379 Of I.P.C. L.W.23-Inspector Of ... vs Unknown
2023 Latest Caselaw 3293 AP

     THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRIMINAL APPEAL NO.881 OF 2010

ORDER:-

The judgment, dated 21.06.2010 in Sessions Case No.265

of 2009, on the file of Principal Sessions Judge, East Godavari at

Rajahmundry ("Sessions Judge" for short) is under challenge in

this Criminal Appeal by the unsuccessful accused. The accused

before the learned Sessions Judge faced trial for the charges

under Section 302 and Section 379 of the Indian Penal Code

("I.P.C." for short) and on conclusion of the trial, the learned

Sessions Judge extended an order of acquittal in favour of the

accused insofar as the charge under Section 302 of I.P.C. is

concerned, but found him guilty of the charge under Section 411

of I.P.C., convicted him under Section 235(2) of the Criminal

Procedure Code ("Cr.P.C." for short) and after questioning him

about the quantum of sentence, sentenced him to suffer rigorous

imprisonment for three years and to pay fine of Rs.5,000/-, in

default to suffer simple imprisonment for three months. Felt

aggrieved of the same, the unsuccessful accused filed the present

Criminal Appeal challenging the said judgment.

2) The parties to this Criminal Appeal will hereinafter be

referred to as described before the Court below for the sake of

the convenience.

3) The Sessions Case No.265 of 2009 on the file of

Principal Sessions Judge, East Godavari at Rajahmundry, arose

out of a committal order in P.R.C.No.11 of 2009 of Judicial

Magistrate of First Class, Alamuru, relating to Crime No.81 of

2008 of Mandapeta Rural Police Station.

4) The State, represented by the Inspector of Police,

Mandapeta Circle, filed a charge sheet in Crime No.81 of 2008 of

Mandapeta Rural Police Station, alleging the offences under

Sections 302 of I.P.C. and 379 of I.P.C. in alternative under

Section 411 of I.P.C. (alternative to Section 379 of I.P.C.).

5) The case of the prosecution, in brief, as set-out in the

charge sheet is as follows:

(i) The accused is resident of Vemulapalli Village, H/o

Dwarapudi, Mandapeta Mandal, East Godavari District. He is a

desperate character. One Sangisetti Nageswara Rao @ Nagaiah

is the deceased (hereinafter will be referred to as "deceased").

(ii) L.W.1-Penumaka Nageswara Rao @ Nagesh is working

as farm servant under the deceased. He and his family members

used to stay in the fields itself in the shed. The deceased is the

Vice President of PACS of the village. They got lands in Vyra

Village of Khammam District and later they sold away.

(iii) During the night of 10.07.2008 at 10.15 p.m., the

deceased kept the cash of Rs.3,50,000/- in the newspaper bundle

and kept the bundle in the plastic wire basket and told his

daughter L.W.5-Sangisetti Lakshmi Durga that he would go out

and come soon. Between 10-30 and 10-45 p.m., the deceased

reached his fields. On noticing the deceased, the accused asked

him whether he brought the cash. The deceased said that he

brought the cash and asked the accused to show the gold. On

the pretext of showing the gold, the accused picked up the knife

from the rice bag which he brought there and hacked the

deceased on the back of his neck four or five times. The deceased

fell down crying. L.W.1 heard the cries of the deceased from the

drumstick tree side and he went there. He found the deceased

with bleeding injuries in a pool of blood. The deceased told him

that the accused informed to him that he got some gold and that

he would give it for a cheaper rate, as such, he brought the cash

of Rs.3,50,000/- to the fields where the accused came there,

hacked him with knife and committed theft of cash and escaped.

Then, L.W.1 informed the incident to L.W.3-Sangisetti Narayudu.

L.W.3 and L.W.7-Koppisetti Satyanarayana came to the fields.

