Namala Rajani vs Anchula Raghavarao 8 Others
2022 Latest Caselaw 9228 AP

          HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

          CRIMINAL REVISION CASE No.954 OF 2009

ORDER:

This Criminal Revision Case came to be filed by the

petitioner namely Namala Rajani, who was the Prosecution

Witness No.1 in Sessions Case No.473 of 2007, on the file of the

Court of I Additional District and Sessions Judge, Guntur (for

short, 'the learned Additional Sessions Judge'), under Sections

397 and 401 of the Code of Criminal Procedure, 1972 (for short,

'the Cr.P.C'), challenging the judgment, dated 17.03.2009, where

under the learned Additional Sessions Judge found the

respondents, accused therein, as not guilty of the charge under

Section 302 R/w.34 of the Indian Penal Code, 1860 (for short, 'the

IPC') and acquitted them under Section 235(1) Cr.P.C.

2. The respondents herein as accused faced the charge under

Section 302 R/w.34 of IPC in the aforesaid Sessions Case, which

came to be adjudicated on merits, as above.

3. Aggrieved by the same, the Prosecution Witness No.1 (PW.1)

filed the present Criminal Revision Case.

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4. The parties to this Criminal Revision Case will hereinafter be

referred to as described before the trial Court, for the sake of

convenience.

5. The State represented by Inspector of Police, Piduguralla

filed charge sheet in Crime No.9 of 2007 of Rajupalem Police

Station for the offence under Section 302 R/w.34 IPC alleging in

substance that all the accused are inter-related.

(i) LW.1-Namala Rajani is the de-facto complainant and

wife of the deceased namely Namala Venkateswarlu. LW.2-Namala

Kotaiah, LW.3-Namala Venkaiah, LW.4-Namala Ramarao and

LW.5-Namala Seetharamaiah are the elder brothers of the

deceased. LW.6-Thota Ramaiah witnessed the deceased in the

company of A-1 and A-2 sitting on a Panchayat bench near the

hotel of LW.13, while they were proceeding towards Anupalem

village. LWs.7 to 9 also witnessed the deceased in the company of

A-1 to A-4 being followed by A-6 to A-8 and A-10 on the night of

05.02.2007 at about 10:00 PM between Poleramma temple and

high school of Anchulavaripalem. LWs.10 to 12 are the persons

who found the dead body of the deceased on 08.02.2007 by 03:00

PM at the hayrick in the fields of Anchula Jayamma of

Anchulavaripalem.

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(ii) There are two groups existing in the village since 1995

Panchayat elections. They developed enmity and were trying to

establish supremacy against each other and each party was

waiting for an opportunity to wreck vengeance against each other.

During the year 2004 on the Sankranthi festival, both groups

attacked each other with deadly weapons by hurling country made

bombs resulting into the death of Namala Narsaiah, who was the

father of the deceased, and Criminal Cases were registered in this

regard and the accused are facing trial that was the subject matter

in Crime No.1 of 2004.

(iii) After the death of Namala Narsaiah, LWs.2 to 5 grew

wild against their rival group and waiting for an opportunity

against them, clashed with each other in November, 2005 with the

deadly weapons. In that connection, Crime Nos.86 and 87 of 2005

on the file of Rajupalem Police Station were registered. The

deceased herein was cited as A-4 in Crime Nos.86 and 87 of 2005.

The trial schedule was fixed from 05.02.2007 onwards. On

05.02.2007, accused and deceased went to Narasaraopet to attend

the Court. During the Court attendance, A-1, A-2 and A-4, who

were the accused in Crime No.87 of 2005, threatened the deceased

and his elder brothers to come for a compromise else they would

kill them.

