THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT JUSTICE K. SUJANA
CRIMINAL APPEAL NO.776 OF 2014
JUDGMENT: (per Hon'ble Smt Justice K.Sujana)
Aggrieved by the judgment dated 28.01.2014 in S.C.No.670
of 2011, on the file of IX Additional Sessions Judge, Wanaparthy,
the appellant filed this appeal. The appellant herein is the
Accused in S.C.No.670 of 2011. By the said judgment the
appellant was convicted for the offence punishable under Section
302 IPC and sentenced to undergo rigorous imprisonment for life
and also to pay a fine of Rs.5000/- in default of payment of fine to
suffer simple imprisonment for six months. He was also sentenced
to pay a fine of Rs.1000/- in default of payment of fine, to suffer
simple imprisonment for three months for the offence punishable
under Section 379 IPC.
2. The brief facts of the case are that the deceased-Nageshwar
Reddy and PW.1 are own brothers and PW.2 is the wife of the
deceased. PW.1 and deceased are natives of Kalluru Village of
Veepangandla Mandal. On 15.03.2011, PW.1 collected an amount
of Rs.40,000/- for repayment of crop loan availed from Andhra
Bank, Jetprole Branch and went to Hyderabad to the house of his
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elder sister. The deceased married the daughter of PW.2. After
handing over cash to the deceased asking him to remit the amount
in Andhra Bank, he returned back and told that he was going to
Pebbair for the seeds. The deceased informed PW.1 that he will
remit the amount on 17th. On 17.03.2011 in the evening hours
both of them went to sow angular guard seeds in the land and
after completing the work they returned to the village. PW.1 went
to the house of his friend to sleep that night. On the next day, the
deceased was not seen. PW.1 made inquiries in the village and he
was informed that from the same day, the accused was also not
seen in the village and on the previous day evening both the
deceased and accused moved together in the village and consumed
alcohol. On 21.03.2011 at about 11.00 a.m, PW.1 was informed
by PW.3-Thirupathaiah, PW.4-Shalu that they have seen the dead
body of the deceased in a dilapidated school premises in the village
of Solipur. PW.1 and other villagers went to the scene of offence,
observed the dead body of the deceased with M.O.1-stone on his
head which was found crushed. They identified the dead body
basing on the clothes and other parts of the body and also
passbook belonging to PW.1. Later PW.1 went to the police station
and lodged a complaint basing on which Ex.P.1 complaint was
registered, investigation was done by PW.16, conducted
panchanama under cover of Ex.P.2 in the presence of PW.9 and
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another, collected M.O.1 stone and blood stains with the help of
cotton secured in the presence of PWs.2 to 4 and examined them,
held inquest over the dead body through PW.11 and secured the
presence of PWs.6 to 8, examined them and apprehended the
accused on 27.03.2011, interrogated him in the presence of PW.10
and another. In pursuant to the confession of the accused and
information provided, they collected the blood stained clothes of
the accused and also collected Rs.34,500/- cash denomination of
Rs.500/- under M.O.8 cover of panchanama.
3. The prosecution case is that the accused while moving with
the deceased on the night of 17.03.2011 noticed cash of
Rs.40,000/-, developed malafide intention to commit theft of it,
accompanied the deceased to the dilapidated school premises and
when the deceased was in deep sleep under intoxication condition,
he threw M.O.1-boulder on his head, as a result of which, the
deceased died on the spot.
4. The learned Judicial Magistrate of First Class, after taking
cognizance of the case, committed the case to the Court of
Sessions, Mahaboobnagar.
5. The learned IX Additional Sessions Judge, framed two
charges for the offences under Sections 302 and 379 IPC.
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6. The prosecution examined Pws.1 to 16, got marked Exs.P.1
to P.10 and the Material objects M.Os.1 to 7 are marked.
7. After hearing both the parties, the trial Court convicted the
appellant for the offences punishable under Sections 302 and 379
IPC.
8. The appellant herein filed this appeal against the said
judgment stating that the judgment of the trial Court is contrary
to law, facts of the case and erroneous. The trial Court came to
the conclusion basing on its own assumptions and presumptions,
convicted the appellant and falsely came to the conclusion that the
appellant committed offence for gain of cash of Rs.40,000/-. The
trial Court ought to have seen that there is no sequence of events
established by the prosecution to prove the offence against the
appellant. The trial Court unnecessarily gave much credence to
the evidence of Pws.7, 12 and 13. His further contention is that
the appellant was erroneously implicated in this case and without
proper appreciation of evidence, the trial Court wrongly convicted
and sentenced him.
