Palepu Shankar, Raikal 2 Othrs., vs State Of Ap. Thrkorutla Ps., Rep ...
2022 Latest Caselaw 5462 Tel

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

                 Criminal Appeal No.584 of 2014

JUDGMENT (per Hon'ble Sri Justice A. Venkateshwara Reddy):

This Criminal Appeal is directed against the judgment

dated 26.02.2014 in Sessions Case (SC) No.583 of 2013 on

the file of the learned II Additional Sessions Judge,

Karimnagar at Jagtial, wherein the accused Nos.1 to 3

were found guilty of the offence punishable under Section

302 of the Indian Penal Code, 1860 (for short 'IPC'),

convicted under Section 235 (2) of the Criminal Procedure

Code, 1973 (for short 'Cr.P.C.') and sentenced to undergo

life imprisonment and also to pay a fine of Rs.2,000/-

each, in default to suffer simple imprisonment for one

month.

2. The prosecution story in brief is that the

accused 1 to 3 are residents of Raikal Village, Korutla

Mandal, Karimnagar District and they are labourers. The

deceased Shivarathri Mallaiah is also resident of the same

village and at times, the accused used to attend labour

AVR,J & GAC,J Crl. Appeal No.584 of 2014

work under the deceased. On one occasion, the deceased

has availed Rs.300/- as hand loan from A.2 and failed to

repay the said amount, similarly, the deceased fell in due

of Rs.150/- towards wages to A.1 for the work done by

him. All the three accused and the deceased used to

consume toddy on every day in the shop of PW.4. That on

12.04.2013 when A.1 to A.3 were consuming toddy, the

deceased Mallaiah also joined them and consumed toddy.

At that time, accused 1 & 2 asked him to pay back the

amount due to them, since the deceased was not having

money, at that time, he sought an excuse, but the accused

did not heed to the request of the deceased and insisted for

payment of the bill for the toddy consumed in the shop, for

which the deceased bluntly refused and there was a

quarrel among them. On that PW.4-owner of the toddy

shop asked all the accused and the deceased not to quarrel

in his toddy shop and to leave the shop. Accordingly, they

left the toddy shop, proceeded towards the kirana shop of

PW.5 on the other side of the road and continued to

quarrel. The accused also pushed the deceased towards

shutters of the kirana shop. On hearing the galata, PW.5

AVR,J & GAC,J Crl. Appeal No.584 of 2014

came out of the shop and asked the deceased and accused

to go away from that place. Then A.1 caught hold the

hands of the deceased forcibly and all the accused took

him towards one Orre (Channel) situated at Kanuga

(Karanja) trees at a distance of ¼ k.m. from the kirana

shop of PW.5 and beat him indiscriminately causing his

death.

3. On the report lodged by the wife of the

deceased, a case in Crime No.47 of 2013 was registered by

the Police, Raikal for the offence punishable under Section

302 read with Section 34 of IPC. In the course of

investigation, the Investigating Officer recorded the

statements of witnesses, held inquest over the dead body of

the deceased, seized the incriminating material, effected

the arrest of the accused and also gave a requisition to the

learned Judicial First Class Magistrate, Metpally for

conducting Test Identification Parade. The investigation

discloses that A.1 to A.3 have committed for the offence

punishable under Section 302 read with Section 34 of IPC.

AVR,J & GAC,J Crl. Appeal No.584 of 2014

4. From the material available on record, it

appears that after giving necessary copies as required

under Section 207 of Cr.P.C., the case was committed by

the learned Magistrate to the Court of Sessions. The

learned Sessions Judge at Karimnagar having registered

the case, vide SC No.583 of 2013 made over the same to

the learned II Additional Sessions Judge, Karimnagar at

Jagtial, who framed the charges against A.1 to A.3 for the

offence punishable under Section 302 read with Section 34

IPC for which all the accused have pleaded not guilty and

claims to be tried.

5. During the trial, on behalf of the prosecution, in

all PWs.1 to 15 are examined. Exs.P.1 to P.21 and Mos.1

to 13 are marked and the prosecution evidence was

reported closed. After closure of the prosecution evidence,

all the accused were examined under Section 313 of

Cr.P.C. with reference to incriminating oral and

documentary evidence found against them, they denied the

said offence in toto. No defence has adduced on their

behalf. The trial Court after hearing both the parties found

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A.1 to A.3 guilty of the offence punishable under Section

302 read with Section 34 IPC and convicted them under

Section 235 (2) of Cr.P.C. sentencing to undergo life

imprisonment and to pay a fine of Rs.2,000/- each, in

default of payment of fine, to suffer simple imprisonment

for a period of one month each. Feeling aggrieved by the

said conviction and judgment stated above, the

appellants/A.1 to A.3 have preferred this appeal.

6. Heard the learned counsel for the appellants/

A.1 to A.3 and the learned Public Prosecutor. Perused the

material available on record. The detailed submissions

made on either side have received due consideration of this

Court.

