The State Of A.P., Rep By The Public ... vs Mamidisetty Narayana And ...
2021 Latest Caselaw 2806 AP

     IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI



HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                      &
            HON'BLE MR. JUSTICE NINALA JAYASURYA


                   CRIMINAL APPEAL No.484 of 2013
                     (Taken up through video conferencing)


The State of A.P. rep. by the
Public Prosecutor,
High Court of A.P., Hyderabad.
                                                             .. Appellant.
       Versus

Mamidisetty Narayana, S/o. Venkateswarlu,
26 years, Caste: Merulu, 8th Ward,
Piduguralla, Chittoor District, and another.
                                                             .. Respondents.

Counsel for the appellant             :    Mr. K. Srinivasa Reddy,
                                           Public Prosecutor

Counsel for respondent No.1          :     Mr. C. Sharan Reddy

Dates of hearing                      :    30.06.2021 & 02.07.2021

Date of judgment                      :    03.08.2021


                               JUDGMENT

(per Arup Kumar Goswami, CJ)

This appeal is presented by the State against the judgment and

order dated 30.01.2008 passed by the learned X Additional District and

Sessions Judge (Fast Track Court), Guntur at Narasaraopet, in Sessions

Case No.262 of 2005, acquitting Mamidisetty Narayana (hereinafter

referred to as 'the accused'), respondent No.1 herein, of the offence

under Section 302 I.P.C.

2. The case of the prosecution is that one Shaik John lodged a report

before Piduguralla Police Station on 10.05.2003 at 8.00 p.m. stating that 2 HCJ&NJS,J Crl.A.No.484 of 2013

on the previous night at about 10.00 p.m., one Atchampeta Srinu and

Soma Gangadhara Rao, who were friends of his elder son, namely,

Karimulla (hereinafter referred to as 'the deceased'), who used to do

mason work, informed him that the deceased was found lying at Railway

Gate Road and thereupon, the informant, along with his son-in-law, Shaik

Hassan, went to that place and shifted the deceased in a rickshaw to a

hospital situated opposite to Dr. Anji Reddy Hospital, where the doctor,

after examining the deceased, declared him dead. On enquiries being

made about the death of his son, Soma Gangadhara Rao told the

informant that the accused brought some powder which is used to mix in

toddy from his mother-in-law's house at Nyzam and gave it to the

deceased stating that it would give him good intoxication if mixed with

water and consumed. Thereupon, the deceased along with Gangadhara

Rao went to a place which is at a little distance away from the house of

the accused and after mixing the powder given by the accused in a bottle

of water, the deceased consumed more of it and fell down and died, while

Gangadhara Rao drank less as it tasted bad. The informant alleged that

with an intention to kill his son, the accused had given some poisonous

substance due to consumption of which his son died.

3. Based on the report of the informant, an FIR, being Crime No.96 of

2003, was registered by the Sub-Inspector of Police, Piduguralla Police

Station, for the offence under Section 302 I.P.C. Investigation commenced

and the accused was arrested on 22.05.2003 at 5.00 p.m. During

interrogation, the accused admitted the offence and his confessional

statement was recorded in the presence of Siripurapu Kutumba Rao and

Betamcherla Sri Hari Rao. After completion of the investigation, police

submitted a charge sheet against the accused under Section 302 IPC.

                                      3                                  HCJ&NJS,J
                                                              Crl.A.No.484 of 2013

4. The case being exclusively triable by the Court of Sessions, the

learned Principal Junior Civil Judge, Full Additional Charge of I Additional

Senior Civil Judge, Gurazala, committed the case to the Sessions Court,

Guntur, from where the case was made over to the Court of X Additional

District & Sessions Judge (Fast Track Court), Guntur at Narasaraopet, and

accordingly, Sessions Case No.262 of 2005 came to be registered.

5. Subsequently, a charge under Section 302 IPC was framed and on

the same being read over and explained to the accused, he pleaded not

guilty and claimed to be tried.

6. The prosecution examined P.Ws.1 to 10 and marked Exs.P1 to P11

and M.O.1. P.W.1 is the informant and father of the deceased. P.W.2 is

the wife of P.W.1. P.W.3 is a relation of P.W.1, being the son-in-law of

P.W.1's brother. P.W.4, who is stated to have seen the deceased in

unconscious state at railway gate and accompanied Soma Gangadhara

Rao to the house of the informant to inform about the incident, was

declared hostile. P.W.5, who is a Compounder in the hospital to which the

deceased was brought by the informant, was also declared hostile. P.W.6

is a witness to the inquest report (Ex.P5). P.W.7 is the doctor who

conducted autopsy over the dead body of the deceased. P.W.8 is a

Panchayat Secretary and he was a witness to seizure of a plastic tin

(M.O.1) seized under Ex.P8. P.W.9 is the Sub-Inspector of Police who

registered the F.I.R. and handed over investigation to the Circle Inspector

of Police. P.W.10 is the Circle Inspector of Police who conducted

investigation and submitted charge sheet.

