Andhra Pradesh High Court - Amravati

Boya Arikela Muralikrishna vs Boya Baitintti Dealer Narayana ... on 22 January, 2021

Bench: C.Praveen Kumar, R Raghunandan Rao

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           THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR


                                  AND


           THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO


                  CRIMINAL APPEAL No. 365 of 2013


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


1)    Challenging the Judgment of Acquittal, dated 18.02.2013

passed in Sessions Case No.285 of 2010 on the file of II Additional

Sessions Judge, Kurnool at Adoni, P.W.6 filed the present Criminal

Appeal under Section 372 Cr.P.C.


2)    The substance of the charge against the Accused Nos.1 to 3 is

that, on 02.07.2009 at about 7.30 P.M, they caused death of one

Boya Arikera Bheemalingappa ['the Deceased'].


3)    The facts, in nutshell, are as under:


      i.    All the accused and material witnesses are residents of

            Musaanapalli Village, Alur Mandal.      A.1 to A.3 are the

            brothers.   P.W.2 is the brother of deceased and P.W.5 is

            the wife of deceased. P.W.6 and P.W.7 are the children of

            deceased and P.W.5.


     ii.    It is said that the daughter of A1   i.e., P.W.8 fell in love

            with P.W.7, who is son of deceased, and both of them

            eloped and got married in a temple at Mantralayam. Since

            then A.1 and other accused developed grudge against the
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       family of the deceased. While so, on the date of incident,

       P.W.2 and Boya Arikera Bheemalingappa ['the Deceased']

       were going towards Adoni from Musaanapalli in an auto

       and they reached Adoni at 4.30 P.M. Both of them went in

       different directions for shopping.    At about 7.15 P.M.,

       himself and Bheema Lingappa (the deceased) again joined

       at auto stand near Ryoth Bazar. By the time they reached

       the auto stand, all the three accused were standing at the

       auto stand. Suddenly A.1 caught hold Bheema Lingappa

       and Chinna Somanna (A.3) caught hold of another hand of

       the deceased.      Meanwhile Chandrappa (A.2), who was

       armed with a stick, beat Bheema Ligappa with a stick on

       his head. In the said attack, Bheema Lingappa sustained

       an injury on the left eye. A.2 beat Bheema Lingappa with a

       stick on both the legs, as a result of which, he fell down on

       the road.    Apprehending that the accused may kill him

       also, he fled away from the scene. He saw accused No.2

       from a distance of 15 feet assaulting Bheema Lingappa. He

       went to Musaanapalli village and informed the wife of the

       deceased about the incident. Later, he informed about the

       incident to all his relatives.


iii.   Suspecting that the accused are responsible for the death,

       PW.1, who is Village Revenue Officer, Mandigiri Grama

       Panchayat, Adoni went to the Police Station and lodged a

       report with PW.13- Sub-Inspector of Police, II Town Police
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      Station, Adoni under Ex.P-1. Basing on Ex.P-1, he

      registered a case in Crime No. 121/2009 under Section

      302 of Indian Penal Code and submitted First Information

      Report -Ex.P.8 to higher authorities.


iv.   On 02.07.2009 while P.W.13 was present in the II Town

      police station, he received an information about the murder

      of a person near Ryoth Bazaar, main road, Adoni.

      Immdeiately he rushed to the scene of offence and found a

      male dead body. He posted a constable to safeguard the

      dead body and returned back to the police station by 8.00

      P.M. By the time he returned to the police station, P.W.1

      Satyanath was there in the police station along with a

      written complaint.   Basing on the said complailnt, Crime

      No.121 of 2009 came to be registered under Section 302

      I.P.C. and F.I.R was issued, which was marked as Ex.P.8.

