Kunamalla Prabhakar, Warangal ... vs State Of Ap., Rep. Pp.
2022 Latest Caselaw 4317 Tel

      HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
                           AND
     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

              CRIMINAL APPEAL No.1144 of 2013

JUDGMENT : (Per GAC, J)

        This appeal is arising out of the judgment dated 29.11.2013

in S.C.No.121 of 2010 on the file of Special Judge for trial of cases

under SCs. & STs. (POA) Act-cum-VII Additional District Judge,

FAC: VIII Additional District Judge (FTC), Warangal.


2.      The appellant is the sole accused. A charge sheet is filed

against the accused for the offence punishable under Section 302 of

IPC. The trial Court, after considering the evidence on record,

convicted the appellant under Section 235(2) of Cr.P.C. for the

offence punishable under Section 302 of IPC and sentenced him to

undergo imprisonment for life and to pay a fine of Rs.500/- and in

default of payment of fine, to undergo rigorous imprisonment for

three months.


3.      The brief case of the prosecution is that 4 years prior to the

date of incident, the deceased purchased a house from one Bandi
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Narsaiah and since then, he along with his family, were residing

there and the accused initially intended to purchase the very same

house, but as it was purchased by the deceased, the

appellant/accused bore grudge against the deceased.         About 20

days prior to the incident, the accused set fire to the kirana shop of

PW-8, and on noticing the same, when the deceased when

questioned the acts of the accused, disputes arose between them. It

is the further case of the prosecution that on 11.10.2009, at about

9.00 p.m., the deceased went to the shop of PW-7 and the accused

picked up a quarrel with the deceased in the presence of PWs.5 and

6 and also threatened the deceased.       At about 11.00 p.m., on

hearing the cries of PW-3, PW-2 rushed towards the house of PW-

3 and saw the accused going away by hitting the deceased with a

boulder on his head. On that, PW-2 rushed to the house of PW-1

and informed about the incident. Basing on the information given

by PW-2, on the next day i.e. on 12.10.2009, PW-1 lodged a

report/Ex.P-1 to the Police.     On 12.10.2009, basing on Ex.P-

1/report, PW-13 i.e. the Sub-Inspector of Police, Geesugonda

registered Crime No.178 of 2009 for the offence punishable under
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Section 302 of IPC and issued FIR i.e. Ex.P-14. The Inspector of

Police, Geesugonda tookover the investigation and during the

course of investigation, visited the scene of offence, prepared scene

observation report, held inquest over the dead body of the deceased

in the presence of blood relatives of the deceased and

panchayatdars and later forwarded the dead body of the deceased

for postmortem examination.


4.    Basing on the requisition of Police, PW-12/Doctor

conducted autopsy over the dead body of the deceased at

Government hospital, Warangal and opined that the cause of the

death of the deceased was due to head injury and issued Ex.P-13/

postmortem report.


5.    Basing on the reliable information, the investigating officer,

on 15.10.2009 at 11.30 a.m., apprehended the accused at

Manugonda bus stop in the presence of mediators. Further, on the

confession of the accused, recovered the material objects under the

confession and seizure panchanama and effected arrest of the

accused and produced him before the IV Additional Judicial First
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Class Magistrate, Warangal for judicial remand. After recording

the statements of the witnesses and on receiving the reports from

the Doctor, concluded the investigation and laid charge sheet

against the accused for the offence punishable under Section 302 of

IPC.


6.     A charge was framed against the accused for the offence

punishable under Section 302 of IPC, readover and explained the

same to the accused, for which, he pleaded not guilty and claimed

to be tried.


7.     On behalf of the prosecution, PWs.1 to 15 were examined

and Exs.P-1 to P-19 were marked. The accused was examined

under Section 313 Cr.P.C. and he denied the incriminating

evidence of the prosecution and pleaded not guilty for the offence.


8.     The point for determination is;

       Whether the trial Court is proper in convicting the
       accused/appellant for the offence punishable under
       Section 302 of IPC and whether the prosecution has
       proved the guilt of the appellant beyond all reasonable
       doubt for the said offence ?
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9.    It is relevant to mention about the relationship between the

witnesses and the deceased for better appreciation of the facts.

