Andhra Pradesh High Court - Amravati

Inapakurthi Shanmukha Rao, ... vs State Of Ap., Rep Pp., on 2 November, 2022

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     THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

AND HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

Criminal Appeal No. 261 of 2015

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

1) Heard Sri. G. Vijaya Saradhi, learned Counsel appearing

for the Appellant/Accused and Sri. S. Dushyanth Reddy,

learned Additional Public Prosecutor, appearing for the State.

2) The Sole Accused in Sessions Case No. 96 of 2014 on

the file of the Family Court-Cum-III Additional District and

Sessions Judge, Vizianagaram, is the Appellant herein. He

was tried for the offences punishable under Sections 302, 364

and 201 of Indian Penal Code ['I.P.C.']. By its Judgment,

dated 30.01.2015, the learned Sessions Judge, while

acquitting the Accused of the offence punishable under

Section 364 I.P.C., convicted the Accused for the offence

punishable under Section 302 of I.P.C. and sentenced him to

suffer rigorous imprisonment for life and to pay fine of

Rs.500/- in default to undergo simple imprisonment for three

months. The Accused was also sentenced to suffer rigorous

imprisonment for seven years and to pay fine of Rs. 100/- in

default to undergo simple imprisonment for fifteen days for

the offence punishable under Section 201 I.P.C. The

substantive sentences were directed to run concurrently.

Assailing the said conviction and sentence imposed, the

present Appeal is preferred.

3) The gravamen of the charges against the Accused is

that, on 15.05.2013, near Bheemuni Guha, Ramatheertham

Village, the Accused is said to have abducted and caused the

death of one Pedapudi Karuna ['Deceased'] by stabbing her

with a knife and, thereafter, dumped her body into the deep

rocky slope to screen the evidence.

4) The case of the prosecution, as unfolded through the

evidence of prosecution witnesses, is as under:

i) PW3 is the father and PW4 is the brother of deceased.

The deceased is the daughter of paternal uncle of the

Accused. PW3 to PW5 and the deceased are residents of

Sivvam Village. PW1, PW2, PW7 to PW9 are the

residents of Ramatheerdhala Village, while the Accused

and PW6 are residents of Kurupam Village.

ii) It is said that, the Accused who is related to PW3 used

to visit the house of PW3, and developed acquaintance

with the deceased, though he was married by then and

residing at Peddimpeta. It is said that, the Accused

promised to marry the deceased and made her

pregnant. A dispute was raised by PW3 before PW5,

PW6, PW14 and others on a premise, that, it was the

Accused who was responsible for the pregnancy. At the

instance of elders/mediators, the Accused agreed to

marry the deceased and look after her properly.

iii) It is said that, on 14.05.2015, on invitation of the

Accused, the deceased along with PW4 went to

Parvathipuram. Initially, they went to R.T.C. Complex

and on a call made by the Accused, they went towards a

fruit juice shop. There, the Accused told PW4 that he

and deceased will come to the Village later and sent

PW4 back. It is said that, PW4 went to a movie and at

about 8.00 P.M., he reached his house. When the father

of the deceased enquired as to the whereabouts of the

deceased, PW4 informed him that she along with

Accused will come later. But, it appears that, neither of

them came home. Later, PW4 parents tried to inquire

the Accused by calling him on phone, but the phone

remained switched off. PW3 searched for the Accused

and his daughter [deceased], but in vain.

iv) On 15.05.2013, PW8 - the Thalari of the Village, on

receipt of information, went to the scene of offence along

with some Villagers and saw a dead body lying at

Bheemuni Gruha. He, immediately, telephoned to PW1,

who went there and saw the dead body of a female

person, which lead to lodging of a report by PW1. Basing

on Ex.P1 report, PW15 [Sub-Inspector of Police]

registered a case in Crime No. 55 of 2013 at Nellimarla

Police Station under Section 174 Cr.P.C. Ex.P12 is the

First Information Report. Thereafter, PW15 visited the

scene of offence and prepared an observation report of

the scene, which is marked as Ex.P2. He also drew a

rough sketch of the scene, which is marked as Ex.P13.

