Dontula Suresh vs The State Of Telanagana
2022 Latest Caselaw 5999 Tel

     SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

AND HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

CRIMINAL APPEAL No.654 of 2014

JUDGMENT : (Per G.Anupama Chakravarthy, J)

This appeal is arising out of the judgment dated 06.06.2014

in S.C.No.309 of 2012 on the file of the VIII Additional District

and Sessions Judge, Medak. Initially, a crime was registered

against accused Nos.1 to 6 in Crime No.74 of 2011 on the file of

Kowdipally Police Station, which was committed to the Sessions

Court by the Judicial Magistrate of First Class, Narsapur, vide

PRC.No.7 of 2012, for the offences punishable under Sections 147,

148, 302, 323 r/w.149 of IPC. The Sessions Court, on conclusion

of trial, found accused No.1 alone guilty of the offence punishable

under Section 302 of IPC and sentenced him to undergo

imprisonment for life and to pay a fine of Rs.5,000/-. Accused

Nos.2 to 6 are acquitted of all the charges levelled against them.

2. The case of the prosecution is that accused No.2/Dontula

Narsaiah and the deceased/Donthula Balaiah are relatives and they

have agricultural lands in Sy.Nos.325 and 327 at their village. In

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the year 2008, A-1 to A-3 sold away their land admeasuring

Ac.0-12 guntas to the deceased under registered document and

since then, the deceased was in possession of the said land. A-2

again sold his land admeasuring Ac.0-06½ guntas in the month of

December, 2010 to one Kodigudla Narsimulu under a registered

document and when he went to the said land, the deceased opposed

and warned him not to interfere. Further, the said Kodigudla

Narsimulu asked A-1 to A-3 either to deliver the land to his

possession or for refund of the money. On that issue, A-2 and the

deceased quarrelled. Later, the deceased filed O.S.No.8 of 2011

and Kodigudla Narsimulu also filed O.S.No.18 of 2011 on the file

of Junior Civil Judge, Narsapur. On 12.08.2011, while the

deceased and his son were cultivating the land, A-2 and A-3

threatened them to kill them if they enter into the field again.

Later, A-2 and A-3 decided to kill the deceased, contacted their

relatives A-4 and A-5 on phone and on 13.08.2011, A-4 to A-6

went to Venkatraopet village on Bajaj Chetak Scooter of A-6,

hatched a plan and waited for arrival of deceased/Balaiah, who

would pass from infront of the house of the accused. At about

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12 Noon, when the deceased was passing on the road, A-3

sprinkled chilly powder into the eyes of the deceased and A-1

attacked the deceased with an axe, while A-4 to A-6 attacked him

with sticks and beat indiscriminately and caused severe injuries on

the head, face and further, A-2 picked up a stone and dropped it on

the face of the deceased. Further, A-1 also beat PW-2/the daughter

in law of the deceased at the scene of offence, who in turn, rushed

to the nearby hotel of Gandi Yada Goud and informed about the

incident to others. By the time PW-2 and others reached the scene

of offence, the accused persons escaped. Later, the deceased

succumbed to injuries, while being shifted to Government hospital,

Narsapur in 108 Ambulance.

3. Basing on the complaint of PW-1/the son of the deceased, a

case was registered against A-1 to A-6 for the offences punishable

under Sections 147, 148, 302 and 323 r/w. Section 149 of IPC.

During the course of investigation, the investigating officer

examined the witnesses, recorded their statements under Section

161 Cr.P.C., conducted inquest over the dead body of the deceased,

forwarded the dead body for postmortem examination, observed

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the scene of offence, prepared crime report, affected arrest of the

accused, recorded their confession statements, seized the material

objects and after receiving the medical and FSL reports, laid charge

sheet against the accused for the above said offences.

4. During the course of trial, charges were framed against the

accused for the above said offences and all the accused denied the

charges levelled against them and claimed to be tried. On behalf of

the prosecution, PWs.1 to 10 were examined and Exs.P-1 to P-10

and M.Os.1 to 12 were marked. The accused were examined under

Section 313 Cr.P.C. and they all denied the incriminating evidence

against them and reported no defence evidence.

