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2024 DIGILAW 168 (TS)

Palleboina Sadaiah v. State of A. P.

2024-03-07

SAMBASIVA RAO NAIDU

body2024
JUDGMENT : (Sambasiva Rao Naidu, J.) 1. This is a Criminal Appeal filed by the sole accused in SC. No. 605 of 2010 on the file of Principal District and Sessions Judge, Warangal. This appeal has been filed under Section 74(2) of Criminal Procedure Code (for short 'Cr.P.C.') challenging the judgment and conviction recorded by the trial Court dated 10-07-2012 by the trial Court, where under, the appellant herein was convicted under Section 235 (2) Cr.P.C. for the offence under Section 304-II of Indian Penal Code (for short 'I.P.C.') and was sentenced to undergo Rigorous Imprisonment for a period of Five years and to pay a fine of Rs. 1,000/-in default of payment of fine to undergo further Simple Imprisonment of Six months. 2. As could be seen from the impugned judgment, it appears that the appellant herein was tried before the learned Principal District and Sessions Judge, Warangal in SC. No. 605 of 2010 with an allegation that he has committed an offence under Section 302 of IPC. However, after the trial, the trial Court came to the conclusion that the prosecution was not able to prove the guilt of appellant for the offence under Section 302 of IPC. However, held that the evidence placed before the Court proved the guilt of appellant for the offence under Section 304-II of IPC, accordingly, convicted him under Section 235 (2) of Cr.P.C. with the sentence as referred above. 3. As per the charge sheet filed by the respondent/complainant, it was alleged that one Palleboina Ramesh (herein after will be referred as 'deceased') and appellant herein were brothers and sons of one Palleboina Mallamma, who was examined as PW.5 before the trial Court. Palleboina Ilamma, who was examined as PW.1 is the wife, PWs. 2 and 3 namely Anusha and Akhila were the children of the deceased. 4. The prosecution has alleged that on 27-04-2010, PW.1 had been to Odela to attend Mallanna Jathara for offering the prayer and on her return from Jathara on 28-04-2010 and when she reached the house at about 4.00 p.m., she found a mob of villagers near her house. When she rushed to the place, she found the dead body of her husband in front of the house of Kandi Sammaiah with stab injuries on his body. When she rushed to the place, she found the dead body of her husband in front of the house of Kandi Sammaiah with stab injuries on his body. When she caused enquiry, she came to know from his another brother-in-law by name Sammaiah that at about 3.30 p.m., the children of PW.1 and deceased were playing in front of the house of LW.5 Palleboina Sammaiah, the accused abused them, thereby, his mother i.e., PW.5 intervened and questioned him as to why he was abusing the children, thereby, accused started scolding his mother in filthy language. The deceased who is no other than the brother of accused and son of PW.5 intervened and questioned his brother as to why he was abusing their mother in such a filthy language. Therefore, the accused went into his house, brought a knife and stabbed him on his chest and left side armpit due to which he died on the spot. PW.1 having come to know about the incident, went to police station, Parkal and presented a report to the Sub-Inspector of Police, who was examined as PW.12. Basing on the said report, a case in Crime No. 85/2010 for the offence under Section 302 of IPC has been registered and the same was investigated by the Inspector of Police, Parkal, who was examined as PW.11 before the trial Court. 5. The prosecution has claimed that during the course of his investigation, PW.11 visited the scene of offence, secured the independent mediators, who were examined as PW.6 and PW.10, conducted a panchanama at the scene of offence and seized the blood stained earth and control earth from the scene of offence. After completing the other investigation including the preparation of a rough sketch at the scene of offence, obtaining photographs and conducting inquest etc., the dead body was referred for post-mortem examination. The accused herein was arrested by PW.11 on 05-05-2010 and he was interrogated in the presence of two mediators. PW.8, one Sampath and accused said to have confessed the commission of offence. Later, he was produced before the Court for judicial custody. PW.11 having completed investigation, filed charge sheet against the accused alleging that he has committed an offence under Section 302 of IPC. 6. PW.8, one Sampath and accused said to have confessed the commission of offence. Later, he was produced before the Court for judicial custody. PW.11 having completed investigation, filed charge sheet against the accused alleging that he has committed an offence under Section 302 of IPC. 6. The charge sheet was registered as PRC No. 65 of 2010 and on committal of the case, the learned District Judge after supplying copies of the charges sheet, examined the appellant under Section 228 (2) of Cr.P.C. and framed a charge under Section 302 of IPC. The appellant denied the charge and claimed to have been tried. During the trial, the prosecution has examined PWs. 1 to 12 and marked Exs.P1 to P12 and MOs.1 to 8. After conclusion of the trial, the appellant herein was examined under Section 313 Cr.P.C. The learned District Judge after hearing the Public Prosecutor and learned defence counsel found the accused not guilty for the offence under Section 302 of IPC and found him guilty under Section 304-II of IPC and convicted him for the said offence, sentenced him to undergo Rigorous Imprisonment for Five years and fine of Rs. 1,000/-with default sentence. 