PW.1 and PW-2 are the brother and wife of the deceased

respectively. PWs.3 and 4 are the distant relatives of the deceased,

PW-5 is the photographer, PWs.6 to 8 are the residents of the same

village. PW-9 is the panchayatdar for the crime report as well as

for the inquest. PWs.10 and 11 are the panchayatdars for the

confession-cum-seizure of material objects, PW-12 is the Doctor

who conducted autopsy over the dead body of the deceased,

PWs.13 to 15 are the Police officials who registered the crime

against the accused, investigated the case and laid charge sheet.


10.   The criminal law was set into motion basing on the

information given by PW-1, who is the brother of the deceased.

The report given by him is Ex.P-1. His evidence disclose that there

are disputes between the accused and the deceased in view of the

deceased purchasing the house, which the accused intended to

purchase and that about 20 days prior to the incident, the accused

set fire to the kirana dabba of PW-8, which was questioned by the

deceased, for which, the accused bore grudge against the deceased.
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His evidence further disclose that while he was in his house at

11.00 p.m., the villagers informed him that the accused murdered

his brother and on coming to know the same, he along with his

family members, rushed to the scene of offence and found the dead

body of the deceased lying in a drainage canal and the face of the

deceased was hit with a boulder.


11.   In the cross-examination, it is specifically admitted by PW-1

that he mentioned in Ex.P1/report that PW-2 informed him that she

found the dead body of the deceased lying with injuries in a

drainage canal and the incident occurred in front of the house of

PW-3 and that one Chandraiah's house was situated between the

houses of the deceased and the accused, further deposed that the

accused has his own house. It is also admitted by PW-1 that PW-2

did not inform him as to who has murdered her husband.


12.   The evidence of PW-2, who is the wife of the deceased,

disclose that the house of the accused is situated back side of their

house and the accused used to quarrel with her husband (deceased)

for purchasing the house which they have already purchased. Her
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evidence further disclose that at about 11.00 p.m., she heard cries

of her husband and on that, she immediately rushed out of the

house and saw the accused going away after hitting her husband on

the head with a boulder, and as a result, the deceased sustained

bleeding injuries and died on the spot.       Further, her evidence

disclose that she raised cries, rushed to the house of PW-1 and

informed about the incident, who in turn, lodged a complaint. In

the cross-examination, it is admitted by PW-2 that she did not

witness the quarrel between the accused and the deceased alleged

to have taken place at the shop of PW-8 and further specifically

deposed that she informed about the incident to PW-1 at 11.00

p.m., and basing on her information, PW-1 prepared the report

(Ex.P-1).   However, her evidence in the chief-examination is

contrary, as she admitted in her cross-examination that she stated to

the Police and PW-1 that as her husband did not turn up, she came

out of the house and saw the dead body of the deceased lying with

injuries.


13.    PWs.3 and 4 are the distant relatives of the deceased but they

turned hostile. Exs.P-2 and P-3 are the 161 Cr.P.C. statements of
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PWs.3 and 4. Though PWs.3 and 4 are cross-examined by the

Public Prosecutor, but nothing was elicited from them to support

the case of the prosecution in order to prove the guilt of the

accused.


14.   PW-5's evidence disclose that at the behest of the Police on

12.10.2009, he went to the scene of offence and as per the

instructions of the Police, took the photographs of the dead body of

the deceased and later handed over them to the Police along with

the C.D., which are Exs.P-4 and P-5 respectively.


15.   PWs.6 to 8 are the villagers, who turned hostile and their 161

Cr.P.C. statements were marked as Exs.P-6 to P-8 respectively.

Though they are cross-examined by the Public Prosecutor to prove

the fact that there were disputes between the accused and the

deceased prior to the incident, nothing could be elicited from them.


16.   PW-9 is the panch witness to the scene of offence and

inquest. His evidence disclose that he was called by the Police and

asked to sign over the scene observation panchanama and inquest

panchanama, which are Exs.P-9 and P-10 respectively and M.Os.1
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to 6 are the wearing apparel, sachets of Ghutka and chappals of the

deceased.


17.   PW-9 was also declared as hostile and in the cross-

examination by the learned Public Prosecutor, it was specifically

deposed by PW-9 that he did not made his signature over the

material objects, which were alleged to be seized by the Police and

that he signed on the panchanamas at the instance of the Police.


18.   The evidence of PWs.10 and 11 also disclose that they

signed on some written papers at the behest of the Police without

knowing its contents and Exs.P-11 and P-12 are their signatures on

the confession-cum-seizure panchanama.       PWs.10 and 11 also

turned hostile and their evidence disclose that they saw the accused

for the first time in the Court.