5. The trial Court framed the following points for

determination:

"1. Whether accused formed into an unlawful assembly and committed rioting with deadly weapons ?

2. Whether the deceased - Balaiah was killed by A-1, A-2, A-4 to A-6 intentionally ?

3. Whether A-3 caused hurt to the deceased and liable for the offence of murder being member of unlawful assembly ?"

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6. As already stated supra, the trial Court has acquitted A-2 to

A-6 of all the charges levelled against them and A-1 alone was

convicted for the offence under Section 302 of IPC.

7. It is pertinent to mention the relationships between the

accused. A-1 to A-3 are the members of the same family i.e. A-1 is

the son of A-2 and A-3; A-4 is the brother of A-3; A-5 is the

son-in-law of A-2 and A-3; A-6 is the resident of the same village

as that of A-4 and A-5; A-2 is the relative of the deceased i.e. the

1st wife of A-2, namely, Narsamma is the cousin of the deceased.

8. For better appreciation of facts, it is also relevant to discuss

the identity of the prosecution witnesses with that of the deceased.

PW-1 is the elder son of the deceased, PW-2 is the wife of PW-1

and daughter-in-law of the deceased, PWs.3 to 6 are the residents

of the village, PW-7 is the Doctor, who conducted autopsy over the

dead body of the deceased, PW-8 is the VRO, who attested the

confession panchanama of A-1 and pursuant to the confession

panchanama, M.Os.9 to 12 were seized in his presence, PW-9 is

the Head Constable who registered the case against A-1 to A-6

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basing on the complaint given by PW-1 vide Crime No.74 of 2011

on the file of Kowdipally Police Station and issued FIR/Ex.P-8 and

PW-10 is the Inspector of Police, who investigated the case and

laid charge sheet before the Court.

9. Heard learned counsel for the appellant and the learned

Public Prosecutor. Perused the record.

10. It is contended by the learned counsel for the appellant that

the trial Court has acquitted the other accused in the case i.e. A-2 to

A-6 of all the charges levelled against them, but on the same set of

facts and evidence, the Court has erroneously convicted A-1/

appellant herein, which is not admissible in law. Therefore, the

conviction is bad in the eye of law and accordingly prayed to set

aside the judgment of the trial Court; as the prosecution has

miserably failed to prove the guilt of the appellant beyond

reasonable doubt.

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

that the trial Court has convicted the appellant after considering the

evidence available on record, and therefore, prayed to confirm the

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judgment of the trial Court by dismissing the appeal, as there is no

error or irregularity in the judgment of the Sessions Court.

12. The point for determination in this case is;

Whether the trial Court is proper in convicting the accused for the offence punishable under Section 302 of IPC, while acquitting the other accused on the same set of facts, and whether the prosecution is able to prove the guilt of the appellant beyond all reasonable doubt for the said offence ?

13. The case of the prosecution is that there were land disputes

between A-2 and the deceased and the motive for the offences is

the land disputes. A-1 to A-6 hatched a plan to do away with the

life of the deceased and accordingly on 13.08.2011, while the

deceased was passing from infront of the house of the accused, A-3

sprinkled chilly powder into the eyes of the deceased and A-1

hacked the deceased with an axe and later, the other accused beat

the deceased with sticks, which was witnessed by PW-2, who is

none other than the daughter-in-law of the deceased. The trial

Court disbelieved the evidence of prosecution and discarded the

theory placed by the prosecution and acquitted A-2 to A-6 of all

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the offences for which they are charged and convicted A-1 alone

for the offence under Section 302 of IPC on the same set of facts.

14. In this regard, the learned Legal Aid Counsel Smt.

C.Vasundhara Reddy relied on the judgment of the Apex Court in

Mahmood & others v. State of Bihar1, wherein, their Lordships,

while relying on the judgment in Prem Singh v. State of Punjab2,

set aside the conviction which was founded solely on the evidence

of two witnesses whose testimony in regard to the other accused

was held by the trial Court as well as the High Court to be

unreliable and disbelieved in regard to the participation of the said

four other accused in the incident.

15. The above judgment squarely applies to the facts and

circumstances of the present case, as A-2 to A-6 are acquitted and

on the same set of facts, A-1 alone is convicted.

