Yennibarla Bala Koteswara Rao ... vs P.P., Hyd
2021 Latest Caselaw 2178 AP

     HONOURABLE SRI JUSTICE C. PRAVEEN KUMAR

                                 and

     HONOURABLE SRI JUSTICE B. KRISHNA MOHAN

              Criminal Appeal No.839 of 2014

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


     Heard    Smt.    A.   Gayathri      Reddy,      learned   Counsel

appearing for the Appellant and Sri. M. Dushyanth Reddy,

Additional Public Prosecutor, through Blue Jeans video

conferencing APP and with their consent, the present

Criminal Appeal is disposed of.

1)   The sole accused in Sessions Case No.416 of 2012 on

the file of XI Additional District and Sessions Judge, Krishna,

Gudivada, is the appellant herein. He was tried for the

offences punishable under Sections 449 and 302 of the

Indian Penal Code, 1860. By its Judgment dated 02.06.2014,

the learned Sessions Judge, while acquitting the accused for

the offence punishable under Section 449 IPC, convicted and

sentenced the accused to suffer imprisonment for life and to

pay fine of Rs.1000/- for the offence punishable under

Section 302 IPC, in default to suffer simple imprisonment for

a period of three months. The remand period was directed to

be given set off under Section 428 Cr.P.C.

2)   The substance of the charges against the accused is

that, on the intervening night of 7/8.10.2009, at about

1.

30A.M. the accused entered into the rented house of the 2 CPK, J & BKM, J

CRLA.No.839 of 2014

deceased Sulochana situated at D.No.2/13 at Kalakarula

colony, Billapadu village and while the deceased was sleeping,

the accused is said to have beat her with a blunt portion of

the axe on the right side forehead and temporal region.

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

prosecution witnesses are as under:

i) PW1 is the owner of the building where the accused and

the deceased took portions of the said building on rent.

PW.1 constructed a building with a ground and first

floor. The western portion in the upstairs was let out to

one Sulochana, who is the deceased in this case, while

the accused and his mother Vijayamma were the

tenants of another portion of the building in the ground

floor. About two months prior to the date of the

incident, there was a quarrel between the accused and

the deceased Sulochana, when the accused tried to

catch hold of the hand of Sulochana. The incident was

informed by the deceased Sulochana to PW.1 and

others. The accused was asked to apologize the

deceased Sulochana by touching her feet and

accordingly, he did so.

ii) In the morning of 7.10.2009, the deceased Sulochana

informed PW.1 that she is going out for collection of

contribution to cyclone fund and that she will return

only at 9.00P.M. Accordingly, she returned at 9.00 P.M.

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                                           CRLA.No.839 of 2014

and enquired PW.1 as to whether she had dinner and

thereafter went upstairs. After one hour, PW.1 is said to

have gone upstairs to bring back her saree, which was

hanged there for drying. At that time, PW.1 enquired the

deceased about her collection towards cyclone fund. On

the same day night at about 1.30A.M., PW.1 heard

sounds of foot steps twice. She switched on the lights,

came out of her room and found the accused at the door

way of his portion, who also told her that he heard

sound of foot-steps and as such woke up and came out

of his room. PW.1 and the accused searched for the

person, if any, in the premises, but in vain. The gate

was also found locked. Vijayamma, the mother of the

accused, also came out of the house. All three of them

went upstairs and found none outside the rooms. They

found the deceased Sulochana sleeping by covering her

body with a rug, outside the room. As there was nothing

unusual, all of them returned to their respective rooms.

Next day morning, Sulochana did not come down as she

used to do regularly. PW.1 went to the up stair portion

of Sulochana and found her with a bleeding injury. Due

to fear, she came down and informed the same to local

ward member namely Sobharani and also the

neighbours. The persons gathered there shifted

Sulochana to a Government Hospital at Gudivada.