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(iv) On the same day evening the deceased and others

returned to their village. The deceased left his house at 08:00 PM

and went into the village but did not return. Later, on the next day

i.e., on 06.02.2007, LW.2 telephoned LW.1 about absence of the

deceased to the Court. Then, she caused inquiries and came to

know that the deceased was sitting on a Panchayat bench near the

hotel of LW.13 and went towards Anupalem along with A-1 and

A-2. She further came to know that the deceased was in the

company of A-1 to A-4, followed by A-6 to A-8 and A-10. As the

deceased did not come back to the house up to the night of

06.02.2007, LW.1 went to Rajupalem Police Station on 07.02.2007

and preferred a report regarding missing of her husband. LW.21

registered the same as 'Man Missing' vide Crime No.9 of 2007.

Ultimately, on 08.02.2007 at 03:00 PM, LWs.2 and 4 and 10 to 12

found the dead body of the deceased at the hayrick in the fields of

Anchula Jayamma situated on the eastern side of BC Colony in a

highly decomposed state with injuries. On coming to know about

the same, LW.1 rushed to the spot, identified the dead body basing

on the full hands shirt, black waist thread and built of the body.

On further report of LW.1, LW.21 re-registered the FIR for the

offence under Section 302 R/w.34 of IPC

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(v) LW.22 took up the investigation, visited the scene of

offence on 09.02.2007 at 08:00 AM and examined the same in the

presence of mahazar witnesses. He seized the bloodstained

hayrick, controlled hayrick under mahazarnama, prepared rough

sketch, photographed the scene and conducted inquest over the

dead body of the deceased. He sent the dead body for post-mortem

examination. He also sent the material objects to RFSL, Guntur for

chemical analysis. LW.19 conducted autopsy over the dead body of

the deceased and issued postmortem report opining that the death

was due to asphyxia due to strangulation, multiple injuries and

pressure over the neck structures. Prima-facie, case against A-5,

A-9, A-11 and A-12 was not established. There is no direct

evidence against their participation except the statements of

LWs.1 to 5, who are the circumstantial witnesses. LWs.6 to 9 did

not support LWs.1 to 5 in respect of the involvement of A-5,

A-9, A-11 and A-12. The investigation revealed ultimately that A-1

with the help of A-2 to A-4, A-6 to A-8 and A-10 killed the

deceased. Hence, A-5, A-9, A-11 and A-12 were deleted from the

list of accused. LW.22 arrested A-1 and A-2 on 28.02.2007 in the

presence of LWs.14 and 17 and in pursuance of the confession

seized a brown colour big stone, green and white checks towel and

a white khadi lungi with green border under the cover of mahazar.

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He arrested A-3 and A-4 on 01.03.2007 and A-6 to A-8 and A-10

on 03.03.2007 and sent them for remand. LW.22, after completion

of investigation, filed the charge sheet.

6. The learned I Additional Munsif Magistrate, Sattenapalli

took cognizance of the case under Section 302 R/w.34 of IPC

against A-1 to A-4, A-6 to A-8 and A-10 and after furnishing the

copies of documents and after completing the necessary

formalities, committed the case to the Court of Sessions, Guntur

whereupon the matter was made over to the learned I Additional

District and Sessions Judge, Guntur for disposal in accordance

with law.

7. On appearance of the accused before the trial Court and

after following the procedure under Section 228 Cr.P.C., the

learned Additional Sessions Judge, framed the charge under

Section 302 R/w.34 IPC against the accused, explained to them in

Telugu for which they pleaded not guilty and claimed to be tried.

8. During the course of trial, on behalf of the prosecution,

PWs.1 to 14 were examined and Exs.P-1 to P-13 and MOs.1 to 5

were marked. After closure of the evidence of the prosecution,

accused were subjected to 313 Cr.P.C. examination for which they

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denied the incriminating circumstances and reported no defence

evidence.

9. The learned Additional Sessions Judge, on hearing both

sides and considering the oral as well as documentary evidence on

record, found A-1 to A-4, A-6 to A-8 and A-10 not guilty of the

charge under Section 302 R/w.34 of IPC and acquitted them

under Section 235(1) Cr.P.C.