7. The prosecution has in all examined 15

witnesses in support of their case. Among them, PW.1 is

the wife of the deceased, she is the de facto complainant.

PW.2 is the son of the deceased, whereas PW.3 is the

daughter of the deceased. PW.4 is the owner of the toddy

shop and PW.5 is the owner of kirana shop. PW.6 is a

circumstantial witness and he was informed by PW.9 and

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LW.8 that they found the dead body of the deceased in the

kanuga trees. PWs.7 and 10 are also cited as

circumstantial witnesses and they found the deceased and

the accused alive near kanuga trees just before the death

of the deceased. PW.8 is the photographer, he obtained

photographs of the scene of offence and the dead body of

the deceased as in Exs.P.2 to P.8 at the request of the

police. PW.11 is a panch witness for the inquest panch

over the dead body of the deceased. Whereas, PW.12 is a

panch for confession of A.1 to A.3 and seizure of material

objects. PW.13 is the learned Judicial First Class

Magistrate, Metpally, who conducted Test Identification

Parade, wherein PWs.7 and 10 have identified the accused

1 to 3. PWs.14 and 15 are the Investigating Officers.

8. PW.1-wife of the deceased has testified that on

the date of death of the deceased in the morning he left the

house to attend the labour work, from there went to

consume toddy and fell down in the toddy compound of

PW.4. Accordingly PW.2 went to the toddy shop and

brought the deceased to the house. She served food and

AVR,J & GAC,J Crl. Appeal No.584 of 2014

made him to sleep. Again at about 04:00 p.m. he woke up

and left the house. She was under the impression that he

went to the house of PW.3, who is their daughter, but the

enquiries revealed that the deceased again went to the

toddy shop of PW.4 and a quarrel took place between the

accused and the deceased. As per the evidence of PW.1,

she was informed by PW.4 that the accused No.1 took away

the deceased along with him from the toddy shop. Thus,

she suspected A.1 to have caused the death of her

husband. In the cross-examination, she stated that at

about 06:00 p.m. on that day she saw the dead body of her

husband. She noticed stones and bricks by the side of the

dead body and by 08:00 p.m. she gave a report to the

police as in Ex.P.1.

9. PWs.2 & 3, who are the son and daughter of

deceased and PW.1, have totally supported the evidence of

their mother (PW.1) on all material particulars. They

suspected A.1 to A.3 for the death of their father. PW.4 is

the owner of the toddy shop and testified that the deceased

and A.3 came to his toddy shop at about 11:30 a.m. and

AVR,J & GAC,J Crl. Appeal No.584 of 2014

consumed toddy, sat on the pial. After some time, he left

to his house and somebody informed him that the

deceased fell down in the toddy shop and he informed the

same to PW.2 over phone who came and took his father.

Again on that day, in the evening at about 04:30 p.m. the

deceased came to his toddy shop, by then A.1 to A.3 also

came to the toddy shop. All of them consumed toddy.

There was a quarrel among the accused and the deceased

with regard to payment of amount then he asked them to

leave the toddy shop on that they proceeded towards the

kirana shop of PW.5, later he came to know about the

death of deceased.

10. PW.5 has testified that on that day when he

was in kirana shop, there was a disturbance outside the

shop, then he came out and found A.1 and A.3 along with

the deceased were quarrelling. He asked them not to

quarrel in front of his shop and to go away, later A.2 also

followed them and after 1½ hour people in the village

started saying about the murder of the deceased. PW.5

rushed to that place and found the dead body of the

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deceased in the kanuga trees. He was examined by the

police. The witness stated in the cross-examination that

he was informed by the villagers that they found dead body

of the deceased in the kanuga trees.

11. PWs.6 and 9 are the circumstantial witnesses.

Their evidence is to the effect that they belong to the said

village. They know the accused and the deceased. PW.6

was running tea stall and that on that day at about 05:30

p.m. LW.8 Swamy and PW.9 came to the tea stall of PW.6

and informed that they found the dead body of the

deceased with blood and the dead body has identified by

PW.1. They have further stated that since a quarrel took

place between the accused and the deceased in the village,

they have suspected the accused for murder of the

deceased.

12. PWs.7 and 10 are the witnesses, who noticed

the quarrel between the accused and the deceased before

the death of the deceased. Both the witnesses have also

identified the accused 1 to 3 during test identification

parade. They have stated in one voice that they noticed

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quarrel between the accused and the deceased and after

one hour, the dead body of the deceased was found in the

kanuga trees.

13. PW.8 is the photographer. He obtained photos

of the scene offence and the dead body as in Exs.P.2 to P.8

and the scene of offence was also recorded in the C.D. and

handed over to the police.

