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2024 DIGILAW 1065 (AP)

Parimi Venkata Naidu v. State of Andhra Pradesh

2024-08-12

K.SREENIVASA REDDY, K.SURESH REDDY

body2024
JUDGMENT : K. SREENIVASA REDDY, J. 1. On 06.11.2023, when the matter was taken up for hearing, Sri K. Sita Ram, learned counsel, submitted that the appeal was preferred by the father of the deceased against the acquittal judgment dated 17.10.2014 in S.C. No. 136 of 2013 on the file of the VI Additional Sessions Court, Anantapur at Gooty and the learned counsel for appellant, Sri Maheshwar Rao Kuncheam, had given up the vakalat and therefore, notice has to be sent to the appellant. As name of the appellant was not printed in the cause list, the Registry was directed to send the notice through the concerned District Court to the appellant for his appearance. On 11.07.2024 and 25.07.2024, as the appellant did not choose to engage a counsel though notice was served on him, the matter was adjourned for two weeks on each occasion. On 08.08.2024 also, when the matter was taken up, the appellant did not engage any counsel to represent his case. Hence, the learned Assistant Public Prosecutor was requested to go through the record and assist the Court. 2. This Criminal Appeal by the father of the deceased Parimi Jagadeesh Babu @ Babu, is directed against the judgment dated 17.10.2014 passed in Sessions Case No. 136 of 2013 on the file of the VI Additional Sessions Judge, Anantapur at Gooty, whereby respondents 2 and 3 herein, who are A.1 and A.2, were found not guilty of the offence punishable under Section 302 read with 34 of the Indian Penal Code, 1860 (for short ‘IPC’) and accordingly acquitted of the said charge. 3. The substance of the charge framed against the respondents 2 and 3/A.1 and A.2 is that on 13.09.2012, they committed murder by intentionally causing death of the deceased and thereby committed an offence punishable under Section 302 read with 34 IPC. 4. The accused and the material prosecution witnesses are residents of A. Kondapuram village, Putlur mandal. The deceased was also resident of the same village. PW-2 is mother of the deceased. PW-6, the appellant herein, is father of the deceased. PW-1 is son-in-law of PWs. 2 and 6. The deceased was doing iron ore business in Bellary. The deceased was having love affair with one Radhika, who is daughter of A.1. They used to move closely. Due to the love affair, there arose some disputes between A.1 and the deceased. PW-6, the appellant herein, is father of the deceased. PW-1 is son-in-law of PWs. 2 and 6. The deceased was doing iron ore business in Bellary. The deceased was having love affair with one Radhika, who is daughter of A.1. They used to move closely. Due to the love affair, there arose some disputes between A.1 and the deceased. On 13.09.2012, PW-1 went to see his wife and children at the house of the deceased. On the same day at about 1.00 P.M., PW-1 and the deceased left to Tadipatri by motorcycle of his friend to bring fertilizers. They stayed at Tadipatri till 5.30 PM. At the request of the deceased, both of them went to Teranannapalli to the house of PW-5. The deceased informed PW-5 that he is in friendship with Radhika, daughter of A.1, for the last six years and he gave his total earnings to her during the last six years and asked PW-5 to negotiate with the accused for return of the amount so given by him to said Radhika. Thereafter, PW-5 called A.2 and he was discussing about money matters. In the meanwhile, there was a wordy altercation between the deceased and A.2. PWs. 1 and 5 pacified the matter and disbursed A.2 from that place. At about 6.30 PM, PW-1 and the deceased started by the motorcycle to go to Kondapuram. The deceased was riding the motor cycle and PW-1 was the pillion rider. At about 6.45 PM, when they reached the place where the route was diverted to Ravi Venkatampalli about three furlongs, they found the accused coming behind them and they over took motorcycle of the deceased, obstructed the deceased and PW-1. A.2 was armed with an axe and A.1 was armed with a stick. A.1 stated that inspite of several reminders, the deceased was not stopping following his daughter Radhika and how dare he was to come to their village. Saying so, A.1 hit the deceased with the stick in his hand on right shoulder of the deceased. Due to fear, PW-1 escaped and hid behind bush towards north of the road at a distance of 15 feet. When the deceased tried to escape, A.1 again beat the deceased with the stick on his right shoulder on back. Saying so, A.1 hit the deceased with the stick in his hand on right shoulder of the deceased. Due to fear, PW-1 escaped and hid behind bush towards north of the road at a distance of 15 feet. When the deceased tried to escape, A.1 again beat the deceased with the stick on his right shoulder on back. The deceased fell towards north of the road due to slip of his leg when he tried to run away, and A.2 hacked the deceased with the axe on left and right legs below the knee point, on head, behind the head, on forehead, on chin, on front of neck and on left wrist and indiscriminately all over the body. Meanwhile, PW-1 heard sound of motor cycle and ran towards