10. Aggrieved by the same, the de-facto complainant/PW.1 filed

the present Criminal Revision Case.

11. Now, in deciding this Criminal Revision Case, the point that

arises for consideration is, whether the judgment, dated

17.03.2009 in Sessions Case No.473 of 2007, on the file of the

Court of I Additional District and Sessions Judge, Guntur suffers

with any illegality, irregularity and impropriety?

12. POINT: Before going to appreciate the point for

determination, this Court would like to make it clear that, in view

of Section 401(3) Cr.P.C., this Court cannot convert an order of

acquittal into an order of conviction. The law is well settled to the

effect that it is only when the judgment of the trial Court is

perverse and judgment was delivered ignoring the evidence on

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record, this Court has limited power of remanding the matter to

the trial Court for deciding the matter afresh. So, absolutely, it is

the bounden duty of the petitioner to show how the judgment of

the trial Court is perverse and as to whether the judgment was

delivered ignoring the evidence on record.

13. Sri M.S.P. Reddy, learned counsel, representing Sri Challa

Srinivasa Reddy, learned counsel for the petitioner, would contend

that the learned Additional Sessions Judge overlooked the entire

evidence available on record and did not discuss the issue in

proper perspective and recorded an order of acquittal as such the

matter may be remanded to the trial Court for adjudication afresh.

14. Sri N. Harinadh, learned counsel, representing Sri Ch.

Ravindra Babu, learned counsel for the respondent Nos.1 to 8,

would contend that the case was based on circumstantial evidence

and the charge sheet did not reveal clearly the circumstances on

which the prosecution sought to establish the guilt against the

accused. Learned Additional Sessions Judge elaborately discussed

the evidence on record and rightly accorded an order of acquittal.

Prosecution did not establish the identity of the dead body as that

of the deceased. There were no chain of circumstances pleaded by

the prosecution and even otherwise the evidence goes to reveal

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that the link was missing from the chain and the trial Court

rightly acquitted the accused and it is not at all a fit case to

remand the matter. He further sought to contend that even the

prosecution failed to establish the motive for the offence.

15. Admittedly, it is a case where the case of the prosecution is

based upon the circumstantial evidence. The law is well settled

that in case of circumstantial evidence, it is the duty of the

prosecution to establish the motive for the offence. The motive for

the offence pleaded by the prosecution, according to the contents

of the charge sheet, is such that when the deceased and other

accused attended a Sessions Court at Narasaraopet, pertaining to

Crime No.86 of 2005, the accused threatened the deceased and his

elder brothers to compromise in all cases else they would kill

them. So, the prosecution has alleged that as the deceased did not

co-operate or consent for effecting compromise he was murdered.

16. Even according to the contents of the charge sheet, there

was no direct evidence to prove the offence in question. In fact, the

prosecution did not elaborately specify the circumstances on

which it sought to establish the guilt against the accused.

However, having gone through the charge sheet what could be

found as regards these circumstances is that at one place the

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prosecution has alleged that on 05.02.2007 the list of the

prosecution witness No.6 found the deceased while sitting on a

Panchayat bench near the Hotel of LW.13 along with A-1 and A-2

and that on the same day, the deceased along with A-1 and A-2 at

10:00 PM went towards Anupalem side along with A-1 to A-4,

followed by A-6 to A-8 and A-10. They were found between

Poleramma temple and High School. So, the prosecution sought to

prove the guilt against the accused by relying upon the aforesaid

circumstances as evident from the charge sheet.

17. To bring home the guilt against the accused, prosecution

examined 14 witnesses before the Court below. PW.1 is the wife of

the deceased. PWs.2 and 3 are the brothers of the deceased. PW.4

is one of the witnesses who claimed to have seen the deceased in

the company of A-1 and A-2. PWs.5, 6 and 12 claimed to have

seen the deceased in the company of some of the accused. PW.7

was the person cited to speak the fact that he saw the dead body

of the deceased at the hayrick. PW.8 is the owner of the tea stall,

who claimed to have seen the deceased with the accused. PW.9

was the mahazar witness to observe the scene of offence and

inquest, arrest of the accused, confession and seizure of the

property. PW.10 conducted post-mortem over the dead body.

