Andhra Pradesh High Court - Amravati

Sushil Kumar Lema, Orissa., vs State Of Ap., Rep. Pp. Hyd., on 13 August, 2021

          HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
                           AND
          HON'BLE SRI JUSTICE B. KRISHNA MOHAN

                 CRIMINAL APPEAL NO. 748 OF 2014

JUDGMENT: (per Hon'ble Sri Justice C.Praveen Kumar)


      Heard Sri B.Parameswara Rao, learned counsel appearing for the

appellant and Sri S.Dushyanth Reddy, learned Additional Public

Prosecutor, through Blue Jeans video conferencing APP.


1)    Accused No.1 in Sessions Case No.132 of 2011 on the file of

II Additional Metropolitan Sessions Judge-cum-IV Additional District

and   Sessions    Judge, Visakhapatnam,      is the   appellant herein.

The appellant along with two others were tried for the offences

punishable under Sections 302, 201, 379 and 411 IPC. Vide Judgment

dated 02.08.2013, the learned Sessions Judge, convicted the appellant

for the offence punishable under Section 302 IPC and sentenced him to

undergo imprisonment for life and to pay a fine of Rs.2,000/- in default

to undergo simple imprisonment for a period of six months.

He was further convicted for the offences punishable under Section 411

IPC and 201 IPC and was sentenced to undergo rigorous imprisonment

for a period of one year under each count and to pay a fine of

Rs.1,000/- in default to suffer simple imprisonment for three months.

All the sentences are directed to run concurrently.


2)    The gravamen of the charge leveled against the accused is that, in

pursuance of their plan to steal the vehicle i.e., Rhino RX Car bearing
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No.AP31 TU 5858, they killed one Enakoti Govindu (hereinafter

referred to as, "deceased") on 02.08.2009 at Tapatapani Ghat road

located between Berhampur to Udayagiri Road and thereafter caused

disappearance of evidence by burning the clothes of the deceased and

the towel used for murder of the deceased and then fled away along

with the car.


3)      The facts, as culled out from the evidence of the prosecution

witnesses, are as follows:


       i) PW1, who is the informant, deposed in his evidence that he

     was running a travel agency in the name of Crazy cops.

     On 02.08.2009 at about 02:00 PM, he received a call to his

     landline informing that the caller is doing cloth business and he

     requires a car on hire purpose and that he is in room No.107 of

     Purna lodge, Visakhapatnam. Accordingly, PW1 informed the

     same to one Nooka Raju, who is the owner of the vehicle i.e.,

     Rhino Car bearing No.AP 31 TU 5858 to arrange a car on hire.

     The said Nooka Raju sent the vehicle engaging a driver by name

     Govind to Purna lodge.


       ii) Subsequently, PW2, who works as boy in the Purna lodge,

     deposed that on 01.08.2009 three persons came to Purna lodge and

     requested the Manager for a room stating that they are doing cloth

     business. Room No.107 was allotted to them and all the three

     persons stayed in the said room. According to him, on the next
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day, i.e., on 02.08.2009 in between 01:00 and 01:30 PM, A2 sat in

the reception waiting for arrival of a car and, at 03:00 PM, a green

colour car came in which all the three persons proceeded stating

that they are going to Orissa and would come back soon. The

three persons, who boarded the car, were identified by him before

the court.


   iii) It is the case of the prosecution that the vehicle which went

from Purna lodge carrying A1 to A3 did not return back.

The driver of the vehicle also did not respond to the calls made.

Further, when PW1 enquired with Nookaraju, he was informed

that the driver of the vehicle informed him that they reached

Ichapuram at night 10:00 PM. Then PW1 and Nooka raju

together telephoned to the driver of the taxi but there was no

response. As such on 03.08.2009, PW1 went to PW5 the

Sub-Inspector of Police, and gave a report basing on which a case

in Crime No.478 of 2009 came to be registered. Ex.P8 is the FIR.


   iv) PW5, who is the Sub-Inspector of Police, in his evidence

deposed that on receiving report from PW1, he registered FIR-

Ex.P8 and took up investigation. During the course of

investigation, he visited Purna lodge and recorded the statement of

PW2.


   v) PW8, the Inspector of Police, CCS, Visakhapatnam,

who took up further investigation, states that on 12.01.2010, he
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received information from Orissa with regard to missing vehicle

and immediately he informed the same to his superior and

proceeded to Orissa via Parlakimidi along with his staff. When

they reached Chiliguda Junction, they noticed the missing vehicle

bearing No.AP 31 TU 5858 coming in opposite direction and on

suspicion stopped the vehicle. When the vehicle was stopped they

noticed the driver and one person in the said vehicle.