it and found PWs. 3 and 4 coming on the motor cycle from Terannapalli. PW-1 stopped their motor cycle and told about the accused trying to kill the deceased and asked them to rescue the deceased. Three of them ran towards the deceased by raising cries. Even by then, A.2 was hacking the deceased with axe indiscriminately. Both the accused, on seeing the persons coming towards them, showed the stick and axe in their hands and threatened them stating that they would also receive the same fate, and left the place on the way leading to Ravi Venkatampalli. PWs. 1, 3 and 4 rushed to the deceased and found him dead with the injuries so received in the hands of the accused. Thereafter, PW-1 immediately informed parents of the deceased in cell phone in detail about the accused committing the offence against the deceased. Parents of the deceased came to the scene of offence at about 7.30 PM. PW-1 went to Tadipatri Rural p.s. and gave Ex.P1 report to police. On 13.09.2012 at 9.30 PM, PW-15-Sub Inspector of Police, Tadipatri Rural p.s. while he was in police station, received the report from PW-1. Basing on the same, he registered a case in crime No. 133 of 2012 for the offences under Section 302 read with 34 IPC under Ex.P13-FIR. At about 10.00 PM on that day, PW-16-Inspector of Police, Tadipatri Rural Circle visited the scene of offence and posted a guard at the scene of offence as it was dark night. He visited house of the accused and found them absconding. At about 10.00 PM on that day, PW-16-Inspector of Police, Tadipatri Rural Circle visited the scene of offence and posted a guard at the scene of offence as it was dark night. He visited house of the accused and found them absconding. On 14.09.2012, he conducted inquest on the dead body of the deceased in the presence of mediators under Ex.P14- inquest report and sent the dead bod for postmortem examination. PW-14-Civil Assistant Surgeon in C.H.C. Tadipatri conducted autopsy over the dead body of the deceased and issued Ex.P12-postmortem certificate. According to the Doctor, the deceased would appear to have died of the injuries to vital organs about 16 to 20 hours prior to the postmortem examination. On 17.09.2012, PW-16 took up further investigation and on receipt of credible information, apprehended the accused with the help of his staff and pursuant to the confessional statement of the accused, he recovered bloodstained stick and axe. After completion of investigation, PW-16 filed the charge sheet. 5. In support of the case of prosecution, PWs. 1 to 16 were examined and Exs.P1 to P16 were got marked, besides case properties M.Os.1 to 13. After completion of prosecution side evidence, the accused were examined under Section 313 Cr.P.C. to explain the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same. On behalf of defence, no oral evidence has been adduced but Exs.D1 and D2 were got marked. After appreciating the evidence on record, the learned Sessions Judge found the respondents 2 and 3/A.1 and A.2 not guilty of the charge under Section 302 read with 34 IPC and accordingly acquitted them of the said charge. Challenging the same, the present Criminal Appeal is preferred. 6. Now, the point that arises for determination is whether the prosecution is able to bring home the guilt of the respondents 2 and 3/A.1 and A.2 for the offence punishable under Section 302 read with 34 IPC beyond all reasonable doubt and whether there are any grounds to interfere with the order of acquittal passed by the learned Sessions Judge? 7. The learned Assistant Public Prosecutor submitted that the evidence of PW-1, who is an eye-witness to the incident, is consistent with regard to the attack by the respondents 2 and 3/A.1 and A.2 on the deceased and his evidence has not shaken in cross-examination. 7. The learned Assistant Public Prosecutor submitted that the evidence of PW-1, who is an eye-witness to the incident, is consistent with regard to the attack by the respondents 2 and 3/A.1 and A.2 on the deceased and his evidence has not shaken in cross-examination. He further submits that merely because he is a relative of the deceased, his evidence cannot be brushed aside on that ground. He submits that the ocular testimony is corroborated by medical evidence and there was motive for the respondents 2 and 3/A.1 and A.2 to do away with the life of the deceased. He submits that basing on surmises and conjectures, the trial court found the respondents 2 and 3/A.1 and A.2 not guilty, and hence, he prays to set aside the impugned order of acquittal and convict and sentence the respondents 2 and 3/A.1 and A.2 of the charge levelled against them. 8. On the other hand, the learned counsel for respondents 2 and 3 contended that in the absence of any corroboration, the interested testimony of PW-1 cannot be the sole basis to base a conviction; that PW-1 is a planted witness to suit the case of the prosecution and his evidence cannot be placed in the category of ‘wholly reliable’ and conviction cannot be based on his solitary testimony; that the prosecution failed to bring home the guilt of the accused beyond reasonable doubt, and that, the trial Court, upon considering the evidence on record, rightly acquitted the respondents 2 and 3/A.1 and A.2 and there are no compelling or substantial reasons to interfere with the same. Hence, he prayed to dismiss the Criminal Appeal. 