THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT JUSTICE K. SUJANA
CRIMINAL APPEAL NO.1042 OF 2015
JUDGMENT: (per Hon'ble Smt Justice K.Sujana)
This appeal is filed by the appellant/accused against the
judgment dated 09.02.2015 in S.C.No.538 of 2013, on the file of
Special Sessions Judge for Trial of Cases under SCs And STs
(POA) Act-cum-Additional Sessions Judge at Khammam, wherein
the appellant was convicted for the offence punishable under
Section 302 of the Indian Penal Code (for short 'the IPC') and
sentenced to undergo imprisonment for life and also to pay a fine
of Rs.10,000/- in default of payment of fine to suffer simple
imprisonment for six months. He was also convicted and
sentenced to undergo rigorous imprisonment for three years for
the offence punishable under Section 411 of the IPC and both the
sentences were directed to run concurrently.
2. The facts of the case are that on 23.09.2012 at about 12.30
night, the Village Revenue Officer, Salebanjara gave a complaint
stating that on 22.09.2012 in the evening at about 5.00 p.m, the
villagers gathered and discussing that some unknown female dead
body was found at Suralamma Gutta. After knowing the same, he
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along with Daravath Venkanna went to Suralamma Gutta and
found female dead body in the bushes. On receipt of complaint
the Sub-Inspector of police, Konijerla registered a case in
Cr.No.162 of 2012 under Section 302 of the IPC and went to the
scene of offence. As it was a forest area, immediately the dead
body was shifted to Government Head Quarters Hospital,
Khammam, observed scene of offence, prepared rough sketch,
prepared crime detail form in the presence of mediators and also
recorded the statements of relatives of the deceased, statements of
hostel members as the deceased was residing in hostel, seized the
clothes of the deceased and sent the dead body to autopsy. On
25.09.2012 at 4.00 p.m., on reliable information, he apprehended
the accused near Chinthala Cheruvu sivaru Venkatapuram Tank.
The accused confessed commission of offence in the presence of
panchas. Based on the said confession, gold Nanu thadu with
pusthela thaadu and Laxmi Devi locket worth about Rs.90,000/-
were recovered under the cover of panchanama and also recovered
crime weapon, stone. After completion of investigation, he filed
charge sheet. During the course of investigation, it came to light
that the accused is habituated to commit petty offences and
deceased got acquaintance with a promise to secure a job and he
planned to rob gold Nanuthadu and other articles. The accused
also promised to secure job in real estate business on monthly
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salary of Rs.11,000/- and used to talk with the deceased on her
cell phone No.9877740873. Further the accused and deceased
travelled in the auto of Pw.6, got down at Pedda Ramapuram and
they were last seen by Pw.8 at the outskirts of Laxmipuram near
the fields of V.Venkaiah.
3. According to the prosecution, the accused took the deceased
into Maabeera bushes near the fields of Venkaiah, beat her,
strangulated her and forcibly committed rape on her and took
away gold Naanuthadu, mettelu and threw her body into forest
bushes and left the scene.
4. To prove the case, the prosecution examined Pws.1 to 24
and got marked Exs.P.1 to P.15 and M.Os.1 to 11.
5. Basing on the evidence on record and after hearing both
sides, the trial Court convicted the accused for the offences under
Section 302 and 411 of the IPC and acquitted for the offence under
section 376 and 201 of the IPC.
6. Heard Sri P. Prabhakar Reddy, learned counsel for the
appellant/accused and Sri T.V.Ramana Rao, learned Additional
Public Prosecutor for the respondent-State.
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7. As the conviction is only for the offence under Section 302 and 411 of the IPC, there is no necessity to discuss about Section 376 and 201 of the IPC, as there is no appeal filed by the prosecution.
8. Pw.1 is the complainant, on information of villagers he went to the scene of offence and gave complaint. Pw.2 is the brother of deceased, he saw the deceased only at hospital when brought by the police, Pw.3 is the sister of deceased, Pw.4-T.Bala Krishna is running computer institution at Khammam and the deceased underwent training in the said institution, Pw.5- D. Malathi is the owner of hostel and Pw.6 is the alleged auto driver who dropped the accused and deceased at Pedda Ramapuram on 21.09.2012 at 7.00 p.m. Pw.7 is the mother of deceased. Her evidence is that she saw the dead body in Government hospital, Khammam and Pw.18 is the father of deceased and his evidence is only to the effect that he took interim custody of gold nanthadu with pusthelu and silver laxmi locket from Court and Pw.8-J.Koteswar Rao deposed that one day prior to the incident, he saw the deceased and accused were going towards Laxmipuram. Pw.9 deposed that on the next day of incident, at about 7.00 a.m., when he was going on motor cycle towards Mekalakunta, the accused was standing at canal and he KL,J &SKS,J Crl.A.No.1042 of 2015 5 was wearing black T- shirt. At his request, he gave lift upto Mekalakunta and the accused was found in disturbed mood. Pw.10 is not an eye witness, but he identified the dead body as that of Parvathi. Pw.11 saw the dead body of deceased at Suraram gutta, got scared and informed to Pw.10 who in turn telephoned to the police. Pw.12-Dharavath Shankar shifted the dead body to the Government Hospital, Khammam. Pw.13-K.Laxminarayana is the photographer and Pw.14 is the panch witness, Pw.15 is another panch witness, Pw.16 is the Tahsildar who conducted inquest over the dead body, Pw.17 is the panch for confession, Pw.19 is the panch for recovery of gold ornaments, Pw.20 is the doctor who conducted autopsy over the dead body of the deceased, Pw.21 is the Inspector of Police, SPI Branch, Warangal Rural and Pws.22 and 23 are also the investigating officers.
