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2024 DIGILAW 787 (AP)

Kolakani Balaraju v. State of Andhra Pradesh

2024-07-16

K.SREENIVASA REDDY, K.SURESH REDDY

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JUDGMENT : K. SURESH REDDY, J. Accused No.1 in Sessions Case No.11 of 2012 on the file of the Court of II Additional Metropolitan Sessions Judge-cum-IV Additional District and Sessions Judge, Visakhapatnam, is the appellant in the present criminal appeal. He alongwith Accused Nos.2 to 8 were tried by the learned Additional Sessions Judge under two charges i.e., first charge was under Section 120(b) IPC against accused Nos.1 and 2 and the second charge was under Section 302 read with 34 IPC against accused Nos.1 to 8. 2. Substance of the charge is that accused Nos.1 and 2 having conspired together and all the accused attacked one Lingeri Koteswara Rao (hereinafter referred to as "the deceased") at weekly shandy of Maddigaruvu Village at about 2.00 p.m., on 01.07.2010 with an axe and knife and causing his death by hacking on the back side of his neck and thereby committed offences punishable under Sections 120(b) and 302 read with 34 IPC. 3. After completion of trial, the learned Additional Sessions Judge, convicted accused Nos.1 and 2 under Section 302 read with 34 IPC and sentenced each of them to suffer imprisonment for "LIFE" and also to pay a fine of Rs.3,000/- each, in default to suffer simple imprisonment for a period of two (2) months. The learned Additional Sessions Judge acquitted rest of accused i.e., accused Nos.3 to 8. 4. Case of the prosecution, as per the evidence of prosecution witnesses, is as follows : The deceased is none other than husband of accused No.2 and their marriage was performed about fifteen (15) years back and during their wedlock they were blessed with three children. PWs.5 and 9 are the son and daughter of the deceased and accused No.2. PW4 is the sister of the deceased. The deceased and accused No.2 used to quarrel with each other right from the beginning. Owing to quarrel, accused No.2 left the matrimonial home and started living with her parents. Inspite of request by the deceased, accused No.2 did not choose to join the deceased to lead conjugal life. On one occasion, the deceased stabbed accused No.2 with a knife on her stomach. While so, on 01.07.2010, the deceased alongwith PWs.4 and 9 went to weekly shandy at Maddigaruvu Village. At about 2.00 p.m., while the deceased was at weekly shandy, all the accused came there and attacked him. On one occasion, the deceased stabbed accused No.2 with a knife on her stomach. While so, on 01.07.2010, the deceased alongwith PWs.4 and 9 went to weekly shandy at Maddigaruvu Village. At about 2.00 p.m., while the deceased was at weekly shandy, all the accused came there and attacked him. Accused No.1 said to have hacked the deceased with an axe and accused No.2 stabbed him with a knife and all other accused also participated. The deceased fell down on the spot and died instantaneously. Immediately, PWs.4 and 9 went to their home. Having come to know about the incident, PW1-Sarpanch went to the police station at about 6.00 p.m., on the same day and gave a report to the police. PW17-Sub-Inspector of Police, G. Madugula Police Station having received Ex.P1 from PW1, registered a case in Cr.No.35 of 2010 under Section 302 IPC and issued copies of FIRs to all the concerned. Copy of FIR is marked as Ex.P12. On the same day, PW18-Inspector of Police took up investigation and recorded statements of PWs.1 to 3. On 02.07.2010, PW18 brought the deadbody to G. Madugula and held inquest over the dead body at burial ground in the presence of mediators. Inquest report is marked as Ex.P13. On 03.07.2010, he visited the scene of offence and prepared observation report-Ex.P18 and also prepared rough sketch-Ex.P14 at the scene of offence. On 02.07.2010, he recorded statements of PWs.4 and 5. On 03.07.2010 he recorded statements of PWs.6 to 8 and another. On 05.07.2010, PW18 arrested accused No.1 and upon his confession, he seized MOs.1 and 2 under Ex.P15. On 29.07.2010, he arrested accused Nos.2 to 6 and on 04.08.2010 he arrested accused Nos.7 and 8. All the arrested accused were remanded to judicial custody. 5. On 03.07.2010, PW16-Civil Assistant Surgeon, Community Health Centre, Paderu, conducted autopsy over the dead body and found seven external injuries. He opined the cause of death was due to "Cardio respiratory arrest secondary due to facture of cervical vertebra and profuse bleeding". He issued Post-Mortem Certificate-Ex.P11. He also opined that injuries 1 to 7 were caused by MOs.1 and 2. After completion of investigation, after receipt of Post-Mortem Certificate-Ex.P11 and FSL Report-Ex.P7, PW18 filed charge-sheet. 6. In support of its case, the prosecution examined PWs.1 to 18 and marked Exs.P1 to 18 and also exhibited MOs.1 to 8. 7. He issued Post-Mortem Certificate-Ex.P11. He also opined that injuries 1 to 7 were caused by MOs.1 and 2. After completion of investigation, after receipt of Post-Mortem Certificate-Ex.P11 and FSL Report-Ex.P7, PW18 filed charge-sheet. 6. In support of its case, the prosecution examined PWs.1 to 18 and marked Exs.P1 to 18 and also exhibited MOs.1 to 8. 7. The plea of the accused is one of the denial. 