      He then visited the scene of offence at 9.00 P.M., and

      seized the blood stained earth, control earth, bamboo stick

      etc., under a seizure panchanama. Ex.P.2 is scene of

      offence observation panchanama. Thereafter, he prepared

      a sketch of scene of offence marked as Ex.P9. On the next

      day morning i.e., on 03.07.2009 he visited the mortuary

      room Government Hospital, Adoni and conducted inquest

      over the dead body of the deceased. Ex.P3 is the inquest

      report.   Thereafter, he sent the body for post mortem

      examination.
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     v.    PW.12 - the Civil Assistant Surgeon, Area Hospital, Adoni,

           conducted autopsy over the dead body and issued Ex.P-7

           postmortem certificate. According to him, the cause of

           death was due to shock and hemorrhage resulting from

           antemortem injuries and he appears to have died 24 hours

           prior to post mortem examination.


     vi.   After the arrest of accused and collecting all necessary

           documents, P.W.13 filed a charge sheet for the offence

           punishable under Section 302 I.P.C, which was taken on

           file as P.R.C.No.44 of 2011 by the Judicial First Class

           Magistrate. On appearance of the Accused, copies of the

           documents were furnished as required under Section 207

           Cr.P.C. As the case is exclusively triable by a Court of

           Sessions, the same was committed to the court of

           II Additional Sessions Judge, Kurnool, under Section 209

           Cr.P.C. On appearance of the Accused, charge referred to

           above came to be framed, read over and explained to the

           Accused to which, the accused pleaded not guilty and

           claimed to be tried.


4)    In support of its case, the prosecution examined PWs.1 to 13

and got marked Exs. P1 to P14.          After the closure of entire

prosecution evidence, the accused were examined under Section 313

Cr.P.C., with reference to the incriminating circumstances appearing

against them, in the evidence of the prosecution witnesses to which

they denied but did not adduce any evidence on their behalf except
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marking Exs.D.1 and D2 which are the scene of offence observation

panchanama and Relevant portion in 161 Cr.P.C statement of P.W.2

i.e.,   Boya    Arikera   Shankarappa.    After   appreciating   evidence

available on record and since the evidence of sole eye witness i.e.,

P.W.2 was found to be doubtful, the learned Sessions Judge

acquitted the accused for the charge under Section 302 I.P.C.

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


5.             The learned counsel for the appellant submits that the

entire case revolves on the solitary testimony of P.W.2 and the same

can be made basis to convict the accused, more so, when it gets

corroboration from medical evidence. The learned counsel appearing

for respondents opposed the same stating that no reliance can be

placed on evidence of P.W.2 and that his evidence is tainted with

number of discrepancies.

6. The point that arises for consideration is "whether the

prosecution was able to bring home the guilty of the accused

beyond reasonable doubt?

7. As stated earlier, the entire case rests upon the evidence

of P.W.2. It is necessary for us to refer to the evidence of P.W.2, who

is none other than the brother of the deceased, in order to

appreciate as to whether it establishes the guilt of the accused.

8. P.W.2 is the brother of the deceased and an eye witness

to the incident. He in his evidence deposed that on the date of

incident himself and his brother Bheema Lingappa came down to

Adoni from Musaanapalli in an auto and they reached Adoni by 4.30

p.m. Both of them went in different directions for shopping. At

about 7.15 p.m., himself and Bheema Lingappa again joined at auto

stand near Ryoth bazaar. By the time they reached auto stand all

the three accused were standing at the auto stand. Suddenly, A.1

caught hold Bheema Lingappa and Chinna Somanna (A3) caught

hold of another hand of the deceased. Meanwhile Chandrappa (A2)

who was armed with a stick beat Bheema Lingappa with a stick on

his head. In the said attack Byeema Lingappa sustained a heavy

bleeding injury on his left eye. A.2 beat Bheema Lingappa with stick

on both the legs, leading to his fall down on the road. Apprehending

that the accused may kill him also, he fled away from the scene. He

saw the accused No.2 from a distance of 15 feet assaulting Bheema

Lingappa. Thereafter, he went to Musaanapalli and informed the

wife of the deceased about the incident. Later, he informed about

the incident to all his relatives.

9. When Additional Public Prosecutor questioned P.W.2

about the motive, he narrated that the A.1's eldest daughter married

the eldest son of deceased. Later, the youngest daughter of A.1

Soma Lingamma fell in love with Chandra Sekhar, the youngest son

of the deceased. Chandra Sekhar married Soma Lingamma by

eloping with her inspite of objection by the accused. In that

connection, there was a quarrel in which A.1 beat Bheema Lingappa

with chappal on previous occasion. A complaint was given about

that incident in Alur Police Station, but it was settled. Hence, the

accused bore grudge against the family of deceased.