7. The appellant/accused has filed the present appeal on the ground that the trial Court committed an error by convicting him on the evidence of highly interested witnesses without considering the discrepancies, contradictions elicited from the witnesses. The Court below failed to appreciate the fact that PWs. 2 to 5, who were supposed to have been present and witnessed the alleged attack by the appellant did not intervene and they were like spectators which is highly improbable. The trial Court failed to appreciate that PWs. 2 to 5 are only planted witnesses. If really, they were present, they could have prevented the accused from killing his own brother. The Court below failed to notice that there is no strong motive for the appellant to kill his brother. The trial Court did not consider the discrepancy with regard to scene of offence as mentioned in Ex.P1 and as per the evidence of the witnesses examined before the trial Court. The appellant has also claimed that except the evidence of interested witnesses, there is no other independent witness to depose about the offence. Therefore, sought for setting aside the conviction and sentence. 8. Heard both parties. 9. The appellant has also claimed that except the evidence of interested witnesses, there is no other independent witness to depose about the offence. Therefore, sought for setting aside the conviction and sentence. 8. Heard both parties. 9. The learned defence counsel has submitted that the evidence of PW.1 that she alone went to police station, Parkal, that too after her return from Jathara, in spite of the fact that there were other elders including the own brother of deceased creates any amount of doubt whether the details mentioned in Ex.P1 are really showing the correct incident or it was prepared as an afterthought. The learned counsel also argued that the conduct of the other witnesses, who were supposed to be present and witnessed the offence without reacting to the alleged attack and without even trying to shift the deceased to Hospital or with regard to their failure to present their report till the arrival of PW.1 creates any amount of doubt. The learned counsel has also argued that PWs. 2, 3 and 5 are only chance witnesses, planted for the purpose of deposing against the accused. Admittedly, PWs. 2 and 3 are school going children, when the offence took place on 28-04-2010 which happened to be a working day. The presence of both the girls at the time of alleged offence is highly suspicious. He has also argued the evidence of PW.5, who is none other than the mother of the deceased is highly suspicious because she was under the shelter of PW.1 and the deceased. Therefore, the chances of her giving false evidence cannot be ruled out. 10. On the other hand, the learned Public Prosecutor has argued that the evidence of PWs. 2, 3 and 5 is quite natural because they are none other than the children and mother of the deceased. In fact, the appellant is also the son of PW.5. Therefore, if really there was no such offence, she could not have implicated her own son in the murder case of the other son. Therefore, evidence of PW.5 cannot be discarded on the ground of interestedness. 11. In fact, the appellant is also the son of PW.5. Therefore, if really there was no such offence, she could not have implicated her own son in the murder case of the other son. Therefore, evidence of PW.5 cannot be discarded on the ground of interestedness. 11. As already stated in the previous paragraphs, the specific case of prosecution against the present appellant was in view of a petty quarrel between appellant herein and PW.5, when he abused the children of the deceased, and when the mother of the appellant-PW.5 questioned the abuses, he said to have started abusing PW.5. It is also alleged that when the deceased found the appellant herein abusing his mother said to have intervened and questioned the accused but the accused brought a knife and stabbed his brother. According to the complaint lodged by PW.1, the offence took place on 28-04-2010 but by the time of offence, she was not present in the village. According to the first version of PW.1 before the police vide Ex.P1, that she had been to Mallanna Jathara