THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
AND
THE HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
Criminal Appeal No.584 of 2014
JUDGMENT (per Hon'ble Sri Justice A. Venkateshwara Reddy):
This Criminal Appeal is directed against the judgment dated 26.02.2014 in Sessions Case (SC) No.583 of 2013 on the file of the learned II Additional Sessions Judge, Karimnagar at Jagtial, wherein the accused Nos.1 to 3 were found guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short 'IPC'), convicted under Section 235 (2) of the Criminal Procedure Code, 1973 (for short 'Cr.P.C.') and sentenced to undergo life imprisonment and also to pay a fine of Rs.2,000/- each, in default to suffer simple imprisonment for one month.
2. The prosecution story in brief is that the accused 1 to 3 are residents of Raikal Village, Korutla Mandal, Karimnagar District and they are labourers. The deceased Shivarathri Mallaiah is also resident of the same village and at times, the accused used to attend labour Page 2 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 work under the deceased. On one occasion, the deceased has availed Rs.300/- as hand loan from A.2 and failed to repay the said amount, similarly, the deceased fell in due of Rs.150/- towards wages to A.1 for the work done by him. All the three accused and the deceased used to consume toddy on every day in the shop of PW.4. That on 12.04.2013 when A.1 to A.3 were consuming toddy, the deceased Mallaiah also joined them and consumed toddy. At that time, accused 1 & 2 asked him to pay back the amount due to them, since the deceased was not having money, at that time, he sought an excuse, but the accused did not heed to the request of the deceased and insisted for payment of the bill for the toddy consumed in the shop, for which the deceased bluntly refused and there was a quarrel among them. On that PW.4-owner of the toddy shop asked all the accused and the deceased not to quarrel in his toddy shop and to leave the shop. Accordingly, they left the toddy shop, proceeded towards the kirana shop of PW.5 on the other side of the road and continued to quarrel. The accused also pushed the deceased towards shutters of the kirana shop. On hearing the galata, PW.5 Page 3 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 came out of the shop and asked the deceased and accused to go away from that place. Then A.1 caught hold the hands of the deceased forcibly and all the accused took him towards one Orre (Channel) situated at Kanuga (Karanja) trees at a distance of ¼ k.m. from the kirana shop of PW.5 and beat him indiscriminately causing his death.
3. On the report lodged by the wife of the deceased, a case in Crime No.47 of 2013 was registered by the Police, Raikal for the offence punishable under Section 302 read with Section 34 of IPC. In the course of investigation, the Investigating Officer recorded the statements of witnesses, held inquest over the dead body of the deceased, seized the incriminating material, effected the arrest of the accused and also gave a requisition to the learned Judicial First Class Magistrate, Metpally for conducting Test Identification Parade. The investigation discloses that A.1 to A.3 have committed for the offence punishable under Section 302 read with Section 34 of IPC. Page 4 of 22
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4. From the material available on record, it appears that after giving necessary copies as required under Section 207 of Cr.P.C., the case was committed by the learned Magistrate to the Court of Sessions. The learned Sessions Judge at Karimnagar having registered the case, vide SC No.583 of 2013 made over the same to the learned II Additional Sessions Judge, Karimnagar at Jagtial, who framed the charges against A.1 to A.3 for the offence punishable under Section 302 read with Section 34 IPC for which all the accused have pleaded not guilty and claims to be tried.
5. During the trial, on behalf of the prosecution, in all PWs.1 to 15 are examined. Exs.P.1 to P.21 and Mos.1 to 13 are marked and the prosecution evidence was reported closed. After closure of the prosecution evidence, all the accused were examined under Section 313 of Cr.P.C. with reference to incriminating oral and documentary evidence found against them, they denied the said offence in toto. No defence has adduced on their behalf. The trial Court after hearing both the parties found Page 5 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 A.1 to A.3 guilty of the offence punishable under Section 302 read with Section 34 IPC and convicted them under Section 235 (2) of Cr.P.C. sentencing to undergo life imprisonment and to pay a fine of Rs.2,000/- each, in default of payment of fine, to suffer simple imprisonment for a period of one month each. Feeling aggrieved by the said conviction and judgment stated above, the appellants/A.1 to A.3 have preferred this appeal.