16. The evidence of PW-2 disclose that A-3 sprinkled chilly

powder into the eyes of the deceased, A-1 hacked the deceased

with an axe and rest of the accused beat the deceased with sticks

2000 (1) ALD (Crl.) 706 (SC)

(1976) 1 SCC 805

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and the accused also beat the witness, for which, a charge was

framed by the trial Court for the offence under Section 323 of IPC

and the trial Court has disbelieved the evidence and set A-2 to A-6

at liberty, but convicted A-1 alone for the offence under Section

302 of IPC. Therefore, applying the proposition laid by the

Hon'ble Supreme Court in the aforesaid judgment, the appellant in

this case is also entitled for benefit of doubt.

17. Further, PW-2 testified that A-2 to A-6 surrounded the

deceased and A-2 dropped a stone on the face of the deceased and

ran away. In the cross-examination, it is specifically deposed by

PW-2 that she usually goes to fields by 8.00 or 9.00 a.m. and will

return within two hours and again will go back to the fields in the

evening, but on the particular day of incident, she went to the fields

at 11.00 a.m. and the deceased went out of the house to the city at

11.00 a.m. There was no explanation as to why she went late to the

fields. It is also specifically deposed by her that on the date of the

incident, the work at field went upto 5.00 p.m. Therefore, the

presence of PW-2 at the scene of offence is highly doubtful.

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18. On the other hand, the evidence of PW-1 is that he came to

the village at about 11.30 a.m. or 12.00 Noon and was informed by

the villagers that his father was beaten at their house and when he

rushed to the house, he noticed his father in an unconscious state

and also noticed one Bajaj Chetak scooter, an axe and some sticks

at the scene of offence and shifted his father to the hospital in an

ambulance but the Doctors declared his father as brought dead.

Later, he was informed by PW-2 that all the six accused were

responsible for the death of his father.

19. Admittedly, there is no evidence before the Court to prove

that there are land disputes between A-2 and the deceased, though

orally stated by the witnesses. The evidence of PW-3 discloses

that he saw A-4 to A-6 going away from the scene of offence with

sticks and A-1 to A-3 also going away from the scene of offence.

PW-3 is not an eyewitness to the incident. His evidence merely

discloses that PW-2 intimated them that their father-in-law was

killed. On that, they went to the scene of offence and saw the

accused moving away from the scene of offence. In the

cross-examination also, PW-3 admitted that he was informed by

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PW-2 that there were land disputes between the accused and the

deceased. So, it can be construed that the evidence of PW-3 is a

hearsay and he has not witnessed the incident and deposed before

the Court basing on the information given to him by PW-2, who is

an interested witness.

20. PW-4 is the father of PW-2 and father-in-law of PW-1. He

was cited to speak about his witnessing the deceased's body lying

in a pool of blood. The evidence of PW-4 also discloses that he

was informed about the death of the deceased by PW-2.

Admittedly, he is not the resident of Venkatraopet village and as to

why he was present on that day in the said village at the time of

offence, is not at all explained by the prosecution. Further, his

evidence discloses that he was informed by PW-2 one day prior to

the incident about the land disputes between A-2 and the deceased.

It is important to note that the evidence of PW-1 disclose thathe

shifted his father in an ambulance to the hospital, when the

deceased was in unconscious state and doctors declared the

deceased as brought dead, but contrary to it, the evidence of PW-4

disclose that he saw the deceased lying in a pool of blood.

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Therefore, the presence of PW-4 at the scene of offence is also

doubtful.

21. The evidence of PWs.5 and 6 disclose their presence at the

scene of offence when the Police prepared the scene observation

report and conducted inquest, which are Exs.P-2 and P-3

respectively. Their evidence is in no way helpful to connect the

appellant with that of the crime.

22. The evidence of PW-7 clearly discloses that the death of the

deceased is a homicide. He found the following ten external

injuries on the dead body of the deceased:

"1. Laceration measuring approximate 7 x 1 x 1.5 cm on the right side of the chin.