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                                                     CRLA.No.839 of 2014

iii) PW.10, the Sub-Inspector of Police of II Town Police

Station, Gudivada, deposed that he received medical

intimation (Ex.P.10) from the Government Hospital,

Gudivada, based on which, he proceeded to the hospital

and found the injured in an unconscious state. He

recorded the statement of PW.1 and basing on the said

statement (Ex.P.1), he registered a case in Crime No.219

of 2009 for the offence punishable under Section 324

IPC. Ex.P.11 is the FIR. Thereafter, he again proceeded

to the Government Hospital, Gudivada but was told that

the injured was referred to Government Hospital,

Vijayawada for better treatment. PW.10 then proceeded

to the scene of offence and in the presence of PW.8

prepared a Panchanama of the scene, which is placed

on record as Ex.P.5. He also seized M.Os.1 and 2 blood

stained cement pieces and controlled cement pieces at

the scene under Ex.P.5 scene observation, apart from

preparing a rough sketch of the scene of offence, which

is placed on record as Ex.P.12. He also got

photographed the scene of offence and examined PWs.1

to 6. On the same day, he received intimation of the

death of the deceased, basing on which he altered the

section of law from Section 324 IPC to Section 302 IPC

and issued Ex.P.14 the altered FIR. Further

investigation was taken up by PW.11, the Inspector of 5 CPK, J & BKM, J

CRLA.No.839 of 2014

Police, who on receipt of altered FIR, proceeded to the

scene of offence and found it to be on correct lines. He

again examined PWs.2, 3 and 4 and Vijayamma and

their statements were found to be correct and similar to

what they have stated earlier. He then proceeded to the

Government Hospital, Vijayawada, and conducted

inquest over the dead body of the deceased in the

presence of mediators. Ex.P.6 is the inquest report.

During inquest, he examined PWs.1, 5 and 6 and

recorded their statements. Thereafter, he forwarded the

dead body of Sulochana for Post Mortem examination.

iv) PW.9, the Professor in Department of Forensic Medicine,

Vijayawada, on a requisition received from the II Town

Police, Gudivada, conducted autopsy over the dead body

of the deceased and issued Ex.P.9 Post Mortem

certificate opining the cause of the death as due to head

injury and its complication.

v) On 15.10.2009, PW.11 arrested the accused and

recorded the confession statement of the accused in the

presence of mediators. Pursuant to the confession

made, the accused took them to his house from where

he brought M.O.6 axe, which was seized under the cover

of mediator's report. He affixed identification slips duly

signed by mediators and the official witnesses and also

by the accused, to M.O.6 axe. After collecting all the 6 CPK, J & BKM, J

CRLA.No.839 of 2014

necessary documents, more particularly, the report of

FSL, a charge sheet came to be filed, which was taken

on file as PRC No.3 of 2010 on the file of Additional

Judicial First Class Magistrate, Gudivada.

vi) On appearance of the accused, copies of documents as

required under Section 207 Cr.P.C., came to be

furnished. Since the case is triable by Court of Session,

the same was committed to the Court of Session under

Section 209 Cr.P.C. On committal, charges as referred

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

the accused, to which, he pleaded not guilty and

claimed to be tried.

vii) In support of its case, the prosecution examined PW1 to

PW.11 and got marked Ex.P.1 to Ex.P.16, besides

marking M.Os.1 to 6. After completion of the

prosecution evidence, the accused was examined under

Section 313 Cr.P.C. with reference to the incriminating

circumstances appearing against him in the evidence of

prosecution witnesses, to which he denied, but, however

no oral or documentary evidence was adduced in

support of his plea except marking Ex.D.1. Relying

upon the evidence of PW.1, the motive and the recovery

of M.O.6 axe from the house of the accused, the learned

Sessions Judge convicted the accused for the offence 7 CPK, J & BKM, J

CRLA.No.839 of 2014

punishable under Section 302 I.P.C. Challenging the

same, the present appeal came to be filed.

4) Smt. A. Gayatri Reddy, learned counsel appearing for

the appellant submits that there are no eye witnesses to the

incident and the case rests on the circumstantial evidence.

According to her, the only circumstances relied upon by the

prosecution is the recovery of M.O.6 axe from the house of the

accused, which according to her, cannot be believed for more

than one reason. She further submits that the reason for the

accused committing the offence appears to be farfetched since

the evidence on record would show that when PW.1, the

accused and Vijayamma went around the house to find out

the reason for the noise, the deceased was found sleeping by

covering herself with rug. According to her, there is evidence

on record to show that the deceased was sleeping at that

time. Hence, submits that it is very difficult to believe that the

accused has caused the death by then, more so, when PW.1

noticed injuries on the body of the deceased in the morning.

Having regard to the above, she submits that the conviction of

the accused is improper and incorrect.