9. Heard Sri P.Prabhakar Reddy, learned counsel appearing for
the appellant and Sri T.V.Ramana Rao, learned Additional Public
Prosecutor appearing for the respondent-State.
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10. Learned counsel for the appellant would submit that there is no evidence on record to prove that the death of the deceased is homicidal. The evidence of prosecution failed to establish the chain of circumstances and all circumstances must prove that the accused is only responsible for the murder of the deceased. Without there being any evidence on record to prove that the accused was last seen with the deceased, the trial Court wrongly convicted the appellant; that there is long gap between the last seen and the place of offence and there are several contradictions and omissions in the evidence of the witnesses. There is no corroborative evidence to prove the circumstances and the conviction is based on assumptions and presumptions. Therefore, prayed the Court to set aside the judgment of the trial Court.
11. Per contra, learned Additional Public prosecutor submitted that there are no infirmities in the judgment of the trial Court and the evidence on record is sufficient to prove the guilt of the appellant/accused and there is no need to interfere with the judgment of the trial Court. Therefore, prayed the Court to dismiss the appeal.
12. Now, the points that arise for consideration are :
1. Whether the death of the deceased is homicidal ?
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2. Whether the prosecution proved the guilt of the accused for the offence under Sections 379 and 302 IPC beyond all reasonable doubt ?
3. Whether the judgment of the trial Court needs any interference ?
POINT NO.1 :
13. To prove that the death of the deceased is homicidal, the prosecution relied on the evidence of PWs.1 to 4, PW.9 and PW.14- medical officer.
14. PW.1 is the brother of the deceased. His evidence is that the deceased is his younger brother and PW.2 is the wife of the deceased. On 21.03.2011 at about 10.00 or 11.00 hours, one Thirupathaiah and Jogu Maddileti of the fishermen community informed him that the dead body of his brother Nageshwar Reddy was found in the school premises of Solipur village and it was emitting foul smell. Then PW.1 and other villagers went in the tractor of G.Krishna Reddy. After that he went to Vepangandla police Station and gave report. They found a big stone weighing about 4 to 5 kgs by the side of the dead body and the face of the deceased was found crushed. He also stated that bank pass book belonging to him was found with the dead body of the deceased. Apart from that some papers and beedies were also found. The clothes of the deceased were stained with blood and one Katta Nagi Reddy informed him that on the night of 17.03.2011 his KL,J &SKS,J Crl.A.No.776 of 2014 7 deceased brother and accused moved together in the village Kalluru. On 18.03.2011 he went to the house of the accused and asked his mother as to where the accused was, she told him that the accused went to his in-laws place and he was not seen in the village from 18.03.2011 onwards. Hence, PW.1 suspected that the accused might have killed his brother.
15. PW.2 is the wife of the deceased and her evidence is that on telephonic information given by PW.1, herself, her mother and her maternal grandmother went to the scene of offence and observed the dead body. They also found the head of the deceased was crushed by a stone.
16. PW.3 is a fisherman by profession and he is the person who informed about the dead body to PW.1. His evidence is that when he and one Jogu Maddileti were returning after fishing in the tank at Solipuram, on the way they smelt foul smell near the School. He went there and saw the dead body of the deceased and the same was informed to PW.1. PW.4 evidence is on the same lines as that of PW.3.
17. PW.9's evidence is that he along with the villagers went to the old school premises at Solipuram to see the dead body of Nageshwar Reddy. At that time, police people conducted panchanama over the dead body of the deceased. There was a KL,J &SKS,J Crl.A.No.776 of 2014 8 boulder on the dead body with splash of blood stains at the floor, walls and on the clothes of the dead body. PW.14 is the medical officer who conducted autopsy over the dead body of the deceased and his evidence is that the dead body was completely decomposed and he found fracture of all the skull bones except lower jaw and blood clots were present, Brain and Meninges were completely decomposed and due to decomposition of the body he could not find any other external injuries. He opined that the deceased died of crush injury to the head.
