Badnaine Arjun Addu, ... vs Sho, Ananthagiri P.S.
2022 Latest Caselaw 9399 AP

         HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
                                 AND
     THE HONOURABLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI
                          Crl.A.No.274 of 2016

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

         Accused Nos.1 to 4 in Sessions Case No.66 of 2012 on the file of

II Additional Metropolitan Sessions Judge-cum-IV Additional District

and Sessions Judge, Visakhapatnam, are the appellants herein. All the

four accused were tried for the offence punishable under Sections 302

and 201 read with 34 IPC. Vide judgment dated 29.12.2014, the learned

Additional Sessions Judge convicted all the four accused under Section

302 IPC and sentenced each one of them to suffer imprisonment for life

and to pay fine of Rs.3,000/- each, in default, to suffer simple

imprisonment for two months each. They were also found guilty for

the offence punishable under Section 201 read with 34 IPC and were

sentenced each one of them to suffer rigorous imprisonment for a

period of three years and to pay a fine of Rs.2,000/- each, in default, to

suffer simple imprisonment for one month each.          The substantive

sentences were directed to run concurrently.


2.      The gravamen of the charge against the accused is that on

12.11.2011

at about 09:00 PM, all the four accused colluded with each

Crl_A_274_2016 CPK,J & BVLNC,J other with a view to kill the deceased and in the course of the same,

came to the tiled roof hut belonging to deceased (V.Neelanna) and

caused his death.

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

witnesses are as under:

PW1 is the wife of the deceased. PW2 is the son of the deceased.

PW3 is the brother in law of PW1 and brother of the deceased. PWs.4

to 6 are neighbours. It is stated, about four years prior to giving

evidence, PW1 along with her nephew - PW6, went to the agricultural

lands where the husband of PW1 was working. PW1 used to take food

to her husband and after giving food, she along with her nephew

would return back to the house. It is said that on the fateful day, after

giving food, PWs1 & 6 returned back to the house, while her husband

stayed there overnight to carry out agricultural operations. On the next

day morning, i.e., on 13.11.2011 at about 08:00 AM, PW1 went to her

husband along with the food. She noticed blood stains on the land.

Immediately, she searched for her husband and found his body

hanging to a beans plant pandal. PW1 returned back to her house and

informed the same to PWs2 & 3. Thereafter, all of them went to the

said place. Basing on the information available, PW1 went to the police

Crl_A_274_2016 CPK,J & BVLNC,J station on 14.11.2011 at about 12:00 noon and lodged a report, which

came to be registered as a case in Crime No.45 of 2011 under Sections

302 r/w 34 IPC. Exhibit P9 is the report. PW9 informed the same to

the Inspector of Police over phone, who is examined as PW11.

Thereafter, he along with PW11 proceeded to the scene of offence

where they prepared a panchanama of the scene in the presence of

PW7. At the scene of offence, they seized blood stained earth,

controlled earth and blood stained towel - MO1. PW11 then conducted

inquest over the dead body in the presence of PW7. Exhibit P7 is the

inquest report. During inquest he examined PWs1 to 6 and recorded

their statements. PW11 also got prepared a rough sketch of the scene,

which is marked as Ex.P.13. After completing the inquest, the body

was sent for post-mortem examination. PW10, Civil Assistant Surgeon,

Area hospital, Araku, conducted autopsy over the dead body of the

deceased and issued Ex.P.11 post-mortem report. According to him,

the cause of the death was due to cardio respiratory arrest. PW11 who

continued with the investigation arrested the accused on 15.11.2011

and in the presence of PW7 recorded the confessional statements which

lead to recovery of MO2 from the possession of A1 and also a full hand

blood stained shirt which is marked as MO4. They also seized one red

colour torch light from the possession of A2 and also blood stained

Crl_A_274_2016 CPK,J & BVLNC,J shirt from A1. After collecting all the necessary documents, a charge

sheet came to be filed which was taken on file as PRC.No.4 of 2012 on

the file of Judicial First Class Magistrate, Araku.

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

required under Section 207 Cr.P.C., were supplied to them. As the

offences are triable by a Court of Sessions, the case was committed to

the Court of Sessions under Section 209 Cr.P.C. Accordingly, the same

was made over to the Court of the learned IV Additional Sessions

Judge, Visakhapatnam for trial and disposal in accordance with law.

5. Basing on the material available on record, charges, as referred

to earlier, came to be framed, read over and explained to the accused in

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

6. To substantiate its case, the prosecution examined P.Ws.1

to 11 and got marked Exs.P-1 to P-14 and M.Os.1 to 4. After

closure of 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. No oral and

documentary evidence was adduced on their behalf.

Crl_A_274_2016 CPK,J & BVLNC,J

7. Believing the evidence of PW7, coupled with the recoveries

made, the learned Additional Sessions Judge convicted the accused.

While convicting the accused, the learned Additional Sessions Judge,

relied upon the inadmissible portion of the evidence namely the

particulars of the confession made by the accused before the police and

then comes to a conclusion that the accused were responsible for the

death of the deceased though holding that the same is inadmissible in

evidence.

8. The grounds of appeal filed along with the appeal would show

that the learned Additional Sessions Judge erred in believing the

evidence of PWs1 & 2 to connect the accused with the crime. It is

further pleaded that there are no eyewitnesses to the incident and the

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

accused with the crime. It is further pleaded that no credence can be

given to the evidence of PW7, as MO2 was shown to him in the police

station. Apart from that, it is urged that the version of PW7 that the

inquest was conducted in the police station throws any amount of

doubt as to the evidence adduced by the prosecution to connect the

accused with the crime.