on 27-04-2010 and returned home on 28-04-2010 at about 3.30 p.m., By the time she came, she found a big gathering near her house and that she found the dead body of her husband in front of the house of one Kandi Sammaiah. Ex.P1 complaint was presented to police at 5.30 p.m., on the same day. 12. As per the evidence of PW.1, soon after she came to know about the alleged murder, she got prepared a complaint through a villager and she went to police station, Parkal and presented a report. Therefore, PW.1 got Ex.P1 prepared in the village and after satisfying with the contents only, she presented the same before the police. In the examination in chief itself, PW.1 categorically deposed that after the report was presented, the contents of the same were read over to her, explained to her and after satisfying with the contents, she affixed her thumb impression and presented the same to police. 13. Therefore, according to her first version, she found dead body of her husband in front of the house of Kandi Sammaiah and when she enquired, her brother-in-law Palleboina Sammaiah as to what happened. He said to have informed the de facto complainant about the alleged quarrel and about the accused killing her husband. 13. Therefore, according to her first version, she found dead body of her husband in front of the house of Kandi Sammaiah and when she enquired, her brother-in-law Palleboina Sammaiah as to what happened. He said to have informed the de facto complainant about the alleged quarrel and about the accused killing her husband. As per the evidence of PW.1, it was elicited that her children were going to school but she did not explain as to how they were present and playing near the house at the time of alleged offence. PW.1 categorically admitted before the trial Court that all the children including the children of accused and other brothers used to go to school on every working day. Even though, the evidence of PW.1 shows that number of villagers was present, the prosecution has examined PWs. 2, 3 and 5 to prove the guilt of the accused. PW.4 is an independent witness about whose presence, there was no whisper in the complaint or in the statement made by PW.1 before the trial Court. As per the cross-examination, PW.1 has admitted that by the time she reached the scene of offence, she found a large mob consisting of all the villagers was present. PW.1 stated before the Court that though she presented Ex.P1 to police on the same day, the police did not visit the village on that particular day. 14. PW.1 has admitted that prior to the above said offence, there were no disputes between the accused and the deceased. PW.1 has deposed before the Court that her husband used to work in digging wells and crushing stones. PW.1 has admitted that on the date of the above said offence also her husband went to attend his work and returned home. If really, he had been to attend the work, the presence of accused before 3.00 p.m., is highly impossible. However, as per the evidence of the witnesses, the death of the deceased occurred even before the arrival of PW.1. According to PW.1, though she presented Ex.P1 to police at 5.30 p.m., police did not visit the village on 28-04-2010 but they came to their village on the next day. However, in the further cross-examination, PW.1 tried to say that police visited the village on the same day. The evidence of other witnesses i.e., PWs. According to PW.1, though she presented Ex.P1 to police at 5.30 p.m., police did not visit the village on 28-04-2010 but they came to their village on the next day. However, in the further cross-examination, PW.1 tried to say that police visited the village on the same day. The evidence of other witnesses i.e., PWs. 3 and 4 is contradicting the evidence of PW.1 when PW.1 deposed before the Court that the police have visited the scene of offence on the same day, the Investigating Officer, who is examined as PW.12 deposed before the Court that he has examined PWs. 2 to 5 and PW.10 at the scene of offence but he could not conduct scene of observation panchanama and inquest on the date of offence. PW.11 has claimed that on 29-04-2010 again he visited the scene of offence and conducted inquest on the dead body. 15. With regard to the offence proper, the evidence of PW.1 goes to show that she did not state before police that she noticed the dead body of her husband in front of the house of Palleboina Sammaiah and she stated before the police that she found the dead body in front of the house of Kandi Sammaiah. However, according to the investigation conducted by PW.11, the Prosecution has claimed that the dead body of the deceased was in front of the house of Kandi Sammaiah. It is elicited from PW.1 that her mother-in-law was residing with the deceased and PW.1. as she had no other independent house. Even though, she claimed before the trial Court that she came to know about the offence through her brother-in-law and mother-in-law, who was examined as PW.5, the same was not found in her statement before the police. 