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2023 DIGILAW 245 (AP)

Sunil Parthy v. State of A. P.

2023-01-31

B.V.L.N.CHAKRAVARTHI, C.PRAVEEN KUMAR

body2023
JUDGMENT : C. Praveen Kumar, J. Accused 1 and 2 in Sessions Case No.319 of 2014 on the file of learned Special Judge for Trial of Cases under SCs & STs (POA) Act-cum-VI Additional Sessions Judge, Kurnool, are the appellants herein. Originally, they were tried for an offence punishable under Section 302 r/w 34 of Indian Penal Code, 1860 [for short “I.P.C.”] for causing the death of one Jithendar on 12.01.2014 at about 8.00 P.M., in the fields of Ramija Bee at the outskirts of the Orvakal village, Kurnool District. 2. Vide judgment dated 25.03.2015, the learned Sessions Judge convicted both the accused for the offence punishable under Section 302 r/w 34 I.P.C and sentenced each of them to undergo life imprisonment and to pay fine of Rs.500/- each, in default to suffer simple imprisonment for a period of six months. 3. The facts, as culled out from the evidence of prosecution witnesses, are as under: (i) The deceased along with P.W.1 worked in Electrical Sub-Station at Orvakal. The accused also worked there as coolies. On 12.01.2014 at about 11.00 A.M., a quarrel took place between the deceased and the accused. P.W.7 and P.W.8 claimed to have intervened the said quarrel and separated them. Thereafter, they left their sheds by 6.00 P.M. and the accused also left the shed. On the next day at about 8.00 A.M., P.Ws.1, 7 and 8 went to work place and at about 8.30 P.M., they noticed dead body of the deceased by the side of work site with injuries over the body. P.W.1, who is a contractor, is said to have set the law into motion by getting First Information Report scribed through P.W.5 and lodging it before P.W.10, who was working as Trainee Sub-Divisional Police Officer, Orvakal police station at that relevant point of time. (ii) Basing on the report of P.W.1, a case in Crime No.9 of 2014 came to be registered for the offence punishable under Section 302 r/w 34 I.P.C. Ex.P15 is the First Information Report. Information about the registration of crime was furnished to P.W.9, who was working Circle Inspector of Police, Kurnool Taluk circle. On receipt of a copy of the F.I.R., P.W.9 deputed Head constable to collect the panchayatdars and he proceeded to the scene of offence at 1.30 P.M., which is situated one Kilometre behind Model School of Orvakal in the outskirts of the village. On receipt of a copy of the F.I.R., P.W.9 deputed Head constable to collect the panchayatdars and he proceeded to the scene of offence at 1.30 P.M., which is situated one Kilometre behind Model School of Orvakal in the outskirts of the village. At about 2.00 P.M., he conducted inquest over the body of the deceased in the presence of P.W.4 and P.W.5 under Ex.P8. During inquest, he seized M.os.1 to 10. He also examined P.Ws.1, 7, 8 & others and recorded the statements. He also got the scene of offence photographed through P.W.2. Thereafter, the body was sent for Post Mortem examination. (iii) P.W.6, who was working as Professor, Head of the Department of Forensic Medicine, Kurnool Medical College, Kurnool, conducted autopsy over the dead body and issued Ex.P11 Post Mortem Certificate. According to him, the cause of death was ‘due to crush injury on head’. (iv) P.W.9 continued his investigation, sent a requisition for tracker dog. Accordingly, P.W.3, who was the trainer of dog by name Ponny, brought the dog to the scene of offence. The dog got smelled the blood stains on the iron rod and then identified two persons in the mob. It is said that the dog identified A1 and A2 in the mob. The accused were arrested and their statements were recorded, which lead to discovery of M.Os.11 to 14 and the same were seized under Ex.P10 in the presence of P.Ws. 4 and 5. On 16.01.2014, P.W.9 sent M.Os.1, 2, 5 to 13 to the Forensic Science Laboratory through the Magistrate under Ex.P13. After completing the entire investigation, P.W.11-Inspector of Police, Kurnool Rural Circle, who took up investigation from P.W.9, filed charge sheet, which was taken on file as P.R.C.No.40 of 2014 on the file of Judicial Magistrate of First Class, Kurnool. 4. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to them. As the offence is triable by 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 Special Judge for Trial of Cases under SCs & STs (POA) Act-cum-VI Additional Sessions Judge, Kurnool for trial and disposal in accordance with law. 5. As the offence is triable by 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 Special Judge for Trial of Cases under SCs & STs (POA) Act-cum-VI Additional Sessions Judge, Kurnool for trial and disposal in accordance with law. 5. 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, they pleaded not guilty and claimed to be tried. 6. To substantiate its case, the prosecution examined P.Ws.1 to 11 and got marked Exs.P1 to P15 and M.Os.1 to 14. 7. After the closure 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 the prosecution witnesses, to which, they denied. However, they did not adduce any oral or documentary evidence on their behalf. 8. Believing the evidence of P.Ws.7 and 8 coupled with the evidence of P.W.3, the learned Sessions Judge convicted the accused. Challenging the same, the present appeal came to be filed. 9. Sri Vijaya Saradhi, learned counsel appearing for the appellants, mainly submits that there is absolutely no evidence to connect the accused in the crime. According to him, the circumstances relied upon by the prosecution, more particularly arrest and recovery pursuant thereto are not proved. In the absence of any direct witnesses to the occurrence, learned counsel would contend that the prosecution has failed to prove its case beyond reasonable doubt. 