THE HONOURABLE Dr. JUSTICE CHILLAKUR SUMALATHA
&
THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
CRIMINAL APPEAL No.275 OF 2014
JUDGMENT:- (Per the Hon'ble Sri Justice A.Santhosh Reddy)
This criminal appeal arises out of the judgment dated
04.03.2014 in Sessions Case No.170 of 2013, on the file of the
Family Court-cum-VIII Additional District and Sessions Judge at
Mahabubnagar.
2. The appellant/A-1, along with other accused (A-2),
was found guilty, convicted and sentenced for the offences
punishable under Sections 302, 379, 201 read with Section 34 IPC.
The appellant/A-1 was sentenced to undergo imprisonment for life
and pay a fine of Rs.500/-, in default of payment of fine to undergo
simple imprisonment for three months for the offence punishable
under Section 302 IPC. The appellant/A-1 was further sentenced
to undergo rigorous imprisonment for two years for the offence
punishable under Section 379 IPC and also to undergo rigorous
imprisonment for four years and pay a fine of Rs.500/-, in default
2
of payment of fine to undergo simple imprisonment for three
months for the offence punishable under Section 201 IPC.
3. The crux of the allegations of the prosecution is that the
appellant/A-1 along other accused (A-2) caused the death of
the Manchanpally Satyanarayana (hereinafter referred to as 'the
deceased') by beating him with a custard apple stick and commited
theft of motorcycle of the deceased bearing No.AP 22K 2289,
pan card and SBH ATM card and copy of registration certificate
and threw him into the bushes and tried to conceal the evidence.
4. Investigation commenced with the registration of Ex.P-14
F.I.R on the basis of complaint Ex.P-1 lodged by P.W.1 on
26.10.2012 wherein he stated that on that day at about 09:00 AM,
he found the dead body of his son in the field bushes of Veeraiah
which is behind PT lamination Company Plant II. P.W.12, Circle
Inspector of Police, completed the investigation and filed final
report.
5. The prosecution case, in brief, is that the deceased and
P.W.1 were working in PT Lamination Company. Appellant/A-1
3
also worked in the same company for some time, but he lost his
job and he suspected that P.W.1 might have given adverse remarks
against him to the management. P.W.1 abused the mother of
the appellant/A-1 that her character is not good about five or
six years ago. The appellant/A-1 developed grudge on the family
members of P.W.1 and decided to do away with the life of the
deceased. On 25.10.2012, as per the plan, appellant (A-1) and A-2
went to turning point behind the PT Lamination Company and was
waiting for the deceased. At about 01:30 PM., the deceased came
on his bike and suddenly the appellant/A-1 beat him with custard
apple stick and caused severe injury on his left side temporal
region. The deceased fell on the ground in unconscious state with
blood bleeding from mouth and ears. Subsequently, the appellant
(A-1) and A-2 dragged him beside the road and threw him into the
bushes and tried to conceal the evidence. They found ATM card,
pan card and copy of RC in the pocket of the deceased and
the appellant/A-1 handed over the Hero Honda motorcycle of the
deceased along with ATM, Pan Card and RC to A-2. Later, they
proceeded to Shadnagar and parked motorcycle of the deceased
4
bearing No.AP 22K 2289 in RTC bus parking stand and obtained
receipt. Thereafter, the appellant (A-1) took A-2 on his bike and
dropped him at Ayyappaswamy temple and gave an amount of
Rs.100/- and told him not to disclose to anybody. After having
lunch, while the appellant (A-1) was returning to toddy shop, on
the way near the scene of offence P.W.5 (Anjaiah) stopped him at
03:20 PM and asked him that some noise was coming from the
bushes. Later, the appellant (A-1) went there and returned to him
and told him that someone belonging to Orissa State consumed
toddy and fell in the bushes and thereafter, the appellant (A-1)
came to his toddy shop. On the complaint given by P.W.1, a case
in Cr.No.152 of 2012 was registered by the police and investigated
into.
6. During the course in investigation, on 22.11.2012 at about
08:00 AM., P.W.12, Inspector of Police, arrested the appellant
(A-1) and A-2 and seized M.O.4 motorcycle belonging to the
appellant (A-1) and also M.O.5 motorcycle belonging to the
deceased from A-2. Their confessional statements were recorded
in the presence of panch witnesses and seized M.Os.4 to 6 and
5
Exs.P-8 to P-11 under Exs.P-7 and P-12. After completion of
investigation, P.W.12 filed charge sheet.
