Aduri Gangaraju, R.R. Dist. vs State Of Telangana, Rep. By P.P., ...
2022 Latest Caselaw 6004 Tel

 HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
                       AND
 HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

                     Crl.A.No.790 of 2014

                       DATE: 19.11.2022
Between :

Adduri Gangaraju.
                                     ...Appellant
       And

The State of A.P., rep. by its Public Prosecutor.
                                        ...Respondent

For Appellant : Mr.M.K.Ratnam, Advocate.

For respondent          : Public Prosecutor.


< Gist:

< Head Note:

? CITATIONS :

(1992) 3 SCC 300



C/15

                                                         GAC, J & RRN, J
                                                      Crl.A.No.790 of 2014

HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY AND HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

CRIMINAL APPEAL No.790 of 2014

JUDGMENT : (Per G.Anupama Chakravarthy, J)

This appeal is arising out of the judgment dated 10.07.2014

in S.C.No.379 of 2013 on the file of VIII Additional District and

Sessions Judge, Medak District, whereunder, the appellant was

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

punishable under Section 302 of IPC and was sentenced to undergo

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

2. The appellant is the sole accused. The case of the

prosecution, in brief, is that the accused along with his wife, settled

in Gaddapotharam Village since 11 years. He was working as

labour in Mylon company, residing at Room No.15 of first floor of

the house bearing No.4-27/1 belonging to one Prakash Chary/

PW-1. Two months prior to the incident, the accused brought one

Thurre Nukaratnam, wife of late Konda Babu (herein after referred

to as 'the deceased'), kept her in the ground floor in Room No.8 of

the same house, paid room rent and also arranged work for her in

GAC, J & RRN, J Crl.A.No.790 of 2014

Balaji Company in the same village, as he developed illegal

intimacy with her. It is the further case of the prosecution that the

wife of the accused used to quarrel with him as he developed

illegal intimacy with the deceased. Further, the accused suspected

the fidelity of the deceased, as she developed illegal intimacy with

some others, at her work place and decided to eliminate/do away

her. On 07.06.2013 at about 8:00 p.m., the accused picked up a

stick from his house, went to Room No.8 of the deceased, had

argument with her upto 9:00 p.m., kept bolt from inside, warned

her and due to heated up arguments, out of anger, hit the head of

the deceased against the wall, beat her with a stick, caused bleeding

injuries and after coming to know that she succumbed to injuries,

he fled away.

3. Basing on the complaint of PW-1, a crime was registered

against the accused vide Crime No.60 of 2013 of IDA Bollaram

Police Station. 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 dead body for postmortem

GAC, J & RRN, J Crl.A.No.790 of 2014

examination, observed the scene of offence, prepared crime report,

affected the arrest of the accused, recorded his confession, seized

the material objects and after receiving the medical reports, laid the

charge sheet against the accused for the above said offence.

4. After committal proceedings, the Sessions Court framed

charge against the accused for the offence under Section 302 of

IPC, for which, the accused pleaded not guilty and claimed to be

tried.

5. During the course of trial, the prosecution has examined

P.Ws.1 to 9, Exs.P-1 to P-9 and material objects MOs.1 to 6 are

marked. During the cross-examination of P.Ws.1 to 3, Exs.D1 to

D3 which are the relevant portions of 161 Cr.P.C statements of the

witnesses, were marked. Further, the accused was examined under

Section 313 Cr.P.C. with reference to the incriminating evidence of

the prosecution witnesses which was denied by the accused and

also reported no evidence on his behalf.

6. The trial Court, after considering the oral and documentary

evidence on record, came to a conclusion that the accused has

GAC, J & RRN, J Crl.A.No.790 of 2014

committed the murder of the deceased, and accordingly, convicted

him as aforesaid.

7. Heard learned counsel for the appellant and the learned

Public Prosecutor. Perused the record.

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

there are no eyewitnesses to the incident and the entire 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 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.

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

that the trial Court has convicted the appellant after considering the

entire evidence available on record, and therefore, prayed to

confirm the judgment of the trial Court by dismissing the appeal, as

there is no error or irregularity in the judgment of the Sessions

Court.

GAC, J & RRN, J Crl.A.No.790 of 2014

10. 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 and whether the prosecution is able to prove the guilt of the appellant beyond all reasonable doubt for the said offence ?

11. It is necessary to scrutinize the evidence of prosecution in

order to examine whether the prosecution is able to prove that the

accused intentionally killed the deceased/Nukaratnam and whether

there is any error or illegality in the judgment of the trial Court.

