Bodabandla Ravi, Chittoor Dt. 4 ... vs State Of A.P., Rep. By P.P., ...
2021 Latest Caselaw 3397 AP

   HIGH COUIRT OF ANDHRA PRADESH: AMARAVATHI.

               CRIMINAL APPEAL NO. 780 OF 2014

Between:

Bodabandla Ravi and others
                                                            ... Appellant

                                Vs.

State of Andhra Pradesh, rep. by its Public Prosecutor
                                                         .... Respondents

Date of Judgment Pronounced: 03.09.2021

Submitted for Approval:

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

1. Whether Reporters of Local newspapers Yes/No may be allowed to see the judgments ?

2. Whether the copies of judgment may be Yes/No marked to Law Reporters/Journals

3. Whether Their Ladyship/Lordship wish to Yes/No see the fair copy of the Judgment ?

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

+ CRIMINAL APPEAL NO. 780 OF 2014

% 03.09.2021

# Bodabandla Ravi and others ... Appellants

Vs.

$ State of Andhra Pradesh, rep. by its Public Prosecutor .... Respondents

! Counsel for the petitioners: SRI M.CHALAPATHI RAO

Counsel for the Respondents: SRI S.DUSHYANTH REDDY

<Gist :

>Head Note:

? Cases referred:

` 3

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

CRIMINAL APPEAL NO. 780 OF 2014

JUDGMENT: (per Hon'ble Sri Justice B.Krishna Mohan)

The appellants herein are A1 to A5 in S.C.No.327 of 2012 on the

file of III Additional District & Sessions Judge, Tirupati, Chittor district.

The accused 1 and 5 were tried for the offences punishable under

Sections 302 and 201 IPC and A2 to A4 were tried for the offences

punishable under Sections 302 r/w 34 and 201 IPC.

2. By its judgment dated 06.06.2014 the learned Sessions Judge

convicted A1 and A5 for the offence punishable under Section 302 IPC

and sentenced them to suffer imprisonment for life and pay fine of

Rs.1,000/- each, in default of payment of fine to undergo simple

imprisonment for a period of six moths. A2 to A4 are convicted and

sentenced to undergo imprisonment for life and pay fine of Rs.1,000/-

each in default of payment of fine to undergo simple imprisonment for a

period of six months each for the charge under Section 302 r/w 34 IPC.

Further A1 to A5 were sentenced to undergo rigorous imprisonment for

a period of three years and to pay fine of Rs.500/- each in default of

payment of fine to undergo simple imprisonment for a period of one

month each for the charge under Section 201 IPC. The remand period

undergone by the accused were directed to be given set off. Challenging

the same the present appeal came to be filed.

3. The facts of the case as culled out from the evidence of the

prosecution witnesses is as under:

PW1 is the de facto complainant and watchman of the mango

garden of PW2 where the alleged incident had taken place. He deposed

that A1 to A5 joined as coolies in the mango garden and on 26.06.2011

i.e., the date of incident. A1 brought one lady and told him that she was

his wife and there was an altercation between them. He and his owner

chastised them. Next day morning A1 to A5 were not found.

He informed to the owner. On 28.06.2011 owner and himself went to

the mango garden and while walking towards kasim kaluva saw

chappals of a lady and heap of newly placed sand and found foul smell

coming. PW1 further deposed that he gave Ex.P1 report to the police.

Police came and dead body was exhumed by MRO and he identified

the body as that of wife of A1. PW2, who is the owner of Mango and

Mausambi gardens and police constable by profession, admits that PW1

is the watchman of the mango garden and A1 to A4 were working as

coolies and once in a week he used to go and pay coolies amount to A1

to A4. He further deposed that on 27.06.2011 PW1 informed that A1 to

A5 and wife of A1 went away. On 28.06.2011 PW2 went to mango

garden along with PW1 and they found sand heap with foul smell.

PW1 gave report; police and MRO came there and exhumed the body.

PW2 further admits in cross examination that on 27.06.2011 he worked

in Bakhapet Police Station. PW3 speaks about arranging

A1 to A5 as coolies in PW2's mango garden at the request of

PW2/owner. PW4 speaks about acting as Panch to exhume the dead

body and in cross-examination he deposes that the dead body was on a

canal bund whereas in chief deposes that the body was in a covered pit.