6. Heard the learned counsel for the appellants/ A.1 to A.3 and the learned Public Prosecutor. Perused the material available on record. The detailed submissions made on either side have received due consideration of this Court.
7. The prosecution has in all examined 15 witnesses in support of their case. Among them, PW.1 is the wife of the deceased, she is the de facto complainant. PW.2 is the son of the deceased, whereas PW.3 is the daughter of the deceased. PW.4 is the owner of the toddy shop and PW.5 is the owner of kirana shop. PW.6 is a circumstantial witness and he was informed by PW.9 and Page 6 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 LW.8 that they found the dead body of the deceased in the kanuga trees. PWs.7 and 10 are also cited as circumstantial witnesses and they found the deceased and the accused alive near kanuga trees just before the death of the deceased. PW.8 is the photographer, he obtained photographs of the scene of offence and the dead body of the deceased as in Exs.P.2 to P.8 at the request of the police. PW.11 is a panch witness for the inquest panch over the dead body of the deceased. Whereas, PW.12 is a panch for confession of A.1 to A.3 and seizure of material objects. PW.13 is the learned Judicial First Class Magistrate, Metpally, who conducted Test Identification Parade, wherein PWs.7 and 10 have identified the accused 1 to 3. PWs.14 and 15 are the Investigating Officers.
8. PW.1-wife of the deceased has testified that on the date of death of the deceased in the morning he left the house to attend the labour work, from there went to consume toddy and fell down in the toddy compound of PW.4. Accordingly PW.2 went to the toddy shop and brought the deceased to the house. She served food and Page 7 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 made him to sleep. Again at about 04:00 p.m. he woke up and left the house. She was under the impression that he went to the house of PW.3, who is their daughter, but the enquiries revealed that the deceased again went to the toddy shop of PW.4 and a quarrel took place between the accused and the deceased. As per the evidence of PW.1, she was informed by PW.4 that the accused No.1 took away the deceased along with him from the toddy shop. Thus, she suspected A.1 to have caused the death of her husband. In the cross-examination, she stated that at about 06:00 p.m. on that day she saw the dead body of her husband. She noticed stones and bricks by the side of the dead body and by 08:00 p.m. she gave a report to the police as in Ex.P.1.
9. PWs.2 & 3, who are the son and daughter of deceased and PW.1, have totally supported the evidence of their mother (PW.1) on all material particulars. They suspected A.1 to A.3 for the death of their father. PW.4 is the owner of the toddy shop and testified that the deceased and A.3 came to his toddy shop at about 11:30 a.m. and Page 8 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 consumed toddy, sat on the pial. After some time, he left to his house and somebody informed him that the deceased fell down in the toddy shop and he informed the same to PW.2 over phone who came and took his father. Again on that day, in the evening at about 04:30 p.m. the deceased came to his toddy shop, by then A.1 to A.3 also came to the toddy shop. All of them consumed toddy. There was a quarrel among the accused and the deceased with regard to payment of amount then he asked them to leave the toddy shop on that they proceeded towards the kirana shop of PW.5, later he came to know about the death of deceased.
10. PW.5 has testified that on that day when he was in kirana shop, there was a disturbance outside the shop, then he came out and found A.1 and A.3 along with the deceased were quarrelling. He asked them not to quarrel in front of his shop and to go away, later A.2 also followed them and after 1½ hour people in the village started saying about the murder of the deceased. PW.5 rushed to that place and found the dead body of the Page 9 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 deceased in the kanuga trees. He was examined by the police. The witness stated in the cross-examination that he was informed by the villagers that they found dead body of the deceased in the kanuga trees.
11. PWs.6 and 9 are the circumstantial witnesses. Their evidence is to the effect that they belong to the said village. They know the accused and the deceased. PW.6 was running tea stall and that on that day at about 05:30 p.m. LW.8 Swamy and PW.9 came to the tea stall of PW.6 and informed that they found the dead body of the deceased with blood and the dead body has identified by PW.1. They have further stated that since a quarrel took place between the accused and the deceased in the village, they have suspected the accused for murder of the deceased.