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PW.11 is the photographer. PW.13 was the Sub-Inspector of

Police, who registered the FIR. PW.14 was the Investigating Officer.

18. Now, turning to the testimony of PW.1, her deposition runs

that on 05.02.2007 her husband along with others and accused

group went to Narasaraopet Court and returned at 04:00 PM. He

left the house at 08:00 PM and thereafter he did not come back.

On the next day the brothers of the deceased went to the Court

and called her to enquire as to why the deceased did not come to

the Court. Then, she enquired in the village and came to know

that her husband was taken away by A-2 from the bazaar and it

was witnessed by PW.4. Then, she revealed the same to PWs.2 and

3. Then the matter was reported before Rajupalem Police Station,

which is Ex.P-1. After five days the dead body of her husband was

found in the hayrick of Anchula Jayamma. Then she gave Ex.P-2

complaint.

19. Coming to the evidence of PW.2, the elder brother of the

deceased, on 05.02.2007, they went to the Court to attend the

case. A-3, A-4, A-2 and one Subbaiah asked them along with their

counsel to compromise the matter, they did not accept. So, they

returned to home. They had to attend the Court the next day i.e.,

on 06.02.2007. On that day, the deceased did not follow them to

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the Court. They contacted PW.1 about the deceased. PW.1

informed him that on the previous night the deceased was sitting

with the accused and that the deceased was taken away by A-1

and A-2 followed by A-3, A-5, A-7, A-6, A-4 and A-8. Then they

returned to the village and enquired the relatives. As they could

not get any useful information, PW.1 lodged the report before

Police. Subsequently, they found the dead body of the deceased.

20. Similar is the evidence of PW.3.

21. Turning to the evidence of PW.4, he deposed that he has

seen the deceased on that day prior to his death at about 09:30

PM while sitting on the pile of his house. A-1 and A-2 were also

sitting then and when he came out, all the accused went away. He

has seen A-4, A-5, A-8, one Swamy and A-6 following them after

little time. Later, A-7, A-3 went towards Anupalem and he told on

the next day this incident to PW.1.

22. Coming to the evidence of PW.5, on 05.02.2007, himself,

Brahmanaidu and Swamy Sankar went to Piduguralla to purchase

a cycle to Brahmanaidu. At about 10 PM, while they were

returning to the village on three cycles and when they reached

Poleramma temple between the High School and temple, they

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noticed the deceased, A-1 and A-2 going towards Anupalem, at a

little distance A-3 and A-4 following them. He also observed some

persons. On the next day at about 09:30 AM, PW.1 enquired him

about her husband. Then, he told her that they have seen the

deceased along with A-1 and A-2 on the previous night. On

08.02.2007, they found the dead body of the deceased in the

agricultural fields.

23. PW.6, who was cited by the prosecution to speak that the

deceased was found in the company of the accused, turned hostile

to the case and he did not support the case of the prosecution.

During cross-examination by the learned Assistant Public

Prosecutor, he denied that he stated before Police as in Ex.P-3.

24. PW.7 was cited to speak to the fact that they traced the dead

body of the deceased in the hayrick of Anchula Jayamma.

25. PW.8 deposed that about one year back, he has seen the

deceased Venkateswarlu, when he had breakfast in their hotel at

08:30 AM and at about 06:30 or 07:00 PM deceased came to their

hotel alone. He has not seen A-1 and A-2 on that day. So, PW.8

turned hostile to the case of the prosecution. During cross-

examination, he denied that he stated as in Ex.P-4.

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26. PW.9 is cited as a witness to speak about the inquest report,

observation of the scene of offence and arrest of the accused.

