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2022 DIGILAW 3 (AP)

S. Albert v. State of Andhra Pradesh

2022-01-03

C.PRAVEEN KUMAR, K.MANMADHA RAO

body2022
JUDGMENT : C. PRAVEEN KUMAR, J. 1. A1 and A2 in Sessions Case No. 167 of 2012 on the file of the X Additional District and Sessions Judge, Tirupati, are the appellants herein. 2. They were tried for the offences punishable under Sections 302 r/w 34 of Indian Penal Code (I.P.C.) or in alternative under Sections 302 I.P.C. 201 r/w 34 I.P.C. and 392 I.P.C. 3. Vide judgment dated 02.05.2015, the learned Sessions Judge convicted both the accused under Section 302 r/w 34 I.P.C. and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 500/- each in default, to suffer simple imprisonment for one month each. They were also convicted under Section 201 r/w 34 I.P.C. and each one of them was sentenced to suffer Rigorous Imprisonment for a period of three years and also pay a fine of Rs. 500/- each in default, to suffer simple imprisonment for one month each. Both the appellants were also found guilty under Section 392 I.P.C. and sentenced to suffer Rigorous Imprisonment for a period of three years and pay a fine of Rs. 500/- each in default, to suffer simple imprisonment for a period of one month each. All the substantive sentences were directed to run concurrently. The remand period undergone by both the accused was directed be given set off. 4. The facts, as culled out from the evidence of the prosecution witnesses, are as under: PW-1 is the son and PW-2 is the husband of the deceased. PW-3 and PW-4 were examined as eye witnesses to the incident, while PW-5 is the resident of the said village, who knows the appellants and the deceased. It is stated that on 09.06.2010, One Albert, who is arrayed as A1, called PW-1 on phone and requested him to send food with his mother i.e. the deceased, to the temple of Eswara, near Satyavedu as he will be going there along with Munaswamy (A2), Rekha (PW-4), Muniamma and Mariamma (PW-3), to have Darshan in the said temple. On 11.06.2010, PW-1 went to work in the morning and his mother (deceased) took food to the temple as requested by the appellants. He came back from work at 8.00 p.m. by bus and alighted at Satyavedu, where he found his mother along with A1, A2, PW-3 and PW4 along with Muniamma. On 11.06.2010, PW-1 went to work in the morning and his mother (deceased) took food to the temple as requested by the appellants. He came back from work at 8.00 p.m. by bus and alighted at Satyavedu, where he found his mother along with A1, A2, PW-3 and PW4 along with Muniamma. When PW-1 asked his mother to accompany him to the house, she replied stating that she would serve food to A1 and others and then come home on the next day morning after-having Darshan. As such, PW-1 went home. On the next day morning i.e. early hours of 12.06.2010, A2 came to the house of PW-1 and informed him that the deceased was killed by somebody after removing her clothes. According to him, the dead-body was lying near Kings School, Satyavedu. He also asked him to bring clothes to cover the body. Then PW-1 questioned him as to how this could be happened, when he left his mother in his company, to which A2 replied that the deceased left with an unknown person stating that she will bring water in two liters bottle from the house of Settivaru. On coming to know about the said incident, he along with his father, sister and other villagers went to the scene of offence and noticed the dead-body lying without clothes. He also noticed ear studs, nose stud missing from the body. They found Thali of the deceased was lying on the ground but Thali bottu was missing. Suspecting some foul play, PW-1 lodged a report with PW-11, the Sub-Inspector of Police, who registered it as a case in Crime No. 32 of 2010 under Section 302 I.P.C. and issued Ex.P6, FIR. Further investigation in this case was taken up by PW-12, the Inspector of Police, Sathyavedu. According to him, on receipt of express FIR in Crime No. 32 of 2010, which was registered under Section 302 I.P.C. he proceeded to the scene of offence along with his staff and prepared rough sketch of the scene, which is placed on record as Ex.P7. He also prepared an observation report of the scene in the presence of panch witnesses. He examined PWs. 1 to 5 and recorded their statements. He also prepared an observation report of the scene in the presence of panch witnesses. He examined PWs. 1 to 5 and recorded their statements. He conducted inquest over the dead-body at 11.00 a.m. During inquest, he seized one pair of silver toe rings, a yellow thread with black beads with thali thayath lying on the ground and also nose screw rold gold. Ex.P4 is the inquest report. The said proceedings were conducted in the presence of PW-9, Village Revenue Officer of the village. Thereafter, on 13.06.2010, PW-12 visited the village of the deceased, secured Sakunthala (PW-6) and one Kanchana and recorded their statements. On 21.06.2010, while PW-12-Inspector of Police was at Circle Office, at 3.30 p.m. he received information about the accused and accordingly, left the Circle office along with Sub-Inspector of Police and Staff. In the presence of mediators, he arrested the accused near Vinayaka Temple, which is situated by the side of Sathyavedu-Budhur road and recorded their confessional statements. Ex.P8 is the Arrest Mahazar. Pursuant to the confession made by the accused before the police and two panch witnesses, knife and two gold ear studs are recovered from the bushes, which were seized under Ex.P5. Further investigation in this case was taken up by PW-13. 