HONOURABLE SRI JUSTICE C. PRAVEEN KUMAR
and
HONOURABLE SRI JUSTICE B. KRISHNA MOHAN
Criminal Appeal No.839 of 2014
JUDGMENT: (Per Hon'ble Sri Justice C. Praveen Kumar)
Heard Smt. A. Gayathri Reddy, learned Counsel
appearing for the Appellant and Sri. M. Dushyanth Reddy,
Additional Public Prosecutor, through Blue Jeans video
conferencing APP and with their consent, the present
Criminal Appeal is disposed of.
1) The sole accused in Sessions Case No.416 of 2012 on
the file of XI Additional District and Sessions Judge, Krishna,
Gudivada, is the appellant herein. He was tried for the
offences punishable under Sections 449 and 302 of the
Indian Penal Code, 1860. By its Judgment dated 02.06.2014,
the learned Sessions Judge, while acquitting the accused for
the offence punishable under Section 449 IPC, convicted and
sentenced the accused to suffer imprisonment for life and to
pay fine of Rs.1000/- for the offence punishable under
Section 302 IPC, in default to suffer simple imprisonment for
a period of three months. The remand period was directed to
be given set off under Section 428 Cr.P.C.
2) The substance of the charges against the accused is
that, on the intervening night of 7/8.10.2009, at about
1.
30A.M. the accused entered into the rented house of the 2 CPK, J & BKM, J CRLA.No.839 of 2014 deceased Sulochana situated at D.No.2/13 at Kalakarula colony, Billapadu village and while the deceased was sleeping, the accused is said to have beat her with a blunt portion of the axe on the right side forehead and temporal region.
3) The facts as culled out from the evidence of the prosecution witnesses are as under:
i) PW1 is the owner of the building where the accused and the deceased took portions of the said building on rent. PW.1 constructed a building with a ground and first floor. The western portion in the upstairs was let out to one Sulochana, who is the deceased in this case, while the accused and his mother Vijayamma were the tenants of another portion of the building in the ground floor. About two months prior to the date of the incident, there was a quarrel between the accused and the deceased Sulochana, when the accused tried to catch hold of the hand of Sulochana. The incident was informed by the deceased Sulochana to PW.1 and others. The accused was asked to apologize the deceased Sulochana by touching her feet and accordingly, he did so.
ii) In the morning of 7.10.2009, the deceased Sulochana informed PW.1 that she is going out for collection of contribution to cyclone fund and that she will return only at 9.00P.M. Accordingly, she returned at 9.00 P.M.
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and enquired PW.1 as to whether she had dinner and thereafter went upstairs. After one hour, PW.1 is said to have gone upstairs to bring back her saree, which was hanged there for drying. At that time, PW.1 enquired the deceased about her collection towards cyclone fund. On the same day night at about 1.30A.M., PW.1 heard sounds of foot steps twice. She switched on the lights, came out of her room and found the accused at the door way of his portion, who also told her that he heard sound of foot-steps and as such woke up and came out of his room. PW.1 and the accused searched for the person, if any, in the premises, but in vain. The gate was also found locked. Vijayamma, the mother of the accused, also came out of the house. All three of them went upstairs and found none outside the rooms. They found the deceased Sulochana sleeping by covering her body with a rug, outside the room. As there was nothing unusual, all of them returned to their respective rooms.
Next day morning, Sulochana did not come down as she used to do regularly. PW.1 went to the up stair portion of Sulochana and found her with a bleeding injury. Due to fear, she came down and informed the same to local ward member namely Sobharani and also the neighbours. The persons gathered there shifted Sulochana to a Government Hospital at Gudivada.
