THE HON'BLE SRI JUSTICE M.LAXMAN
AND
THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
CRIMINAL APPEAL No.378 OF 2014
JUDGMENT: (per Hon'ble Sri Justice M.Laxman)
This criminal appeal is filed against the judgment dated
10.02.2014
in Sessions Case No.580 of 2013 on the file of the Judge, Family Court-cum-VIII Additional Sessions Judge, Mahabubnagar, whereunder the appellant was convicted for the offence under Section 302 of IPC and sentenced to life imprisonment and to pay a fine of Rs.5,000/- and in default, to undergo a simple imprisonment for three months.
2. The case of the prosecution, in brief, is that on 23.10.2012 at about 11.30 pm., there was a quarrel among deceased No.1 (Boyalagudem Uppari Ramakrishna), deceased No.2 (unknown person) and the accused. The dispute was on account of the deceased uttering the accused to verify the availability of arrack by calling him as 'gunduga', for which, the accused felt insulted and took a stick (M.O.1) and caused the head injuries; resultantly, both the deceased died instantaneously. This incident was witnessed by P.W.1 while he was going to his home. The accused, having seen P.W.1, ran away with the stick. On the basis of the said allegation, the FIR was initially issued 2 and subsequently, charge sheet was laid against the accused for the offence under Section 302 of IPC.
3. Upon committal, the trial Court framed charges under Section 302 against the accused. The accused denied the charge and claimed to be tried.
4. The prosecution, to support its case, examined P.Ws.1 to 12 and got marked Exs.P.1 to P.15 and M.Os.1 to 5. The accused has not produced any evidence and denied the incriminating material.
5. After appreciating the evidence brought on record, the trial Court found the accused guilty for the said charge. Accordingly, the trial Court convicted and sentenced the appellant as aforestated. Challenging the same, the present appeal came to be filed.
6. Heard both sides.
7. Learned counsel for the appellant/accused contended that the trial Court has not considered the truthfulness of the statement of P.W.1 with regard to identify of the accused in the light of his admission in the cross examination that there was no street light at the place of incident and that in test identification parade, there was no proper selection of 3 non-suspect with the suspect. Further, the evidence of P.W.12 with regard to complexion of the suspect and hair growth are not matching with the accused since the identify particulars given by P.W.1 in the First Information Report were only the dark complexion and shaved head. It is also her contention that the Police have taken the photographs of the accused through P.W.7 and there was scope for the Police to show to P.W.1 as to the identity of the accused before he was subjected to test identification parade. It is her further contention that P.W.5, in his evidence, stated that when he went to the scene of offence to take the photographs, the place was dark. According to him, except the street light, there was no other light to show that the place was illuminated so that P.W.1 had an occasion to see the accused.
8. The learned counsel for the appellant/accused further contended that P.W.2, who was the security guard posted at HDFC Bank where the incident took place, did not identify the accused and did not support the case of the prosecution. It is her further contention that the extra-judicial confession relied upon by the prosecution is a weak piece of evidence and the case set up by the prosecution with regard to accused approaching P.W.6 - Tahsildar for making the confession is very unnatural, since there was no such proximity or closeness in 4 between the Tahsildar and the accused. According to her, the evidence placed on record creates a doubt about the involvement of the accused. The accused was implicated in the case on account of his past history. According to her, the conviction is unsustainable.
9. The learned Public Prosecutor supported the conviction. According to her, the evidence of P.Ws.1 and 2 clearly shows that the incident was occurred at the HDFC Bank and this is not seriously in dispute. In fact, the guilt of the accused was proved beyond any doubt. P.Ws.1 and 2 are the direct witnesses to the incident, and though P.W.2 turned hostile with regard to identity of the accused, the evidence of P.W.1, the FIR and the identification of the accused in the test identification parade go to show the establishment of identity of the accused involved in the commission of offence. It is also her contention that the evidence of P.W.12 and the report submitted by her clearly show that while selecting the non-suspect, P.W.12 took all safeguards in maintaining the similarity in between the suspect and non- suspect. Merely report is silent about the complexion of the suspect and his hair do not vitiate the test identification parade which is otherwise very reliable one.