12. PWs.7 and 10 are the witnesses, who noticed the quarrel between the accused and the deceased before the death of the deceased. Both the witnesses have also identified the accused 1 to 3 during test identification parade. They have stated in one voice that they noticed Page 10 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 quarrel between the accused and the deceased and after one hour, the dead body of the deceased was found in the kanuga trees.
13. PW.8 is the photographer. He obtained photos of the scene offence and the dead body as in Exs.P.2 to P.8 and the scene of offence was also recorded in the C.D. and handed over to the police.
14. PW.11 is a panch for inquest panchanama- Ex.P.10 held over the dead body of the deceased. He is also panch witness for Ex.P.9 crime details form. This witness stated that four small stones and one brick with blood stains were recovered from the scene of offence as MO.1 and that MO.2 is the blood stained earth. MO.3 is the controlled earth. MO.4 is the blood stained white colour Dhoti and MO.5 is the white colour full shirt. MOs.6 to 8 are the other clothes of the deceased. The witness further stated that MOs.4 to 8 were seized after removing them from the dead body of the deceased, whereas MOs.1 to 3 were seized from the scene of offence. Page 11 of 22
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15. PW.12 is a panch witness for confession of the accused 1 to 3. The relevant portion of the confession of A.1 to A.3 leading to recovery is marked as Exs.P.11, 12 and 13 respectively. Accordingly, under ExP.15 the cloths of accused 1 to 3 were seized and marked as MOs.9 to 13.
16. PW.13 is the learned Judicial First Class Magistrate, Metpally. This witness has testified that she conducted Test Identification Parade for identification of accused persons. Ex.P.16 is the requisition and Ex.P.17 is the Test Identification Parade proceedings, wherein the witnesses PWs.7 and 10 have correctly identified the accused 1 to 3.
17. PWs.14 and 15 are the Investigating Officers. PW.14 registered this case on receipt of Ex.P.1 report from PW.1, issued FIR as in Ex.P.18, recorded the statement of PW.1, handed over the C.D. file to PW.15 and assisted him in investigation. While so, on 17.04.2013 caught hold the accused and produced them before PW.15. Whereas, PW.15 has testified that he visited the scene of offence, held inquest over the dead body of the deceased, conducted Page 12 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 the scene of offence panchnama, prepared the crime detail form and rough sketch, seized the incriminating material i.e., stones and half broken bricks from the scene of offence, examined the witnesses, obtained the photographs of the scene of offence and the dead body of the deceased. He further stated that the dead body was sent for post- mortem examination and that on 17.04.2013 effected the arrest of the accused, recorded their confessional statements, seized their cloths-MOs.9 to 13 and also gave requisition to the Magistrate for conducting Test Identification parade wherein PWs.7 to 10 have correctly identified the accused 1 to 3.
18. The learned counsel for the appellant/A.1 to A.3 would submit that even according to the case of the prosecution, the accused and the deceased were totally is inebriated condition and that except the circumstantial evidence, there is no clinching evidence of eye witnesses as to the manner of occurrence of the incident. None of the witnesses examined by the prosecution have stated that Page 13 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 they found the accused 1 to 3 causing the death of the deceased.
19. It is true that none of the witnesses including PWs.1 to 3 and PWs.7 and 10 have witnessed the incident, but PW.1 has suspected accused No.1, whereas PWs.2 &3 have suspected the A.1 to A.3 for the death of deceased. PWs.7 and 10 have found all the accused and the deceased together in the kanuga trees, near the school of the village. Whereas, PWs.4 & 5 the owners of toddy shop and kirana shop have categorically stated that they found the accused quarrelling with the deceased with a demand for repayment of money or for payment of the bill towards the toddy consumed. PW.4 has asked the accused and the deceased to leave his toddy shop, as such they left the toddy shop and after crossing the road, they proceeded towards the kirana shop of PW.5 and when PW.5 noticed quarrel in front of his kirana shop, he asked them to leave that place. Further, the evidence of PWs.1, 2 and 4 would establish that on that day the deceased went to the toddy shop, consumed toddy at about 11:30 a.m., fell down in the Page 14 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 toddy compound on being informed over phone by PW.4, PW.2 went to the toddy shop and picked up his father. The evidence of PW.1 further shows that at about 04:30 p.m. on that day the deceased again left the house and she came to know that the deceased went to the shop of PW.4 consumed toddy and had quarrelled with A.1 to A.3. She was further informed that the deceased along with A.1 to A.3 went towards the kirana shop of PW.5 and from there, they left towards kanuga trees at a distance of ¼ k.m. from the kirana shop of PW.5. Finally, the accused 1 to 3 and the deceased were seen alive by PWs.7 and 10 in the kanuga trees near the school of the village. After some time, PW.9 found the dead body of the deceased in the kanuga trees and he informed the same to PW.6. Thereafter, the dead body of the deceased was identified by PWs.1 to 3 and informed to the police.