18. The evidence of PWs.1 to 3 and also the panch for scene of offence is that there is a boulder on the head of the deceased and the evidence of medical officer is that the deceased died due to the crush injury and he found fracture of all skull bones except lower jaw. Ex.P.8 post-mortem report supports the evidence of PWs.1 to 3 and panch for scene of offence shows that there is a boulder on the head of the deceased. The doctor also opines that the death was caused due to crush injury to the skull. Therefore, the death of the deceased can be concluded as a homicidal death. Accordingly, Point No.1 is answered.
KL,J &SKS,J Crl.A.No.776 of 2014 9 POINT NOs.2 AND 3 :
19. To connect the accused with the homicidal death of the deceased prosecution version is that the accused murdered the deceased for gain of Rs.40,000/- and that Rs.35,000/- was recovered from the possession of accused. Basing on the confession which lead to recovery of Rs.35,000/-. The prosecution alleges that the accused and deceased moved together till 8.30 p.m. To prove the same prosecution relied on the evidence of PW.1, 6 and 8. PW.6's evidence is that as he was ill, PW.1 brought Rs.40,000/- and asked him, if he is in need of money. Pw.6 did not take the amount and asked PW.1 to retain. PW.1 gave the said amount to the deceased to deposit the same in Andhra Bank at Jetprole Branch, as he was going to Kallur. Pw.8's evidence is that on the night of the incident, accused and deceased came to their colony at about 8.00 or 8.30 p.m. At that time his brother- in-law Devaiah and his son were quarreling. The deceased and accused came to Devaiah and scolded him as to why they were quarrelling. The deceased called five or six school going girls in S.C.Colony and offered them Rs.500/- each to purchase clothes, but they refused. When the girls refused to take money the deceased tried to set fire to the currency notes stating that he was offering money like a grandfather. Then, they interfered and KL,J &SKS,J Crl.A.No.776 of 2014 10 prevented him from burning the currency notes. On that the deceased kept the money in his pocket and left that place along with the accused. With the evidence of Pw.8 the prosecution wants to prove the last seen theory that Pw.8 saw the deceased and accused between 8.00 or 8.30 p.m., and left from their colony. Whereas, the evidence of Pw.5-Patta Nagi Reddy is that on 17.03.2011 himself, deceased and Pw.1 went to the land of one Ramachandra Reddy and they returned home at about 6.00 p.m. After returning to home on a tractor they dispersed and went to their respective houses. He slept in front yard of his house and at about 10.00 p.m., the deceased came to him and asked him to wake up, but he refused to wake up and thereafter he asked him to leave. Accordingly, the deceased left his house and Pw.5 does not know where the deceased went thereafter. The evidence of Pw.5 shows that at 10.00 p.m., the deceased came to his house alone and he has not stated anything that the accused came along with the deceased. Therefore, the evidence of Pw.8 is no way helpful to the prosecution to prove the last seen theory.
20. The prosecution also relied on the evidence of Pw.7. Pw.7 is a relative of the accused and he deposed that himself, Pw.3, Lw.9- Kanta Reddy, Raju and others were going on tractor as coolies to Pentlavelly village and when they reached Jetprole bridge he KL,J &SKS,J Crl.A.No.776 of 2014 11 received a phone call from Pw.12-Thirupathaiah, who is the husband of sister of accused stating that the accused killed someone and committed theft of money and whether he knew the said fact. He replied that he was not aware of the said fact. Later he came to know that Nageshwar Reddy was murdered, whereas, the said Thirupathaiah has not supported the case of prosecution and he turned hostile. Therefore, the evidence of Pw.7 is not useful to the prosecution to prove the guilt of the accused.
21. Further the circumstance relied on by the prosecution is confession of accused leading to recovery of money. Pw.13 is the panch for confession and recovery.
22. Pw.10's evidence is that on 27.03.2011 at about 2.30 or 3.00 p.m, police came to the house of accused. On seeing the police, himself and other villagers went there. Pw.10 and Lw.16 asked the accused as to what happened, upon which the accused told him that on the date of incident the deceased and himself consumed arrack and brandy near the bore well at Anganwadi school and after consuming the arrack and brandy, the accused asked the deceased for going to the fields, but the deceased refused. On seeing the currency notes with the deceased, the accused developed greedy, both of them went to old school premises and slept there. After two hours, the accused woke up KL,J &SKS,J Crl.A.No.776 of 2014 12 and threw boulder on the head of the deceased, went home and removed his blood stained clothes and concealed them. He further deposed that the accused took police and themselves to the outskirts of Ayyavaripally village to the shed of one Buchanna and brought the blood stained clothes from the cover and they also inquired the accused that how much money was left with him. The accused produced cash of Rs.34,500/- and the same was seized by the police.