PW5 the maternal aunt of the deceased speaks about deceased

developing illicit relationship with one Mutyalu/PW6 in Chekka Bajans

at Tirumala and further deposes that 2 years prior to her death she

discarded her husband and eloped with PW6 and that A1 gave police

report and police brought her back but deceased again lived with

MUtyalu/PW6 since then. PW6 Mutyalu who is a coolie deposes that

he was having acquaintance with the deceased since three years prior to

marrying her and he married her in 2008. He further deposed that on

26.06.2011 i.e., on the date of the incident deceased went to santha to

purchase vegetables and did not return home. He further deposed that

he informed to his manager, PW5 and another person and also deposed

that his company people informed him that the relatives of the deceased

took her. Four days later, after 26.06.2011 he was informed that she

died. He further deposed that three years prior to the death A1 gave

report to the police that his wife Eeshwari/deceased was having illegal

contact with PW6 and police called him and handed over her to A1.

Again after 20 days she joined him. Further PW6 admits in

cross-examination that he did not give any report to the police about

missing of the deceased from 26.06.2011.

PW7 auto driver deposed that he took A1 to A3 and one lady to

mango garden in his auto and male person in the auto was having

galata with the lady in the auto. On 28.06.2011 on coming to know

about the death of the lady went to the mango garden and identified the

body as that of the lady whom he dropped in his auto on 26.06.2011. In

the cross-examination he admits about knowing of PW1 who is working

as watchman in the mango garden and admits that he does not know

A1 to A3 prior to 26.06.2011. He also admitted in the cross-

examination that he got acquaintance with the police.

PW8/Sarpanch speaks about extra judicial confession by A1 on

10.07.2011, who came along with A2 to A5 while he was waiting near

Vinayaka temple. A1 told him that his wife was having illicit intimacy

with one person and he saw his wife in Santha in Chandragiri on

26.06.2011 and brought her to the mango garden and tried to convince

her not to live with that person but she did not agree hence A1 to A5

together killed her by throttling her neck. Then they left to Bangalore

and on coming to know that police are searching, they came to him as

he is Sarpanch of the village. He further deposed that he asked A1 to A5

to wait near the temple and came to police station and gave a report to

the police. He came with police and VRO around 03:30 PM to

Vinayaka temple and A1 to A5 were waiting, police arrested and

interrogated them. Ex.P2 is the recovery panchanama portion with

regard to recovery of MO9 crowbar, MO10 spade, seizure panchanama

is Ex.P3. In the cross-examination he admitted that he had no prior

acquaintance with A1 to A5 prior to 10.07.2011 and further admitted

that he has no acquaintance with PWs.1 and 2.

PW9/VRO speaks about inquest being held on the dead body in

his presence and recovered MOs.3 to 5 and found MOs.1, 2, 6 and 8.

Police prepared inquest report Ex.P4. He also deposed that he is a

witness to the arrest mahazar with regard to recovery of MOs.9 and 10.

He deposed that accused went into the shed and brought them from

inside the shed and he was standing outside. He is panch witness to

Ex.P2, P3, P4. PW9 speaks of exhuming the dead body.

PW10/Tahsildar also speaks of exhuming the dead body and

conducting inquest. He deposed that on 28.06.2011 he proceeded to

mango garden of PW2 around 01:00 PM and got exhumed the dead

body by PW4 and another which was buried by the side of Kasim

Kaluva. He conducted inquest in the presence of PW9 and another.

Ex.P4 is the inquest report. Opined death was due to throttling or by

other way making her breathless. Seized MOs.1 and 2 and handed over

to police.

In the cross-examination he deposed that dead body was buried in

the government land adjacent to mango garden of PW2. PW11/doctor

says that on 29.06.2011 at 09:00 AM requisition Ex.P5 was received

from PW10 to conduct spot post mortem and having conducted post

mortem found that hyoid and thyroid cartilage were intact and opined

that death was about 2 to 3 days prior to post mortem examination and

cause of death is "undetermined" as wound over head not sufficient to

cause death and no poisonous substance in the viscera and the body is

in the putrefaction. Final opinion is Ex.P8 and admits in the cross-

examination that symptoms of throttling or smothering were not found.