By then, L.W.2-Kundrapu Appa Rao and Kotcherla Syamala also

came there. The deceased told to L.W.2, L.W.3, L.W.7 and

Kotcherla Styamala that the accused called him to offer gold and

when he brought Rs.5,00,000/-, the accused hacked him with

knife on his neck, back and right hand and committed theft of

cash of Rs.5,00,000/- and escaped. The deceased was shifted in

108 Ambulance to the Government Hospital, Rajahmundry and on

the way, he died. The 108 Ambulance staff declared him as dead.

The dead body of the deceased was brought to the daughter of

the deceased house.

(iv) On 11.07.2008 at 5-00 a.m., L.W.3 gave a report and

the Sub-Inspector of Police, Mandapeta Rural Police Station,

registered F.I.R. in Crime No.81 of 2008 under Sections 302 and

379 of I.P.C. L.W.23-Inspector of Police investigated. L.W.23

examined all the witnesses during the investigation. He visited

the scene of offence in the presence of mediators L.W.18-

Mandapalli Bhanu and L.W.19-Surampudi Ramakrishna. He seized

Sakshi daily newspaper, dated 08.07.2008 i.e., pages 1, 2, 15

and 16, one blood stained hundred rupee note and one fifty rupee

note which is fully wet with blood. He also seized a key bunch

with two keys, pair of Hawai chappals with red colour straps and

blood stained earth and controlled earth at the scene of offence.

He got photographed the crime scene and the dead body of the

deceased with the help of a private Photographer, L.W.17-Chinta

Veera Venkata Satyanarayana Prasad @ Prasad. L.W.23 held

inquest over the dead body of the deceased in the presence of

inquest panchayatdars and later forwarded the dead body to

postmortem examination. As there was a discrepancy as to the

quantum of amount that was taken by the deceased from the

house, he examined L.W.3 to L.W.6 and they confirmed that the

amount was of Rs.3,50,000/-. L.W.21-Dr. T. Durgaraju, Civil

Assistant Surgeon, conducted autopsy over the dead body of the

deceased and issued postmortem certificate opining that the

deceased died due to shock and haemorrhage due to injuries

sustained by him.

(v) On 24.07.2008 at 1-00 p.m. at Rellipeta,

Mossallacheruvu, Dwarapudi, L.W.23 arrested the accused in the

presence of L.W.18 and L.W.19 mediators. When L.W.23

interrogated the accused, he made confession which lead to the

recovery of cash of Rs.3,50,000/-, the clothes which the accused

wore at the time of commission of offence and the knife with

which he caused death of the deceased. A mahazarnama was

drafted to that effect. The crime weapon, the wearing apparels of

the accused and the clothes found on the body of the deceased

have been sent to the RFSL and the expert gave report stating

that human blood was detected but the blood group could not be

ascertained. Hence, the accused is liable for punishment under

Sections 302 and 379 or 411 of I.P.C.

6) The learned Judicial Magistrate of First Class,

Alamuru, took cognizance of the case under the above provisions

of law and after compliance of Section 207 of Cr.P.C. and after

exercising powers under Section 209 of Cr.P.C., committed the

case to the Court of Sessions. The Court of Sessions Division i.e.,

the Principal Sessions Judge, East Godavari at Rajahmundry after

appearance of the accused and after following the procedure

under Section 228 of Cr.P.C., framed charges under Sections 302

and 379 of I.P.C. against the accused and explained to him in

Telugu for which he pleaded not guilty and claimed to the tried.

7) During the course of trial, on behalf of the

prosecution, P.W.1 to P.W.12 were examined and Ex.P.1 to

Ex.P.13 were marked. During the course of cross examination of

P.W.1, P.W.3, P.W.5 and P.W.6, Ex.D.1 to Ex.D.4 were marked

respectively. Further M.O.1 to M.O.9 were marked on behalf of

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

the accused was examined under Section 313 Cr.P.C. with

reference to the incriminating circumstances in the evidence

adduced by the prosecution, for which he denied the same. He

did not let in any evidence.