9. This is an appeal against an Order of acquittal. There is a presumption under law that the accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal passed by the trial Court. In dealing with the appeals against acquittal, though this Court has full power to re-appreciate the evidence, at the same time, it would be slow in interfering with the order of acquittal because there is a presumption under law that accused is presumed to be innocent unless contrary is proved and that presumption is further strengthened by the order of acquittal. Unless there are substantial or compelling reasons, this Court will not ordinarily disturb the findings of the trial Court. Unless there are substantial or compelling reasons, this Court will not ordinarily disturb the findings of the trial Court. If the trial Court has given any perverse finding, then it can be a ground to interfere with the order of acquittal. Similarly, if admissible evidence has not been taken into consideration or inadmissible evidence has been looked into for the purpose of arriving at a particular finding, then also it can be said to be a compelling reason to interfere with the same. 10. On this aspect, it is pertinent to refer to a decision in Harbans Singh and Another v. State of Punjab, AIR 1962 SC 439 wherein it is held as follows: (Para 8) “The question as regards the correct principles to be applied by a Court hearing an appeal against acquittal of a person has engaged the attention of this Court from the very beginning. In many cases, especially the earlier ones, the Court has in laying down such principles emphasized the necessity of interference with an order of acquittal being based only on ‘compelling and substantial reasons’ and has expressed the view that unless such reasons are present in an Appeal, Court should not interfere with an order of acquittal [Vide Suraj Pal Singh v. The State, 1952 SCR 193 : AIR 1952 SC 52 ; Ajmer Singh v. State of Punjab, 1953 SCR 418 : AIR 1953 SC 459 ]. The use of the words, ‘compelling reasons’ embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had, meant by the words ‘compelling reasons’. In later years the Court has often avoided emphasis on ‘compelling reasons’ but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a Court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied, after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable.” 11. Entire case rests on the solitary testimony of PW-1, who is said to be an eye-witness to the incident. Except PW-1, there are no eye-witnesses to the occurrence. Entire case rests on the solitary testimony of PW-1, who is said to be an eye-witness to the incident. Except PW-1, there are no eye-witnesses to the occurrence. As a general rule, the Court can and may act on the testimony of a single eye witness and there is no legal impediment in convicting the accused person on the solitary testimony, provided the said witness is wholly reliable. That is the logic behind Section 134 of the Indian Evidence Act, 1872. It has to be seen as to how authentic is the testimony of PW-1 is. 12. PW-1 is brother-in-law of the deceased. He married sister of the deceased. He is a native of Tagguparthy village, Beluguppa mandal, which is at a distance of 125 KMs from Tadipatri. According to him, he visited the house of the deceased on 13.9.2012 as his wife and children were at his in-law’s house for the last 3 months prior to the incident, and on the same day, at about 1.00 PM, himself and the deceased left on a motor cycle to bring fertilizers. They stayed at Tadipatri till 5.30 PM. At the request of the deceased, both of them went to Teranannapalli to the house of PW-5. The deceased informed PW-5 that he is in friendship with one Radhika, who is daughter of A.1, for the last six years and he gave his total earnings to her during the last six years, and asked PW-5 to negotiate with the accused for return of the amount so given by him to the said Radhika. On that, PW-5 called A.2 and he was discussing about the money matters. According to PW-1, in the meanwhile, there was a wordy altercation between the deceased and A.2 in that connection, and PWs. 1 and 5 pacified the matter and disbursed A.2 from that place. At about 6.30 PM, when PW-1 and the deceased were going to Kondapuram, A.1 and A.2 followed the deceased and attacked the deceased with stick and axe. PW-1, who was the pillion rider, along with the deceased, escaped from there due to fear and hid himself behind bushes towards north of the road at a distance of 15 feet. 13. PW-2 is none other than mother of the deceased. On a plain reading of her evidence goes to show that she is not an eye witness to the incident. 13. PW-2 is none other than mother of the deceased. On a plain reading of her evidence goes to show that she is not an eye witness to the incident. She deposed to the extent that PW-1 telephoned to PW-6 that the deceased was murdered by the accused. 14. PWs. 3 and 4, who were alleged to be present at the scene of offence along with PW-1, did not support the prosecution case and they were treated hostile by the prosecution. 