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2022 DIGILAW 187 (AP)

MOHAMMAD JAVEED, KRISHNA DIST. v. P. P. , HYD

2022-02-14

C.PRAVEEN KUMAR, VENKATESWARLU NIMMAGADDA

body2022
JUDGMENT : C.Praveen Kumar, J. The sole accused in Sessions Case No.141 of 2013 on the file of the learned VIII Additional District and Sessions Judge, Vijayawada, Krishna District is the appellant herein. He was tried for the offences punishable under Sections 302, 380 and 201 I.P.C. 2. Vide judgment, dated 27.11.2014, the learned Sessions Judge, while acquitting the accused for the offences punishable under Sections 380 and 201 I.P.C., convicted him for the offence punishable under Section 302 I.P.C. and accordingly, sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs.100/-, in default, to suffer simple imprisonment for a period of fifteen days. 3. The substance of the charge against the accused is that on 9.4.2012, at Irrigation canal situated at western side of Avutu Siva Reddy land, Nunna Gunadala Road, Vijayawada, caused the death of one Syed Shamsheer (hereinafter, referred to as “the deceased”) and thereafter, committed theft of cash of Rs.42,000/- and one cell phone and later, took the dead body to Irrigation canal and threw it in the canal to screen the evidence. 4. The facts in issue are as under:- P.W.4 is the wife of the deceased and P.W.5 is the son of the deceased. It is said that on 5.4.2012, the deceased went on duty at about 4:00 P.M. informing P.W.4 that he is going to Visakhapatnam with furniture in TATA Ace Auto belonging to one Zilani. It is said that the furniture was taken from Vijayawada to a shop in Sompeta belonging to P.W.9. The evidence on record show that the auto reached the shop of P.W.9 on 6.4.2013 morning where the deceased along with the accused unloaded the said furniture at the shop. After unloading the above furniture, P.W.9 is said to have paid Rs.7,500/- towards transportation charges and Rs.35,000/- towards balance sale consideration for the furniture. Thereafter, on the very same day, the deceased undertook to shift damaged Nilkamal chairs to Vijayawada from Sompeta. P.W.10, who wanted the damaged Nilkamal chairs to be transported, is said to have paid a sum of Rs.2,100/- to the accused towards transportation charges. Both the witnesses identified the accused as the person who accompanied the deceased on 6.4.2012 to their shops. P.W.10, who wanted the damaged Nilkamal chairs to be transported, is said to have paid a sum of Rs.2,100/- to the accused towards transportation charges. Both the witnesses identified the accused as the person who accompanied the deceased on 6.4.2012 to their shops. The evidence on record further shows that on 7.4.2012, at about 10:00 A.M., the deceased called P.W.4 and informed her that he is on Eluru Bypass road and will be reaching home within one hour but thereafter, the phone was switched off. On 9.4.2012, at about 11:30 A.M., P.W.1 – the then Village Revenue Officer of Nunna Village, on receipt of information about the dead body lying at the scene of offence, went there and noticed the body. He immediately went and lodged a report with P.W.13 vide Ex.P-1, which lead to registration of a case in Crime No.220 of 2012 of Nunna Police Station under Section 174 Cr.P.C. The police recorded the statement of P.W.1. Thereafter, P.W.13 along with his staff visited the scene of offence and observed the scene of offence in the presence of P.W.1 and registered F.I.R. under Ex.P-12. A rough sketch of the scene of offence was also prepared which is placed on record as Ex.P-14. Basing on the name of the tailor on the shirt of the deceased, P.W.3 was examined, who identified the deceased. Later, the wife of the deceased – P.W.4 was examined and recorded her statement. On the next day, inquest was held over the dead body of the deceased in the presence of P.W.8 and two others. Ex.P-9 is the Inquest Report. During inquest, he examined P.Ws.4, 5, 12 and others. Further investigation in this case was handed over to P.W.14. After completion of inquest proceedings, the dead body was sent for post mortem examination. P.W.11 – The then Assistant Professor of Forensic Medicine, Siddhartha Medical College, Vijayawada conducted autopsy over the dead body of the deceased and issued Ex.P-11 – Post Mortem Report. According to him, the time of death is three days prior to post mortem examination and the cause of death is due to ligature strangulation. P.W.11 – The then Assistant Professor of Forensic Medicine, Siddhartha Medical College, Vijayawada conducted autopsy over the dead body of the deceased and issued Ex.P-11 – Post Mortem Report. According to him, the time of death is three days prior to post mortem examination and the cause of death is due to ligature strangulation. P.W.14, the then Inspector of Police, Nunna Police Station, who continued with the investigation, effected the arrest of the accused in front of Raghavendra Theatre, near Ayodhya Nagar, Vijayawada on 12.4.2012 and pursuant to the statement made by him, M.Os.1 and 2 were said to have been seized under Ex.P-6. Ex.P-4 is the admissible portion of the mahazar relating to arrest and the seizures made pursuant thereto. The accused further lead them to Bhavanipuram and handed over Mahindra Maximo Truck Auto bearing No.AP 16 TC 6808 in which Nilkamal chairs were present. After completing the investigation, P.W.14 filed charge sheet, which was taken on file as P.R.C.No.2 of 2013 on the file of the learned I Metropolitan Magistrate, Vijayawada for the offences punishable Sections Sections 302, 380 and 201 I.P.C. 5. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to him. As the offences are triable by a Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned VIII Additional District and Sessions Judge, Vijayawada, Krishna District for trial and disposal in accordance with law. 6. Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, he pleaded not guilty and claimed to be tried. 7. To substantiate its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P-1 to P-23 and M.Os.1 to 7. Out of the fourteen witnesses examined by the prosecution, P.Ws.6, 7 and 12 did not support the prosecution case and were treated hostile by the prosecution. 8. After the closure of the 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 the prosecution witnesses to which he denied. No oral or documentary evidence was adduced on behalf of the accused. 9. 8. After the closure of the 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 the prosecution witnesses to which he denied. No oral or documentary evidence was adduced on behalf of the accused. 9. Relying upon the evidence adduced by the prosecution showing the culpability of the accused in the commission of the offence, the learned Sessions Judge convicted the accused for the offence punishable under Section 302 I.P.C. and sentenced him, as stated supra. Challenging the same, the present appeal came to be filed by the accused. 10. The point that arises for consideration is: “Whether the prosecution is able to prove the guilt of the accused for the offence punishable under Section 302 I.P.C. beyond all reasonable doubt?” 11. POINT:- Before proceeding further, it is to be noted that the learned Sessions Judge, in paragraph No.43 of the judgment, noted down the circumstances, which according to him, are sufficient to base a conviction. A reading of the said paragraph would indicate that the trial Court mainly convicted the accused, basing on 1) the deceased being last seen in the company of the accused, 2) identification of accused in the Court by P.W.9 and 3) recovery of cell phone, cash and nylon thread. Before proceeding further, it is to be noted that the main circumstances relied upon by the prosecution are recovery of cash and articles from the deceased. 12. Admittedly, it is not in dispute that there are no eye witnesses to the incident. In a case arising out of 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. 12. Admittedly, it is not in dispute that there are no eye witnesses to the incident. In a case arising out of 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. In Jawaharlal Das v. State of Orissa’s case, AIR 1991 SC 1388 the Apex Court held that to base a conviction in a case arising out of circumstantial evidence, three conditions are required to be satisfied viz., 1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, 2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused and 3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. 13. Keeping in view the principles laid down by the Apex Court in the judgment referred to above, we shall now deal with the case on hand. 14. The evidence of P.W.9 relied upon by the prosecution would show transportation of furniture from Vijayawada to Sompeta, which was delivered in his shop. After collecting the furniture, the dealer is said to have paid an amount of Rs.35,000/- towards balance consideration for the purchased furniture and Rs.7,500/- towards transportation charges. He claims to have identified the accused as the person who accompanied the deceased to his shop on that day. But one fact which requires to be noted is that in the cross examination, he admits that he has not obtained any receipt from the deceased while handing over the balance sale consideration, since he is a third party to the furniture shop. He further admits that he has not shown to the police any accounts evidencing payment of Rs.7,500/- towards transportation charges. He further admits that he has not shown any material to the police that he has received the furniture on that day from Siva Shankar Furnitures, Vijayawada though he admits that they used to endorse on way bill in token of receipt of furniture which is not done in the instant case. He further admits that he has not shown any material to the police that he has received the furniture on that day from Siva Shankar Furnitures, Vijayawada though he admits that they used to endorse on way bill in token of receipt of furniture which is not done in the instant case. He further admits that no documents are filed to show that the accused and the deceased came to unload the furniture on that day and that no test identification parade was conducted to identify the accused. 15. From the above, it is clear that though in chief, P.W.9 claims to have stated about accused and deceased coming to his shop and he giving money to the deceased, no endorsement was taken with regard to receipt of money by the deceased. When an amount of Rs.35,000/- is given to a person/stranger, definitely, some steps would have been taken, evidencing receipt of money, more so, when he admits that it is a practice to take a receipt after receipt of furniture. 16. At this stage, we also intend to refer to the evidence of P.W.10. He, in his evidence, speaks about damaged Nilkamal chairs being boarded in TATA Ace bearing No.AP 16 TC 6808 at about 6:30 P.M. to Vijayawada. According to him, in that auto, the accused and the deceased were present and deceased was the driver. P.W.10 claims to have paid an amount of Rs.2,100/- to the accused towards transportation charges. In the cross examination, he admits that there is no material to show transport of damaged Nilkamal chairs from Sompeta to Vijayawada. 