PW12 is the Investigating Officer. He speaks about registering the

complaint Ex.P1 on 28.06.2011 at 02:00 PM. PW10 came to the scene

of offence at 03:15 PM and conducted exhumation of the dead body

and conducted further investigation. He admits in the cross-examination

that the name of A1 is there in Ex.P1 report. Even he was present while

PW10 exhumed the body. He further admits that he did not secure the

residence of locality to act as mediators since mediators were available

with him.

4. On appearance of the accused copies of all the documents as

required under Section 207 CrPC were furnished. As the offence is

triable by a court of Sessions the case was committed to the Court of

Sessions under Section 209 Cr.PC. On appearance of the accused, a

charge under Section 302 r/w section 34 IPC and Section 201 IPC came

to be framed, read over and explained to the accused to which they

pleaded not guilty and claimed to be tried.

5. In support of its case the prosecution examined PWs.1 to 12

witnesses and got marked Exs.P1 to P13 besides marking MOs.1 to 10.

After completion of prosecution evidence the accused were examined

under Section 313 CrPC with reference to the incriminating

circumstances appearing against them in the evidence of prosecution

witnesses to which the accused denied but however did not adduce any

defence evidence.

6. Relying upon the evidence adduced by the prosecution the trial

court convicted A1 and A5 for the offence punishable under Section 302

IPC, convicted A2 to A4 under Section 302 r/w 34 IPC and convicted

further all the accused under Section 201 IPC. Assailing the same the

present appeal came to be filed.

7. Sri M.Chalapati Rao learned counsel for the appellants,

would contend that, the case being a case of circumstantial evidence,

motive is not established, prosecution failed to prove the chain of

evidence consistent with the guilt of the accused and the circumstances

are not conclusive in nature. PW8 Sarpanch and PW9 VRO are

interested witnesses and the evidence is untrustworthy as they were

obliged to support the case of police in view of their proximity.

8. The extra judicial confession of the accused/appellants and

recovery of MOs 9 and 10 from the shed of PW1 and PW2 at their

instance more than 15 days after the commission of the offence ought to

have been disbelieved by the court below. He further submitted that the

ocular evidence and medical evidence are inconsistent with each other

and that evidence of PW1 with regard to giving of Ex.P1 report

indicates that complaint was given prior to identifying the dead body as ` 11

it was exhumed later and the name of the deceased is mentioned in the

Ex.P1 report without seeing the dead body. Last seen theory cannot be

believed without any corroboration.

9. The same is opposed by the learned Public Prosecutor contending

that the evidence of PWs.2, 5 and 6 would establish motive of A1 and

prosecution was also able to prove that the deceased was last seen alive

in the company of A1 to A5. Extra judicial confession of A1 before

PW8 led to recovery of MOs.9 and 10 would unerringly point out

towards the guilt of the accused.

10. The point that arises for consideration is whether the prosecution

proved the guilt of the accused beyond reasonable doubt?

P O I N T: -

11. A reading of the evidence of the prosecution witnesses, it is clear

that in the case on hand there are no eye witnesses to the incident.

The case is based on circumstantial evidence. The circumstances relied

upon by the prosecution before the trial court were as follows:

1. Motive.

2. Last seen together.

3. Medical evidence.

4. Recovery of MOs 9 and 10 spade and crowbar.

5. Extra judicial confession before Sarpanch.

` 12

12. On the concept of motive the Hon'ble Supreme Court in

R.SHAHJI V. STATE OF KERALA1 held that absence of motive in

the case depending entirely on circumstantial evidence is a factor that

weighs in favour of the accused as it "often forms the fulcrum of the

prosecution story".

13. In the instant case the criminal law is set into motion by a

complaint given by PW1/watchman of the mango garden of PW2 who

is a police constable merely on both of them seeing of a dead body

covered with a heap of sand and chappals of lady lying near the heap of

sand, assuming the body to be that of the deceased and surprisingly the

name of the accused is reflected in the Ex.P1 report on mere suspicion

that A1 with his other associates might have killed the deceased and

absconded.

