HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
AND
HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
Crl.A.No.790 of 2014
DATE: 19.11.2022
Between :
Adduri Gangaraju.
...Appellant
And
The State of A.P., rep. by its Public Prosecutor.
...Respondent
For Appellant : Mr.M.K.Ratnam, Advocate.
For respondent : Public Prosecutor.
< Gist:
< Head Note:
? CITATIONS :
(1992) 3 SCC 300
C/15
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GAC, J & RRN, J
Crl.A.No.790 of 2014
HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY AND HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO CRIMINAL APPEAL No.790 of 2014 JUDGMENT : (Per G.Anupama Chakravarthy, J) This appeal is arising out of the judgment dated 10.07.2014 in S.C.No.379 of 2013 on the file of VIII Additional District and Sessions Judge, Medak District, whereunder, the appellant was convicted under Section 235 (2) of Cr.P.C. for the offence punishable under Section 302 of IPC and was sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/-.
2. The appellant is the sole accused. The case of the prosecution, in brief, is that the accused along with his wife, settled in Gaddapotharam Village since 11 years. He was working as labour in Mylon company, residing at Room No.15 of first floor of the house bearing No.4-27/1 belonging to one Prakash Chary/ PW-1. Two months prior to the incident, the accused brought one Thurre Nukaratnam, wife of late Konda Babu (herein after referred to as 'the deceased'), kept her in the ground floor in Room No.8 of the same house, paid room rent and also arranged work for her in 3 GAC, J & RRN, J Crl.A.No.790 of 2014 Balaji Company in the same village, as he developed illegal intimacy with her. It is the further case of the prosecution that the wife of the accused used to quarrel with him as he developed illegal intimacy with the deceased. Further, the accused suspected the fidelity of the deceased, as she developed illegal intimacy with some others, at her work place and decided to eliminate/do away her. On 07.06.2013 at about 8:00 p.m., the accused picked up a stick from his house, went to Room No.8 of the deceased, had argument with her upto 9:00 p.m., kept bolt from inside, warned her and due to heated up arguments, out of anger, hit the head of the deceased against the wall, beat her with a stick, caused bleeding injuries and after coming to know that she succumbed to injuries, he fled away.
3. Basing on the complaint of PW-1, a crime was registered against the accused vide Crime No.60 of 2013 of IDA Bollaram Police Station. During the course of investigation, the Investigating Officer examined the witnesses, recorded their statements under Section 161 Cr.P.C., conducted inquest over the dead body of the deceased, forwarded dead body for postmortem 4 GAC, J & RRN, J Crl.A.No.790 of 2014 examination, observed the scene of offence, prepared crime report, affected the arrest of the accused, recorded his confession, seized the material objects and after receiving the medical reports, laid the charge sheet against the accused for the above said offence.
4. After committal proceedings, the Sessions Court framed charge against the accused for the offence under Section 302 of IPC, for which, the accused pleaded not guilty and claimed to be tried.
5. During the course of trial, the prosecution has examined P.Ws.1 to 9, Exs.P-1 to P-9 and material objects MOs.1 to 6 are marked. During the cross-examination of P.Ws.1 to 3, Exs.D1 to D3 which are the relevant portions of 161 Cr.P.C statements of the witnesses, were marked. Further, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating evidence of the prosecution witnesses which was denied by the accused and also reported no evidence on his behalf.
6. The trial Court, after considering the oral and documentary evidence on record, came to a conclusion that the accused has 5 GAC, J & RRN, J Crl.A.No.790 of 2014 committed the murder of the deceased, and accordingly, convicted him as aforesaid.
7. Heard learned counsel for the appellant and the learned Public Prosecutor. Perused the record.
8. It is contended by the learned counsel for the appellant that there are no eyewitnesses to the incident and the entire case is based only on the circumstantial evidence and the prosecution has failed to prove the complete chain of circumstances connecting the events so as to convict the appellant, therefore, the conviction is bad in the eye of law and accordingly prayed to set aside the judgment of the trial Court; as the prosecution has miserably failed to prove the guilt of the appellant beyond reasonable doubt.