Crl_A_274_2016 CPK,J & BVLNC,J

9. Sri Soora Venkata Sainath, learned Special Assistant Public

Prosecutor opposed the same contending that though there are

no eyewitnesses to the incident, but the circumstances relied

upon by the prosecution establish the guilt of the accused

beyond reasonable doubt.

10. The point that arises for consideration is :

"Whether the circumstances relied upon by the prosecution are proved? And if proved whether they form a chain of events connecting the accused with the crime?"

11. In a case arising out of circumstantial evidence, the prosecution

has to prove each of the circumstance relied upon by them and the

circumstances so proved should form a chain of events connecting the

accused with the crime. In Jawaharlal Das v. State of Orissa's case,1

the Apex Court held that to base a conviction in a case arising out of

circumstantial evidence, three conditions are required to be satisfied

viz., 1) the circumstances from which an inference of guilt is sought to

be drawn must be cogently and firmly established, 2) those

circumstances should be of a definite tendency unerringly pointing

towards the guilt of the accused and 3) the circumstances, taken

cumulatively, should form a chain so complete that there is no escape

1 AIR 1991 SC 1388

Crl_A_274_2016 CPK,J & BVLNC,J from the conclusion that within all human probability, the crime was

committed by the accused and none else and it should also be

incapable of explanation on any other hypothesis than that of the guilt

of the accused.

12. Keeping in view the principles laid down by the Apex Court in

the decision referred to above, we shall now deal with the case on

hand.

13. As seen from the record, there are no eyewitnesses to the

incident. The evidence on record would show that on 13.11.2011 at

about 08:00 AM, when PW1 went to give food to her husband, at his

agricultural field, found her husband hanging to a beans plant pandal.

Immediately she returned back and informed the same to others,

pursuant to which all of them went to the scene of offence and noticed

the body hanging to the pandal. The said version of PW1 namely

going to the field at 08:00 AM with food to the deceased and noticing

the body hanging to a beans plant pandal is also spoken to by PW8.

Similarly, the evidence of PWs.2,3 & 4 would show that after receiving

the information from PW1, all of them together went to the scene of

offence and noticed the body hanging to the beans plant pandal.

Crl_A_274_2016 CPK,J & BVLNC,J

14. From the evidence of the above witnesses, it stands established

that the death of the deceased was a homicidal one and body was

found in the field hanging to a pandal. The question is whether the

accused are responsible for the same?

15. As seen from the record and which fact is not disputed even by

the learned Special Assistant Public Prosecutor, is that, the entire case

now rests only on the alleged confession made by the accused before

the police leading to discovery of Material Objects belonging to the

accused and Axe - MO2 used in the commission of the offence. Insofar

as the confession before the police is concerned, it is well established

that the same is not admissible in evidence except to the extent of

discovery made pursuant to the said confession under Section 27 of the

Indian Evidence Act. The discovery made, as stated earlier, are Mos 2

to 4. MO 2 is the axe alleged to have been used by the accused in the

commission of the offence. The said weapon was seized under

mediators report, exhibit P8, in the presence of PW7, the VRO, who

acted as a mediator for the same. PW7 in his evidence in chief, states

that after confession, the accused handed over axe which is marked as

MO2. However, in the cross examination he admits that he does not

know the place from where MO2 was brought by the accused and that

Crl_A_274_2016 CPK,J & BVLNC,J police have shown MO2 in the police station. It would be appropriate

to extract the same, which is as under:

"..Subsequently on 15.11.2011 all the accused confessed before the police of Ananthagiri Police Station by stating that they committed the murder against the deceased. I can identify the accused and all the accused sitting in the open court. After confession made by the accused, they are handed over the axe which is marked as MO.2..."

"..I do not know from which place the MO.2 brought by the accused. The police shown MO.2 in the police station. I was not visit the house of the accused, but police visited the house of the accused. .."

16. From the above, it is apparently clear that PW7 has not seen the

accused handing over the axe pursuant to the confession made. If

really it was a confession leading to discovery, under Section 27 of the

Indian Evidence Act, and he being a panch witness who signed the

panchanama, must have noticed the Axe being handed over by the

accused to the police. Apart from that though the recovery is said to

have been made pursuant to the confession made by A1, there is no

evidence on record evidencing the blood stains found on the axe are

that of the blood of the deceased. No grouping or matching of the

blood with that of the deceased was done. Further, the evidence of

PW9, who registered the case, states in his evidence in chief that he

Crl_A_274_2016 CPK,J & BVLNC,J assisted the Inspector of police in apprehension of accused and also

identifies his signature on the confessional reports of A1 to A4, which is

marked as Ex.P.10, but strangely he does not speak about the recovery

of MO2 - Axe. If the said recovery goes, there is nothing incriminating

to connect the accused with the crime.

17. In the result, the conviction and sentence recorded by the

learned II Additional Metropolitan Sessions Judge-cum-IV

Additional District And Sessions Judge, Visakhapatnam, vide

judgment, dated 29.12.2015, in Sessions Case No.66 of 2012

against appellants/A.1 to A.4 for the offences punishable under

Sections 302 I.P.C. and 201 read with 34 I.P.C. are set aside.

The appellants/A-1 to A-4 shall be released forthwith if they are

not required to be detained in any other crime. Fine amount, if

any, paid by the appellants/ A-1 to A-4 shall be refunded to

them. MOs. 1 to 4 shall be destroyed as per law.

18. Accordingly, the Criminal Appeal is allowed.

Miscellaneous petitions pending, if any, shall stand closed.

_______________________________ JUSTICE C.PRAVEEN KUMAR

__________________________________ JUSTICE B.V.L.N CHAKRAVARTHI 07.12.2022 Vjl

Crl_A_274_2016 CPK,J & BVLNC,J

HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

Crl.A.No.274 of 2016

[per CPK,J]

07.12.2022

Vjl