10. He stated that he went to Government Hospital, Adoni to

see the dead body on the following day. He was very much present

at the time of inquest over the dead body of the deceased. He stated

that he can identify the stick which was used by A.2 to beat the

deceased but the stick could not be deposited in the court in view of

the fact that it was destroyed in the floods. In the cross-examination

he stated that there are no disputes with the marriage of eldest son

of deceased with eldest daughter of A.1. He further admits that he

does not know as to why A.1 did not agree to give his daughter Soma

Lingamma in marriage with Chandra Sekhar. He did not give any

complaint when his brother was threatened to be killed.

11. He stated that every day autos will ply in between

Musaanapalli and Adoni, that there are few autos belonging to

Musaanapalli villagers. On the date of incident, he did not travel in

the auto belonging to Musaanapalli. After getting down at Adoni

auto stand, he went to Jansi Laxmi Bai market for shopping and the

deceased went to Municipal Main road for shopping. For about two

hours both of them did shopping. He came back in auto to the

shopping complex at Rythu Bazar and waiting nearby the flower

shop at Sreenivasa hotel. By the time he went to the auto stand,

already his brother Bheema Lingappa was there. His brother was

carrying a bag with some articles but he did not enquire as to what

those articles were. He admitted that near Ryoth bazaar there are

several shops, hotels, street hawkers etc., and it is a very busy

locality.

12. Immediately after he reached his brother, he saw the

accused on the spot. A.2 was armed with stick. He admitted that

he did not go to the rescue of his brother and he did not raise any

hue and cry inviting the attention of the persons gathered there. He

further admits that at first, he saw the accused coming towards his

brother. He tried to caution him but by that time itself accused

pounced upon his brother. It is elicited that the galata took place for

10 to 15 minutes. He further admits that through out galata he was

watching the scene from a distance of 15 feet. He further admits

that through out 10 to 15 minutes, he did not raise any hue and cry

and was just watching the incident.

13. He also admits that a traffic constable is posted at flower

shop near Sreenivasa hotel and another traffic constable at the

beginning of over bridge. He stated that even when his brother fell

down with bleeding injuries, he did not go to the spot to see him.

Witness volunteers stating that he was afraid as the accused may be

standing at some place and may attack him also. Within five

minutes of the incident he left the place and went to Musaanapalli

village. He did not observe as to in which direction the accused fled

away. After the accident, he ran up to Thimma Reddy bus stop and

while going up to Timma Reddy bus stop, he saw a traffic police

point at the over bridge, but he did not inform about the incident to

the traffic constable.

14. It was elicited that he was examined at about 9.30 p.m.,

on the date of incident itself. He came back to Adoni along with wife

of deceased and relatives and went to the place where his brother

was beaten. By the time they reached the scene of offence, the dead

body was already shifted. So, by 10.00 p.m., he went to area

hospital. He was examined by the police on the following day at

about 9.00 a.m. After seeing the dead body in the mortuary, he

went to II town Police Station, informed the police and then his

statement was recorded.

15. He admitted that normally during evening hours there

will be heavy traffic and public movement at the scene of offence.

According to him, A.2 gave first blow on the head, second blow on

the face near nose and third blow on the legs. He further admitted

that after the marriage of Chandra Sekhar and Soma Lingamma,

both of them settled down in Hyderabad.

16. A new story which is suggested to this witness is denied

by him which is as follows:

Ucheeramma, who is staying at Adoni is kept mistress of

deceased Bheemalingappa. Another person by name Veerasaina

Reddy also developed intimacy with Ucheeramma. So, there were

personal disputes in between Veerasaina Reddy and deceased

Bheemalingappa and the said Veerasaina Reddy hatched a plan and

with the help of professional killers, he would have killed

Bheemalingappa. This witness admitted that son of Ucheeramma is

working as farm servant under control of Veerasaina Reddy.

17. In order to appreciate the truthfulness or otherwise of the

evidence of P.W.2, we have to go through the evidence of other

witnesses. On appreciation of the evidence of P.W.2, it can be seen

that P.Ws.3 and 4 did not support the prosecution case and they

were treated hostile. According to P.W.2, the incident took place at

about 7.30 p.m, which lasted for about 15 minutes. Five minutes

after the accident, he ran up to Thimma Reddy bus stop and from

there, straight away went to his village. It is borne by record that by

vehicle the village Musaanapalli is at a distance of half an hour

drive. So, even if it is presumed that he got the bus or any other

vehicle at 7.50 or 8.00 p.m., he should have reached Musaanapalli

village by 8.30 p.m.