5) The same is opposed by Sri. M. Dushyanth Reddy,

learned Additional Public Prosecutor appearing for the State.

According to him, though there are no eye-witnesses to the

incident, but, the circumstances relied upon by the 8 CPK, J & BKM, J

CRLA.No.839 of 2014

prosecution are sufficient to connect the accused with the

offence.

6) The point that arises for consideration is, whether the

prosecution was able to bring home the guilt of the accused

beyond reasonable doubt?

7) Admittedly, there are no eye-witnesses to the incident

and the case rests upon the circumstantial evidence. In order

to establish the guilt of the accused, the prosecution has to

prove the circumstances relied upon by them and the

circumstances so proved should form a chain of events

connecting the accused with the crime. It is now to be seen

whether the circumstances relied upon are proved and if

proved, whether they connect the accused with the crime. The

fact that it is a homicidal death is not dispute. The fact that

the dead body was found in the front portion of the house of

the deceased is also not in dispute. The question is who is

responsible for the incident.

8) Coming to the first circumstance, namely motive, the

case of the prosecution is that a couple of months prior to the

incident, there was a quarrel between the accused and the

deceased, when the accused tried to catch hold of the hand of

the deceased. On coming to know about the same, a

panchayat was arranged in which the accused was asked to

apologize the deceased, who was double the age of the

accused, by touching of her feet, which he did so. It is to be 9 CPK, J & BKM, J

CRLA.No.839 of 2014

noted that in the First Information Report, which is lodged by

PW.1, there is no reference to any dispute between the

deceased and the accused. It would be appropriate to extract

the relevant portion in the evidence of PW.1 which is as

under:

"There is no mention of the dispute between Sulochana and accused, which was two months prior to the death of Sulochana in my first statement i.e. in Ex.P.1"

The evidence of PW.1 though refers to the incident, which

took place about two months prior to the incident and the

apology given by the accused, but, in the cross-examination,

she admits that she does not know if Sulochana had grudge

against the accused as he was opposing her conduct and

hence, she raised a dispute before them and elders stating

that the accused attempted to catch hold of her, and at that

time as the accused had no option, apologized to Sulochana

by touching her feet. It would be appropriate to extract the

same which is as under:

"It is not true to suggest that male persons used to come to her portion in the upstairs. It is not true to suggest that the accused told me that Sulochana doing prostitution, hence, he demanded me to get her vacated from gthe house portion, but it was dragged on. I do not know if Sulochana had grudge against the accused as he was opposing her conduct, and hence, she raised dispute begfore us and elder stating that the accused attempted to caught hold of her, and at that time as the accused had no option he apologized Sulochana by touching her feet."

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                                                  CRLA.No.839 of 2014


9)    PW.2, in evidence deposed that he heard that there was

a dispute between the accused and Sulochana prior to her

death. Therefore, he is not an eye-witness to speak about the

dispute. Similar, is the evidence of PW.3.

10) Coming to the evidence of PW.5, who is also a resident

of same place, she, in her evidence, deposed that the

deceased is the younger sister of her husband and was

unmarried. She used to do her caste profession of dancing

and playing as stage artist. According to her, at the time of

incident, Sulochana was staying in the southern side of up

stair portion of PW.1 as tenant. In the cross-examination, she

admits that she had no personal knowledge of the quarrel if

any between Sulochana and the accused, which took place

about two months prior to the date of incident.

11) PW.6, who was present at the time of inquest, deposed

that two months prior to the death of Sulochana, she heard

that his mother, PW.1 and others chastised the accused and

then the accused apologized Sulochana with regard to the

dispute raised by her. However, in the cross-examination, she

admits that she was not a direct witness to the dispute

between the accused and the deceased Sulochana and she

does not know if a male person of 40 or 45 years of age used

to meet Sulochana once in four or five days and he used to

ask Sulochana to come with him and in that regard he had

dispute with her.

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                                                CRLA.No.839 of 2014

12) Therefore, from the evidence of all these witnesses, it is

clear that except PW.1 none of them witnessed the dispute

between the accused and the deceased and none of them also

disclosed their source of such information. Though, the

evidence of PW.1 show that about two months back, there

was a quarrel in her complex, but, in view of her admission in

the cross-examination that she does not know the deceased

had any grudge against the accused, as he was opposing her

conduct, it can be said that this motive, even assuming it to

be true, be a circumstance by itself to connect the accused

with the crime, unless other circumstances are proved.