9. The trial Court convicted the accused basing on the evidence of Pws.6 and 8 and also recovery of gold ornaments.
10. Now, the points for consideration is :
1. Whether the death of the deceased is homicidal, if so, accused is responsible for the same ?
2. Whether the prosecution proved the guilt of accused for the offences under Section 302 and 411 of the IPC ?
KL,J &SKS,J Crl.A.No.1042 of 2015 6 POINT NO.1 :
11. To prove the death of deceased as homicidal, the prosecution relied on the evidence of Pw.20-medical officer. According to her, the deceased received a laceration 1 ½ x 1 x ½ over left eye brow, a contusion 1x1x1 and on upper part of chest, a contusion 5x5 right lower abdomen, ligature marks around the neck measuring 2 inches width on all around the neck, fracture left horn of hyoid bone, multiple abrasions over both upper and lower limbs and all the injuries are ante mortem and can be caused by blunt object. They also collected vaginal swabs and slides, pubic hair, skin from anterior and posterior part of neck, vicera, they were sent to FSL and after receiving FSL report, they gave opinion that the cause of death was Asphyxia due to strangulation.
12. Further, the evidence of Pw.11 Korra Lalu @ Lalya is that he has land near Suraram Gutta and went to his cotton field, where he found some dragging marks on the ground and followed the said marks up to Suraram gutta, he found one dead body of a female with bottom naked, he got scared and in the evening he informed to Pw.10 who in turn informed to the police. Pw.10 also deposed the same and Pw.14-Village Revenue Officer, who conducted inquest panchanama deposed that he observed the KL,J &SKS,J Crl.A.No.1042 of 2015 7 dead body and injuries were found on Parvathi and that she was killed by strangulation. Ex.P.3 is the inquest report. Pw.15 - Village Revenue Officer, Gopavaram also deposed that he saw the dead body of Parvathi at Mortuary and there was an injury on the neck. He opined that the deceased died due to strangulation with chunni.
13. Pw.16-Tahsildar, Nelakondapalli, conducted inquest panchanama. He commenced inquest at 10.30 a.m and completed by 12.30 noon in the presence of Pws.14, 15 and 16. All of them opined that the deceased was killed by throttling, there were injuries on the back of the body. They suggested that the deceased was dragged on the ground. The evidence of Medical Officer coupled with inquest, Pws.14 to 16 and Pw.11 who saw the dead body shows that the death of the deceased is an unnatural death and the recovery of dead body itself proves that it is a homicidal death. Therefore, it can be concluded that the death of the deceased is a homicidal death. Point No.1 is accordingly, answered.
POINT NO.2:
14. Now, it is to be seen that whether the accused is responsible for the said homicidal death.
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15. To connect the accused with the offence, prosecution relied on the evidence of Pw.6 who is an auto driver. The evidence of Pw.6 is that on 21.09.2012, he came to Gubbagurthi from Wyra and purchased provisions in a shop and when proceeding to Pedda Rampuram at about 7.00 p.m., two persons i.e., one male and one female boarded his auto asking him to drop at Pedda Rampuram. They got down at Pedda Rampuram and went away. After two or three days he saw a news item of death of a female person near Sorari hillock. He also deposed that he can identify the passengers who travelled in his auto upto Pedda Rampuram village and he identified the accused as the person who travelled in his auto along with female person but he could not identify the photographs of the dead body filed in the Court. In cross- examination he admitted that he had no prior acquaintance with the accused and accused was shown to him three days after his apprehension, but he could not identify him.
16. The evidence of Pw.6 that he identified the accused but could not identify the female dead body itself shows that without any prior acquaintance and without any test identification parade identifying the accused first time in the Court is not reliable and further he admitted in cross-examination that the accused was shown to him three days after his apprehension. At that time, he KL,J &SKS,J Crl.A.No.1042 of 2015 9 could not identify him. When Pw.6 has not identified the accused in the police station, it gives suspicion on reliability of witness in identifying the accused for the first time in the Court. Therefore, the evidence of Pw.6 is not helpful to the prosecution to connect the accused to the crime.