5. After completion of investigation, a charge sheet came to be filed, which was taken on file as P.R.C. No. 2 of 2011 on the file of the Judicial Magistrate of First Class, Sathyavedu. 6. On appearance of the accused, copies of documents as required under Section 207 Cr.P.C. came to be furnished. 7. Since the case is triable by the Court of Sessions, the matter was committed to the Sessions Court under Section 209 Cr.P.C. 8. Basing on the material available on record, charges 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. 9. In support of its case, the prosecution examined PWs. 1 to 13 and got marked Exs.P.1 to Ex.P.11 and also Mos.1 to 13. 10. After completion of prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied, however, no evidence was adduced in support of their plea. 11. 1 to 13 and got marked Exs.P.1 to Ex.P.11 and also Mos.1 to 13. 10. After completion of prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied, however, no evidence was adduced in support of their plea. 11. Relying on the evidence adduced by the prosecution, the learned Sessions Judge convicted the accused as referred to earlier. Challenging the same, the present appeal came to be filed. 12. Sri. D. Kodanda Rami Reddy, learned counsel for the appellants contended that there is absolutely no legal evidence to connect the accused to the crime. According to him, PWs. 3 and 4, who were examined as eye witnesses to the incident did not support the case of the prosecution. Apart from that the recoveries said to have been pursuant to the confession of the accused are not proved beyond doubt. According to him, there is no evidence on record, to show that the gold ornaments recovered from the bushes were that of the deceased, as none of the witnesses were made to identify the same. In the absence of any other evidence, he would contend that the prosecution failed to prove the guilt of the accused beyond reasonable doubt. 13. On the other hand, Sri. K. Srinivas Reddy, learned Public Prosecutor, opposed the same contending that though two eye witnesses did not support the prosecution, but having regard to the fact that the appellants were last seen in the company of the deceased and the recovery made pursuant to the confession, the same are sufficient to connect the appellants with the offence. He further states that as the finding given by the Court below, are based on evidence available on record, the same warrants no interference. 14. The point that arises for consideration is: “Whether the prosecution was able to prove the guilt of accused beyond all reasonable doubt?” 15. It is to be noted here that in the instant case, the prosecution failed to prove the cause of death. The Doctor, who conducted Post Mortem examination was not examined. No explanation is forthcoming as to why the said Doctor was not examined. The Post Mortem Certificate, came to be placed on record as Ex.P9, through the Investigating Officer. It is to be noted here that in the instant case, the prosecution failed to prove the cause of death. The Doctor, who conducted Post Mortem examination was not examined. No explanation is forthcoming as to why the said Doctor was not examined. The Post Mortem Certificate, came to be placed on record as Ex.P9, through the Investigating Officer. Things would have been different, had any Doctor acquainted with the signature of the Doctor, who issued Post Mortem examination has been examined. The same was also not done. It may be true that the Post Mortem Certificate reveals the cause of death as due to shock with haemorrhage, but an opportunity ought to have been given to the appellants to cross examine the Doctor, who issued the certificate or any other person acquainted with the certificate or signature, so that the opinion with regard to the cause of death could have been tested. Be that as it may. 16. We have perused the entire evidence on record. PWs. 3 and 4 were examined as eye witnesses. But both of them did not support the prosecution case and were treated hostile by the prosecution. In fact, both the witnesses categorically deposed that they do not know any thing about the case. On the other hand, their version appears to be that the deceased left with an unknown person to get water from the house of Settivaru and that she did not return thereafter. 17. At this stage, the learned Public Prosecutor tried to contend that the F.I.R. which is a substantive piece of evidence could be used to test the veracity of the other evidence available on record. It is well established principle of law that F.I.R. is not a substantive piece of evidence and it can only be used to test the veracity of the maker. Though, in the chief evidence, PW-1 speaks about lodging of report with the police, but in the cross examination, he admits that he cannot read and write in Telugu and Ex.P1 was written in the Police Station and the same was scribed by the police, Sathyavedu Police Station. In other words, he admits that he cannot say the name of the person, who scribed Ex.P1 and he does not know the contents of Ex.P1. In other words, he admits that he cannot say the name of the person, who scribed Ex.P1 and he does not know the contents of Ex.P1. From the above, it is clear that PW-1 went back on his version and gave a go bye in chief evidence with regard to Ex.P1. 