9. On the other hand, the learned Public Prosecutor contended that the trial Court has convicted the appellant after considering the entire evidence available on record, and therefore, prayed to confirm the judgment of the trial Court by dismissing the appeal, as there is no error or irregularity in the judgment of the Sessions Court.
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GAC, J & RRN, J Crl.A.No.790 of 2014
10. The point for determination in this case is;
Whether the trial Court is proper in convicting the accused for the offence punishable under Section 302 of IPC and whether the prosecution is able to prove the guilt of the appellant beyond all reasonable doubt for the said offence ?
11. It is necessary to scrutinize the evidence of prosecution in order to examine whether the prosecution is able to prove that the accused intentionally killed the deceased/Nukaratnam and whether there is any error or illegality in the judgment of the trial Court.
12. PW-1 is the landlord for the rooms, where the accused and the deceased resided. PW-2 is the tenant of the same building who was the first person to notice the dead body of the deceased at the scene of offence. PW-3 is a Tailor and friend of the accused. PW-4 is the ASI and at his instance, photographs of the scene of offence were taken and he also collected the material objects such as the blood-stained mat, blanket and guaze cloth of blood from the scene of offence, which are MOs.1 to 3. PW-5 is the panch witness for the scene of offence and for inquest of the dead body of the deceased. PW-6 is the Village Revenue Officer who acted as a panch witness for the confession of the accused and also for the 7 GAC, J & RRN, J Crl.A.No.790 of 2014 recovery of material object i.e., M.O.4/stick, pursuant to the confession made by the accused. PW-7 is the Doctor who conducted Postmortem examination of the dead body of the deceased, found five anti-mortem injuries and also opined that the deceased died due to head injury and also deposed about the Postmortem examination report, dated 08.06.2013, which is Ex.P-
6. PWs.8 and 9 are the Police officials who registered the FIR, investigated the case and filed charge sheet.
13. Admittedly, the case of the prosecution rests on the circumstantial evidence as none of the witnesses have witnessed the accused beating the deceased with the material object M.O.4/stick on the head of the deceased. It is for the prosecution to prove the guilt of the accused by establishing the entire chain of events forming a complete ring and that there shall be no missing link so that the Court shall presume that the accused is the only person who committed the offence. Furthermore, the last seen theory is also to be established in a case of circumstantial evidence for taking inference that no other person has the scope of committing murder of the deceased other than the accused. In a 8 GAC, J & RRN, J Crl.A.No.790 of 2014 case of homicide, it is for the prosecution to prove that there is motive for the accused to kill the deceased and pursuant to that motive, the accused made preparation to attack the deceased and inflicted injuries on the deceased with the knowledge that those injuries are likely to cause the death of the deceased.
14. The evidence of PW-1, who is the landlord of the house, discloses that he had total 16 portions in his house and that the first floor consists of eight portions and the ground floor consists of eight portions. He is further testified that the deceased was a tenant in the ground floor but cannot say in which portion, the accused used to reside, though he knew the accused. It is the specific evidence of PW-1 that his son was looking-after the affairs of the building and in the month of June, 2013, he received a telephonic call from PW-2 informing about the death of the deceased in his house and on that, he went to the scene of offence, noticed dead body of the deceased in a pool of blood and informed the Police on phone about the crime and also gave Ex.P-1/report.
In the cross-examination, it is deposed by PW-1 that he does not know as to whether the deceased herself joined in the portion 9 GAC, J & RRN, J Crl.A.No.790 of 2014 of his house as tenant or anybody else put her as a tenant. He also denied the suggestion that he stated to the Police that the accused put the deceased in the house as a tenant, which is marked as Ex.D-1. Ex.P-1 is the complaint/report given by P.W.1.