8) The learned Sessions Judge on hearing both sides and

on considering the oral as well as documentary evidence,

disbelieved the case of the prosecution insofar as charge under

Section 302 of I.P.C. is concerned, but, believed the recovery of

cash of Rs.3,50,000/- pursuant to the confession made by the

accused and believed the evidence of daughter of the deceased

i.e., P.W.4. The learned Principal Sessions Judge found the

accused guilty of the offence under Section 411 of I.P.C. and

convicted him and sentenced him as above. Felt aggrieved of the

same, the unsuccessful accused, challenging his conviction and

sentence under Section 411 of I.P.C., filed the present Criminal

Appeal.

9) Now, in deciding the present Criminal Appeal, the

point that arises for consideration is that as to whether the

prosecution before the Court below proved that the accused was

found in possession of stolen cash of Rs.3,50,000/- in terms of

Section 411 of I.P.C. beyond reasonable doubt?

Point:-

10) Smt. B. Poonam, learned counsel, representing the

learned counsel for the appellant, would contend that the Court

below having recorded an order of acquittal insofar as the charge

under Section 302 of I.P.C. is concerned, by disbelieving the case

of the prosecution, erred in convicting and sentencing the

accused under Section 411 of I.P.C. The Court below ignored

several contradictions and discrepancies in the evidence of

prosecution witnesses. There was no commission of theft proved

by the prosecution. The cash of Rs.3,50,000/- was planted by

the investigating officer to strengthen the case of the

prosecution, as the prosecution had no definite evidence. The

Court below disbelieved the case of the prosecution that P.W.1

and P.W.2 came to know through the deceased that the accused

hacked him. The cause of death was instantaneous at the spot

giving no chance to anybody to go and converse with the

deceased. When that was the situation, the Court below without

proper appreciation of the evidence on record instead of

disbelieving the case of the prosecution under Section 411 of

I.P.C., erroneously convicted the accused, as such, appeal is

liable to be allowed.

11) Sri Y. Jagadeeswara Rao, learned counsel,

representing the learned Public Prosecutor, would contend that

the learned Sessions Judge disbelieved the case of the

prosecution insofar as the charge under Section 302 of I.P.C. is

concerned and with sound reasons and looking into the facts and

circumstances properly believed the case of the prosecution that

the accused was found in possession of the stolen cash of

Rs.3,50,000/- and the judgment of the Court below is absolutely

sustainable under law and facts, as such, the Criminal Appeal is

liable to be dismissed.

12) The case of the prosecution, in nutshell, is that the

accused told the deceased that he had the gold and that he would

deliver the gold at cheaper price and upon the said words of the

accused, the deceased took away cash of Rs.3,50,000/- at odd

hours to the accused during night where the accused attacked the

deceased and decamped with the booty. This is the sum and

substance of the case of the prosecution.

13) The prosecution examined P.W.4, the daughter of the

deceased, who testified that about 15 months ago her father

died. At that time at about 10-00 p.m., her father asked her to

give newspaper and she gave newspaper. Her father kept some

amount and wrapped with the newspaper. Then her father stated

that he was going outside asking her to close the doors of the

house and sleep. Prior to that, her father also asked her to give a

wire bag, as such, she gave wire bag. He kept the money inside

the wire bag and left the place. Then she closed the doors of the

house and slept inside. At about 11-00 p.m., her paternal

grandfather, Brahmaiah, came and knocked the doors of the

house. She opened the doors and found him. He informed her

that the accused killed her father and taken away the money with

him. Then her grandfather left the house. At about 2-00 or 2-30

a.m., the dead body of her father was brought to the house in

Ambulance. Police examined her.