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iii) PW.10, the Sub-Inspector of Police of II Town Police Station, Gudivada, deposed that he received medical intimation (Ex.P.10) from the Government Hospital, Gudivada, based on which, he proceeded to the hospital and found the injured in an unconscious state. He recorded the statement of PW.1 and basing on the said statement (Ex.P.1), he registered a case in Crime No.219 of 2009 for the offence punishable under Section 324 IPC. Ex.P.11 is the FIR. Thereafter, he again proceeded to the Government Hospital, Gudivada but was told that the injured was referred to Government Hospital, Vijayawada for better treatment. PW.10 then proceeded to the scene of offence and in the presence of PW.8 prepared a Panchanama of the scene, which is placed on record as Ex.P.5. He also seized M.Os.1 and 2 blood stained cement pieces and controlled cement pieces at the scene under Ex.P.5 scene observation, apart from preparing a rough sketch of the scene of offence, which is placed on record as Ex.P.12. He also got photographed the scene of offence and examined PWs.1 to 6. On the same day, he received intimation of the death of the deceased, basing on which he altered the section of law from Section 324 IPC to Section 302 IPC and issued Ex.P.14 the altered FIR. Further investigation was taken up by PW.11, the Inspector of 5 CPK, J & BKM, J CRLA.No.839 of 2014 Police, who on receipt of altered FIR, proceeded to the scene of offence and found it to be on correct lines. He again examined PWs.2, 3 and 4 and Vijayamma and their statements were found to be correct and similar to what they have stated earlier. He then proceeded to the Government Hospital, Vijayawada, and conducted inquest over the dead body of the deceased in the presence of mediators. Ex.P.6 is the inquest report. During inquest, he examined PWs.1, 5 and 6 and recorded their statements. Thereafter, he forwarded the dead body of Sulochana for Post Mortem examination.
iv) PW.9, the Professor in Department of Forensic Medicine, Vijayawada, on a requisition received from the II Town Police, Gudivada, conducted autopsy over the dead body of the deceased and issued Ex.P.9 Post Mortem certificate opining the cause of the death as due to head injury and its complication.
v) On 15.10.2009, PW.11 arrested the accused and recorded the confession statement of the accused in the presence of mediators. Pursuant to the confession made, the accused took them to his house from where he brought M.O.6 axe, which was seized under the cover of mediator's report. He affixed identification slips duly signed by mediators and the official witnesses and also by the accused, to M.O.6 axe. After collecting all the 6 CPK, J & BKM, J CRLA.No.839 of 2014 necessary documents, more particularly, the report of FSL, a charge sheet came to be filed, which was taken on file as PRC No.3 of 2010 on the file of Additional Judicial First Class Magistrate, Gudivada.
vi) On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court of Session, the same was committed to the Court of Session under Section 209 Cr.P.C. On committal, charges as referred to above came to be framed, read over and explained to the accused, to which, he pleaded not guilty and claimed to be tried.
vii) In support of its case, the prosecution examined PW1 to PW.11 and got marked Ex.P.1 to Ex.P.16, besides marking M.Os.1 to 6. After completion of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied, but, however no oral or documentary evidence was adduced in support of his plea except marking Ex.D.1. Relying upon the evidence of PW.1, the motive and the recovery of M.O.6 axe from the house of the accused, the learned Sessions Judge convicted the accused for the offence 7 CPK, J & BKM, J CRLA.No.839 of 2014 punishable under Section 302 I.P.C. Challenging the same, the present appeal came to be filed.
4) Smt. A. Gayatri Reddy, learned counsel appearing for the appellant submits that there are no eye witnesses to the incident and the case rests on the circumstantial evidence. According to her, the only circumstances relied upon by the prosecution is the recovery of M.O.6 axe from the house of the accused, which according to her, cannot be believed for more than one reason. She further submits that the reason for the accused committing the offence appears to be farfetched since the evidence on record would show that when PW.1, the accused and Vijayamma went around the house to find out the reason for the noise, the deceased was found sleeping by covering herself with rug. According to her, there is evidence on record to show that the deceased was sleeping at that time. Hence, submits that it is very difficult to believe that the accused has caused the death by then, more so, when PW.1 noticed injuries on the body of the deceased in the morning. Having regard to the above, she submits that the conviction of the accused is improper and incorrect.