20. Thus, the case of the prosecution is totally relied upon the circumstantial evidence. Hence, the Court has to take the totality of the circumstances into consideration to find out whether the case is established Page 15 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 and whether the facts proved are consistent with the guilty of the accused. The chain of evidence must be unbroken, complete and not to leave any reasonable ground for a conclusion consistent with the innocence of the accused so as to show that with all human probability the act must have been done by the accused alone.
21. Be it stated that the evidence discussed above clinchingly establishes that on that day initially at about 11:30 a.m. the deceased went to the toddy shop of PW.4 consumed toddy and fell down in the toddy compound, PW.2 brought him to the house and PW.1 served food and made him to sleep, again the deceased woke up at about 04:00 p.m., left the house, went to the toddy shop of PW.4 where he along with A.1 to A.3 consumed toddy and there was quarrel among them, accused 1 & 2 demanded for repayment of the amount towards arrears of the wages, but the deceased failed to pay the same and PW.4 has asked them to leave the toddy shop, then they went to the kirana shop of PW.5 and PW.5 also asked them to leave that place, on that all the accused 1 to 3 along with the Page 16 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 deceased who were in inebriated condition left towards the kanuga trees at a distance of about 1/4th k.m. from the kirana shop of PW.5. The evidence of PWs.1 to 5 as discussed above also gains support from the evidence of PWs.7 and 10 who found the accused and deceased alive and quarrelling in the kanuga trees and the evidence of PWs.6 and 9 who found the dead body of deceased alone in the kanuga trees near the school of their village.
22. Thus, the entire episode of deceased consuming liquor along with accused in the shop of PW.4 till his death took place between 04:30 p.m. to 06:00 p.m. on that particular day and the principle of "last seen theory" applies to the facts of the case on hand, as the time gap is so small that the possibility of any other person being the author of the crime becomes impossible. Hence, it is for the accused to explain how and when they parted with the company of the deceased. But no such explanation is forthcoming from any of the accused. Their case is of total denial while answering the questions under Section 313 of Cr.P.C. and they did not choose to adduce any defence Page 17 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 evidence. Nothing worth mentioning either elicited in the cross-examination of prosecution witnesses or suggested to them in the form of defence.
23. Thus, the unbroken chain of circumstances on the fateful day right from 11:30 a.m. onwards till the death of the deceased is clinchingly established with cogent and convincing evidence of PWs.1 to 5 supported by the circumstantial evidence of PWs.6, 7, 9 and 10. That apart, PWs.7 and 10 also identified the accused 1 to 3 during test identification parade as the very same persons whom they saw along with the deceased on that day near kanuga trees and immediately thereafter PW.9 found the dead body of the deceased in kanuga trees with injuries on his face.
24. The law is well settled that where a case rests squarely on the circumstantial evidence, the inference of guilt of the accused can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The onus is on the prosecution to prove that the chain is complete and false defence or plea Page 18 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 cannot cure the infirmity or lacuna in the prosecution case (Gamparai Hrudayaraju v. State of A.P. through Public Prosecutor1, Raju v. the State, represented by Inspector of Police2 and Vithal Eknath Adlinge v. State of Maharashtra3).
25. Therefore, on a overall consideration of the evidence of PWs.1 to 5, 6, 7, 9 and 10, as discussed above, in our considered view, the prosecution is able to establish the unbroken chain of events consistent with the guilt of the accused and also able to establish that A.1 to A.3 were last seen together with the deceased before his death.