12. PW-1 is the landlord for the rooms, where the accused and

the deceased resided. PW-2 is the tenant of the same building who

was the first person to notice the dead body of the deceased at the

scene of offence. PW-3 is a Tailor and friend of the accused.

PW-4 is the ASI and at his instance, photographs of the scene of

offence were taken and he also collected the material objects such

as the blood-stained mat, blanket and guaze cloth of blood from the

scene of offence, which are MOs.1 to 3. PW-5 is the panch

witness for the scene of offence and for inquest of the dead body of

the deceased. PW-6 is the Village Revenue Officer who acted as a

panch witness for the confession of the accused and also for the

GAC, J & RRN, J Crl.A.No.790 of 2014

recovery of material object i.e., M.O.4/stick, pursuant to the

confession made by the accused. PW-7 is the Doctor who

conducted Postmortem examination of the dead body of the

deceased, found five anti-mortem injuries and also opined that the

deceased died due to head injury and also deposed about the

Postmortem examination report, dated 08.06.2013, which is Ex.P-

6. PWs.8 and 9 are the Police officials who registered the FIR,

investigated the case and filed charge sheet.

13. Admittedly, the case of the prosecution rests on the

circumstantial evidence as none of the witnesses have witnessed

the accused beating the deceased with the material object

M.O.4/stick on the head of the deceased. It is for the prosecution

to prove the guilt of the accused by establishing the entire chain of

events forming a complete ring and that there shall be no missing

link so that the Court shall presume that the accused is the only

person who committed the offence. Furthermore, the last seen

theory is also to be established in a case of circumstantial evidence

for taking inference that no other person has the scope of

committing murder of the deceased other than the accused. In a

GAC, J & RRN, J Crl.A.No.790 of 2014

case of homicide, it is for the prosecution to prove that there is

motive for the accused to kill the deceased and pursuant to that

motive, the accused made preparation to attack the deceased and

inflicted injuries on the deceased with the knowledge that those

injuries are likely to cause the death of the deceased.

14. The evidence of PW-1, who is the landlord of the house,

discloses that he had total 16 portions in his house and that the first

floor consists of eight portions and the ground floor consists of

eight portions. He is further testified that the deceased was a tenant

in the ground floor but cannot say in which portion, the accused

used to reside, though he knew the accused. It is the specific

evidence of PW-1 that his son was looking-after the affairs of the

building and in the month of June, 2013, he received a telephonic

call from PW-2 informing about the death of the deceased in his

house and on that, he went to the scene of offence, noticed dead

body of the deceased in a pool of blood and informed the Police on

phone about the crime and also gave Ex.P-1/report.

In the cross-examination, it is deposed by PW-1 that he does

not know as to whether the deceased herself joined in the portion

GAC, J & RRN, J Crl.A.No.790 of 2014

of his house as tenant or anybody else put her as a tenant. He also

denied the suggestion that he stated to the Police that the accused

put the deceased in the house as a tenant, which is marked as

Ex.D-1. Ex.P-1 is the complaint/report given by P.W.1.

15. PW-2 is the tenant in the house of PW-1. His evidence

discloses that the deceased/Nukaratnam used to stay in one portion

of the ground floor and accused used to stay in some other portion

in the upstairs and that two months prior to the offence, the accused

brought Nukaratnam and put her as a tenant in the said house. His

evidence further discloses that accused used to stay with his wife

and he used to visit the room of Nukaratnam. On the date of

incident at about 1.30 a.m., he went to switch on the motor, which

is beside the room of Nukaratnam and saw the door kept open,

looked inside the room and found the dead body, and on that, he

made a call to P.W-1.

PW-2 was declared hostile. In the cross-examination by the

Public Prosecutor, PW-2 admitted that he stated to the Police that

the accused had illegal intimacy with the deceased, used to quarrel

with her on the ground that she had illegal intimacy with others and

GAC, J & RRN, J Crl.A.No.790 of 2014

that on 07.06.2013, between 8.30 and 9.00 p.m, the accused

quarrelled with the deceased in the room.

16. In the cross-examination by the defence, it is testified by

PW-2 that in between his portion and the portion of Nukaratnam,

water sump is situated and he cannot say the date of her death and

the date of his giving statement to the Police. He further stated that

he had not heard the quarrel between accused and Nukaratnam

between 8.00 and 9.00 p.m. and never heard quarrels between

them. Ex.D-2 is the portion of his 161 Cr.P.C statement, which

discloses about the quarrels between the accused and the deceased/

Nukaratnam.