23. Now it is to be seen that whether this recovery basing on the confession will connect the accused to the offence.
24. Basing on the confession, the police seized blood stained clothes, they were sent to the FSL and the FSL report under Ex.P.10 shows that they received item Nos.1 to 6 and examined them. The human blood is detected on item Nos.1 to 5. The blood group could not be determined on item Nos.1 to 5 and blood is not detected on item No.6.
25. Though Pw.10 deposed that accused shown blood stained clothes from the cover, no description was given by him, whereas, M.O.6 was white colour T-shirt, M.O.7 was pant which was produced by the accused are seized by the police and item No.6 is the pant where the blood stains are not detected and item No.5 in FSL report was the torn white colour mill made T-shirt with dark KL,J &SKS,J Crl.A.No.776 of 2014 13 brown stains, but while seizing M.O.6-T-shirt there is no description of colour or the identification of said T-shirt. Therefore we cannot come to the conclusion that the accused clothes were with blood stains and that blood stains are belonging to the blood of the accused. This recovery of clothes basing on the confession of the accused is not helpful to the prosecution to connect him with the crime and except recovery of Rs.34,500/- there are no other circumstances to prove the guilt of the accused. When there is no eye witness to the incident and when the prosecution relied on circumstantial evidence, all the circumstances must prove the guilt of the accused beyond reasonable doubt and there must be link between the circumstances.
26. In Ramreddy Rajeshkhanna Reddy & Another Vs State of Andhra Pradesh 1 the Hon'ble Supreme Court held as under :
"It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [ See Anil Kumar Singh Vs State of Bihar (2003) 9 SCC 67 and Reddy Sampath Kumar v State of A.P (2005) 7 SCC 603]. The last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility 1 AIR 2006 (10) SCC 172 KL,J &SKS,J Crl.A.No.776 of 2014 14 of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration."
27. In Prakash Vs State of Karnataka 2, in Paragraph No.61, the Hon'ble Supreme Court observed as under :
" In any event, the recovery of the blood stained clothes of Prakash do not advance the case of the prosecution. The reason is that all that the prosecution sought to prove thereby is that the blood group of Gangamma was AB and the blood stains on Prakash's seized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that the blood stains on Prakash's clothes were those of Gagamma's blood. There are millions of people who have the blood group AB and it is quite possible that even Prakash had the blood group AB. In this context, it is important to mention that a blood sample was taken from Prakash and this was sent for examination. The report received from the Forensic Science Laboratory (Exh.P-27) was to the effect that the blood sample was decomposed and therefore its origin and grouping could not be determined. It is, therefore, quite possible that the blood stains on Prakash's clothes were his own blood stains and that his blood group was also AB."
28. In case of circumstantial evidence, the Court has to examine the evidence in its entirety and ensure that the only inference that can be drawn from the evidence is guilt of the accused. In this case, though prosecution relied on the circumstances, last seen theory, evidence of Pw.7 that the accused confessed the guilt, recovery of blood stained clothes and Rs.34,500/- basing on the confession of the accused, under no circumstance is proved by the prosecution beyond reasonable doubt and they failed to prove the guilt of the accused. The trial Court erred in concluding that prosecution proved the circumstances relying on the evidence of 2 2014 Crl L.J 2503 KL,J &SKS,J Crl.A.No.776 of 2014 15 Pws.5, 7, 10 and Pw.13 and convicted the accused for the offences under Sections 302 and 379 IPC, whereas the evidence on record is not helpful to prove the guilt of the accused.
29. Therefore, we are of the opinion that the material and the evidence on record is not sufficient to prove the guilt of the accused. As such, the judgment of the trial Court is hereby set aside.
30. Accordingly, the Criminal Appeal is allowed and the appellant/accused is found not guilty of the offences punishable under Sections 302 and 379 IPC and hence he is acquitted of the said offences. The bail bonds of the accused 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 : 01.09.2023 Rds KL,J &SKS,J Crl.A.No.776 of 2014 16 HON'BLE SRI JUSTICE K. LAKSHMAN AND HON'BLE SMT JUSTICE K.SUJANA CRIMINAL APPEAL NO.776 OF 2014 (Pre-delivery judgment of the Division Bench prepared by the Hon'ble Smt Justice K. Sujana) DATE :_01.09.2023 Rds