He also got the scene of offence photographed. At the

scene, he seized blood stained earth and controlled

earth in the presence of PW2 and another. Thereafter,

PW15 conducted inquest over the dead body of the

deceased in the presence of PW2 and others. Ex.P3 is

the inquest report. During inquest, he examined PW1,

PW3, PW4, PW7, PW8 and PW14 and recorded their

statements. After completing the inquest, the body was

sent for post-mortem examination to M.R. Government

Hospital, for post-mortem examination.

v) PW13 - the Civil Assistant Surgeon, conducted autopsy

over the dead body of the deceased and issued Ex.P10 -

preliminary post-mortem certificate and Ex.P11, the

final post-mortem report.

vi) On 17.05.2013, PW16 - the Circle Inspector of Police,

who took up further investigation, received the foetus

from the womb of the deceased and sent it to Forensic

Science Lab for D.N.A. report, which revealed that the

Accused has nothing to do with the foetus or that the

profiling did not match with that of the Accused. The

Accused was arrested on 19.05.2013 and pursuant to

the disclosure statement made, clothes (M.O.5 and

M.O.6) and knife [M.O.6] were discovered and sent to

R.F.S. Lab.

vii) After collecting all the necessary documents, a charge-

sheet came to be filed, which was taken on file as P.R.C.

No. 7 of 2014 on the file of Additional Judicial

Magistrate of First Class, Vizianagaram.

5) 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 Sessions, the same was

committed to Court of Sessions under Section 209 Cr.P.C.

Basing on the material available on record, charge as 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.

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

PW17 and got marked Ex.P1 to Ex.P16, beside marking

M.Os.1 to M.O.8. After completion of 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, however, no evidence was adduced in

support of his plea.

7) Relying upon the following circumstances, namely,

(1)'motive'; (2) the Accused being 'last seen' in the company of

the deceased by PW4 and also by PW7; (3) coupled with

disputes between the two families, the learned Sessions Judge

convicted the Accused. Challenging the same, the present

Appeal came to be filed.

8) (i) Sri. G. Vijaya Saradhi, learned Counsel appearing for

the Appellant/Accused, mainly submits that, the

circumstances relied upon by the prosecution are not proved

and even if proved, do not connect the Accused with the

crime. He further submits that, 'motive' which is sought to be

relied upon by the prosecution is not proved and even

otherwise, it is a double edged weapon, cannot be made basis

to connect the Accused with the crime. Be that as it may, he

would submit that neither the evidence of PW4 nor the

evidence of PW7 on record establish the Accused being 'last

seen' in the company of the deceased.

(ii) He further submits that, the medical evidence also does

not corroborate the manner in which the incident is said to

have been committed.

(iii) Insofar as the evidence of mediators are concerned, he

would submit that, the Accused was pressurised to marry the

deceased though the Accused was not responsible for the

pregnancy of the deceased. According to him, as the

pregnancy was through a third person, the deceased might

have committed suicide. In view of all the above, he would

contend that the prosecution failed to prove its case beyond

reasonable doubt.

9) On the other hand, Sri. S. Dushyanth Reddy, learned

Additional Public Prosecutor appearing for the State, opposed

the same contending that when the evidence of PW1 coupled

with the evidence of mediators establish motive and the

evidence of PW4 and PW7 being independent in nature, there

is no reason to disbelieve the circumstances relied upon by

the prosecution to connect the Accused with the crime. In

other words, his argument appears to be that, the finding of

the trial Court requires no interference.

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

circumstances relied upon by the prosecution are proved and if

proved, whether the events form a link connecting the Accused

with the crime?

11) As seen from the record, there are no eye witnesses to

the incident and the case rests on circumstantial evidence. 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 or link

connecting the Accused with the crime, ruling out any other

hypothesis.

12) In the instant case, as stated by us earlier, there are

about four circumstances relied upon by the prosecution to

connect the Accused with the crime. Before dealing with the

same, it would be appropriate to refer to the relationship

between the parties.

13) PW3 is none other than the father of the deceased and

the Accused is sister son of PW3. It has also come on record

that the mother and father of the Accused died long back.

Apart from that, the evidence of PW3 also discloses that,

mother of the Accused was given in marriage to his maternal

uncle. PW3 also deposed that, the Accused used to come to

his house during life time of his daughter [Karuna] and

agreed before the elders to marry the deceased-daughter,

though, he was married by then. PW3 also categorically states

that, there were no good relationship between his family and

the family of the Accused and that he did not attend the

marriage of the Accused, since the Accused did not marry his

daughter. But, however, he volunteers to say that, the

Accused used to visit his house frequently and used to talk

with his daughter [deceased]. At this stage, we may also

mention that, the deceased herein discontinued her studies

while she was studying intermediate and, thereafter, went to

Bangalore to learn stitching work and stayed there for a

period of one year. Thereafter, she went to Hyderabad and

worked as Nurse for about four to five months.