7. The learned Magistrate committed the case to the Court of
Sessions. The learned Sessions Judge took cognizance of the
offences alleged against the appellant (A-1) and A-2 and
framed charges against them for the offences punishable under
Sections 302, 379, 201 read with Section 34 IPC. Both the
accused denied the charges framed against them and preferred to be
tried. Thereupon, the prosecution examined P.Ws.1 to 12 and
Exs.P-1 to P-15 were proved.
8. The appellant/A-1 when examined under Section 313
Cr.P.C., took up a defence of total denial. No defence evidence,
oral or documentary, was adduced by the appellant.
9. On appreciation of the oral and documentary evidence, the
learned Sessions Judge came to the conclusion that all the
circumstances relied on by the prosecution have been established
and the cumulative effect of these circumstances proved the
complicity of the appellant (A-1) and A-2. The learned Sessions
6
Judge, accordingly, convicted and sentenced the appellant herein
and A-2 in the manner as stated above.
10. We have heard learned counsel appearing for the
appellant/A-1 and learned Public Prosecutor for the respondent-
State.
11. Learned counsel for the appellant/A-1 contends that the prosecution has not proved the offence against the appellant/A-1 with any cogent evidence. Therefore, the accused is entitled to the benefit of doubt and prayed to acquit the accused.
12. Learned Public Prosecutor, on the other hand, contends that the prosecution had proved the alleged offence against the appellant/A-1 with cogent and reliable evidence and there is no room for reasonable doubt and prayed to dismiss the appeal.
13. The indictment rests entirely on circumstantial evidence. It is trite that the burden rests always on the shoulders of the prosecution to prove its case beyond doubt. Such burden continues to heavily rest on the shoulders of the prosecution whatever be the defence taken by the accused. From the beginning to the end of 7 the criminal trial, this onerous of burden continues on the shoulders of the prosecution to prove the indictment beyond reasonable doubt.
14. In a case resting on circumstantial evidence, it is the bounden duty of the prosecution to prove all the circumstances firmly and satisfactorily. The proved circumstances must constitute strong links and the links, in turn, must be part of a strong chain of circumstances which chain must unerringly and clinchingly point to the guilt of the indictee, to the exclusion of any reasonable hypothesis of innocence of the indictee.
15. In MAHMOOD v. STATE of U.P1, the Hon'ble Supreme Court held that the circumstances must be established by unimpeachable evidence beyond doubt and at paragraph 9 of the said decision, it is held as under:
"It is well settled that in a case dependent wholly on circumstantial evidence, the Court before recording a conviction on the basis therefor must be firmly satisfied -1
AIR 1976 SC 69 8
(a) that the circumstances from which the inference of guilt is to be drawn, have fully established by unimpeachable evidence beyond a shadow of doubt;
(b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and
(c) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him.
16. In HANUMANT v. STATE OF M.P2, which is reckoned as a classical decision of the Hon'ble Apex Court on the point of circumstantial evidence, the Hon'ble Apex Court had referred to the requirement of proof as under:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to 2 AIR 1952 SC 343 9 show that within all human probability the act must have been done by the accused".
17. We shall initially attempt to narrate the circumstances relied on by the prosecution. Thereafter, we shall consider whether these circumstances can be established satisfactorily. We shall then proceed to consider whether the proved circumstances do justify a safe inference of guilt against the appellant.
18. The prosecution relies on the following circumstances:
(i) the deceased died by homicidal injury suffered by him with a stick M.O.6 recovered from the scene of offence at the instance of appellant;
(ii) the appellant is son of P.W.1's younger sister and there were family disputes between the appellant and the deceased and whether the motive behind offence is proved from the evidence of P.W.1;
(iii) P.W.1, who is the father of the deceased, stated that the deceased left home on 25.10.2012 and did not return and on the next day, he found his dead body in bushes behind PT Lamination company;
(iv) the recovery of ATM card, pan card, copy of registration certificate and purse i.e., Exs.P-8 to P-11 under seizure panchanama of A-2 in Ex.P-7 as stated by P.W.9 and also recovery of M.O.5 motorcycle of the deceased; and 10
(v) the appellant had not offered any explanation for the circumstances proved against him.