On interrogation, the driver, who is A1, confessed about the

offence before him and in the presence of mediators PW3 and

LW7. He recorded the confessional statements of A1 and A2.

PW8 further deposed that immediately sent a message to the

owner of the vehicle and also the wife of the deceased asking them

to come over to Orissa. Pursuant to the confession made, the

vehicle was seized under the cover of mediators report. Thereafter

the accused lead them to the scene of offence in the presence of

PW3 and another and held inquest over the bones present there.

Ex.P4 is the inquest report. Thereafter, the bones were sent to the

Doctor for post mortem examination.


   vi) PW6 is the Doctor, who conducted autopsy over the bones

of the deceased. According to him, the bones were of a single

individual human male having the age between 25 to 30 years with

the stature 171-172 cm. According to him the cause of death could

not be ascertained as no soft tissues could be identified and the

time of death would be about 3 to 6 months prior to the post
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     mortem examination. He issued Ex.P10-Post Mortem Certificate.

     Thereafter, the material objects seized were sent to the Assistant

     Director, A.P.Forensic Science Laboratory (APFSL). PW7,

     the Assistant Director, A.P. Forensic Science Laboratories,

     Hyderabad, issued Ex.P11, the RFSL Repot dated 30.04.2011 and

     Ex.P12, three passport size photographs along with negatives.


        vii) After completion of investigation, PW9, who is the

     Inspector of Police, CCS, Visakhapatnam, filed a charge sheet

     before the III Metropolitan Magistrate, Vijayawada, which was

     taken on file as PRC No.15 of 2011.


           viii) On appearance of the accused, copies of all the

     documents, as required under Section 207 Cr.P.C. were furnished.

     Since the case is triable by Court of Sessions, the same was

     committed under Section 209 Cr.P.C to the court of II Additional

     Metropolitan Sessions Judge-cum-IV Additional District and

     Sessions Judge, Visakhapatnam. On such committal, charges

     under Sections 302, 201 and 379 or 411 r/w 34 IPC came to be

     framed against the accused and the same were read over and

     explained to them, to which they pleaded not guilty and claimed

     to be tried.


4.      In support of its case, the prosecution examined nine witnesses as

PW1 to PW9 and got marked Exs.P1 to P14 and MOS.1 to 3.

After completing the evidence of the prosecution, the accused were
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examined under Section 313 CrPC with reference to the incriminating

circumstances appearing against them in the evidence of prosecution

witnesses, to which they denied. However, no defence evidence was

adduced in support of this plea.


5.    Relying upon the evidence of the prosecution witnesses and the

evidence of the investigating officer coupled with the medical evidence,

the learned Sessions Judge convicted the appellant/A1 as aforesaid.

Challenging the same, the present appeal came to be filed.


6.    Sri B.Parameswara Rao, learned counsel for the appellant,

vehemently contends that there are no direct witnesses to the incident

and the case rests only on the circumstantial evidence and the

circumstances relied upon do not form a chain of events connecting the

accused with the crime. According to him, even the prosecution failed

to prove that bones recovered are that of a male or female leave alone it

being that of the deceased. The recovery of the vehicle along with the

accused nearly four months after the incident does not lead to any

inference that the accused were responsible for the death of the deceased

and even if it is believed, it can be an offence under Section 411 IPC.


7.    Sri S.Dushyanth Reddy, learned Additional Public Prosecutor,

opposed the same, contending that the circumstances relied upon by the

prosecution are sufficient to base a conviction.
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8.    As seen from the record, PW2 is a hotel boy in Purna Lodge,

who is said to have seen the three accused taking room. On 01.08.2009,

by saying that they have come for doing cloth business and that on

02.08.2009

, between 01:00 and 01:30 PM, A2 sat in the reception

waiting for a car and at 03:00 PM, a green colour car came and all the

three accused proceeded in it and stating that they are going to Orissa

and would come back soon. Thereafter they did not come back to the

hotel. His evidence is to the effect that five months thereafter the owner

of the car came to the lodge and asked him to come along with him to

Orissa for identification of the accused. He went to Orissa and found

police and two persons who asked him to identify the persons and

accordingly he identified. During his evidence, PW2 identified A1 in

the court as one of the persons identified by him when he went to Orissa

along with the owner of the car, which is nearly four months after the

incident.