14. As time and again reiterated by the Hon'ble Supreme Court in

catena of decisions that motive being a double edged weapon and that it

could be used by either party to wield the weapon of motive against

each other. In the instant motive to implicate the accused is more clearly

evident from the fact that PW1 and PW2 on seeing the dead body

covered with sand without identifying the dead body went on to lodge

Ex.P1 report implicating the accused assuming the body to be that of

the deceased even before exhuming the dead body. The motive to

(2013) 2 ALD (Crl.) 153 SC

implicate the accused is clearly established rather than motive of the

accused to connect to the crime.

15. In the case on hand the prosecution put forward a specific motive

of A1 to commit the offence as that since wife of A1 i.e., deceased

eloped with PW6 and not willing to join him in spite of his efforts.

The evidence of PW5 who is younger maternal aunt of the deceased

would go to show that deceased developed intimacy with PW6 three

years prior to her death and eloped with PW6 since then living with him

even though police brought her back she went again and lived with

PW6. The evidence of PW6 would also go to show that deceased was

living with him since two years prior to her death and that they both

had acquaintance 3 years prior to her marriage. The crucial witness to

establish motive being PW6 has not expressed any ray of doubt or

suspicion against the accused in his evidence to establish the motive of

the accused. In fact he is silent and admits that he has not even given

any complaint to the police of any suspicion or involvement of the

accused. He simply deposed that his wife went to Santha on 26.06.2011

to bring vegetables and did not return home and he informed the same

to the company manager and the company people who went to Santha

informed that relatives of the deceased took her away and four days

after 26.06.2011 he was informed that the deceased died. He admitted in

cross-examination that he did not give any complaint to the police.

Silence on the part of PW6 who married deceased after having come to

know that deceased was missing and later not giving any complaint to ` 14

the police after coming to know about the death of his wife or not even

raising any suspicion on the accused shows failure on the part of the

prosecution to establish motive.

16. Further contention of PW6 that A1 gave report to the police and

that deceased Eeshwari was having illicit relationship with him

admitted that the same is not produced before the court. Moreover it is

admitted by the evidence of PW5 and 6 that deceased and PW6 are

living together more than two years prior to her death. So the

immediate cause of death is not established and therefore cannot be said

that the alleged motive was proved by the prosecution.

17. The Hon'ble Supreme Court has time and again laid down the

ingredients to be made out to prove the last seen theory beyond

reasonable doubt. It must be borne in mind that close proximity

between the last seen evidence and the death should be clearly

established. In NIZAM V. STATE OF RAJASTHAN2 the Hon'ble

Supreme Court held that when there is time gap between last seen and

recovery of body it would be unsafe to base conviction without any

corroborative evidence.

18. On the aspect of last seen theory, the evidence of PWs.1 to 3 & 7

were put forth by the prosecution. The evidence of PWs.1 to 3 goes to

show that PW2 is the owner of the mango garden and police constable;

PW1 is the watchman; PW3 brought A1 to A4 and one Chandramma

(2016) 1 SCC 550 ` 15

wife of A2 as coolies and handed over them to PW1. PW1 further

depose that A1 brought his wife on 26.06.2011 and there was a galata

between A1 and his wife and he told the same to the owner/PW2 on

which he and PW2 on phone chastised them. Whereas owner PW2 is

silent on this aspect. PW7 auto driver was examined who deposed that

he brought A1 to A4 and lady in auto and dropped in the mango

garden. Two days later he came to know of the death a lady and he

identified the body as that of the lady who traveled in his auto seems to

be highly unbelievable, does not inspire confidence and cannot be relied

upon as the auto driver being a stranger it is impossible for him to

identify the body of the passenger who traveled in his auto two days

prior to his seeing the dead body. Admittedly last seen theory cannot be

said to have been established by merely seeing all the accused and

deceased together on 26.06.2011 evening and on recovering the dead

body two days later on 28.06.2011 around 02:00 PM after exhuming the

dead body without establishing the fact of the accused seen along

immediately after the incident or seen alone at the place of incident.

Moreover, the time gap of more than two days between the point of

time when accused and deceased were last seen alive and deceased

found dead is not so small that possibility of any other person other than

the accused being the author of the crime cannot be ruled out.

According to the prosecution, PW1 deposed that he saw accused and

deceased together on 26.06.2011 evening and identified the dead body

after exhuming on 28.06.2011 and gave Ex.P1 report at 02:00 PM.