19. Circumstance No.1:
We shall now proceed to consider whether these circumstances have been established. The deceased died of homicidal injuries is established by the evidence of P.W.1. From the evidence tendered by the doctor P.W.10 and the post-mortem certificate Ex.P-13 issued by him, we can safely endorse the finding of learned Sessions Judge that the deceased succumbed to homicidal injuries, as described in Ex.P-13. We have also convincing indications to suggest that the said injures must have been inflicted with the stick M.O.6, seized at the instance of the appellant/A-1.
20. P.W.10 (doctor) in his evidence stated that the approximate time of death of the deceased is 18 to 24 hours prior to post- mortem examination. So, we are satisfied that circumstance No.1 can safely be held to be proved to the extent indicated above. 11
21. Circumstance No.2:
In a case resting on circumstantial evidence, proof of motive is indeed relevant. The motive for the alleged occurrence, according to the prosecution, is that the appellant (A-1), who is none other than the son of his younger sister, developed ill-will against P.W.1 and the his family and P.W.1 is the leader of BMS, a labour trade union. P.W.9, who is panch witness, deposed that the appellant (A-1) confessed before him that there were family disputes between him and the son of his maternal uncle (P.W.1). Except the evidence of P.W.9, none of the witnesses have spoken about the motive part of the alleged occurrence. Though the motive part is held relevant, but the same is not an ingredient of the offence and if the incident is otherwise proved even in case of circumstantial evidence, ritualistic insistence on proof of motive need not be made by the court.
22. Circumstance No.3:
The father of the deceased P.W.1 and sister of the deceased P.W.2 deposed that on 25.10.2012, at about 08:00 AM, P.W.1 and the deceased left their house to go to PT Lamination Company 12 at Nandigama. P.W.1 was working in another PT Lamination Company. The deceased did not return home on 25.10.2012. On 26.10.2012, P.W.1 went to the work place of the deceased. On enquiry, he came to know that his son left the company at 01:00 PM., on 25.10.2012. Later, they found the dead body of the deceased on the back side of the PT Lamination company with injuries on the left forehead temple side. P.W.1 had identified M.O.1 shirt and M.O.2 jeans pant of the deceased. P.W.1 lodged a complaint with police on 26.10.2012 under Ex.P-1. In cross-examination, P.W.1 admitted that the appellant/A-1 is none other than the son of his younger sister and is resident of Anthireddyguda. P.W.8 is the panch witness for the scene of offence Ex.P-4. In the presence of P.W.8 and another, police held inquest over the dead body of the deceased under Ex.P-5. P.W.8 in his evidence stated that during the inquest panchanama, they found an injury near the left eye of the deceased. The evidence of P.Ws.1 and 2 is supported by the evidence of P.W.3. P.W.3 specifically deposed that they found dead body of the deceased in thorny bushes by the side of the road behind plant No.2 of PT Lamination 13 Company. P.W.3 further stated that they found bleeding injury on the left eyebrow of the deceased. P.W.4 stated that he came to know about the death of the deceased and he found the dead body in the bushes on the right side behind the plant. The evidence of P.W.5 is quite relevant to consider. He found the appellant (A-1) coming in the opposite direction on motorcycle on the day of incident. When he enquired about the noise that came from the land of Veeraiah, the appellant (A-1) told him that a labour person might have fallen in a drunken state. Later, he came to know that the deceased was found in the bushes. From the evidence of P.W.5, not only circumstance No.3 is established but also the fact that the appellant was seen after the alleged incident. The prosecution case is that after having lunch, while the appellant (A-1) was returning to his toddy shop, on the way P.W.5 stopped and enquired with him about the noise which was coming from the bushes.
23. Circumstance No.4:
The prosecution case is that the accused was apprehended on 22.11.2012 at Ayyappaswamy Temple, Nandigama and in the 14 presence of panch witnesses P.W.9 and another recorded their confessional statements and seizure panchanamas. The evidence of P.W.9 discloses that the appellant (A-1) and A-2 confessed before them and pursuant to their confession, led the police and recovered motorcycle of A-1 and seized the same under Ex.P-4. M.O.4 is motorcycle of A-1 and also seized M.O.5 motor cycle of the deceased and also Exs.P-8 to P-11 belongings of the deceased. The appellant/A-1 also led them to the scene of offence and there he produced a stick used in the commission of the offence and the same was seized under a cover of panchanama Ex-P-12. M.O.2 is the stick. In cross-examination of P.W.9, nothing material was elicited to discredit her testimony. These are the most crucial circumstances proved and relied on by the prosecution.