7. No oral or documentary evidence was adduced on behalf of the

defence.

                                        4                                   HCJ&NJS,J
                                                                 Crl.A.No.484 of 2013

8. It is to be stated at this stage that after examination of P.Ws.1 and

2, on a petition being filed by the prosecution to implead Soma

Gangadhara Rao also as an accused, he was arrayed as accused No.2 in

the case. Soma Gangadhara Rao challenged the same before the High

Court in Crl.P.No.6188 of 2007 and by an order dated 12.11.2007, he was

discharged.

9. Having considered the oral and documentary evidence available on

record, the learned trial Court held that the prosecution could not

establish the guilt of the accused beyond reasonable doubt and,

accordingly, acquitted him of the offence under Section 302 IPC.

Challenging the same, the present appeal has been preferred by the

State.

10. Mr. K. Srinivasa Reddy, learned Public Prosecutor, submits that the

case of the prosecution rested on circumstantial evidence and the learned

trial Court committed error of law in not accepting the evidence of P.Ws.1,

2 and 3, which clearly established the guilt of the accused. He, therefore,

submits that the impugned judgment is liable to be interfered with.

11. On the other hand, Mr. C. Sharan Reddy, learned counsel

appearing for the accused, submits that as there was no evidence proving

the guilt of the accused beyond reasonable doubt, the learned trial Court

has rightly acquitted the accused of the offence and no interference is

called for in this appeal.

12. Admittedly, there are no eye-witnesses to the occurrence.

13. P.W.1, in his evidence, deposed that he developed suspicion on

Gangadhara Rao in the death of the deceased and when he questioned

him, Gangadhara Rao informed him that there was illicit relationship

between the wife of the accused and the deceased and that the accused 5 HCJ&NJS,J Crl.A.No.484 of 2013

got some medicine from his father-in-law's house and gave it to the

deceased saying that it would give good intoxication if mixed with water

or toddy and then the deceased and Gangadhara Rao mixed the same

with water and that the deceased drunk more and fell down, while

Gangadhara Rao consumed less. It is further deposed by P.W.1 that

Gangadhara Rao informed him that he did so at the instance of the

accused. P.W.1 further deposed that because of the deceased having

illicit intimacy with the wife of the accused, in order to get rid of the

deceased, the accused killed him.

14. In cross-examination, P.W.1 denied the suggestion that the

deceased was addicted to alcohol and that he used to commit theft of

money from his house and that the deceased committed suicide because

of abuses of the family members and therefore, he himself and his family

members are responsible for his death and in order to save themselves, a

false case was foisted against the accused.

15. P.W.2 essentially stated that Gangadhara Rao informed that the

accused handed over poison to him to administer it to the deceased as he

developed illicit intimacy with the wife of accused and accordingly,

Gangadhara Rao administered poison to the deceased at the instance of

the accused.

16. In cross-examination, she denied the suggestion that the deceased

was a drunkard and that because of unsavoury comments of the family

members, he committed suicide and that a false case was lodged against

the accused.

17. In view of the evidence of P.Ws.1 and 2, as noted earlier,

Gangadhara Rao was arrayed as accused No.2. Thereafter, P.Ws.1 and 2

were recalled and cross-examined by the defence on behalf of 6 HCJ&NJS,J Crl.A.No.484 of 2013

Gangadhara Rao. The same suggestion as was put in cross-examination

done earlier by the defence regarding the deceased committing suicide

because of their unsavoury comments was put to them and they denied

the same.

18. P.W.3 also narrated more or less the same version as P.W.1

regarding Gangadhara Rao informing them about the alleged illicit

intimacy of the deceased with the wife of the accused and the accused

bringing poison and asking Gangadhara Rao to mix the same in toddy. He

deposed that Gangadhara Rao further informed him that he mixed the

substance in toddy and made the deceased to drink the same and that in

order to inspire confidence in the deceased, he also drank a little bit and

thereafter spitted it without consuming and the deceased, who consumed

the same, had died.

