance with PW.10. The said statement appears to be made before a stranger and one would expect a statement being made before a stranger. But such a defence was never taken and suggestions on those lines were never given to the witness. The entire cross-examination was with regard to signature on Ex.P.11 and the person who scribed Ex.P.11. Therefore, the argument that PW.10 was a stranger to the accused cannot be accepted at this stage. 22. But such a defence was never taken and suggestions on those lines were never given to the witness. The entire cross-examination was with regard to signature on Ex.P.11 and the person who scribed Ex.P.11. Therefore, the argument that PW.10 was a stranger to the accused cannot be accepted at this stage. 22. He further submits that even if the evidence of PWs.1 to 3 and the extra judicial confession is accepted it may not amount to an offence under Section 302 I.P.C. for the reason that even according to the prosecution witnesses the incident in question is preceded by a quarrel. 23. Having regard to the above, it stands established that the accused is involved in the commission of offence, but the question is whether the trial Court was right in convicting the accused for the offence punishable under Section 302 I.P.C. As stated earlier, the extra judicial confession would clearly demonstrate that there was a quarrel between the accused and deceased and initially the deceased tried to press the neck of the accused in the flowing water, but the accused is said to have over poured the deceased and in the course of quarrel pressed the neck of the deceased. Thereafter, the body was left in the water channel. The fact that the incident in question is preceded by a quarrel is not disputed by the learned Public Prosecutor. The postmortem doctor in his evidence categorically states that the accused died of asphyxia due to drowning associated with pressure over the neck, which corroborates the contents of the extra judicial confession made before V.R.O. Hence, the conviction of the accused for the offence punishable under Section 302 I.P.C. is modified to under Section 304-II I.P.C. 24. The conviction and sentence recorded against the appellant/accused in the judgment dated 30.01.2015 in Sessions Case No.114 of 2012 on the file of the learned VII Additional Sessions Judge (Fast Track Court), Visakhapatnam, for the offence punishable under Section 302 IPC is set aside and the appellant is convicted under Section 304 Part-II IPC and sentenced to undergo rigorous imprisonment for a period of six years. The period already undergone by the appellant/accused as remand prisoner shall be given set off under Section 428 Cr.P.C. Consequently, the appellant/accused shall be set at liberty forthwith, if not required in connection with any other case or crime. The period already undergone by the appellant/accused as remand prisoner shall be given set off under Section 428 Cr.P.C. Consequently, the appellant/accused shall be set at liberty forthwith, if not required in connection with any other case or crime. With the above modification, the Criminal Appeal is partly allowed. Consequently, miscellaneous petitions, if any, pending shall stand closed.