13) Coming to the incident proper, the trial Court came to

the conclusion that it was the accused who was responsible

for the incident and that he beat the deceased with blunt

portion of M.O.6 axe and immediately covered her with rug

preventing the possibility of others seeing the injury and

thereafter invented the story of he hearing the sounds of foot-

steps from the up stairs. But, this may not be correct for the

reason even PW.1 heard the noise and on hearing the said

sounds, switched on the lights, come out of her room and

found the accused at the door way of his portion, who

informed her about hearing the sound of some person

running. As such, he woke up and came out of his room

along with his mother. Thereafter, PW.1 and the accused

searched for the persons, if any, in the premises. All the three 12 CPK, J & BKM, J

CRLA.No.839 of 2014

of them failed to notice a third person in the house. They

noticed the deceased sleeping by covering herself with

blanket. The trial Court held that the accused, after having

beaten the deceased with an axe covered her with a blanket

screening the injury on the deceased. But the evidence of

PW.1 is otherwise. She, in her further cross-examination,

admits that at 1.30A.M., when they have gone to the up stair

portion, Sulochana was in a deep sleep and snoring. It would

be appropriate to extract the relevant portion in the evidence

of PW.1, which is as under:

"By the time of 1.30A.M. when we have gone to the up stair portion, Sulochana was in a deep sleep with snoring."

14) From the above admission, it is very much evident that

the finding given by the trial Court that at about 1.30A.M. the

deceased was killed by the accused, is incorrect. If the

deceased was dead by then or if she was injured and still

surviving, definitely she would have either raised cries or be

struggling with the injury. But, that was not the situation

noticed by PW.1. Her admission categorically discloses that

she was in a deep sleep and snoring.

15) Coming to the most crucial circumstance namely the

recovery of M.O.6 from the house of the accused, it is to be

noticed that the incident in question is alleged to have taken

place on 8.10.2009 and the recovery of M.O.6 axe was on

15.10.2009 pursuant to the arrest of the accused. If really the 13 CPK, J & BKM, J

CRLA.No.839 of 2014

accused had committed the offence and the axe was used in

the commission of offence, the accused would not have kept

quiet for 7 days without washing the blood stains on the

weapon. Further, he would also not kept the weapon in his

house.

16) Be that as it may, it is the evidence of the investigating

officer that pursuant to the confession made by the accused,

they seized the axe and after seizing the same, they have

affixed identification slips duly signed by the mediators,

accused and by the investigating agency. But, in the cross-

examination, the witness admits that identification slip

signed by the mediators, accused and themselves at the time

of seizure of axe are not found on it. Therefore, a doubt arises

as to whether the weapon that was seized from the house of

the accused, is the weapon used in the commission of offence.

Further, the reason given by the trial Court for the absence of

identification slip is that at the time of conducting FSL test on

the weapon, the authorities might have removed the slips

affixed on M.O.6 axe. But, such evidence is not available on

record. Even the investigating officer did not say that such a

procedure is followed at the time of conducting test on

material object by forensic expert. Further, the blood stain

found on M.O.6 are not proved to be that of the deceased,

though the F.S.L. report states that the blood is of human

origin. No blood grouping test is done to prove that the blood 14 CPK, J & BKM, J

CRLA.No.839 of 2014

stain found on the weapon is that of the deceased. In fact, no

evidence has been placed on record to establish the blood

group of the deceased. Therefore, we hold that the recovery of

M.O.6 axe, after the incident, from the house of the accused

is suspicious and the said circumstance is not proved. Viewed

from any angle, we see that the prosecution has failed to

prove the circumstances relied upon by them beyond

reasonable doubt and as such, it is a fit case where a benefit

of doubt can be given to the appellant/accused.

17) Accordingly, the Criminal Appeal is allowed, setting

aside the conviction and sentence imposed in S.C.No.416 of

2012 by the XI Additional District and Sessions Judge,

Krishna at Gudivada, vide judgment dated 02.06.2014. The

fine amount, if any, paid shall be returned to the appellant/

accused.

_________________________ C. PRAVEEN KUMAR, J

________________________ B. KRISHNA MOHAN, J

Date: 29-06-2021 Ksn