17. The prosecution also relied on the evidence of Pw.8 and his evidence is that he knows the accused and he is son-in-law of Surya. On 21.09.2012 at about 7.30 p.m., when he was going to Rampuram from his village, he saw the accused along with one female person going towards Laxmipuram. He came to know about the incident after seeing the newspaper and he identified the photograph of the deceased in the newspaper. In cross- examination the defense counsel could elicit that he has not mentioned descriptive particulars of the female person and also stated that he did not observe the colour of clothes of the victim. However, the evidence of Pw.6 is that the accused and deceased got down the auto in between 7.00 p.m., to 7.30 p.m at Peddaramapuram, whereas the evidence of Pw.8 shows that he saw the accused and deceased at Laxmipuram at 7.30 p.m.
18. Pw.9 evidence is that he know the accused and on the next day of murder, when he was going on motor cycle to Mekalakunta at about 7.00 a.m, he saw the accused standing at canal and he KL,J &SKS,J Crl.A.No.1042 of 2015 10 gave lift to the accused, his clothes were wet and he appeared to have in disturbed state, whereas in the statement given to the police he stated that on 22.09.2012, during morning hours at about 5.30 a.m, while he was proceeding to his field, he saw Banoth Ranga, son-in-law of Maloth Sukya coming with wet having mud dress from Suralamma hillock, Laxmipuram. He was in a disturbed mood, on seeing him, Pw.9 called him, but he went away and on the next day when he woke up, he came to know that some unknown persons committed rape on a girl, killed and thrown into bushes.
19. The evidence given by Pw.9 is totally contradictory to the statement given to the police. Therefore, the evidence of Pw.9 is not helpful to the prosecution to connect the accused with the offence.
20. Further, the prosecution relied on recovery of gold ornaments from the accused which belonged to the deceased. In this regard, the evidence of Pw.2, brother of the deceased is that deceased was wearing Pusthelathadu, Kammalu Bhuttalu, silver leg chains and one cell phone were not found on her body when they saw the dead body first time. According to Pw.19, M.Os.9 to 11 are recovered from the scene of offence but not from the KL,J &SKS,J Crl.A.No.1042 of 2015 11 possession of accused. The recovery as per the police is that M.O.9 is pusthelathadu and M.O.10-two pusthes, M.O.11 Silver locket of Laxmi and the descriptive particulars of the ornaments stated by Pw.2 and M.Os.9 to 11 are not tallying with each other. Further, Test Identification parade of the articles as per Rule 35 of the Cr.P.C., was not conducted by the police. Therefore, recovery of gold ornaments which are not tallying with the evidence of Pw.2 is no way helpful to the prosecution to connect the accused with the death of the deceased.
21. Though the prosecution examined Pws.1 to 24 to connect the accused, the evidence of Pws.6, 8 and 9 is only relevant to this case. Pw.6 evidence is not reliable as he himself admitted that he has not identified the accused when he was shown to him three days after apprehension. Pw.8 in his cross-examination admitted that the father-in-law of the deceased is working in his fields and there are disputes in between accused and his father-in-law. Therefore, it is not safe to rely on his evidence and the time stated by Pws.6 and 8 is not corroborating with each other.
22. Pw.9 evidence is discarded as his evidence is totally contradictory with his earlier statement and he was not declared as hostile by the prosecution. The recovery is also not made in KL,J &SKS,J Crl.A.No.1042 of 2015 12 accordance with law. The trial Court erroneously convicted the accused relying on the evidence of Pw.6 and Pw.8, whose evidence is not corroborating with each other. Further, the trial Court relied on recovery of M.Os.9 and 10 which are not recovered from the possession of accused. According to Pw.19 they recovered from scene of offence and they are not matching with the descriptive particulars given by Pw.2. Therefore, their evidence is not sufficient to prove the case against the accused. Further, to prove the offence under Section 302 of the IPC, the prosecution has to prove the guilt of the accused beyond reasonable doubt, but it failed to prove the same and failed to connect the accused, though the death of deceased is a homicidal death. Therefore, the accused is entitled for the benefit of doubt. Accordingly, Point No.2 is answered.
23. IN THE RESULT, the Criminal Appeal is allowed and the appellant/accused is found not guilty for the offences punishable under Sections 302 and 411 of the IPC. Hence he is acquitted of the said offences and the judgment dated 09.02.2015 in S.C.No.538 of 2013 passed by the Special Sessions Judge for Trial of Cases under SCs and STs (POA) Act-cum-Additional Sessions Judge at Khammam is set aside. The bail bonds of the accused KL,J &SKS,J Crl.A.No.1042 of 2015 13 shall stand cancelled. The appellant/accused shall be set at liberty forthwith, if he is not required in any other case or crime.
Miscellaneous applications, if any, pending in this Criminal Appeal shall stand closed.
_________________ K.LAKSHMAN, J ______________ K. SUJANA, J Date :06.10.2023 Rds