16. Whatever may be the evidence of PW.1, admittedly, she is not an eye-witness to the alleged offence. In the light of her own admission, her children used to go to school on every working day, the presence of PWs. 2 and 3 at the time of offence creates any amount of doubt. 16. Whatever may be the evidence of PW.1, admittedly, she is not an eye-witness to the alleged offence. In the light of her own admission, her children used to go to school on every working day, the presence of PWs. 2 and 3 at the time of offence creates any amount of doubt. According to the evidence of PW.2, when herself and her sister were playing on the road in front of the house of Sammaiah, and when the accused abused them, PW.5 intervened and questioned him as to why he was abusing the children and when their father intervened, the accused brought a knife from his house and stabbed him. It is elicited from PW.2 that prior to the above said incident, her father had been to attend the regular work but she did not state as to when he returned home. It is elicited from PW.2 that she did not state before police that at the time of offence, she and her sister were playing in front of the house of Palleboina Sammaiah and accused came to the said spot. Another important circumstance elicited from PW.2 is about the presence of accused throughout the day of 28-04-2010. When it is alleged by the prosecution that the accused stabbed his brother and killed him and when the de facto complainant having got prepared a complaint, attended police station and presented a complaint, if really the accused was the culprit, he could not have waited at the house expecting the arrival of police who would arrest him. 17. PW.3 deposed before the Court that in spite of the above evidence, the accused was very much present in the house for the entire day. According to the evidence of PWs. 2 and 3, both of them were playing on the road in front of the house of their paternal uncle Sammaiah. It is elicited from PW.2 that the distance between their house and house of accused is about 100 yards and it is elicited from PW.3 that by the time of the alleged offence, herself and her sister were playing near the house of Erukala Sammaiah. Even though, it is suggested to PWs. 2 and 3 that the place at which they were allegedly playing is not visible to the scene of offence. Even though, it is suggested to PWs. 2 and 3 that the place at which they were allegedly playing is not visible to the scene of offence. As per the scene of offence panchanama marked as Ex.P7, there is a road on the rear side of the house of accused. The distance between the place where the children were allegedly playing and the house of Kandi Sammaiah at which of the dead body of the deceased was found is about 31 feet. 18. The presence of PWs. 2 and 3 itself at the time of alleged offence is doubtful. In addition to that in view of the distance between the above said two places, the chances of these two girls, who were playing, witnessing the offence in which the accused said to have killed his own brother is not visible. In the light of the cross-examination of PW.1, where in, she has admitted that her children and children of her brothers-in-law used to attend the classes on every working day, her evidence about the presence of PWs. 2 and 3 is highly doubtful. As per the evidence of PW.1 that till she came to the scene of offence, there was no attempt by any of the villagers to approach the police or to shift the injured to the Hospital. It also creates a doubt as to whether the incident has really occurred as deposed by PW.1 or they have suppressed something to implicate the accused herein in the case. 19. It is true, the evidence of PW.1 and Medical Officer and other witnesses proved the death of deceased due to stab injuries. However, the other circumstances explained by the material witnesses, more particularly, about the accused staying in the house without making any attempt to escape and showing the school going children of PW.1 alone as eye-witnesses, without showing the other villagers as eye-witness to the offence and their silence without presenting any report to police, creates any amount of doubt whether the de facto complainant and other witnesses were presenting a real version or they have deposed false by implicating the accused herein into case. Therefore, the appellant is entitled to benefit of doubt. 20. In the result, the appeal filed by the appellant/accused is allowed. The conviction recorded by the trial Court is set aside. Therefore, the appellant is entitled to benefit of doubt. 20. In the result, the appeal filed by the appellant/accused is allowed. The conviction recorded by the trial Court is set aside. The fine amount paid by the accused shall be returned to him after the appeal time is over. Consequently, Miscellaneous Petitions if any, are closed.