2. Laceration measuring approximate 1 x 0.25 cm below the lower lip of the right side.

3. Laceration measuring approximate 1 x 0.50 x 0.50 cm on the cheek on the right side extending from the angle of mouth.

4. Laceration of 2 x 0.50 x 0.25 cm is present on the calomel and right lateral wall of the nose.

5. Avulsion of both side and left upper 1st incisor tooth.

6. Avulsion of skin approximately of 2 x 0.75 cm over the forehead on the right side.

7. Laceration of 4 x 2 x 1.5 cm is present on the left temporal region of the scalp.

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8. Laceration of approximate 8 x 1 x 1 cm over the left paritotemporal region of the scalp.

9. Laceration of approximate 8 x 1.5 cm over the left occipital temporal region of the scalp.

10. Fracture left temporal bone.

PW-7 opined that the cause of death of the deceased was due to

head injury and only one injury was irregular. As stated supra, it is

for the prosecution to connect the accused with the crime. Though

it is a homicide, the prosecution has miserably failed to prove the

same. Furthermore, Ex.P-9/RFSL report is in no way helpful for

the prosecution to prove that Item No.7/Axe contains the

blood-stains of the deceased and the fingerprints of the appellant.

23. The evidence of PW-8 clearly discloses that Police have

recorded the confession panchanama of A-1 in the Police Station

and pursuant to it, they seized M.Os.9 to 12 i.e. the knife and three

sticks under the cover of panchanama/Ex.P-6 and the signature of

PW-8 on the confession panchanama is Ex.P-5.

24. Admittedly, the confession given to a Police officer by the

accused is hit by Section 25 of the Indian Evidence Act and any

recovery made basing on the confession made by the accused is

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only relevant under Section 27 of the Indian Evidence Act, but it is

always open for the prosecution to connect that recovery with that

of crime. The other evidence in this case is that of PWs.9 and 10,

who are Police officers who registered the case, investigated it and

laid charge sheet.

25. On perusal of the judgment of the trial Court, it is evident

that the trial Court has disbelieved the evidence of the prosecution

witnesses as far as A-2 to A-6 are concerned and came to the

conclusion that A-1 alone took the extreme step of causing injuries

to the deceased with an axe and A-2 to A-6 are not having the

object to eliminate the deceased and concluded that the prosecution

has failed to establish that A-1 to A-6 have formed into an

unlawful assembly and committed rioting with deadly weapons and

only basing on the confession and recovery made by PW-10/the

investigating officer and the panchwitness/PW-8, came to the

conclusion that A-1 used M.O.9/axe and intentionally caused the

death of the deceased. As already stated supra, for the same set of

facts, the trial Court convicted A-1 and acquitted A-2 to A-6.

There is no evidence before the Court, as to why M.O.1/Bajaj

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Chetak Scooter is seized as prosecution failed to establish the

material objects to connect with that of the crime.

26. The learned Legal Aid Counsel appearing for the appellant

has relied on the judgment of Hon'ble Supreme Court in

Mahendra Singh & others v. State of Madhya Pradesh3,

wherein, their Lordships have held at para 12 as under:

"12. It will be apposite to refer to the following observations of this court in its celebrated judgment in Vadivelu Thevar v. State of Madras4:

"11.......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.

12. 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

(2022) 7 SCC 157

AIR 1957 SC 614

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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 of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.""

In the case on hand, PW-2 is neither wholly reliable nor wholly

unreliable, which comes under the third category referred above

and the appellant is entitled for benefit of doubt, as the prosecution

has miserably failed to establish the guilt of the appellant.

27. In the result, the Criminal Appeal is allowed. The

appellant/A-1 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 06.06.2014 in

S.C.No.309 of 2012 on the file of VIII Additional District and

Sessions Judge, Medak, is hereby set aside and the appellant is

acquitted of the charged offence. The appellant shall be released

forthwith, if not required in any other case. The fine amount paid

by the appellant, if any, shall be refunded. M.O.1/Chetak Scooter

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shall be returned to its owner and M.Os.2 to 12 shall be destroyed

after appeal time is over.

Pending miscellaneous applications, if any, shall stand

closed.

_________________________________ G.ANUPAMA CHAKRAVARTHY, J

_________________________________ NAMAVARAPU RAJESHWAR RAO, J

Date: 19.11.2022 N.B:

(1) Judgment be forthwith communicated to the jail authorities concerned.

(2)    L.R. copy be marked.
                (b/o)
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