24. We have carefully considered the evidence of P.Ws.9 and 12 and their evidence, if accepted, can only help the court to come to conclusion that there are circumstances to believe that there were family disputes between the appellant/A-1 and the son of his maternal uncle (P.W.1) and he intended to do away with the life of the deceased and in pursuance of the said intention, he took the 15 help of A-2 and attacked the deceased with a stick and beat him on his head and he fell down on the ground and subsequently succumbed to injuries. The glaring circumstance which supports the prosecution case is the recovery of motorcycle of the deceased at the instance of the appellant/A-1 and the evidence of P.W.7 corroborates the said circumstances. Though P.W.7 deposed that he cannot identify the persons who kept the vehicles in the bus stand, but the motorcycle of the deceased was found at the parking place of the bus stand at Shadnagar and that he maintained a register wherein it contains the entry of the motorcycle number on 25.10.2012 and 26.10.2012 and subsequently also.
25. We shall now see the evidence of the Medical Officer P.W.10. In his evidence, he stated that on 26.12.2012, he received requisition from the Circle Inspector of Police, Shadnagar Rural and on the same day, he conducted post-mortem over the dead body of the deceased and opined that the cause of death was due to head injury. He found the following injuries:
i) contusion over the left side of frontal region 4 x 2 cms 16
ii) Fractures skull over the left side frontal region 9 x 2 cms
iii) Bleeding from the nose, left ear and mouth.
P.W.10 further deposed that he issued post-mortem certificate Ex.P-13 dated 26.10.2012 and that above injuries might have been caused with a blunt object like M.O.6 stick. In cross-examination, P.W.10 stated that undigested food is present in the body of the deceased and within half an hour of taking food, the deceased died.
26. In the also relevant to consider the important aspects of the investigation part done by P.W.12. In his evidence, P.W.12 stated that on 26.12.2012, he took up investigation and visited the scene of offence and held inquest over the dead body of the deceased. Prior to him, P.W.11 investigated the case and received Ex.P-1 complaint from P.W.1 and registered the case and Ex.P-14 is the FIR. P.W.12 further stated that during investigation, he arrested the appellant (A-1) and A-2 and secured the presence of mediators P.W.9 and one Krishna and in their presence, he interrogated the accused and recorded their confessional statements and in pursuance of those statements, the accused led them to 17 recovery of material objects as stated above. P.W.12 also deposed that the appellant/A-1 led them to the scene of offence and produced M.O.6 stick which was used in the commission of the offence. However, M.O.6 did not contain any blood stains.
27. The evidence of prosecution and the cumulative effect of the above said circumstances, which are proved by the prosecution clinchingly, establish the fact that the deceased had suffered fatal injuries at the hands of the appellant/A-1 and it appears that A-1 armed with M.O.6 stick caused the fatal injuries on the temporal region of the head of the deceased and as a result of which he died.
28. Circumstance No.5:
The prosecution relies on the circumstances that the appellant had not offered any explanation for the circumstances proved against him. It is now trite that absence of explanation for an incriminating circumstance can itself be reckoned as another circumstance to strengthening the chain of circumstances against the appellant. In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an 18 incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of the Hon'ble Supreme Court. In view of the authoritative pronouncements, the law required the accused to provide explanation regarding the circumstances appearing against him, but in the instant case, he offered complete denial. We do note that the appellant had not offered any explanation about the recovery of the motorcycle of the deceased and also the recovery of ATM card, pan card, RC and pursue at his instance. We do note that the law does not mandate that for not giving any explanation to these aspects, an inference can be drawn against the accused and the probative significance of these circumstances of not offering any explanation shall be considered as incriminating circumstances. However, the conduct of the appellant/A-1 for not furnishing satisfactory explanation about the relationship with the family of the deceased and P.W.1 and not 19 offering any explanation about the recovery made at his instance, the probative significance can be taken into consideration.