18. Coming to the other evidence on record as stated by us earlier, PW-1 claims to have seen his mother along with accused and others at Sathyavedu Bus Stand on 11.06.2010 and when asked his mother to come along with him, she seems to have told him that she will serve food to A1 and others and come home after having Darshan. However, on the next day morning, A2 informed him about the death of the deceased, pursuant to which, he along with his father, sister and some other villagers went to the scene of offence and noticed the dead-body lying without clothes and gold ornaments missing from the body. As stated earlier, PWs. 3 and 4, who were examined as eyewitnesses to the incident did not support the case of the prosecution. Even PW-5, who was examined to speak about the incident deposed that on 11.06.2010, PW-1 informed him about killing of Govindamma and accordingly, he went to the scene and observed the dead-body with throat cut and no clothes on her body. Though, this witness is not declared as hostile but his evidence discloses that on the date of incident, the deceased served food to them and thereafter left the place with an intention to fetch water. In the cross examination, this witness categorically admitted that she came to know about the incident only through PW-1 and she has no personal knowledge of the same. 19. At this stage, learned Public Prosecutor would submit that evidence of PW-6 will establish the involvement of accused in the crime. 20. We have perused the evidence of PW-6, who along with the deceased was member of Mahila Sangham. According to PW-6, they used to collect money from members, deposit the same in the Bank and whenever any member requires financial assistance, they would lend money from the Bank. It is stated that on 11.06.2010, the deceased asked her to lend Rs. 4,000/- and accordingly, a meeting was held on that day. The evidence of PW-6 further shows that the deceased informed her that the relative of the deceased borrowed Rs. It is stated that on 11.06.2010, the deceased asked her to lend Rs. 4,000/- and accordingly, a meeting was held on that day. The evidence of PW-6 further shows that the deceased informed her that the relative of the deceased borrowed Rs. 40,000/- and asked the deceased to come and collect the same, for which she is going to meet David at Sathyavedu, near the School. She also informed her that some of the relatives will come to the temple on Amavasya and she is taking food to them. This evidence of PW-6 at the most would establish that in order to get money, the deceased went to meet one David at Sathyavedu, who is neither an accused nor a prosecution witness. Therefore, the contention advanced by the learned Public Prosecutor that the evidence of PW-6 would establish involvement of accused in the crime, does not hold any water. 21. The recoveries alleged to have been made at the instance of the accused namely pair of gold ear studs and two pairs of silver toe rings, which are placed on record as MO.4 and MO.1 were not subjected to any identification parade. In fact, none of the witnesses were asked to identify these two objects, even during the course of trial. Therefore, the prosecution failed to prove that the gold ornaments recovered pursuant to the confession made by the accused belong to the deceased. 22. One other ground, on which the Court below convicted the accused is that there was no proper explanation from the appellants as to what happened to the deceased after PW-1 left the deceased in the company of accused. As observed by us earlier, even PW-6 (not declared hostile) came forward with similar explanation as stated by the appellants, namely the deceased going with an unknown person to get water from the house of one Settivaru. Having regard to the circumstances stated above, we hold that the prosecution failed to prove the circumstances relied upon by them to establish the guilt of the accused beyond reasonable doubt. 23. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellants/accused Nos. Having regard to the circumstances stated above, we hold that the prosecution failed to prove the circumstances relied upon by them to establish the guilt of the accused beyond reasonable doubt. 23. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellants/accused Nos. 1 and 2 in the judgment dated 02.05.2015 in Sessions Case No. 167 of 2012 on the file of the learned X Additional Sessions Judge, Tirupati, for the offences punishable under Sections 302 read with 34 IPC, 201 read with 34 IPC and 392 read with 34 IPC are set aside and they are acquitted for the said offences. Consequently, the Appellants shall be set at liberty forthwith, if they are not required in any other case or crime. M.Os 4 and 10 shall be returned to PW-2 (husband of the deceased Govindamma). The remaining M.Os. shall be destroyed after appeal time is over. Fine amount, if any, paid by the Appellants/accused Nos. 1 and 2 shall be refunded to them. 24. Consequently, miscellaneous petitions, if any, pending shall stand closed.