14) As stated earlier, there is no dispute with regard to

marriage of Accused with another girl. But, in-spite of the

same, the Accused is alleged to have promised to marry the

deceased. A panchayat was convened on a complaint given by

PW3 that his Nephew, namely, the Accused was responsible

for the pregnancy of his daughter. In the said panchayat, PW5

and PW6 called the Accused, wherein, he said to have

admitted his guilt for causing pregnancy to the deceased and

also agreed to marry the deceased.

15) Insofar as the theory of pregnancy is concerned, which

appears to be the reason for calling the panchayat and

making the Accused to admit for marrying the deceased; it is

to be noted that, the medical evidence on record disproves the

same. PW13 - the Civil Assistant Surgeon, who conducted the

post-mortem examination and who sent the foetus to the

Forensic Science Lab, categorically admits in cross-

examination that, milifilar STR analysis conclusively proves

that the D.N.A. profiling obtained from foetal tissue of Item

No. 1 is biologically not related to Inapakurthi Shanmukha

Rao [Accused], shown of Item No. 2. Therefore, the first

circumstance relied upon by the prosecution, namely, that

the pregnancy was caused by the Accused and that he has

done away with the deceased to overcome the promise made,

appears to be incorrect.

16) Coming to the disputes between the two families; the

evidence of PW3 categorically shows that, there was no good

relationship between both the parties, though, both of them

are closely related to each other and that he did not go to the

marriage of the Accused, as the Accused did not agree to

marry his daughter. Therefore, the 'motive', as suggested by

the prosecution, in our view, being double edged, cannot be

made the basis, in the given set of circumstances, to establish

the culpability of the Accused, in the commission of the

offence. We feel that the same requires to be tested with other

circumstances relied upon by the prosecution.

17) The two other circumstances, which are strongly relied

upon the prosecution are, the evidence of PW4 and the

evidence of PW7.

18) PW4 is none other than the brother of the deceased. He,

in his evidence, categorically states that on 14.05.2013, the

Accused invited his sister [deceased] to come to

Parvathipuram, and that he and the deceased went to

Parvathipuram and waited at R.T.C. Complex. While, they

were waiting, the Accused telephoned to the deceased and

asked her to come to juice shop and, accordingly, both of

them went there. On reaching the juice shop, the Accused

asked PW4 to go to his Village and, as such, he went to a

movie and then returned to his Village at 8.00 P.M. When

asked by his parents as to what happened to deceased, PW4

informed that the Accused and deceased will come later. This

witness was cross-examined at length, wherein, he admits

that, he did not state before the Police that he and deceased

went to fruit juice shop on receiving phone call from the

Accused. It would be appropriate to extract the same, which

is as under:

"It is true that, I did not state before Police that myself and my deceased sister went to fruit juice shop, on receiving phone call by the accused."

19) Further, the Investigating Officer [PW-15] in his

evidence categorically states, as under:

"It is true PW.4 did not state before me that on enquiry of his father about the deceased and accused, he stated to his father that he will come later and on the next day when PW.3 made a phone call to the cell phone of accused and deceased, the deceased phone was switched off."

20) From the evidence of PW4, it is clear that, in his earlier

statements, he failed to mention two crucial facts, namely,

that he along with deceased went from R.T.C. Complex to the

fruit juice shop, where the deceased met the Accused and

from there both of them went away asking PW4 to go back to

his Village. Further, PW4 also did not mention in his earlier

statement about the enquiry made by his father on returning

home and he informing his father that the Accused and

deceased will come later. Therefore, a doubt arises as to

whether really he has seen the Accused and deceased

together on that day or for that matter the deceased met

Accused in Parvathipuram.

21) The next circumstance, to prove the theory of 'last seen',

is the evidence of PW7.

22) PW7 in his evidence deposed that, he is a resident of

Ramateerdhalu of Nellimarla Mandal, and working as Guide

in Ramatheerdhalu Hill, and that, he used to attend Hill from

morning to evening. According to him, about one and half

year ago, while he was getting down the Hill, he saw one male

and female persons climbing up the Hill. On the next day,

while he was present in the Hill, he came to know through

one boy that one person was sleeping by consuming alcohol.

He then rushed to the place and noticed a dead body of a

female, whom he has seen on the previous day, while getting

down from the Hill. He intimated the said fact to Kancharapu

Ramu and Tadi Satyanarayana [PW2], who in-turn informed

the same to PW1. When examined by the Police, he informed

about seeing both of them on previous day. He also claims to

have identified the Accused in the Test Identification Parade

conducted in Sub-Jail. But, the truthfulness of this evidence,

in our view, has to be tested with other evidence of record.