26. The Doctor, who conducted post-mortem examination, is not examined, however, the post-mortem examination report as in Ex.P.19 is marked in the evidence of Investigating Officer disclosing that the deceased was having multiple lacerations over the forehead of scalp which are ante-mortem in nature and the cause of death is shown as "neurogenic shock due to subdural haematoma", but all the witnesses, who saw the deceased immediately 1 AIR 2009 SC 2364 2 AIR 2009 SC 2171 3 AIR 2009 SC 2067 Page 19 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 after his death, have stated that the face of the deceased was towards sky and not towards the earth indicating that the death of the deceased is homicide and that quarrel took place in the kanuga trees.
27. Be it stated that at the time of incident the deceased and all the accused 1 to 3 were in inebriated condition, they were not in full senses and started quarrelling right from the toddy shop of PW.4 with a demand for payment of the due amount to the accused and they moved slowly from the toddy shop towards the kirana shop of PW.5 and from there they moved towards kanuga trees where PWs.7 and 10 found the accused and the deceased alive. Thereafter, PW.9 noticed the dead body of deceased alone when he went to attend the calls of nature and informed PW.6. Since the Doctor is not examined, the exact cause of death is not established and whether the injuries are found on the dead body of the deceased were sufficient in the normal course to cause death of deceased is also not explained, as the cause of death as mentioned Page 20 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 in Ex.P.19 is due to "neurogenic shock due to subdural haematoma".
28. The learned counsel for the appellants would submit that there is no intention or knowledge on the part of any of the accused to cause death of deceased and all of them are in intoxicated condition, if really they had any intention to kill the deceased, they would have killed him either at the toddy shop of PW.4 or at the kirana shop of PW.5, but all the way they were only exchanging words, none of the witnesses have stated about the accused assaulting the deceased either at the toddy shop of PW.4 or at the kirana shop of PW.5 and prayed for altering the conviction from the offence punishable under Section 302 of IPC to Section 304 Part-II of IPC.
29. The Hon'ble Supreme Court in Kalu Ram v. State of Rajasthan4 in similar circumstances held that in the absence of knowledge, intention or motive of the accused to kill the deceased, the conviction under Section 4 AIR 2000 SC 3630 Page 21 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 302 of IPC cannot sustain and altered into Section 304 Part-II of IPC.
30. Thus, considering the factual scenario of the case on hand, circumstantial evidence available on record as none of the witnesses have spoken that about motive of any of the accused to kill the deceased, in view of the principles laid by the Apex Court in Kalu Ram's case (4th supra), we arrive at an inevitable conclusion that the accused 1 to 3 and the deceased were in inebriated condition and all the accused were not in their senses and it was not a pre-meditated act, though the deceased owes an amount of Rs.150/- and Rs.300/- to the accused 1 & 2 and there was only verbal exchange among them, and they had no knowledge or intention to kill the deceased and as such the offence committed may fall under Section 300 exception-IV of IPC, consequently, the conviction of the accused 1 to 3 is altered from Section 302 of IPC to Section 304 part-II of IPC.
31. In the result, the Criminal Appeal is partly allowed, to meet the ends of justice, the conviction of Page 22 of 22 AVR,J & GAC,J Crl. Appeal No.584 of 2014 appellant/A.1 to A.3 is altered from the offence punishable under Section 302 of IPC to the offence punishable under Section 304 Part-II of IPC and the sentence of life imprisonment is altered and modified to the one for the period already undergone and to pay a fine of Rs.2,000/- each, in default to suffer simple imprisonment for one month each. Since A.1 to A.3 are in jail from 18.04.2013 to 03.01.2014, 08.11.2014 and 03.01.2014 respectively and all they were lodged in jail from 21.02.2014 to till this day, they shall be set at liberty forthwith, if they have already paid the fine amount, as indicated above.
The MOs.1 to 13 shall be destroyed, as ordered by the trial Court.
__________________________________ A. VENKATESHWARA REDDY, J.
_____________________________________ G. ANUPAMA CHAKRAVARTHY, J.
Date: 29.10.2022 Isn