15. PW-2 is the tenant in the house of PW-1. His evidence discloses that the deceased/Nukaratnam used to stay in one portion of the ground floor and accused used to stay in some other portion in the upstairs and that two months prior to the offence, the accused brought Nukaratnam and put her as a tenant in the said house. His evidence further discloses that accused used to stay with his wife and he used to visit the room of Nukaratnam. On the date of incident at about 1.30 a.m., he went to switch on the motor, which is beside the room of Nukaratnam and saw the door kept open, looked inside the room and found the dead body, and on that, he made a call to P.W-1.
PW-2 was declared hostile. In the cross-examination by the Public Prosecutor, PW-2 admitted that he stated to the Police that the accused had illegal intimacy with the deceased, used to quarrel with her on the ground that she had illegal intimacy with others and 10 GAC, J & RRN, J Crl.A.No.790 of 2014 that on 07.06.2013, between 8.30 and 9.00 p.m, the accused quarrelled with the deceased in the room.
16. In the cross-examination by the defence, it is testified by PW-2 that in between his portion and the portion of Nukaratnam, water sump is situated and he cannot say the date of her death and the date of his giving statement to the Police. He further stated that he had not heard the quarrel between accused and Nukaratnam between 8.00 and 9.00 p.m. and never heard quarrels between them. Ex.D-2 is the portion of his 161 Cr.P.C statement, which discloses about the quarrels between the accused and the deceased/ Nukaratnam.
17. P.W3 is a Tailor and friend of the accused. His evidence discloses that he was not aware of the facts of the case, but the accused used to borrow clothes from him and about 9 or 10 months back, he telephoned to the accused and demanded for amount. On that, the accused had paid him. Later, he along with the accused and some others, consumed liquor and took dinner. On the next day, he was informed by the accused that his wife received injury. 11
GAC, J & RRN, J Crl.A.No.790 of 2014 On that, they went to a portion in the ground floor of the house, opened the door and noticed a person lying on the ground of the room, and on that, the accused has shifted her to the hospital and on the next day at about 11.00 a.m., the Police have called him to the house of the accused and they noticed the dead body.
18. The evidence of PW-3 is in no way helpful to the case of the prosecution as he has given a complete go-bye to the case of the prosecution and gave a statement that the deceased was shifted to the hospital by the accused. In the cross-examination, it is specifically stated by PW-3 that he does not know as to who has murdered the deceased. Ex.D-3 is the portion of the 161 Cr.P.C. statement of PW-3, which discloses that he did not state before the Police that the accused brought Nukaratnam belonging to Visakhapatnam and that he is having illegal intimacy with her.
19. On perusal of the evidence of PWs.1 to 3, it is evident that none of the witnesses have stated before the Court that there is illegal relationship between the accused and the deceased. Furthermore, PW-1 being the landlord himself, has stated that he 12 GAC, J & RRN, J Crl.A.No.790 of 2014 was not looking after the affairs of the house and his son alone was taking care of it. Inspite of it, the prosecution has not made any efforts to examine the son of PW-1 to prove that the accused had kept the deceased as a tenant in a portion in the ground floor of the house of PW-1. On the other hand, PW-2, who is alleged to have first seen the dead body of the deceased, clearly stated in his cross-examination that the accused and deceased had never quarrelled with each other and that he did not hear any quarrel between the accused and the deceased on the day prior to his noticing the dead body of the deceased. Furthermore, the evidence of PW-3 cannot be believed as he specifically stated before the Court that he was informed by the accused that his wife received an injury and on that he went and noticed that a person was lying on the ground. As to why PW-3 did not help the accused in shifting her to the hospital and as to why he did not prefer report to the Police, is not explained by the prosecution.
20. The evidence of PWs.4 and 5 is in no way helpful for the prosecution to prove the guilt of the accused as their evidence relate to the scene of offence panchnama and inquest report. 13
GAC, J & RRN, J Crl.A.No.790 of 2014 Admittedly, the death of the deceased is not a natural one and it is a homicide. Their evidence only prove that the dead body of the deceased was lying in the ground floor of the house where the deceased used to reside and inquest report also reveals that the deceased was murdered.