14) Admittedly, insofar as the offence under Section 302

of I.P.C. is concerned, the prosecution examined P.W.1, the so-

called farm servant and P.W.2, who claimed to have gone to the

place of offence along with P.W.1 and further examined P.W.3,

P.W.5 and P.W.6, who came to know about the occurrence. The

evidence adduced by the prosecution by examining P.W.1 and

P.W.2 is such that when they heard cries and when they went to

the fields, they found the deceased in a pool of blood and he

(deceased) intimated to them that the accused told him that he

would give gold at cheaper price and asked him to bring rupees

five lakh or rupees six lakh and when he took the cash, the

accused stabbed him and escaped with booty. It is altogether

different aspect that considering the medical evidence on record,

the learned Sessions Judge held that the deceased must have

been died instantaneously at the spot or further must have been

in a position of not able to speak on account of grave injuries

received by him. While holding so, the learned Sessions Judge

disbelieved the case of the prosecution that the deceased was

alive by the time P.W.1 and P.W.2 rushed to the spot. While

deciding this appeal, it is not within the provisions of this Court to

decide as to the validity of the judgment in recording an order of

acquittal under Section 302 of I.P.C. in the absence of any cross

appeal. Therefore, the Court below on analyzation of the evidence

disbelieved the case of the prosecution insofar as the charge

under Section 302 of I.P.C. is concerned. So, the scope of the

appeal is confined to decide as to whether there is convincing

evidence to show that the accused was found in possession of

stolen cash of Rs.3,50,000/- in the manner as alleged by the

prosecution? To prove the fact that the deceased left the house

with cash, the prosecution examined P.W.4. In cross

examination, she stated that she did not ask her father as to why

he was going out with the money without being accompanied by

any other member of the family. She denied that she is deposing

false.

15) It is to be noticed that the case of the prosecution is

that the deceased wanted to purchase gold at cheaper price from

the accused than the market price. Hence, the so-called deal

alleged to be arrived at between the accused and the deceased

was not supposed to be revealed to anybody openly. This court

has no reason to disbelieve the evidence of P.W.4 that her father

left the house during night with cash.

16) To prove that the accused was found in possession of

stolen cash, prosecution examined P.W.8. P.W.8 was the witness

to the observation of the scene of offence and inquest. He was

also cited as a witness to the arrest of the accused and recovery

of stolen cash along with other articles. His evidence in

substance is that on 11.07.2008 at 1-00 p.m., at request of

police, he accompanied the police to Dwarapudi in a Jeep at

Rellipeta, near Mosallacheruvu, Dwarapudi. They found one

person. On seeking the police Jeep, he got baffled. Police

arrested him and interrogated him, who disclosed his identity as

that of the accused. Accused confessed that he would show the

material objects, if they follow him. The accused lead them to

cashew nut garden of Pulla Reddy at Vemulapalli. The accused

went into some bushes there and collected a bag. There were

two small plastic bags inside that bag. In one plastic bag they

found one short hands shirt, one lungi and one knife. The knife

was with handle. In other plastic bag, they found two bundles

cash to the extent of Rs.1,00,000/- in five hundred rupee

denominations, four bundles of cash to the extent of

Rs.2,00,000/- in one hundred rupee denominations and another

five bundles of cash one hundred rupee denominations. Totally

there was cash of Rs.3,50,000/-. Inspector of Police seized the

same under the cover of mahazarnama. During the cross

examination he deposed that he wrote two or three mediators

reports for the police. He wrote all the said reports. Having

personally involved in the corresponding proceedings only, he

could write it. He denied that he did not accompany the police to

arrest the accused and the accused did not give any confession

leading to recovery of the material objects.