17. P.W3 is a Tailor and friend of the accused. His evidence

discloses that he was not aware of the facts of the case, but the

accused used to borrow clothes from him and about 9 or 10 months

back, he telephoned to the accused and demanded for amount. On

that, the accused had paid him. Later, he along with the accused

and some others, consumed liquor and took dinner. On the next

day, he was informed by the accused that his wife received injury.

GAC, J & RRN, J Crl.A.No.790 of 2014

On that, they went to a portion in the ground floor of the house,

opened the door and noticed a person lying on the ground of the

room, and on that, the accused has shifted her to the hospital and

on the next day at about 11.00 a.m., the Police have called him to

the house of the accused and they noticed the dead body.

18. The evidence of PW-3 is in no way helpful to the case of the

prosecution as he has given a complete go-bye to the case of the

prosecution and gave a statement that the deceased was shifted to

the hospital by the accused. In the cross-examination, it is

specifically stated by PW-3 that he does not know as to who has

murdered the deceased. Ex.D-3 is the portion of the 161 Cr.P.C.

statement of PW-3, which discloses that he did not state before the

Police that the accused brought Nukaratnam belonging to

Visakhapatnam and that he is having illegal intimacy with her.

19. On perusal of the evidence of PWs.1 to 3, it is evident that

none of the witnesses have stated before the Court that there is

illegal relationship between the accused and the deceased.

Furthermore, PW-1 being the landlord himself, has stated that he

GAC, J & RRN, J Crl.A.No.790 of 2014

was not looking after the affairs of the house and his son alone was

taking care of it. Inspite of it, the prosecution has not made any

efforts to examine the son of PW-1 to prove that the accused had

kept the deceased as a tenant in a portion in the ground floor of the

house of PW-1. On the other hand, PW-2, who is alleged to have

first seen the dead body of the deceased, clearly stated in his

cross-examination that the accused and deceased had never

quarrelled with each other and that he did not hear any quarrel

between the accused and the deceased on the day prior to his

noticing the dead body of the deceased. Furthermore, the evidence

of PW-3 cannot be believed as he specifically stated before the

Court that he was informed by the accused that his wife received

an injury and on that he went and noticed that a person was lying

on the ground. As to why PW-3 did not help the accused in

shifting her to the hospital and as to why he did not prefer report to

the Police, is not explained by the prosecution.

20. The evidence of PWs.4 and 5 is in no way helpful for the

prosecution to prove the guilt of the accused as their evidence

relate to the scene of offence panchnama and inquest report.

GAC, J & RRN, J Crl.A.No.790 of 2014

Admittedly, the death of the deceased is not a natural one and it is a

homicide. Their evidence only prove that the dead body of the

deceased was lying in the ground floor of the house where the

deceased used to reside and inquest report also reveals that the

deceased was murdered.

21. The entire case of the prosecution rests on the confession

statement of the accused, which is alleged to have been recorded

by the Police in the presence of PW-6, who is the Village Revenue

Officer of Bonthapally-II Village. The evidence of PW-6 discloses

that the Inspector of Police called him to the house of accused and

in their presence, on being enquired by the Police, the accused has

confessed that he beat his second wife with a stick and pursuant to

it, the accused has shown the stick/M.O.4. The confession

panchnama is Ex.P-5.

22. It is a settled law that the confession given to the Police is hit

by Section 25 of the Indian Evidence Act. The information given

by the accused as to discovery of the weapon is only admissible

under Section 27 of the Indian Evidence Act. As per the evidence

GAC, J & RRN, J Crl.A.No.790 of 2014

of PW-6, the deceased is the second wife of the accused, but the

prosecution has failed to prove either there is a legal tie between

the accused and the deceased or there is any illegal intimacy

between them, further, there are quarrels amongst them as the

deceased had illegal intimacy with others, other than the accused,

so as to prove the motive for the offence.

23. The evidence of PW-7 i.e. the Doctor who conducted

postmortem examination over the dead body of the deceased on

09.06.2013 at Gandhi Medical College, Secunderabad, discloses

that he found the following five ante-mortem injuries over the dead

body of the deceased :

"1. Lacerated injury of 3 cm x 2 cm present on left parital region of the head.

2. Contusion of 8 cm x 6 cm present on left parital region of the head under the scalp.

3. Depress communited fracture 6 cm x 4 cm present on left parital valt of the skull.

4. Difuse sub.Dural and sub arack noid hemorrhage present on left hemisphere of the bain.

5. Contusion of left parital lb of brain."

PW-7 further deposed that the approximate time of death of the

deceased would be about 36 to 48 hours prior to the postmortem

GAC, J & RRN, J Crl.A.No.790 of 2014

examination and that the cause of death of the deceased is due to

head injury. Ex.P-6 is the postmortem examination report.