21. The entire case of the prosecution rests on the confession statement of the accused, which is alleged to have been recorded by the Police in the presence of PW-6, who is the Village Revenue Officer of Bonthapally-II Village. The evidence of PW-6 discloses that the Inspector of Police called him to the house of accused and in their presence, on being enquired by the Police, the accused has confessed that he beat his second wife with a stick and pursuant to it, the accused has shown the stick/M.O.4. The confession panchnama is Ex.P-5.
22. It is a settled law that the confession given to the Police is hit by Section 25 of the Indian Evidence Act. The information given by the accused as to discovery of the weapon is only admissible under Section 27 of the Indian Evidence Act. As per the evidence 14 GAC, J & RRN, J Crl.A.No.790 of 2014 of PW-6, the deceased is the second wife of the accused, but the prosecution has failed to prove either there is a legal tie between the accused and the deceased or there is any illegal intimacy between them, further, there are quarrels amongst them as the deceased had illegal intimacy with others, other than the accused, so as to prove the motive for the offence.
23. The evidence of PW-7 i.e. the Doctor who conducted postmortem examination over the dead body of the deceased on 09.06.2013 at Gandhi Medical College, Secunderabad, discloses that he found the following five ante-mortem injuries over the dead body of the deceased :
"1. Lacerated injury of 3 cm x 2 cm present on left parital region of the head.
2. Contusion of 8 cm x 6 cm present on left parital region of the head under the scalp.
3. Depress communited fracture 6 cm x 4 cm present on left parital valt of the skull.
4. Difuse sub.Dural and sub arack noid hemorrhage present on left hemisphere of the bain.
5. Contusion of left parital lb of brain."
PW-7 further deposed that the approximate time of death of the deceased would be about 36 to 48 hours prior to the postmortem 15 GAC, J & RRN, J Crl.A.No.790 of 2014 examination and that the cause of death of the deceased is due to head injury. Ex.P-6 is the postmortem examination report.
In the cross-examination, it is deposed by PW-7 that he conducted postmortem examination on 09.06.2013, but due to oversight, the date was mentioned as 08.06.2013.
24. The evidence of PWs.8 and 9 disclose about the registration of crime, conducting detailed investigation in the case, which includes photographing the scene of offence, preparing the scene observation report, drawing the rough sketch of scene of offence, conducting inquest over the dead body of the deceased and later forwarding the dead body of the deceased for postmortem examination. Their evidence further disclose about the examination of the prosecution witnesses, apprehending the accused at his house on 11.06.2013 and also about the confession recorded in the presence of PW-6 and seizing of M.O.4/stick pursuant to the confession, further, producing the accused before the Court. The evidence of PW-9 further discloses that he sent the seized property to FSL through Magistrate and also filed charge sheet.
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25. It is important to note that it is for the prosecution to prove that the accused had inflicted injuries with M.O.4/stick and the said stick, which was being forwarded to the FSL for chemical analysis, contains the blood-stains of the deceased. Further, the prosecution has failed to produce the FSL report in this case, so as to connect the accused with that of the crime i.e. to prove that the stick, which was alleged to have been recovered from the possession of the accused pursuant to his confession, contains the blood-stains of the deceased. There is no last seen theory in this case. None of the witnesses have deposed before the Court that the accused and deceased were last seen together, prior to the death of the deceased on 07.06.2013. There is no iota of evidence before the Court to prove the motive or intention of the accused to kill the deceased. In the absence of oral or documentary evidence, no inference can be drawn against the accused.