27. PW.10 is the Medical Officer who conducted autopsy over

the dead body of the deceased.

28. PW.11 is the Photographer who took the photographs of the

deceased.

29. PW.12 is also a witness who was cited to speak that the

deceased and the accused were found together and he deposed

that on 05.02.2007 at about 10:00 PM, A-1, A-2 and deceased

were going towards Anupalem. A-3 and A-4 were 20 feet away from

them. The rest of the accused were behind A-3 and A-4. On the

next day, PW.1 had asked him whether he saw her husband, then

he informed the same.

30. PW.13, Sub-Inspector of Police, Rajupalem Police Station,

spoke about registration of the FIR.

31. PW.14 is the Investigating Officer.

32. Coming to the motive set up by the prosecution, it is elicited

from the cross-examination of PW.2 that the deceased was not

cited as a witness relating to the case of the death of his father.

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The case of the prosecution is that as the accused compelled the

deceased to come for settlement of the said murder case and as

the deceased did not accept, the accused committed murder of the

deceased. So, when the case of the prosecution is such that the

accused were alleged to have threatened the prosecution witnesses

to murder them, if they did not come for settlement, and when the

deceased was not a witness to the said case it is quite improbable

that they would commit murder of the deceased who was not

witness by sparing PWs.2 and 3 who were cited as witnesses to the

said murder case. In my considered view, the motive setup by the

prosecution is not proved. If really, the allegations are true,

accused had every chance to cause harm to PWs.2 and 3 but not

to commit murder of the deceased alone. It is well settled that

when the case is based upon the direct evidence, motive has no

role in the commission of the offence but when there are no direct

witnesses to the occurrence and the case of the prosecution is

based upon the circumstantial evidence, prosecution should

establish the motive. The evidence on record reveals that the

prosecution failed to prove the motive for committing the offence.

33. Coming to the circumstances that are relied upon by the

prosecution and the averments in the charge sheet, there are no

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chain of circumstances that are pleaded completely by the

prosecution in the charge sheet. The prosecution has narrated the

same circumstances which are not at all formed a chain to corner

the accused. The law is also well settled as to the standard of proof

in a case based upon the circumstantial evidence.

34. In Krishnan v. State, represented by Inspector of

Police1, the Hon'ble Apex Court held as follows:

"This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;

(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

1 (2008) 15 SCC 430

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35. Keeping in view, I would like to deal with as to whether the

appreciation of evidence by the learned Additional Sessions Judge

is done in proper manner.

36. Coming to the evidence of PW.4, in cross-examination, he

deposed that he did not hear the conversation between the

deceased and A-1 and A-2. He has seen them at a distance of 10

yards in the dark. A-1, A-2 and deceased were not sitting on the

pile of his house but they were sitting on a panchayat bench

situated opposite to their house in front of the hotel of Srinivas.

They were talking to each other. There are no panchayat benches

in their lane. After seeing A-1 and A-2 and the deceased got up he

went away.

37. It is to be noticed that his chief-examination means that he

has seen the accused on the day prior to his death and A-1 and

A-2 were also sitting. His chief-examination did not disclose

literally A-1 and A-2 were along with the deceased. However, by

virtue of the cross-examination, his evidence means that he has

seen A-1, A-2 and deceased together. When the case of the

prosecution is such that the deceased was threatened at

Narasaraopet Court on 05.02.2007, when they attended a murder

case, it is not understandable as to why A-1, A-2 and the deceased

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could be found leisurely talking with each other in front of the

house of PW.4. Apart from this, PW.4 claimed to have seen them

in a dark night. In my considered view this circumstance is not

established by the prosecution categorically.

38. Now, turning to the evidence of PW.5, in cross-examination,

he deposed that it was a dark night. There is a light on the

Poleramma Temple which is visible to 50 yards. They identified

A-1, A-2 and deceased in that light. There were no suspicious

circumstances and they were casually going and PW.5 and others

were returning casually.