5) The same is opposed by Sri. M. Dushyanth Reddy, learned Additional Public Prosecutor appearing for the State. According to him, though there are no eye-witnesses to the incident, but, the circumstances relied upon by the 8 CPK, J & BKM, J CRLA.No.839 of 2014 prosecution are sufficient to connect the accused with the offence.
6) The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt?
7) Admittedly, there are no eye-witnesses to the incident and the case rests upon the circumstantial evidence. In order to establish the guilt of the accused, the prosecution has to prove the circumstances relied upon by them and the circumstances so proved should form a chain of events connecting the accused with the crime. It is now to be seen whether the circumstances relied upon are proved and if proved, whether they connect the accused with the crime. The fact that it is a homicidal death is not dispute. The fact that the dead body was found in the front portion of the house of the deceased is also not in dispute. The question is who is responsible for the incident.
8) Coming to the first circumstance, namely motive, the case of the prosecution is that a couple of months prior to the incident, there was a quarrel between the accused and the deceased, when the accused tried to catch hold of the hand of the deceased. On coming to know about the same, a panchayat was arranged in which the accused was asked to apologize the deceased, who was double the age of the accused, by touching of her feet, which he did so. It is to be 9 CPK, J & BKM, J CRLA.No.839 of 2014 noted that in the First Information Report, which is lodged by PW.1, there is no reference to any dispute between the deceased and the accused. It would be appropriate to extract the relevant portion in the evidence of PW.1 which is as under:
"There is no mention of the dispute between Sulochana and accused, which was two months prior to the death of Sulochana in my first statement i.e. in Ex.P.1"
The evidence of PW.1 though refers to the incident, which took place about two months prior to the incident and the apology given by the accused, but, in the cross-examination, she admits that she does not know if Sulochana had grudge against the accused as he was opposing her conduct and hence, she raised a dispute before them and elders stating that the accused attempted to catch hold of her, and at that time as the accused had no option, apologized to Sulochana by touching her feet. It would be appropriate to extract the same which is as under:
"It is not true to suggest that male persons used to come to her portion in the upstairs. It is not true to suggest that the accused told me that Sulochana doing prostitution, hence, he demanded me to get her vacated from gthe house portion, but it was dragged on. I do not know if Sulochana had grudge against the accused as he was opposing her conduct, and hence, she raised dispute begfore us and elder stating that the accused attempted to caught hold of her, and at that time as the accused had no option he apologized Sulochana by touching her feet."
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9) PW.2, in evidence deposed that he heard that there was
a dispute between the accused and Sulochana prior to her death. Therefore, he is not an eye-witness to speak about the dispute. Similar, is the evidence of PW.3.
10) Coming to the evidence of PW.5, who is also a resident of same place, she, in her evidence, deposed that the deceased is the younger sister of her husband and was unmarried. She used to do her caste profession of dancing and playing as stage artist. According to her, at the time of incident, Sulochana was staying in the southern side of up stair portion of PW.1 as tenant. In the cross-examination, she admits that she had no personal knowledge of the quarrel if any between Sulochana and the accused, which took place about two months prior to the date of incident.
11) PW.6, who was present at the time of inquest, deposed that two months prior to the death of Sulochana, she heard that his mother, PW.1 and others chastised the accused and then the accused apologized Sulochana with regard to the dispute raised by her. However, in the cross-examination, she admits that she was not a direct witness to the dispute between the accused and the deceased Sulochana and she does not know if a male person of 40 or 45 years of age used to meet Sulochana once in four or five days and he used to ask Sulochana to come with him and in that regard he had dispute with her.
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12) Therefore, from the evidence of all these witnesses, it is clear that except PW.1 none of them witnessed the dispute between the accused and the deceased and none of them also disclosed their source of such information. Though, the evidence of PW.1 show that about two months back, there was a quarrel in her complex, but, in view of her admission in the cross-examination that she does not know the deceased had any grudge against the accused, as he was opposing her conduct, it can be said that this motive, even assuming it to be true, be a circumstance by itself to connect the accused with the crime, unless other circumstances are proved.