26. In a criminal trial, the cardinal principles of law are that the prosecution has to prove the guilt of the accused beyond reasonable doubt and the accused shall be treated as innocent till the guilt is proved. Therefore, it can be safely concluded that the lower Court 17 GAC, J & RRN, J Crl.A.No.790 of 2014 has committed error in convicting the accused/appellant basing on the evidence of PWs.2 and 3 and further taking the admission of the accused that he is residing in one of the portions of the house in his examination under Section 313 Cr.P.C.
27. Section 313 Cr.P.C. reads as under :
"313. Power to examine the accused :
(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-
(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons- case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under sub- section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.18
GAC, J & RRN, J Crl.A.No.790 of 2014 (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed."
A plain reading of Section 313 Cr.P.C. discloses that the Court has power to examine the accused only in two stages and the accused is to be examined by the Court basing on the incriminating material available in the evidence let-in by the prosecution. The whole objective of the said Section is to offer the accused, a fair and proper opportunity of explaining the circumstances which appear against him in the evidence of the prosecution witnesses. The first and the foremost thing is that the Court should frame the questions in such a careful manner that the questions should not give rise to ambiguous answers. The questions put to the accused must be simple and intelligible and the Court can examine the accused separately and jointly. In a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C. is to meet the requirements of the principles of natural justice i.e. audi alteram partem. If there is no evidence or circumstances in the prosecution evidence against the accused, there will be nothing for the accused 19 GAC, J & RRN, J Crl.A.No.790 of 2014 to explain, hence, his examination under Section 313 Cr.P.C. would be wholly unnecessary and improper. Basing on the statements/answers given by the accused, the Court shall not render himself liable for punishment.
28. In State of U.P. v. Dr.Ravindra Prakash Mittal1, the Apex Court held as under :
"The essential ingredients to prove guilt of an accused person by circumstantial evidence are: (1) The circumstances from which the conclusion is drawn should be fully proved; (2) the circumstances should be conclusive in nature; (3) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; (4) the circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused.
.....As pointed out supra, there is no direct evidence to connect the respondent with this offence of murder and the prosecution entirely rests its case only on circumstantial evidence. There is a series of decisions of this Court so eloquently and ardently propounding the cardinal principle to be followed in cases in which the evidence is purely of circumstantial nature. We think, it is not necessary to recapitulate all those decisions except stating that the essential ingredients to prove guilt of an accused person by circumstantial evidence are:
(1) The circumstances from which the conclusion is drawn should be fully proved;
(2) the circumstances should be conclusive in nature;1
(1992) 3 SCC 300 20 GAC, J & RRN, J Crl.A.No.790 of 2014 (3) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence;
(4) the circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused."
29. In the present case, the trial Court has erred in coming to the conclusion that the part of the statement of PW-2 was accepted by the accused as true in his examination under Section 313 Cr.P.C., which is an error apparent on the face of the record, committed by the Court below.
30. On perusal of the entire oral and documentary evidence, it is evident that the entire case rests on the circumstantial evidence and there are missing of links and the prosecution has failed to prove the chain of events which completely forms a ring. Therefore, the judgment of the trial Court is liable to set aside.
31. In the result, the Criminal Appeal is allowed. The appellant is found not guilty of the offence punishable under Section 302 of IPC, and accordingly, the conviction and sentence imposed on the appellant vide Judgment dated 10.07.2014 in S.C.No.379 of 2013 on the file of VIII Additional District and Sessions Judge, Medak 21 GAC, J & RRN, J Crl.A.No.790 of 2014 District, is hereby set aside and the appellant is acquitted of the charged offence. The appellant shall be released forthwith, if not required in any other case. The appellant is entitled for refund of fine amount paid, if any. M.Os.1 to 6 shall be destroyed after appeal time is over.
Pending miscellaneous applications, if any, shall stand closed.
_________________________________ G.ANUPAMA CHAKRAVARTHY, J _________________________________ NAMAVARAPU RAJESHWAR RAO, J Date: 19.11.2022 N.B:
(1) Judgment be forthwith communicated to the jail authorities concerned.
(2) L.R. copy be marked.
(b/o)
ajr