10. On the other hand, Sri S.Dushyanth Reddy, learned Additional Public Prosecutor for the respondent-State, contended that though there are no eye witnesses to the incident, but the circumstances relied upon by the prosecution, more particularly motive and the recovery of blood stained cloths of the deceased from the accused, would clearly establish the culpability of the accused in the commission of offence. 11. The point that arises for consideration is: Whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt? 12. As seen from the record, there are no eye witnesses to the incident and the case rests on circumstantial evidence. 11. The point that arises for consideration is: Whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt? 12. As seen from the record, there are no eye witnesses to the incident and the case rests on circumstantial evidence. 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, which should led to an irresistible conclusion establishing the guilt of the accused. 13. In R.Damodaran v. The State Rep. By The Inspector Of Police, AIR (2021) SC 1173, the Apex Court after referring to the judgment of a three Judge Bench in Padala Veera Reddy Vs. State of Andhra Pradesh and Ors. 1989 Supp (2) SCC 706, held that, in a case which rests on circumstantial evidence such evidence must satisfy the following tests: 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 guilt of the accused; 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 4. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharastra (1982) 2 SCC 351 ) Keeping in view the law laid down by the Apex Court in the judgments referred to above, it is now to be seen whether the circumstances relied upon by the prosecution are proved and if proved, whether they form a chain of events connecting the accused with the crime leading to an inescapable conclusion, the guilt of the accused. 14. The fact that there are no eye witnesses to the incident is not in dispute. The prosecution is mainly relying upon motive and recovery of blood stained clothes of the deceased at the instance of the accused. 14. The fact that there are no eye witnesses to the incident is not in dispute. The prosecution is mainly relying upon motive and recovery of blood stained clothes of the deceased at the instance of the accused. Blood group ‘A’ being found on the deceased and the evidence of P.W.3 which establishes identification of the accused through tracker dog. 15. P.W.1, who is said to have lodged the First Information Report after getting scribed from P.W.5, did not support the prosecution case and he was treated hostile by the prosecution. In his evidence, he deposed that he is not aware about the contents of the report. P.W.2 is the Photographer, who took photographs of the scene of offence including the tracks of the dog. 16. In so far as motive is concerned, the prosecution is mainly relying upon the evidence of P.Ws.7 and 8. P.W.7 in his evidence deposed that he works along with accused under L & T company for doing electric work on the back side of Model School at Orvakal village. On 12.01.2014 at about 11.00 A.M., a quarrel took place between the deceased and accused. Himself and P.W.8 intervened and separated them. On the next day at about 8.00 A.M., himself along with P.W.1 went to the work place and noticed the body of the deceased by the side of the work site with injuries on head and left hand fingers were cut. They suspected that the accused might have killed the deceased in view of the quarrel between them. He was cross examined at length. In the cross examination, he admits that in the quarrel that took place on 12.01.2014, A1 sustained bleeding injury to his hand. He further admits that on 13.01.2014 at about 8.00 A.M., the accused also came to the scene of offence and the police came to the scene of offence nearly by 10.00 A.M. He further states that at about 12.00 hours, police got the accused into their jeep after inquest. To a suggestion that the deceased misbehaved with one Saritha, one week prior to the incident, was denied by him. 17. P.W.8 is another witness, who was examined to speak about the motive. He in his evidence in chief deposed that on 12.01.2014 at about 11.00 A.M., a quarrel took place between the accused and the deceased. Then himself, P.W.7 and others intervened and separated them. 17. P.W.8 is another witness, who was examined to speak about the motive. He in his evidence in chief deposed that on 12.01.2014 at about 11.00 A.M., a quarrel took place between the accused and the deceased. Then himself, P.W.7 and others intervened and separated them. He further states that they along with the accused left the shed by 6.00 P.M. On the next day i.e., on 13.01.2014 at about 8.00 A.M., himself, P.W.1 and P.W.7 went to work place and they noticed the body of the deceased by the side of the work site. They suspecting that accused might have killed the deceased in view of the quarrels between them. He also in his cross examination admits that he is not aware about the death of the deceased till they reached the work place and that the accused also came to the scene of offence by 8.00 A.M. on 13.01.2014, police came to the scene of offence at about 10.00 A.M. and thereafter, at about 11.00 A.M., the police got the accused into their jeep after inquest. 