13) Coming to the incident proper, the trial Court came to the conclusion that it was the accused who was responsible for the incident and that he beat the deceased with blunt portion of M.O.6 axe and immediately covered her with rug preventing the possibility of others seeing the injury and thereafter invented the story of he hearing the sounds of foot- steps from the up stairs. But, this may not be correct for the reason even PW.1 heard the noise and on hearing the said sounds, switched on the lights, come out of her room and found the accused at the door way of his portion, who informed her about hearing the sound of some person running. As such, he woke up and came out of his room along with his mother. Thereafter, PW.1 and the accused searched for the persons, if any, in the premises. All the three 12 CPK, J & BKM, J CRLA.No.839 of 2014 of them failed to notice a third person in the house. They noticed the deceased sleeping by covering herself with blanket. The trial Court held that the accused, after having beaten the deceased with an axe covered her with a blanket screening the injury on the deceased. But the evidence of PW.1 is otherwise. She, in her further cross-examination, admits that at 1.30A.M., when they have gone to the up stair portion, Sulochana was in a deep sleep and snoring. It would be appropriate to extract the relevant portion in the evidence of PW.1, which is as under:
"By the time of 1.30A.M. when we have gone to the up stair portion, Sulochana was in a deep sleep with snoring."
14) From the above admission, it is very much evident that the finding given by the trial Court that at about 1.30A.M. the deceased was killed by the accused, is incorrect. If the deceased was dead by then or if she was injured and still surviving, definitely she would have either raised cries or be struggling with the injury. But, that was not the situation noticed by PW.1. Her admission categorically discloses that she was in a deep sleep and snoring.
15) Coming to the most crucial circumstance namely the recovery of M.O.6 from the house of the accused, it is to be noticed that the incident in question is alleged to have taken place on 8.10.2009 and the recovery of M.O.6 axe was on 15.10.2009 pursuant to the arrest of the accused. If really the 13 CPK, J & BKM, J CRLA.No.839 of 2014 accused had committed the offence and the axe was used in the commission of offence, the accused would not have kept quiet for 7 days without washing the blood stains on the weapon. Further, he would also not kept the weapon in his house.
16) Be that as it may, it is the evidence of the investigating officer that pursuant to the confession made by the accused, they seized the axe and after seizing the same, they have affixed identification slips duly signed by the mediators, accused and by the investigating agency. But, in the cross- examination, the witness admits that identification slip signed by the mediators, accused and themselves at the time of seizure of axe are not found on it. Therefore, a doubt arises as to whether the weapon that was seized from the house of the accused, is the weapon used in the commission of offence. Further, the reason given by the trial Court for the absence of identification slip is that at the time of conducting FSL test on the weapon, the authorities might have removed the slips affixed on M.O.6 axe. But, such evidence is not available on record. Even the investigating officer did not say that such a procedure is followed at the time of conducting test on material object by forensic expert. Further, the blood stain found on M.O.6 are not proved to be that of the deceased, though the F.S.L. report states that the blood is of human origin. No blood grouping test is done to prove that the blood 14 CPK, J & BKM, J CRLA.No.839 of 2014 stain found on the weapon is that of the deceased. In fact, no evidence has been placed on record to establish the blood group of the deceased. Therefore, we hold that the recovery of M.O.6 axe, after the incident, from the house of the accused is suspicious and the said circumstance is not proved. Viewed from any angle, we see that the prosecution has failed to prove the circumstances relied upon by them beyond reasonable doubt and as such, it is a fit case where a benefit of doubt can be given to the appellant/accused.
17) Accordingly, the Criminal Appeal is allowed, setting aside the conviction and sentence imposed in S.C.No.416 of 2012 by the XI Additional District and Sessions Judge, Krishna at Gudivada, vide judgment dated 02.06.2014. The fine amount, if any, paid shall be returned to the appellant/ accused.
_________________________ C. PRAVEEN KUMAR, J ________________________ B. KRISHNA MOHAN, J Date: 29-06-2021 Ksn