15. PW-5, who is known to the deceased, did not support the prosecution case and he was treated hostile by the prosecution. 16. PW-6 is the father of the deceased. He deposed with regard to PW-1 informing him about the death of the deceased at about 7.00 PM. 17. PW-8, who is daughter of A.1 and sister of A.2, did not support the prosecution case and she was treated hostile by the prosecution. 18. PWs. 11, 12 and 13 did not support the case of prosecution case and they were treated hostile by the prosecution. 19. On a perusal of the evidence on record would go to show that entire case of prosecution rests on the solitary testimony of PW-1. There is any amount of ambiguity with regard to presence of PW-1 at the scene of offence at the relevant point of time of the incident, for the reason that having visited house of his in-laws on 13.09.2012 at about 12.00 noon by travelling 125 KMs from Tagguparthy village, Beluguppa mandal to see wife and children, he, going along with the deceased on the same day, at about 1.00 PM, to Tadipatri on a motorcycle to bring fertilizers, throws any amount of doubt whether he was accompanying the deceased at the relevant point of time of the incident or not. One more circumstance to prove that the witness has been planted is his conduct at the time of alleged attack by the accused on the deceased i.e. after A.1 hitting the deceased with a stick on right shoulder, he, being brother-in-law of the deceased and closely related, instead of resisting the act of the accused, ran away from that place and hid himself behind the bush, and it creates any amount of doubt whether the incident is said to have taken place as suggested by the prosecution or not. 20. 20. This Court perused Ex.P1-report which has been given by PW-1 to police, wherein no specific act has been attributed to the accused except stating that the accused had attacked the deceased. Apart from the same, PW-1 further stated that while the accused were attacking the deceased and on hearing sound of motor cycle, he ran and called PWs. 3 and 4 and narrated the incident which was taking place during the relevant point of time, and then P.Ws1, 3 and 4 went together to the scene of offence and found the accused hacking the deceased. But, PWs. 3 and 4 did not support the prosecution case. According to PW-1, in the FIR, PWs. 3 and 4 are strangers to PW-1. This Court perused the cross-examination of PW-1, wherein he deposed that he knew PWs. 3 and 4 by names and he had acquaintance with them. He further stated that he did not venture to go to the place of the incident when PWs. 3 and 4 reached the place. He further deposed that he knows PW-3 for the last 3 or 4 years prior to the incident and PW-4 for the last 8 months prior to the incident. But, the said fact has not been stated at the earliest point of time i.e. when he lodged Ex.P1-report to police. Apart from the same, it is not coming forth from Ex.P1-report that PW-1 and the deceased both stayed together at Tadipatri till 5.30 PM and thereafter they both went to Teranannapalli to the house of PW-5, and also the incident said to have take place at Teranannapalli at the house of PW-5 i.e. the deceased is said to have informed PW-5 that he was in friendship with one Radhika, daughter of A.1 for the last six years and gave his total earnings to her during the last six years, and asked PW-5 to negotiate with the accused for return of the amount so given by him to the said Radhika, and in connection that, PW-5 called A.2 and he was discussing about the money matters and in the mean while a wordy altercation took place between the deceased and A.2, and PWs. 1 and 5 pacified the matter and sent A.2 from that place. 21. 1 and 5 pacified the matter and sent A.2 from that place. 21. Absence of mentioning the important circumstances of this nature by PW-1 in the earliest version in Ex.P1-report would go to the root of the case, and the evidence of PW-1 on this aspect is clearly improvement, appears to have been brought into existence at a belated stage after due deliberations for the first time in the evidence. 22. Further, there is material contradiction in the evidence of PW-1, on one hand, and the evidence of PWs. 2 and 6, on the other, in respect of purchase of fertilizers on that day. PW-1 stated in his evidence that they did not purchase any fertilizer on that day. PWs. 2 and 6 stated that PW-1 and the deceased sent the fertilizers in an auto. 23. There are number of contradictions in the evidence of PW-1, on one hand, and the evidence of PWs. 2 and 6, on the other. There is any amount of ambiguity with regard to presence of PW-1 along with the deceased at the relevant point of time of the incident. PW-1 specifically stated that he happens to visit his in-law’s place as his wife and children were residing at that place for the last 3 months. Therefore, it appears to be quite unnatural that any son-in-law, who goes to the house of his in-laws at about 12.00 noon by travelling 125 KMs to see his wife and children, goes on a motor cycle at about 1.00 PM on the same day so as to bring fertilizers along with the deceased, who happens to be his brother-in-law, to a distant place at Tadipatri. 