39. Even assuming for a moment that the evidence of PW.5 is

taken as true, it does not mean that the deceased was in the

company of A-1 and A-2. His evidence means that they noticed the

deceased, A-1 and A-2 were going towards Anupalem. This

evidence cannot be taken as that accused and the deceased were

found together in a company. This circumstance is also very weak

in nature.

40. As pointed out, PW.6 did not support the case of the

prosecution. PW.8, hotel owner, too did not support the case of the

prosecution.

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41. Now, there remains the evidence of PW.12, which means

that A-1, A-2 and deceased were going towards Anupalem, A-3 and

A-4 were 20 feet away from them and the rest of the accused were

behind A-3 and A-4. During cross-examination, he deposed that

he has seen the accused at 20 feet away from Poleramma temple.

According to him, 20 feet was beyond the Court wall (15 yards). He

identified A-1 and A-2 and the deceased in the temple light.

42. Even the circumstances spoken by PW.14 are also very weak

in nature. There is no probability established by the prosecution

as to the burning of the light near Poleramma temple at 10:00 or

08:00 PM during the dark night. Even if this is taken as true that

would not establish the guilt against the accused. The evidence

adduced by the prosecution cannot be taken that the deceased

and accused were last seen together as the dead body was traced

after five days after the occurrence.

43. In my considered view, the evidence adduced by the

prosecution is not at all convincing and believable and even

assuming for a moment that those circumstances are taken as

true, they would not form a complete chain so as to corner the

accused.

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44. Apart from these, the face of the dead body was not

identifiable. Even the learned Additional Sessions Judge recorded

strong reasons to say that the prosecution did not prove through

satisfactory evidence that the dead body was that of the deceased.

It is PW.1, who claimed to have identified the dead body as that of

her husband. She claimed that with the help of the waist thread

and white shirt. She came to know that the dead body was that of

her husband. There was no dispute that the face of the dead body

was defaced. She admitted that the deceased underwent

appendicitis surgery prior to marriage and there was a scar on one

side of the stomach apart from a tattoo mark on the right hand on

the fore-arm. The prosecution did not invite the attention of the

witness to those facts. Even the inquest report did not contain any

history in this regard. So, when the face of the dead body was

defaced, the Investigating Officer ought to have taken proper steps

to say the basis on which the dead body was identified as that of

the deceased. So, the learned Additional Sessions Judge did not

believe the evidence adduced in this regard and I do not see any

irregularity even in the findings of the learned Additional Sessions

Judge. Even otherwise, leaving apart the fact that there was no

proper identity of the dead body claimed to be that of the

deceased, the circumstance that are pleaded by the prosecution in

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the charge sheet are very weak in nature and prosecution did not

spell out the circumstances in detail and there are so many

missing links in the prosecution case to corner the accused.

45. Apart from this, the learned Additional Sessions Judge

looked into the fact that PWs.4, 5, 6, 7 and 12 claimed to have

witnessed the accused in the company of the deceased. Learned

Additional Sessions Judge discussed about the evidence in a

proper way. It is not a case where the judgment of the trial Court

suffers with any perversive reasons or the judgment was delivered

overlooking the evidence on record. The case presented by the

prosecution before the Court below basing on the circumstantial

evidence is weak in nature and even those circumstances are not

established and even those are not at all sufficient to corner the

accused. Apart from this, the prosecution failed to prove the

motive for the offence.

46. A perusal of the judgment of the trial Court reveals that it

does not suffer with any irregularity, illegality and impropriety and

the judgment that was delivered by the learned Additional

Sessions Judge cannot be taken as perverse. In the

circumstances, the revision petitioner miserably failed to show

that the judgment of the trial Court is perverse. No other

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conclusion could be possible than arrived at by the learned

Additional Sessions after looking into the evidence on record.

47. Hence, the Criminal Revision Case must fail and is

accordingly dismissed.

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date :01.12.2022 DSH