CORPUS DELICTI:

9. Coming to the issue as to whether the prosecution was able to

prove that the dead body is that of the deceased, it would be appropriate

to go through the evidence of PWs.6 and 7.

10. PW6 is the Doctor, who conducted post mortem examination on

the bones of the deceased. According to him, the bones were of a single

individual human male with the age between 25 to 30 years, having the

stature 171-172 cm. The cause of death could not be ascertained as no

soft tissues could be identified and the time of death was within 3 to 6

months prior to the post mortem examination. He admits that he has

not mentioned the place where he has conducted autopsy over the bone

and it was also not mentioned in Ex.P10 about the place where the

highly decomposed dead body was produced before him. In the cross-

examination, he admits that the cause of death could not be ascertained

as no soft tissues could be identified.

11. Coming to the evidence of PW7, the Assistant Director of

AP Forensic Science Laboratory, Hyderabad, he admits in his cross-

examination as under:

"I cannot say whether the skull examined by me belongs to a male body or female body. Only DNA Test can determine the sex of the person to whom the skull belonged. Since I could not conduct DNA examination, I could not give any opinion. The measurements of the skull examined by me tally with the measurements of a person whose photo is supplied to me, the test may show the same result."

12. From the admissions elicited in the cross-examination of PW7,

it is clear that he cannot say whether the skull examined by him belongs

to a male or female body. He further admits that only DNA test can

determine the sex of the person to whom the skull belongs to. But since

he could not conduct DNA examination, he cannot give any opinion.

13. From the above, it is very much clear that there is no legal

evidence on record to show that the body alleged to have been

recovered nearly five months after the incident pursuant to the

confession made by the accused is that of the deceased.

ACCUSED LAST SEEN IN THE COMPANY OF DECEASED: -

14. The second circumstance relied upon by the prosecution is the last

seen theory i.e., the accused being last seen in the company of the

deceased. The prosecution relies on the evidence of PW2 to prove the

same. As stated earlier, PW2 saw the accused on 01.08.2009 and on the

next day at about 03:00 PM when they left the hotel in the car along

with the deceased. His evidence does not anywhere indicate that the

driver of the car was a known person to him. But, however,

five months later he identified A1 in the test identification parade.

As seen from the record, the test identification parade was conducted

sometime in the month of April, 2010, which is nearly eight months

after the incident. It is to be noted that PW2, who claims to have

identified the accused, did not give the physical features of the suspect at

the time of test identification parade. It would be appropriate for this

court to extract the relevant portion in the cross-examination of the

evidence of PW4, which reads as under:

"The witnesses have not given the physical features of the suspects. I have not enquired the suspects before commencement of T.I.parade whether they were shown to the witnesses at any place. I have received requisition on 16.04.2010 and on same day I issued summons to the witnesses. It is not mentioned in my proceedings as per proceedings received by me the accused were arrested on 13.01.2010. It is true the witness B.Suresh Kumar disclosed only one person name as Krishna Kumar the other person name not disclosed. Suresh Kumar not identified the suspect by name Krishna Kumar."

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15. Even assuming that the identification of A1 by PW2 is believed,

still the same cannot be made the basis to convict the accused since it

was nearly ten months after the incident. The test identification parade

was conducted after arrest of the accused along with the car on

13.01.2010. It is to be noted that there is any amount of doubt with

regard to car seized. PW8, the investigating officer in the cross-

examination admits that he has not prepared any mediators report for

seizure of the car, having the chasis number and engine number of the

car. It would be appropriate to extract the relevant portion in the cross-

examination of PW8, which reads as follows:

"I have not prepared any mediators report bearing number of chasis number and engine numbers therein."

16. Having regard to the facts and the circumstances of the case and

the evidence adduced by the prosecution, this court holds that the

prosecution miserably failed to prove the circumstances relied upon by

them, which form a chain of events connecting the accused with the

crime and as such, the conviction and sentence imposed against the

appellant basing on the said circumstances, is unsustainable.

17. In the result, the Criminal Appeal is allowed. The conviction and