29. Having thus recorded our conclusions about the circumstances relied on by the prosecution, the next and most crucial question is - whether these circumstances satisfactorily point out to the guilt of the appellant/A-1. Having seen that the five circumstances are established by the prosecution, in order to re-affirm the guilt of the appellant/A-1, some of the important circumstances from the evidence of the prosecution which connects the appellant/A-1 with the alleged offences are that from the evidence of P.W.4, it is established that the deceased was coming from PT Lamination Company to Anthireddyguda on the day of incident at about 01:00 or 01:30 PM., while P.W.4 was proceeding from Jangoniguda from his village. P.W.5 stated that one Narahari (L.W.8) informed him that some noise was coming from the land of Veeraiah at about 03:00 PM and he did not go to the land of Veeraiah on that day. He further stated that he found the appellant/A-1 coming in the opposite direction on a motorcycle at the same time. When he enquired A-1 about the noise, he told 20 that a labour person might have fallen in a drunken state. Their evidence establishes that P.W.4 saw the deceased prior to the incident at about 01:30 PM., whereas P.W.5 saw the appellant at 03:00 PM., after commission of the offence. Apart from these witnesses, the evidence of P.W.6 establishes the fact that the appellant was not present at his toddy shop from 12:30 noon to 03:30 PM., on the day of incident. The confessions of A-1 and A-2 made in the presence of P.W.9 and another led the police to recovery of M.Os.1 to 5 and Exs.P-8 to P-11 which are crucial aspects of evidence to connect the accused with the alleged offences. The confessional statements recorded in the presence of P.W.9 and another categorically show that the appellant/A-1 armed with M.O.6 stick attacked the deceased and beat him on his left forehead temporal region while he was coming on his bike, as a result of which, the deceased fell down and died. The injuries sustained by the deceased are proved with the evidence of the doctor P.W.10, who stated that the cause of death of the deceased was due to head injury and the said injuries might have been caused with a blunt object like M.O.6 stick. 21 In these circumstances, we have no reason to doubt that the prosecution had proved all the circumstances firmly and satisfactorily which clinchingly point out to the guilt of the appellant/A-1.
30. The further question that remains to be considered is - whether the appellant/A-1 is liable to be convicted under Section 302 IPC or 304-II IPC. From the circumstantial evidence established by the prosecution, it is clear that the appellant/A-1 had beat the deceased with M.O.6 stick on the temporal region of the head and caused severe head injury, as a result of which the deceased died on the spot. It is evident that there is no clear evidence in proof of the motive part for the alleged offence by the appellant/A-1. Except the evidence of P.W.9 before whom the appellant/A-1) is alleged to have made a statement that there are family disputes between him and P.W.1 and he wanted to eliminate his son, the deceased, there is no other evidence. Keeping in view the nature of the weapon used in the commission of the offence and as there is cogent and convincing evidence about the motive part and he did not act in a cruel and unusual manner and dealt only a 22 single blow, which resulted in the death of the deceased, we feel that it is a fit case to convict the accused for the offence punishable under Section 304-II IPC and, accordingly, we modify the judgment of the Court below to this effect. As regards the sentence, having regard to the nature of the offence, we feel that interests of justice would be met if the appellant/A-1 is sentenced for a period of ten years, besides fine of Rs.500/-.
31. In the result, the criminal appeal is partly allowed. The conviction recorded against the appellant/A-1 in the judgment, dated 04.03.2014 in Sessions Case No.170 of 2013, on the file of the Family Court-cum-VIII Additional District and Sessions Judge at Mahabubnagar, for the offence punishable under Section 302 IPC is modified to that of the offence under Section 304 Part II IPC. The appellant/A-1 is, accordingly, convicted and sentenced to suffer rigorous imprisonment for a period of ten years and to pay fine of Rs.500/- (Rupees five hundred only), in default of payment of fine, to suffer simple imprisonment for two months for the offence punishable under Section 304 Part II IPC. The conviction 23 and sentences passed against the appellant/A-1 for the offences punishable under Sections 379 and 201 IPC remain unaltered.
32. Pending miscellaneous petitions, if any, stand closed.
______________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA ______________________________ JUSTICE A.SANTHOSH REDDY 13.02.2023 Lrkm