24. On this aspect, it is pertinent to mention the following judgments: (i) In Bhimappa Chandappa Hosamani and Others v. State of Karnataka, 2007 (1) ALT (Crl.) 238 (SC) wherein the Hon’ble Apex court held thus: “This Court has repeatedly observed that on the basis of the testimony of a single eye witness, a conviction may be recorded, but it has also cautioned that while doing so, the Court must be satisfied that the testimony of the solitary eye witness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so, the Court must test the credibility of the witness by reference to the quality of his evidence. In doing so, the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness.” (ii) In C. Magesh and Others v. State of Karnataka, 2011 (1) ALT (Crl.) 286 (SC) the Hon’ble Apex Court held thus: “It may be cautioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasize, consistency is the keyword for upholding the conviction of an accused. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that ‘no man is guilty until proven so’, hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses.” (iii) In Vangala Sreenivasa Reddy and Others v. State of A.P. 2011 (1) ALT (Crl.) 286 (SC), a Division Bench of this Court held thus: “Though the First Information Report is not a substantive piece of evidence, it is a vital document to know about the investigation and it is very much useful to find out the earliest version basing on which the investigation commenced. The entire evidence of the eye witnesses is contra and distinct to the averments made by PW-1 in the First Information Report. There was no injury, which was supposed to have been caused with an iron rod repeatedly on the head of the deceased. Further, the evidence of eye witnesses before the Court comes into conflict with the version in the First Information Report and it also at variance with the police statements made by the said witnesses. There was no injury, which was supposed to have been caused with an iron rod repeatedly on the head of the deceased. Further, the evidence of eye witnesses before the Court comes into conflict with the version in the First Information Report and it also at variance with the police statements made by the said witnesses. Therefore, we have no manner of doubt whatsoever on the aspect that the medical evidence comes into conflict with the oral evidence, more particularly, as there was no injury, which was supposed to have been caused on the head of the deceased with an iron rod. This leads to an inference that either the eye witnesses were not present at the place of occurrence or that they are not giving correct version about the incident.” 25. Another major discrepancy is with regard to the fact that on 13.09.2012 at about 9.30 PM, while PW-15 was present in the police station, PW-1 presented Ex.P1-report. PW-15 categorically stated that during cross-examination that PW-1 had brought a drafted report when he visited the police station. Whereas PW-1, during his cross-examination, stated that at the first instance, he went to Tadipatri Rural police station and informed about the incident and thereafter police went to the scene of offence and in the mean while he prepared Ex.P1-report and after return from the scene of offence, he handed over Ex.P1-report to police. Therefore, it can be inferred that police knew about the incident that had taken place, prior to his visit to the police station. Police went to the scene of offence and ascertained the identity of the dead body of the deceased and thereafter PW-1 was summoned to Tadipatri Rural police station and at the instance of PWs. 2 and 6, PW-1 gave the report as if he witnessed the entire occurrence of the incident. 26. On a perusal of the entire evidence on record goes to show that an implicit reliance cannot be placed on the solitary testimony of PW-1 so as to base a conviction, for the reason that there are number of embellishments and contradictions in his evidence, when compared to the version given in Ex.P1-reoport and the evidence of PWs. 2 and 6. The solitary testimony of PW-1 is not of sterling quality and the same suffers from improvements and is not wholly truthful, so as a base a conviction basing on the same. 2 and 6. The solitary testimony of PW-1 is not of sterling quality and the same suffers from improvements and is not wholly truthful, so as a base a conviction basing on the same. In the absence of any other evidence to corroborate testimony of PW-1, only basing on the solitary testimony of PW-1, the accused cannot be convicted for the offence alleged. The learned Sessions Judge, on proper appreciation of the evidence on record in right perspective, rightly found the respondents 2 and 3/A.1 and A.2 not guilty of the charge and accordingly acquitted them. There are no compelling or substantial reasons to interfere with the order of acquittal passed by the learned Sessions Judge. The Criminal Appeal is devoid of merits. 27. In the result, the Criminal Appeal is dismissed, confirming the judgment dated 17.10.2014 passed in Sessions Case No. 136 of 2013 on the file of the VI Additional Sessions Judge, Anantapur at Gooty.