19.   The evidence of PW-12 i.e. the Doctor disclose that he

conducted autopsy over the dead body of the deceased on

12.10.2009 and found two external injuries corresponding with two

internal injuries, which are as follows:
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         "External injuries:
      1.

Mandible fracture depressed.

2. Laceration on right eye-brow 4 x 1.5 cms.

Internal injuries:

1. Contusion present on parietal bones.

2. Fracture of base of the skull."

20. It is opined by PW-12 that the cause of the death of the

deceased was due to injuries on his head and the deceased died 12

to 24 hours prior to the postmortem examination. Ex.P-13 is the

postmortem report of the deceased. On perusal of Ex.P-13, it is

evident that the postmortem examination commenced at 3.00 p.m.

and was concluded at 4.00 p.m. on 12.10.2009.

21. The evidence of PW-13 to 15 disclose about registration of

crime, investigation done by them and also about the arrest of the

accused and filing of charge sheet against him.

22. It is urged by the learned counsel for the appellant that all

the material witnesses, except PWs.1 and 2 who are the brother and

wife of the deceased respectively, have turned hostile. It is further

contended by the learned counsel for the appellant that the

evidence of PWs.1 and 2 cannot be relied upon, as there were

AVR, J & GAC, J Crl.A.No.1144 of 2013

improvements and contradictions and benefit of doubt has to be

extended to the appellant and prayed to set aside the judgment of

the Sessions Court.

23. On the other hand, the learned Public Prosecutor contended

that the prosecution has proved the guilt of the accused beyond

reasonable doubt and prayed to confirm the judgment of the trial

Court.

24. In order to support her contentions, the learned Counsel for

the appellant (Legal Aid Counsel Ms.Vasundhara Reddy) relied on

the judgment of Hon'ble Supreme Court in Parvat Singh & others

v. State of Madhya Pradesh1, wherein, it is held in para 12 as

under:

"It cannot be disputed that there can be a conviction relying upon the evidence/deposition of the sole witness. However, at the same time, the evidence/deposition of the sole witness can be relied upon, provided it is found to be trustworthy and reliable and there are no material contradictions

(2020) 4 SCC 33

AVR, J & GAC, J Crl.A.No.1144 of 2013

and/or omissions and/or improvements in the case of the prosecution."

25. In the judgment of this Court in Shai Pashamiya v. State of

Andhra Pradesh2, relied upon by the learned counsel for the

appellant, it is held that mere motive cannot be the sole

circumstance to convict the accused in a case based on

circumstantial evidence.

26. In another judgment of Hon'ble Supreme Court, relied upon

by the learned counsel for appellant in the case of Mallappa v.

State of Karnataka3, wherein, it is held in para 14 as under:

"Even if the prosecution version that PW.3, PW.5 and PW.6 could and did see the appellant running in front of Devendrappa's house from the respective positions they were in at the time of occurrence of the incident was accepted, the evidence we would have been left with would have been two accused persons being seen running away. That would have been too thin piece of evidence to convict someone under Section 302 of the Code, applying the principle of res gestae."

2019 (1) ALD (Crl.) 665

(2021) 5 SCC 572

AVR, J & GAC, J Crl.A.No.1144 of 2013

The aforesaid judgments relied upon by the learned counsel for the

appellant are squarely applicable to the facts of the present case.

27. On perusal of the entire evidence, it can be construed that all

the material witnesses have turned hostile except PWs.1 and 2,

who are related to the deceased. Admittedly, the official

witnesses' evidence is also on record which is of PW-5/the

Photographer, PW-12/the Doctor and PWs.13 to 15/the Police

officials. There is no iota of evidence on record about witnessing

the incident except the oral evidence of PW-2. The evidence of

PW-1 disclose that PW-2, who is the wife of the deceased, was

present at the scene of offence and on his enquiry, PW-2 informed

him that the accused hit her husband/deceased with a boulder on

his head and fled away from the scene of offence. But on perusal

of Ex.P-1, it is evident that on the date of incident, PW-2 waited

for the deceased (her husband) upto 10.30 p.m. at her house and

then walked out of the house and found the dead body of the

deceased in front of the house of Konnamalla Sarojana in the focus

of the light and later rushed to the house of PW-1 and informed

him about noticing the dead body of her husband and on that,

AVR, J & GAC, J Crl.A.No.1144 of 2013

PW-1 went to the scene of offence, found the dead body of the

deceased and suspected that the accused might have murdered the

deceased. The oral evidence of PW-1 is contrary to the

contents/recitals of Ex.P-1/report, of which, PW-1 himself is the

author. As stated supra, Ex.P-1 report is the first and the foremost

document which kept the criminal law into motion.