18. At this stage, it is appropriate to refer to the evidence of P.Ws.3

and 5. P.W.3 is the person, who accompanied P.W.5 and other

villagers to Adoni in the auto. According to him, P.W.2 came to his

house at about 7.30 p.m., and asked him to come down to Adoni.

P.W.4 is the auto owner-cum-driver, who took P.W.5 and others to

Adoni in his auto. He also stated that P.W.2 came to his house and

hired the auto at about 7.30 p.m. When the same villagers depose

that P.W.2 asked them to come down to Adoni at 7.30 p.m., the

presence of P.W.2 at Adoni at 7.30 p.m., becomes doubtful.

19. Further, P.W.5 is no other than the wife of the deceased. In

her cross examination, she revealed a different story. According to

her, on the date of accident, her husband and P.W.2 left the village

in the morning itself. P.W.2 in his evidence deposed that they left

the village around 4.30 p.m. She further said that at about 8.00

p.m., she received a telephone call from P.W.2 informing about the

incident. P.W.2 in his statement did not say this fact. His version is

that out of fear, he ran up to bus stop, boarded the bus and went to

the village at about 9.30 p.m. and later informed everybody.

Therefore, there is any amount of doubt as to P.W.2 witnessing the

incident.

20. Further, P.W.2 in his evidence deposed that himself and

deceased started from Musaanapalli in an auto at about 4.30 p.m.

and came down to Adoni at 6.00 p.m. and after getting down at

Adoni, P.W.2 and the deceased went in different directions for

shopping. But P.W.5, who is the wife of deceased deposed that

P.W.2 and the deceased left the village in the morning itself. If that

is so, the statements of P.Ws.3 and 4 have to be believed about the

presence of P.W.2 in the village at 7.30 p.m. rather than at scene of

offence. Hence, the version of P.W.2 becomes suspicious.

21. It is also to be noted that the place where the incident took

place consists of several shops, auto stands and bus stops. A traffic

police was also posted at a distance of 200 mts from the scene of

offence. When the incident took place at 7.30 p.m., P.W.2 neither

informed the police constable or came to the rescue of the deceased.

Therefore, the conduct of P.W.2 also appears to be highly unnatural.

While relying upon the testimony of eye witness, the Apex Court time

and again held that evidence of such witness must be truthful and

impose confidence in the Court to accept the same. In Govindaraju

@ Govinda vs. State of Srirampuram P.S and another1, the Apex

Court has laid down as follows:

"Though the place of occurrence was thickly populated area and eye witness statement is shaken non examination of material witnessed does not inspire confidence and the statement of police officer becomes not reliable".

22. In Kunju Alias Balachandran vs. State of Tamil Nadu2, it

was held as under :

"In criminal trial it is not quantity of the evidence that counts but it is quality of the evidence that has to be appreciated. The general rule is that the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting the person on sole testimony of a single witness".

23. Further, in Joseph Vs. State of Kerala3 and Govindaraju @

Govindu vs. State by Sriramapuram P.S4, it has been held as

follows:

"When the prosecution rests mainly on the sole testimony of eye witness it should be wholly reliable. Evidence of a sole witness to incident, however, should be cogent, reliable and must essentially fit into chain of events that have been stated by prosecution. Evidence of sole witness, if in conflict with other witnesses, it may not be

2012(2) ALD (Crl.) 580 (SC)

2008(1) Supreme Court Cases (Crl) 331

2002(8) Supreme 589

2012(2) ALD (Crl) 580

safe to make such a statement as a foundation of conviction of accused".

24. Having regard to the above circumstances and since the

oral evidence of P.W.2 is not only contradictory to the medical

evidence but also not reliable; and this being an appeal against

acquittal, we feel that the order of acquittal by the trial Court

warrants no interference.

25. Accordingly, the Appeal is dismissed confirming the

Judgment dated 18.02.2013 in Sessions Case No.285 of 2010 on the

file of II Additional Sessions Judge, Kurnool at Adoni,

Consequently, miscellaneous petitions, if any, pending shall

stand closed.

_______________________________ JUSTICE C. PRAVEEN KUMAR

__________________________________ JUSTICE R.RAGHUNANDAN RAO