17. P.W.12, who is the owner of the auto, in his evidence, speaks about sending only the deceased to load the furniture from Siva Shankar Furnitures, Vijayawada and take them to Sompeta. He is said to have paid an amount of Rs.1,500/- towards transportation charges and that he came to know that an amount of Rs.42,000/- was paid by the dealer to the deceased to unload the chairs. According to him, the deceased also informed about the loading of Nilkamal chairs at Srikakulam to be transported to Vijayawada and that he has to come to Vijayawada on 7.4.2012 but thereafter, his whereabouts were not known. According to him, the deceased also informed about the loading of Nilkamal chairs at Srikakulam to be transported to Vijayawada and that he has to come to Vijayawada on 7.4.2012 but thereafter, his whereabouts were not known. This evidence of P.W.12, in our view, may not be of any help to the prosecution for the reason that nowhere in the evidence, he speaks about accused accompanying the deceased at any point of time or accused informing P.W.12 about the presence of the accused with him on that day. 18. Further, even P.W.4, in her evidence, never states about the accused accompanying the deceased from Vijayawada to Sompeta or in his return journey from Sompeta to Vijayawada on 7.4.2012. Though she claims to have talked with the deceased at about 10:00 A.M., but neither did she enquire with the accused as to who were accompanying him nor the deceased informed her about accused accompanying him. That being the position, the net result would be that even if the evidence of P.Ws.9 and 10 is believed, the accused and the deceased are, at the most, seen together on 6.4.2012 at about 8:00 A.M. and 6:30 P.M. respectively, which, in our view, may not be sufficient to convict the accused for more than one reason viz., in the absence of any material to show that the material was transported to Sompeta and secondly, which according to us is very crucial, is the evidence of the Post Mortem Doctor, who in his evidence, speaks that the death of the deceased occurred three days prior to his post mortem examination. As observed by us earlier, the post mortem on the dead body was conducted on 10.4.2012 and if three days is to be calculated from the said date, it would be on 7.4.2012. So, what happened from the evening of 6.4.2012 till the death of the deceased on 7.4.2012? From the evidence on record, it is clear that the deceased was not stationed at a particular place. He was traveling from Sompeta to Srikakulam and then, to Vijayawada on those two days. Further, things would have been different had there been any connecting material to connect the accused with the crime. 19. From the evidence on record, it is clear that the deceased was not stationed at a particular place. He was traveling from Sompeta to Srikakulam and then, to Vijayawada on those two days. Further, things would have been different had there been any connecting material to connect the accused with the crime. 19. At this stage, learned Additional Public Prosecutor would contend that the recovery of M.O.1 – cash and M.O.2 - cell phone from the accused pursuant to a confession made by him can be taken as an aid or an additional circumstance to connect the accused with the crime. It may be true that M.O.2 – cell phone was seized pursuant to the statement made by the accused under Section 27 of the Indian Evidence Act, 1872 but strangely, the same was not identified by any of the family members of the deceased as belonging to the deceased. Even P.W.4 was not asked to identify the cell phone. 20. Coming to the recovery of cash of Rs.42,000/- is concerned, there are no special marks to say that it was the same cash which was given by P.Ws.9 and 10 to the deceased. 21. Having regard to the circumstances stated above and in the absence of any evidence to show as to whether the accused was with the deceased from the evening of 6.4.2012 till his death on 7.4.2012, a doubt arises as to the involvement of the accused in the commission of the offence. Hence, we feel that it is a fit case where benefit of doubt can be given to the accused. Therefore, the prosecution failed to prove its case beyond all reasonable doubt against the accused for the offences punishable under Sections 302, 380 and 201 I.P.C. and accordingly, the judgment of the trial Court is liable to be set aside. 22. In the result, the conviction and sentence recorded by the learned VIII Additional District and Sessions Judge, Vijayawada, Krishna District vide judgment, dated 27.11.2014, in Sessions Case No.141 of 2013 against the appellant/accused for the offences punishable under Sections 302, 380 and 201 I.P.C. are set aside. The appellant/accused shall be released forthwith if he is not required to be detained in any other crime. Fine amount, if any, paid by the appellant/accused shall be returned to him. M.Os.1 and 2 shall be returned to the concerned in accordance with law. 23. The appellant/accused shall be released forthwith if he is not required to be detained in any other crime. Fine amount, if any, paid by the appellant/accused shall be returned to him. M.Os.1 and 2 shall be returned to the concerned in accordance with law. 23. Accordingly, the Criminal Appeal is allowed. Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.