19. P.W.10, the Investigating Officer, deposed that he had received

report from the Regional Forensic Science Laboratory in Ex.P11. In cross-

examination, he stated that P.Ws.2 and 3 did not state before him during

investigation that Gangadhara Rao has stated that the wife of the accused

was having illicit intimacy with the deceased and that at the request of the

accused, Gangadhara Rao mixed poison and made the deceased to

consume the same.

20. P.W.7, the doctor, who had conducted autopsy over the dead body

of the deceased, had stated that at the time of autopsy, she had

preserved viscera of contents like stomach, intestines, liver, kidneys and

the same were sent to Regional Forensic Science Laboratory, Guntur, and

based on the report submitted by the said Laboratory, she opined that the

death was due to organophosphate poison.

                                      7                                  HCJ&NJS,J
                                                              Crl.A.No.484 of 2013

21. The edifice and substratum of the prosecution case is that the

deceased had intimacy with the wife of the accused because of which the

accused procured poison and got it administered to the deceased through

Gangadhara Rao with an intention to kill the deceased. It is relevant to

note that Gangadhara Rao, who allegedly, according to P.W.1, confessed

to have administered poison to the deceased at the instance of the

accused, was not tried jointly along with the accused as he was

discharged by this Court by an order dated 12.11.2007 passed in

Crl.P.No.6188 of 2007. He was not even examined as a witness by the

prosecution. P.Ws.2 and 3 did not make any such statement during the

investigation, as admitted by P.W.10 in his cross-examination.

22. Ordinarily, a confessional statement is admissible only as against an

accused who has made it. There is only one exception to the said rule, as

provided for in Section 30 of the Indian Evidence Act, 1872 (for short, 'the

Act of 1872'), which states that when more persons than one are being

tried jointly for the same offence and a confession made by one of such

persons affecting himself and some other of such persons is proved, the

Court may take into consideration such confession as against such other

person as well as the person who made such confession. Thus, a

confessional statement can be used even against a co-accused. On the

admissibility of such confessional statement, it is imperative that the

person making the confession, besides implicating himself, also implicates

others who are being jointly tried with him and it is in that circumstance

alone, such a confessional statement is relevant as against the others

implicated. However, in the present case, Section 30 of the Act of 1872 is

not at all applicable because Gangadhara Rao was not tried as a co-

accused along with the accused.

                                      8                                  HCJ&NJS,J
                                                              Crl.A.No.484 of 2013

23. Though in the charge sheet it was stated that the confessional

statement of the accused was recorded in the presence of L.Ws.10 and

11, namely, Siripurapu Kutumba Rao and Betamcherla Sri Hari Rao,

respectively, L.W.11 was not examined and L.W.10, who was examined as

P.W.8, did not state anything about any confessional statement of the

accused being recorded in his presence. P.W.10, in his deposition, did not

state anything about the alleged confessional statement of the accused.

24. In Anwar Ali v. State of Himachal Pradesh, reported in

(2020) 10 SCC 166, the Hon'ble Supreme Court had considered the law

on the appeal against acquittal and the scope and ambit of Section 378 of

the Code of Criminal Procedure and the interference by the High Court in

an appeal against acquittal.

25. The High Court, in exercise of its powers of appellate jurisdiction

under the Code of Criminal Procedure while dealing with an appeal against

an order of acquittal, has full power to review, re-appreciate and

reconsider the evidence upon which the order of acquittal is founded. By

re-appreciating and reconsidering the evidence, the appellate court is

entitled to reach its own conclusion, both on questions of fact and of law.

The appellate Court, however, should bear in mind that in a case of

acquittal, there is double presumption in favour of the accused, in that,

firstly, there is presumption of innocence available to the accused under

the fundamental principle of criminal jurisprudence that every person shall

be presumed to be innocent unless he is proved guilty by a competent

court of law and secondly, the acquittal secured by the accused in the trial

Court strengthens the presumption that he is innocent, and further, if two

reasonable conclusions are possible on the basis of the evidence on 9 HCJ&NJS,J Crl.A.No.484 of 2013

record, the appellate Court should not disturb the finding of acquittal

recorded by the trial Court.

26. On due consideration, we find that in the absence of any cogent

evidence pointing towards the guilt of the accused beyond all reasonable

doubt, the learned trial Court has rightly acquitted him of the offence

alleged and no case is made out to interfere with the judgment and order

of the learned trial Court.

27. Accordingly, the appeal is dismissed. Pending miscellaneous

applications, if any, shall stand closed.

ARUP KUMAR GOSWAMI, CJ                        NINALA JAYASURYA, J
                                                                          IBL