17) Coming to the evidence of P.W.11, the investigating

officer, his evidence insofar as the arrest and recovery of the

stole cash is concerned, on 24.07.2008 at 12-30 p.m., on receipt

of credible information, he summoned P.W.8 and Surampudi

Ramakrishna. They proceeded to Dwarapudi village along with his

staff and reached Rellipeta, near Mosallacheruvu. At about 1-00

p.m., they found one person, aged about 50 years there. On

seeing them, he tried to escape. They surrounded him and held

him and he interrogated him. On suspicion, he arrested him

before the mediators. Pursuant to the confession made by him

and especially relating to the fact that he would show the cash

and other material objects, he led them. Ex.P.7 is the relevant

portion. Accused took them to the fields of Anaparthi Pullareddy

at Gopalarao tank, Dwarapudi. He searched the bushes and

collected a bag. He picked up M.O.7 to M.O.9. Accordingly, a

report was drafted. Prior to that, he seized M.O.7 to M.O.9, at the

same place. Thereafter, the accused was brought to the police

station. During the course of cross examination, he denied that

on 24.07.2008 he did not arrest the accused and the accused did

not give any confession leading to the recovery of material

objects.

18) P.W.8 being Village Revenue Officer was bound to

assist the police. He cannot be branded as a stock mediator.

There was no reason to disbelieve the evidence of P.W.4 insofar

as the aspect that the deceased left the house with cash. The

evidence of P.W.8 and P.W.11 is quietly consistent. As rightly

pointed out by the Court below that it was very difficult to plant

such huge amount of Rs.3,50,000/- to implicate the accused.

Nothing is elicited during the course of cross examination of

P.W.8 and P.W.11 to disbelieve their testimony. The Court below

believed the evidence of P.W.8 and P.W.11 and came to a

conclusion that the amount of Rs.3,50,000/- was recovered at the

instance of the accused and further believed the evidence of

P.W.4 insofar as the fact that the deceased left with cash during

the odd hours. Under the circumstances, this Court having

analyzed the evidence on record carefully is of the opinion that

there are no reasons to disbelieve the evidence adduced by the

prosecution insofar as the offence under Section 411 of I.P.C. is

concerned. The prosecution by examining P.W.4 categorically

proved the fact that the deceased left the house with cash. It is

altogether a different aspect that the prosecution failed to

connect the offence under Section 302 of I.P.C. against the

accused, but, on that count itself, the accused cannot be

exonerated of the offence under Section 411 of I.P.C. When the

recovery was effected pursuant to the disclosure statement made

by the accused, it is for the accused to account for the possession

of cash of Rs.3,50,000/-. According to Section 114A of the

Indian Evidence Act, 1872, a man who is in possession of stolen

cash, soon after the theft is either the theft or as received the

cash knowing it to be stolen unless he can account for his

possession. This presumption is further strengthening the case of

the prosecution.

19) Having regard to the above facts and circumstances, I

am of the considered view that the prosecution before the

learned Principal Sessions Judge, East Godavari, Rajahmundry,

categorically proved the offence under Section 411 of I.P.C.

beyond reasonable doubt and the learned Principal Sessions

Judge, in my considered view, rightly found the accused guilty of

the offence under Section 411 of I.P.C. and rightly sentenced

him. Hence, I do not see any reason to interfere with the

judgment of the learned Principal Sessions Judge, East Godavari

at Rajahmundry.

20) In the result, the Criminal Appeal is dismissed, as

such, the judgment, dated 21.06.2010 in Sessions Case No.265

of 2009 of the Principal Sessions Judge, East Godavari at

Rajahmundry in convicting and sentencing the appellant under

Section 411 of I.P.C. shall stands confirmed.

21) The Registry is directed to take steps immediately

under Section 388 Cr.P.C. to certify the judgment of this Court to

the trial Court on or before 11.07.2023 and on such certification,

the trial Court shall take necessary steps to carry out the

sentence imposed against the appellant (accused) and to report

compliance to this Court.

22) Registry is directed to send copy of the order along

with original record to the Court below on or before 14.07.2023.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 04.07.2023.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL. APPEAL NO.881 OF 2010

Note:

Registry is directed to send copy of the order along with original record to the Court below on or before 14.07.2023.

Date: 04.07.2023

PGR