18. From the evidence of these two witnesses, it is clear that they speak about the quarrel between the accused and deceased at 11.00 A.M., on 12.01.2014 and in the cross examination, they admit that on the next day morning at about 8.00 A.M., the accused also came to the scene of offence, police came at 10.00 A.M to the scene, and thereafter at 11.00 A.M., the police got the accused into their police jeep after inquest. But the evidence of other witnesses disproved the same. Firstly, as per the evidence of P.W.10, information about the incident was given by P.W.1 on 13.01.2014 at 12.00 Noon, basing on which, a case in Crime No.9 of 2014 came to be registered. When information itself was received at 12.00 Noon, question of taking the accused into custody prior to registering of the F.I.R itself, shows that all is not well in this case. Secondly, P.W.9, who took up investigation after registering the crime, states that he went to the scene of offence at 1.30 P.M., and thereafter conducted inquest over the body of the deceased between 2.00 and 4.00 P.M. on 13.01.2014. Thereafter, his evidence shows that the service of tracker dog was taken up to track the accused with the help of P.W.3, which in all probability would be after 4.00 P.M. 19. Thereafter, his evidence shows that the service of tracker dog was taken up to track the accused with the help of P.W.3, which in all probability would be after 4.00 P.M. 19. At this stage, the evidence of P.W.3 would show that he along with dog Pony reached the scene of offence between 2.30 and 3.00 P.M. That being so, a doubt arises whether really the arrest of accused was after 3.00 P.M. or at 11.00 A.M., as projected by P.Ws.7 and 8 in their cross examinations. 20. Apart from that, it is also to be noticed that while the evidence of P.W.9 Investigating officer is to the effect that the tracker dog identified A1 and A2 in the mob which lead to arrest of the accused, but the evidence of P.W.4 is otherwise. According to him, the police have arrested the accused in the fields of one Shaik Rameeja Bee and after their arrest in the fields, they seem to have give information, which lead to discovery of M.Os.11 to 14 from the bushes. Therefore, the arrest of the accused, in our view, as projected by the prosecution, cannot be accepted. When once the arrest itself is doubtful, the recovery made pursuant thereto, also becomes suspicious. 21. Even otherwise, the evidence on record, more particularly, the report of Forensic Science Laboratory reveals that blood group on M.Os.1 to 4 is ‘A’ group, while the blood group on M.Os.11 to 14, which was seized pursuant to the confession made by the accused also contain blood which is of ‘A’ group. But strangely there is no evidence on record as to the blood group of the accused and the deceased. No effort was made by the prosecution to find out as to the blood group of the deceased or for that matter the blood group of the accused. That being so, one cannot lead to an inference that merely because blood with group ‘A’ is found on the clothes of the deceased, it is the blood group of the deceased. In the absence of any evidence on record to show as to the blood group of the accused or deceased, merely because ‘A’ group blood is found on the clothes of the accused and deceased, it cannot be inferred that the accused is responsible for the incident. In the absence of any evidence on record to show as to the blood group of the accused or deceased, merely because ‘A’ group blood is found on the clothes of the accused and deceased, it cannot be inferred that the accused is responsible for the incident. More so, as observed by us earlier, when the arrest at the time mentioned by the prosecution is doubtful, the consequences which arose after the arrest also have to be viewed with suspicion. 22. In fact, the learned Sessions Judge in paragraph 31 of the Judgement, after referring to the judgment of the Hon’ble Apex Court in the case of Lakhjit Singh v. State of Punjab, AIR 1993 (SCW) 2938 , gives a finding that as the evidence of P.Ws.7 and 8 establish a quarrel between the accused and the deceased, the accused might have killed the deceased in view of the quarrel between them. Further, the learned Sessions Judge also gives a finding that as the evidence of P.W.9, regarding the arrest of accused and seizure of the crime weapon in the presence of P.W.4 and the tallying of the blood group on the clothes of the deceased and the accused, complete the chain, but at the same time, the learned Sessions Judge disbelieves the evidence of P.W.3-trainer of tracking dog, to connect the accused with the crime. 23. As observed by us earlier, a quarrel might have ensued between the accused and the deceased, but it was on the previous day at 8.00 A.M. and thereafter till 6.00 P.M., the accused was in the shed. There is no reference to the presence of the deceased in the shed. Nobody knows what happened after 6.00 P.M. Things would have been different, had there been evidence to show that accused and deceased were together at 6.00 P.M in the shed. But the evidence of P.W.8 does not indicate the same. Therefore, the theory of last seen, as projected by the prosecution, is not proved, as the time gap between the accused and deceased being last seen and the time when the dead body was traced was nearly 24 hours. 24. Having regard to the above, we hold that the circumstances relied upon by the prosecution are not proved and as such, the findings and sentence imposed by the trial Court are liable to be set aside. 25. Accordingly, the Criminal Appeal is allowed. 24. Having regard to the above, we hold that the circumstances relied upon by the prosecution are not proved and as such, the findings and sentence imposed by the trial Court are liable to be set aside. 25. Accordingly, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellants/A1 and A2 in the Judgment dated 25.03.2015 in Sessions Case No.319 of 2014 on the file of learned Special Judge for Trial of Cases under SCs & STs (PoA) Act-cum-VI Additional Sessions Judge, Kurnool for the offence punishable under Section 302 r/w 34 I.P.C, are set aside and they are acquitted for the said offence. Consequently, the appellants/A1 and A2 shall be set at liberty forthwith, if they are not required in any other case or crime. The fine amount, if any paid by the appellants/A1 and A2 shall be refunded to them. Consequently, miscellaneous petitions, if any, pending shall stand closed.