8. Accepting the evidence of the prosecution witnesses, the learned Additional Sessions Judge convicted accused Nos.1 and 2 as aforesaid. 9. We have heard the learned Counsel appearing for the appellant as well as the learned Assistant Public Prosecutor. 10. The learned Assistant Public Prosecutor, on written instructions, states that accused No.2 has not filed any appeal and she was released by granting remission on 27.11.2020 in terms of G.O. Ms. No.142, Home (Paroles & HRC), dated 26.11.2020. 11. PW1 is the Sarpanch of the Village, PW2 is the MPTC member and PW3 is the V.R.O. All the three witnesses i.e., PWs.1 to 3 have stated that they came to know about the death of the deceased and it is their further case that they came to know that accused No.1 killed the deceased. Admittedly, PWs.1 to 3 were not eye-witnesses to the incident. PWs.6 to 8, PWs.10 to 12 and 15 did not support the case of the prosecution. The only evidence left over to establish the case of the prosecution is that of PWs.4, 5 and 9. PW4 is the sister, PW5 is the son and PW9 is the daughter of the deceased respectively. PW5 in his evidence stated that he came to know about the death of the deceased through PW4. As such, the evidence of PW5 also is not at all helpful to the prosecution. As such, the remaining witnesses are only PWs.4 and 9. According to PW4, she was present alongwith the deceased and PW9 at the relevant point of time in the weekly shandy. It is her further case that at about 2.00 p.m., all the accused came and attacked the deceased, who died on the spot. But, PW4 did not choose to give a report either to the police or to any revenue officials i.e., PWs.1 to 3. After witnessing the incident, PW4 went to the house. Thereafter, she gave a report to the police. But, PW4 did not choose to give a report either to the police or to any revenue officials i.e., PWs.1 to 3. After witnessing the incident, PW4 went to the house. Thereafter, she gave a report to the police. But, as seen from Ex.P1, the presence of PW4 was not at all stated by PW1 in his earliest report. If really PW4 has witnessed the attack by the accused, definitely she would have approached PWs.1 to 3 and give a report. But instead of giving report, she coolly went to her house. 12. Coming to the evidence of PW9, who is a child witness aged about eleven years, she only stated that accused No.1 beat the deceased with an axe and thereafter, accused No.2 and others stabbed the deceased and the deceased died on the spot. She also stated that after witnessing the incident, she alongwith PW4 went to the house. Later, PW9 alongwith PW4 went to the police station and gave a report to the police. But, in the evidence of PWs.17 and 18, it is not stated that PWs.4 and 9 visited the police station to give a report about the death of the deceased. According to the evidence of PW18, he recorded statement of PW4 at the time of inquest i.e., at about 6.00 p.m., on 02.07.2010. Investigating Officer-PW18 has not at all stated in his evidence that he has recorded statement of PW9 at any time. For the first time, PW9 deposed before the Court during the course of Trial. Prior to that the statement of PW9 was not at all recorded by the Investigating Officer. As already pointed out, the names of PWs.4 and 9 were not at all cited in Ex.P1 report given by PW1. PWs.1 to 3 in their evidence have not at all stated about the presence of PWs.4 and 9 at the relevant point of time in the weekly shandy. Except PWs.4 and 9, there is no other material available in the present case. As already pointed out PWs.4 and 9 were planted by the prosecution to suit their case. If really PWs.4 and 9 have witnessed the incident, they ought to have given a report to the police atleast on the next day morning. Even, they did not evince any interest to give report either to Sarpanch or to the revenue officials, who were available in the village. If really PWs.4 and 9 have witnessed the incident, they ought to have given a report to the police atleast on the next day morning. Even, they did not evince any interest to give report either to Sarpanch or to the revenue officials, who were available in the village. The conduct of PWs.4 and 9 in coolly going to their house, gives a rise to the suspicion that they are not at all present at the scene of offence at the relevant point of time. The evidence of PWs.4 and 9 do not inspire confidence of this Court to rely on their version. 13. In view of the facts and circumstances, we have no hesitation in coming to the conclusion that the prosecution has failed to prove the guilt of the accused No.1 beyond reasonable doubt. Therefore, we are inclined to allow the criminal appeal by setting aside the conviction and sentence recorded by the learned Additional Sessions Judge. 14. In the result, the criminal appeal is allowed by setting aside the conviction and sentence recorded against the appellant/accused No.1 by the learned II Additional Metropolitan Sessions Judge-cum-IV Additional District and Sessions Judge, Visakhapatnam, vide SC No.11 of 2012, dated 23.05.2016. 15. The appellant/accused No.1 shall be set at liberty forthwith, if he is not required to be detained in any other case or crime. Fine amount, if any paid by him, shall be refunded to him. 16. Consequently, miscellaneous petitions, if any, pending shall stand closed.