In the cross-examination, it is deposed by PW-7 that he

conducted postmortem examination on 09.06.2013, but due to

oversight, the date was mentioned as 08.06.2013.

24. The evidence of PWs.8 and 9 disclose about the registration

of crime, conducting detailed investigation in the case, which

includes photographing the scene of offence, preparing the scene

observation report, drawing the rough sketch of scene of offence,

conducting inquest over the dead body of the deceased and later

forwarding the dead body of the deceased for postmortem

examination. Their evidence further disclose about the

examination of the prosecution witnesses, apprehending the

accused at his house on 11.06.2013 and also about the confession

recorded in the presence of PW-6 and seizing of M.O.4/stick

pursuant to the confession, further, producing the accused before

the Court. The evidence of PW-9 further discloses that he sent the

seized property to FSL through Magistrate and also filed charge

sheet.

GAC, J & RRN, J Crl.A.No.790 of 2014

25. It is important to note that it is for the prosecution to prove

that the accused had inflicted injuries with M.O.4/stick and the said

stick, which was being forwarded to the FSL for chemical analysis,

contains the blood-stains of the deceased. Further, the prosecution

has failed to produce the FSL report in this case, so as to connect

the accused with that of the crime i.e. to prove that the stick, which

was alleged to have been recovered from the possession of the

accused pursuant to his confession, contains the blood-stains of the

deceased. There is no last seen theory in this case. None of the

witnesses have deposed before the Court that the accused and

deceased were last seen together, prior to the death of the deceased

on 07.06.2013. There is no iota of evidence before the Court to

prove the motive or intention of the accused to kill the deceased.

In the absence of oral or documentary evidence, no inference can

be drawn against the accused.

26. In a criminal trial, the cardinal principles of law are that the

prosecution has to prove the guilt of the accused beyond reasonable

doubt and the accused shall be treated as innocent till the guilt is

proved. Therefore, it can be safely concluded that the lower Court

GAC, J & RRN, J Crl.A.No.790 of 2014

has committed error in convicting the accused/appellant basing on

the evidence of PWs.2 and 3 and further taking the admission of

the accused that he is residing in one of the portions of the house in

his examination under Section 313 Cr.P.C.

27. Section 313 Cr.P.C. reads as under :

"313. Power to examine the accused :

(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-

(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons- case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub- section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

GAC, J & RRN, J Crl.A.No.790 of 2014

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed."

A plain reading of Section 313 Cr.P.C. discloses that the Court has

power to examine the accused only in two stages and the accused is

to be examined by the Court basing on the incriminating material

available in the evidence let-in by the prosecution. The whole

objective of the said Section is to offer the accused, a fair and

proper opportunity of explaining the circumstances which appear

against him in the evidence of the prosecution witnesses. The first

and the foremost thing is that the Court should frame the questions

in such a careful manner that the questions should not give rise to

ambiguous answers. The questions put to the accused must be

simple and intelligible and the Court can examine the accused

separately and jointly. In a criminal trial, the purpose of examining

the accused person under Section 313 Cr.P.C. is to meet the

requirements of the principles of natural justice i.e. audi alteram

partem. If there is no evidence or circumstances in the prosecution

evidence against the accused, there will be nothing for the accused

GAC, J & RRN, J Crl.A.No.790 of 2014

to explain, hence, his examination under Section 313 Cr.P.C.

would be wholly unnecessary and improper. Basing on the

statements/answers given by the accused, the Court shall not render

himself liable for punishment.

28. In State of U.P. v. Dr.Ravindra Prakash Mittal1, 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.

.....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;

(1992) 3 SCC 300

GAC, J & RRN, J Crl.A.No.790 of 2014

(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."

29. In the present case, the trial Court has erred in coming to the

conclusion that the part of the statement of PW-2 was accepted by

the accused as true in his examination under Section 313 Cr.P.C.,

which is an error apparent on the face of the record, committed by

the Court below.

30. On perusal of the entire oral and documentary evidence, it is

evident that the entire case rests on the circumstantial evidence and

there are missing of links and the prosecution has failed to prove

the chain of events which completely forms a ring. Therefore, the

judgment of the trial Court is liable to set aside.

31. 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 10.07.2014 in S.C.No.379 of 2013

on the file of VIII Additional District and Sessions Judge, Medak

GAC, J & RRN, J Crl.A.No.790 of 2014

District, 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 appellant is entitled for refund of

fine amount paid, if any. M.Os.1 to 6 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)
                 ajr