23) According to PW7, he has seen the Accused and

deceased climbing the Hill about one and half year prior to

giving evidence. Even assuming that he has seen the Accused

and deceased together on the date of incident, which would be

on 14th / 15th May, 2013, he, in his evidence, categorically

states about informing the Police about seeing both of them

together on the said dates. But, strangely, though he was

examined at the time of inquest, the said version is not

spoken to by him. The fact that PW7 never spoke about seeing

the Accused and deceased together at the time of inquest,

which was held on 16.05.2013, is not disputed by the learned

Additional Public Prosecutor. That being so, a doubt arises, as

to whether really he has seen both of them together a day

prior to the date on which the dead body was found on the

Hill.

24) The argument of Sri. G. Vijaya Saradhi, learned Counsel

appearing for the Appellant/Accused that, if really the witness

has seen both of them together and if really he has mentioned

the same to the Police, when they examined him, he would

not have missed mentioning the same at the time of inquest

cannot be brushed aside. If really he has mentioned the same,

column 15 of the inquest would have definitely referred to this

important material fact.

25) It is no doubt true that, inquest is conducted only to

know the cause of death and the features on the body of the

deceased, but, in a case of this nature and having regard to

the facts in issue, we feel that the contents of the Inquest

Report assumes significance to establish the guilt of the

Accused. As stated earlier, the absence of crucial factual

aspect, namely, Accused and deceased being 'last seen'

climbing the Hill in the Inquest Report, though, PW7 was

examined, at the time of inquest, creates a doubt as to

whether PW7 has really seen them.

26) Coming to the last circumstance, namely, identification

of the Accused by PW7 in the Test Identification Parade

conducted. It is to be noted that, PW7 in his cross-

examination admits that, "Police took him to Sub-Jail fifteen

days after noticing the dead body". From the above statement,

it is clear that, around 30.05.2013, PW7 must have been

taken to Sub-Jail. The purpose for taking him to Sub-Jail is

not explained by the prosecution. Obviously, it must have

been done only to make him see the Accused. Further, the

Test Identification Parade was held by the Magistrate, which

was on 22.06.2013. Therefore, possibility of Accused being

shown to PW7, when he was taken to the Sub-Jail fifteen days

after the body was traced, cannot be ruled out, otherwise,

there is no reason for the Police to take PW7 to the Sub-Jail.

27) One another circumstance, which falsifies the case of

the prosecution, is the medical evidence. As per the charge,

the Accused is said to have hacked the deceased on the head

and other parts of the body and, thereafter, pushed her down

the Hill after causing her death. But, the medical evidence

does not support the case of the prosecution. It would be

appropriate to refer to the medical evidence, which is as

under:

"External Injuries: Crush injury of left fronto, perieto, temporo and upper occipital region of skull showing multiple skull fractures with partial loss of bone and brain. 2) Laceration of 4 x 1 x 0.5 cm (three in number) noted over the left wrist with bruising.

3)Laceration around the lobule of right ear with surrounding bruising and conjunction. 4) Laceration of 2 x 1 x 0.5 cm over the forehead in the midline with surrounding bruising and conjunction.

5)Laceration of 3 x 1 x 0.5 cm over the right eyebrow with surround bruising and conjunction."

I opined that the cause of death is due to crush injury to head, skull and brain."

28) In cross-examination, PW13 admits as under:

"It is true that as per my observation, purtification is started. It is true that in case of purtification of the body it is not possible to estimate the time of death, so also, as to whether the injuries are antimortem or post-mortem, if purtification is starts. It is true that I have not noted the colour of spleen at my internal post-mortem examination. It is true that the colour of the spleen is one of the primary fact to decide the time of death. It is

true that if anybody falls from height of 30 feet in rocky substance the crush injury like No. 1 is possible. I forwarded the purtors along with visceras. It is true that the other injuries like 2 to 5 mentioned in Ex.P10 are possible, if a person coming to contact with any tree or any rocks."

29) In Kailash Gour and others vs. State of Assam1 the

Apex Court held as under:

"It is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between accused `may have committed the offence' and `must have committed the offence' which must be traversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognised as a human right which cannot be wished away."

30) Having regard to above, we feel that the circumstances

relied upon by the prosecution are not proved beyond doubt and

the said circumstances do not form a complete chain,

connecting the accused with the crime. Considering the

judgments referred to above and in the absence of any cogent

and convincing evidence, we feel that, it may not be safe to

AIR 2012 SC 786

convict the Appellant/Accused for the charge of murder basing

on the evidence adduced. Accordingly, we are inclined to acquit

the Appellant/Accused by extending benefit of doubt.

31) In the result, the Criminal Appeal is allowed. The

conviction and sentence recorded against the