28. It is also important to note that PW-1 admitted in his

cross-examination that he did not state to the Police that he came to

know about the incident through villagers, which clearly disclose

that improvement was made by PW-1 in his evidence as to his

knowing about the incident through villagers instead of PW-2 and

also stating that PW-1 witnessed the deceased being hit by the

accused with a boulder.

29. The cardinal principles of criminal law are that the

prosecution shall prove the guilt of the accused beyond reasonable

doubt and the accused shall be presumed to be innocent till the

offence is proved and benefit of doubt has to be extended in case

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the prosecution fails to prove the built of the accused beyond

reasonable doubt.

30. In order to prove an offence punishable under Section 302 of

IPC, it is for the prosecution to prove that the death of the deceased

is caused with a specific motive and the bodily injury is caused by

the offender with the knowledge that such injury might cause the

death of the deceased and further, the injury inflicted is sufficient

to cause the death of the deceased.

31. In the present case, though the oral evidence of PWs.1 and 2

disclose that the deceased and accused had quarrels with respect to

the property which was purchased by the deceased long back

originally intended to be purchased by the accused, but there is no

corroborating evidence to support their contention. Their evidence

further disclose that the accused bore grudge against the deceased

as the deceased questioned the acts of the accused in setting fire to

the kirana shop of PW-8, but, PW-8 and all other witnesses have

turned hostile and did not support the theory as to the motive for

the accused to kill the deceased. In the absence of proper

AVR, J & GAC, J Crl.A.No.1144 of 2013

corroborating evidence as to the motive for the offence, it can be

construed that the prosecution has miserably failed to prove the

guilt of the accused.

32. None of the witnesses deposed about the manner of murder

committed by the accused in this case, except PW-2. But, PW-2 on

one hand deposes that she witnessed the incident and stated the

same to PW-1, who in turn, reported to the Police on the next day

of the incident i.e. on 12.10.2019. But, as per Ex.P-1 and the oral

evidence of PWs.1 and 2, the incident took place before 11.00 p.m.

on 11.10.2019. Admittedly Column No.8, of Ex.P-14/FIR disclose

that the incident was not reported due to night, which cannot be

considered as a reason for delay in registering FIR, which is fatal to

the case of the prosecution. Even the recitals of Ex.P-14 does not

disclose that PW-2 is the eye witness to the incident though the

contents speak that the report/Ex.P-1 was made by PW-1 at the

instance of PW-2, who has first witnessed the dead body of the

deceased in the drainage. It is also admitted by PW-2 that she did

not state to the Police that she witnessed the incident i.e. the

accused hitting the deceased on his face with a boulder.

AVR, J & GAC, J Crl.A.No.1144 of 2013

33. The learned Counsel for the appellant relied on the decision

of the Apex Court in Mahender Singh & others v. State of M.P.4,

wherein, their Lordships have relied on the judgment reported in

Vadivelu Thevar v. The State of Madras5 and held as under :

"Hence, in our opinion, it is a sound and well established rule of law that the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely,

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

In the first category of proof, the Court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category cases that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial."

34. As per the above ratio, the witnesses are of three types, (1)

wholly reliable (2) wholly unreliable and (3) neither wholly

2022 LiveLaw (SC) 543

1957 SCR 981

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reliable nor wholly unreliable. In the present case, PWs.1 and 2

come under the third category i.e. neither wholly reliable nor

wholly unreliable and the trial Court ought to have looked for

corroboration in material particulars either direct or circumstantial.

But, in the present case, there is no corroboration of material

particulars as to the direct or circumstantial evidence of PWs.1 and

2. Hence, it can be construed that the evidence of PWs.1 and 2

would fall in the category of 'neither wholly reliable nor wholly

unreliable'. Therefore, it can be presumed that there is no direct

eye witness to the offence and the case of the prosecution rests

upon circumstantial evidence.