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10. The learned Public Prosecutor further contended that there was a prior acquaintance between P.W.6 and the accused and that is why the accused has selected P.W.6 to confess the commission of offence, so as to save himself from the reach of Police, and hence, such a confession is believable and the trial Court rightly believed the same while convicting the accused. It is her further contention that the recovery of the stick - M.O.1 and presence of blood would demonstrate one of the circumstances which corroborate the involvement of the accused in the offence. According to her, all the above aspects were rightly considered by the trial Court in convicting the accused and hence, no interference of this Court is required.
11. The evidence of P.W.1 shows that he went to the Police Station on the same night to lodge the complaint, whereas the FIR shows that the compliant was lodged at 6.30 am. This has not been properly explained by the prosecution. Apart from that, the evidence of P.Ws.1 and 5 clearly show that there were no street light at the scene of offence. The prosecution also failed to establish that there was any other source of light, so that the witness could able to see the identity particulars of the accused. Further, P.W.1 stated that the accused is of dark complexion and head was shaved. However, the test identification parade report is silent with regard to the 6 complexion of the accused and the growth of the hair on the head, since on the date of incident, the accused head was shaved.
12. If the evidence of P.W.12 and her report are examined, it is clear that the report did not refer the two important aspects, basing on which P.W.1 claims he could identify the accused i.e., dark complexion and shaving of the head. The report also shows that while selecting the non-suspect with the suspects, P.W.12 only gave priority to the height, built and age. These are all not at all important factors for establishing the identity basing on the claim made by P.W.1. Therefore, the test identification parade is not inspiring confidence of this Court so as to believe the claim made by the witness in the trial Court as to the identity of the accused.
13. P.W.2 is not supporting the identity of the accused, though he supported the incident. Therefore, his evidence is of little relevance. The other circumstance relied upon by the prosecution is the extra-judicial confession. P.W.6 is the Tahsildar and his evidence shows that the accused has chosen P.W.6 for making confession. The evidence is silent with regard to how the acquaintance was there in between them, so that the accused had a chance to select P.W.6 to make such a 7 confession. Selection of P.W.6 for making confession is highly doubtful, that too just prior to arrest of the accused. Therefore, this evidence is also not inspiring confidence of this Court.
14. Leaving the above evidence, the other evidence is recovery of M.O.1 based on the confession. The stick was recovered from the open place and that too without any incriminating evidence to link the circumstantial evidence leading to fix the accused with the crime. The FIR shows that they could only identify the blood on M.O.1, but they could not able to identify the origin of the group of blood of the deceased so as to link the usage of the stick in the commission of offence. Therefore, this evidence is also not much helpful to the prosecution.
15. The other important factor is that the accused seems to have criminal history and there is chance to the Police, keeping in view of the past history, implicate the accused in the case. The reason is that there was inordinate delay in making the request for conduct of test identification parade. There are photographs available with the Police to show to P.W.1 to identify him as the accused. Further, when P.W.1 says that this report was given in the same night, but FIR shows that it was lodged on the next day morning 6.30 am. Further, P.W.5 claims that in the morning 3.00 am., he went to scene of offence. This 8 shows that the Police were aware of the incident even much prior to that.
16. It is to be noted that in the evidence of P.W.1, it is stated that some persons gathered at the time of quarreling among the three persons and they tried to stop the quarrel before P.W.1 reached the place of incident. P.W.1, in his report i.e., Ex.P.1, could not mention the same. The same also give a doubt about the evidence of P.W.1. These are all the circumstances which give a great amount of doubt as to the involvement of the accused in the commission of offence. All these aspects were not considered by the trial Court. Therefore, benefit of doubt would therefore have to be extended to the accused as the prosecution failed to establish the charge beyond reasonable doubt to link the accused for the death of the deceased. Hence, the conviction and sentence passed by the trial Court are liable to be set aside.
17. In the result, the Criminal Appeal is allowed. The judgment and sentence imposed by the Judge, Family Court- cum-VIII Additional Sessions Judge, Mahabubnagar, against the accused in Sessions Case No.580 of 2013 dated 10.02.2014 for the offence under Section 302 of IPC is hereby set aside and the accused is acquitted for the said offence. The appellant/accused 9 shall be set at liberty forthwith unless his detention is required in connection with any other case. The fine amounts, if any, paid by him shall be refunded.
_______________ M.LAXMAN, J _____________________________ SMT.M.G.PRIYADARSINI, J Date: 16.09.2022 TJMR