` 16

Therefore it is not appropriate to convict the accused where his role is

not firmly established and there is no corroborating or circumstantial

evidence to establish the last seen theory.

19. Further the evidence of PWs.11 and 12 and endorsement on

Ex.P10 FIR goes to show that Ex.P1 report was lodged with PW12 by

PW1 at 02:00 PM on 28.06.2011. PW10 deposed that he rushed to the

mango garden of PW2 at about 01:00 PM as he received requisition

from SHO, Chandragiri Police Station to exhumate the dead body and

conducted inquest from 03:30 PM to 05:30 PM. From the evidence of

PW10 it is evident that requisition was given to him by PW12 even

before registration of crime. Further it could be seen that there is a

mention in Ex.P1 report given by PW1 at 02:00 PM on 28.06.2011

about the name of the deceased and involvement of the accused even

before the exhumation of the body and identifying the same as that of

the deceased Eeshwaramma since the exhumation of the body

admittedly as per the evidence of PWs.10 and 12 is at 03:30 PM.

20. The medical evidence as per doctor PW11 is that the cause of

death is "undetermined" and further on requisition by PW12 to answer

certain questions PW11 further deposed that there are no symptoms of

smothering or throttling found on the body of the deceased.

But on further questioning deposed that there are chances of smothering

by hands. Prosecution has not established the guilt of the accused as the ` 17

medical evidence is also not supporting the case of the prosecution to

connect to the crime.

21. The evidence of PW8/Sarpanch that on 10.07.2011 at about

01:00 PM while PW8 was standing near Vinayaka temple A1 to A5

approached him and A1 confessed in this case and there upon PW8

asked A1 to A5 to stay there at the temple and went to the police station

and informed the same to the police by way of report. The prosecution

tried to put forth extra judicial confession but it is not the case of PW8

that he recorded the confession of A1 to A5, not the case that he

obtained signatures of A1 to A5 on the report presented by PW8 to

PW12. Therefore the report said to have been given by PW8 was rightly

not admitted in evidence by the trial court. On the aspect of oral extra

judicial confession the trial court was right in not believing the version

of the evidence of PW8 that while he was waiting on the road A1 to A5

who are admittedly not known to PW8 came and confessed before him

and he further deposed that he asked them to wait so that he will go and

bring the police, brought the police 2-3 hours later and got them arrested

does not at all inspire confidence and therefore cannot be relied upon.

Admittedly PW8 in his cross-examination deposed that he has no

acquaintance with A1 to A5 prior to 10.07.2011 and A1 to A5 also do

not know him.

22. The evidence so far as relating to recovery of MOs.9 and 10

implements used to bury the dead body of the deceased were said to

have been recovered by PW12 from the shed belonging to PW2 was

rightly not believed by the court below as it was not the case of

prosecution that the shed in the mango garden of PW2 was under lock

and key of the accused or PW1 and recovery was also not proper and

moreover PW1 admitted in the cross-examination that the spade and

crowbar like MOs.9 and 10 are available in the shed in the mango

garden, therefore, the court below rightly held that recoveries of MOs.9

and 10 cannot be taken as circumstance to point out towards the guilt of

the accused. Thus, we find that none of the circumstances relied upon

by the prosecution have been established in the case beyond reasonable

doubt and the chain of circumstantial evidence is so incomplete that it

cannot justify the conviction of the appellants at all.

23. The court below was in error in accepting the circumstantial

evidence and convicting the appellants on the basis of flimsy evidence.

We accordingly allow the appeal and set aside the conviction and

sentence of the appellants and acquit them of all the charges.

24. In the result, the criminal appeal is allowed accordingly.

The conviction and sentence recorded against the appellants in the

judgment dated 06.06.2014 in S.C.No.327 of 2012 on the file of III

Additional District & Sessions Judge, Tirupati, Chittoor District for

offence punishable under Section 302 r/w 34 and Section 201 IPC is set

aside and the accused shall be set at liberty forthwith if they are not

required in any other case or crime.

` 19

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

________________________________ JUSTICE C. PRAVEEN KUMAR

________________________________ JUSTICE B. KRISHNA MOHAN September 3, 2021 LMV ` 20

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

CRIMINAL APPEAL NO. 780 OF 2014

July 24, 2021

LMV