35. In State of U.P. v. Dr.Ravindra Prakash Mittal6, the Apex

Court held as under :

"The essential ingredients to prove guilt of an accused person by circumstantial evidence are: (1) The circumstances from which the conclusion is drawn should be fully proved; (2) the circumstances should be conclusive in nature; (3) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; (4) the circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused.

(1992) 3 SCC 300

AVR, J & GAC, J Crl.A.No.1144 of 2013

.....As pointed out supra, there is no direct evidence to connect the respondent with this offence of murder and the prosecution entirely rests its case only on circumstantial evidence. There is a series of decisions of this Court so eloquently and ardently propounding the cardinal principle to be followed in cases in which the evidence is purely of circumstantial nature. We think, it is not necessary to recapitulate all those decisions except stating that the essential ingredients to prove guilt of an accused person by circumstantial evidence are:

      (1)          The circumstances from which the
                   conclusion is drawn should be fully
                   proved;
      (2)          the circumstances should be conclusive
                   in nature;
      (3)          all the facts so established should be

consistent only with the huypothesis of guilt and inconsistent with innocence; (4) the circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused."

36. During the course of investigation, the accused was arrested

and it is the case of the prosecution that the accused have

voluntarily confessed about committing of murder of the deceased

and basing on the confession of the accused, M.O.7 i.e. brown

colour pant of the accused was recovered. M.O.4 is the stone

which is alleged to have been used as a weapon which contains

blood stains. There is no forensic evidence before the Court to

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prove that the blood stains contained on M.O.4 are that of the

deceased.

37. As per Section 25 of the Indian Evidence Act, confession

made to a Police officer is inadmissible in law. There is no

evidence on record to show that the accused made extra-judicial

confession.

38. Section 27 of the Indian Evidence Act envisages as under:

"How much of information received from accused may be proved;--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

Admittedly, the panch witnesses to the confession statement turned

hostile and they deposed that they saw the accused for the first time

in the Court, but their signatures alone were marked which is in

no way helpful to the prosecution to prove the confession of the

accused. It is important to mention that the brown colour pant of

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the accused alone was seized from the possession of the accused,

which will not prove in any manner, the guilt of the accused.

There is no evidence on record to prove that the pant of the accused

contains blood stains of the deceased. Further, it is not the case of

the prosecution also that the pant seized from the possession of the

accused contains the blood stains of the deceased. Material objects

in this case were not sent for chemical analysis for the reasons best

known to the prosecution in order to connect such objects with the

crime.

39. The present case is based only on the circumstantial

evidence and the prosecution has failed to prove the complete

chain of circumstances, connecting the events so as to convict the

appellant, therefore, the conviction is bad in the eye of law.

40. In a case of homicide, it is for the prosecution to prove that

the accused hit the face of the deceased with M.O.4/boulder, due to

which, head injury was caused to the deceased, which ultimately

resulted the death of the deceased.

AVR, J & GAC, J Crl.A.No.1144 of 2013

41. The prosecution has miserably failed to prove about the

previous enmity between the accused and the deceased, which was

alleged to be the motive for committing the crime by the appellant.

As seen from the testimony of PWs.1 and 2, it is amply clear that

PW-2 could not have witnessed the incident and their evidence

would fall in the category of 'neither wholly reliable nor wholly

unreliable' witness. As such, no conviction could be based solely

on their evidence. The medical evidence could only establish that

the death was homicidal. However, it could not have been used to

corroborate the version of PWs.1 and 2 that they have witnessed

the incident. Therefore, it can be construed that the prosecution

has failed to prove the guilt of the accused beyond reasonable

doubt. As such, the appellant is entitled to be given benefit of

doubt.

42. In the result, the Criminal Appeal is allowed. The appellant

is found not guilty of the offence punishable under Section 302 of

IPC, and accordingly, the conviction and sentence imposed on the

appellant vide Judgment, dated 29.11.2013 in S.C.No.121 of 2010

on the file of Special Judge for trial of cases under SCs. & STs.

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(POA) Act-cum-VII Additional District Judge, FAC: VIII

Additional District Judge (FTC), Warangal, are hereby set aside

and the appellant is acquitted of the charged offence.

Consequently, the Superintendent, Central Prison, Cherlapally, is

directed to release the appellant forthwith, if he is not required in

any other case.

Pending miscellaneous applications, if any, shall stand

closed.

_______________________________ A. VENKATESHWARA REDDY, J

________________________________ G.ANUPAMA CHAKRAVARTHY, J

Date: 26.08.2022

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