14. PW.11 is a panch for inquest panchanama-

Ex.P.10 held over the dead body of the deceased. He is

also panch witness for Ex.P.9 crime details form. This

witness stated that four small stones and one brick with

blood stains were recovered from the scene of offence as

MO.1 and that MO.2 is the blood stained earth. MO.3 is

the controlled earth. MO.4 is the blood stained white

colour Dhoti and MO.5 is the white colour full shirt.

MOs.6 to 8 are the other clothes of the deceased. The

witness further stated that MOs.4 to 8 were seized after

removing them from the dead body of the deceased,

whereas MOs.1 to 3 were seized from the scene of offence.

AVR,J & GAC,J Crl. Appeal No.584 of 2014

15. PW.12 is a panch witness for confession of the

accused 1 to 3. The relevant portion of the confession of

A.1 to A.3 leading to recovery is marked as Exs.P.11, 12

and 13 respectively. Accordingly, under ExP.15 the cloths

of accused 1 to 3 were seized and marked as MOs.9 to 13.

16. PW.13 is the learned Judicial First Class

Magistrate, Metpally. This witness has testified that she

conducted Test Identification Parade for identification of

accused persons. Ex.P.16 is the requisition and Ex.P.17 is

the Test Identification Parade proceedings, wherein the

witnesses PWs.7 and 10 have correctly identified the

accused 1 to 3.

17. PWs.14 and 15 are the Investigating Officers.

PW.14 registered this case on receipt of Ex.P.1 report from

PW.1, issued FIR as in Ex.P.18, recorded the statement of

PW.1, handed over the C.D. file to PW.15 and assisted him

in investigation. While so, on 17.04.2013 caught hold the

accused and produced them before PW.15. Whereas,

PW.15 has testified that he visited the scene of offence,

held inquest over the dead body of the deceased, conducted

AVR,J & GAC,J Crl. Appeal No.584 of 2014

the scene of offence panchnama, prepared the crime detail

form and rough sketch, seized the incriminating material

i.e., stones and half broken bricks from the scene of

offence, examined the witnesses, obtained the photographs

of the scene of offence and the dead body of the deceased.

He further stated that the dead body was sent for post-

mortem examination and that on 17.04.2013 effected the

arrest of the accused, recorded their confessional

statements, seized their cloths-MOs.9 to 13 and also gave

requisition to the Magistrate for conducting Test

Identification parade wherein PWs.7 to 10 have correctly

identified the accused 1 to 3.

18. The learned counsel for the appellant/A.1 to

A.3 would submit that even according to the case of the

prosecution, the accused and the deceased were totally is

inebriated condition and that except the circumstantial

evidence, there is no clinching evidence of eye witnesses as

to the manner of occurrence of the incident. None of the

witnesses examined by the prosecution have stated that

AVR,J & GAC,J Crl. Appeal No.584 of 2014

they found the accused 1 to 3 causing the death of the

deceased.

19. It is true that none of the witnesses including

PWs.1 to 3 and PWs.7 and 10 have witnessed the incident,

but PW.1 has suspected accused No.1, whereas PWs.2 &3

have suspected the A.1 to A.3 for the death of deceased.

PWs.7 and 10 have found all the accused and the deceased

together in the kanuga trees, near the school of the village.

Whereas, PWs.4 & 5 the owners of toddy shop and kirana

shop have categorically stated that they found the accused

quarrelling with the deceased with a demand for repayment

of money or for payment of the bill towards the toddy

consumed. PW.4 has asked the accused and the deceased

to leave his toddy shop, as such they left the toddy shop

and after crossing the road, they proceeded towards the

kirana shop of PW.5 and when PW.5 noticed quarrel in

front of his kirana shop, he asked them to leave that place.

Further, the evidence of PWs.1, 2 and 4 would establish

that on that day the deceased went to the toddy shop,

consumed toddy at about 11:30 a.m., fell down in the

AVR,J & GAC,J Crl. Appeal No.584 of 2014

toddy compound on being informed over phone by PW.4,

PW.2 went to the toddy shop and picked up his father. The

evidence of PW.1 further shows that at about 04:30 p.m.

on that day the deceased again left the house and she

came to know that the deceased went to the shop of PW.4

consumed toddy and had quarrelled with A.1 to A.3. She

was further informed that the deceased along with A.1 to

A.3 went towards the kirana shop of PW.5 and from there,

they left towards kanuga trees at a distance of ¼ k.m. from

the kirana shop of PW.5. Finally, the accused 1 to 3 and

the deceased were seen alive by PWs.7 and 10 in the

kanuga trees near the school of the village. After some

time, PW.9 found the dead body of the deceased in the

kanuga trees and he informed the same to PW.6.

Thereafter, the dead body of the deceased was identified by

PWs.1 to 3 and informed to the police.

20. Thus, the case of the prosecution is totally

relied upon the circumstantial evidence. Hence, the Court

has to take the totality of the circumstances into

consideration to find out whether the case is established

AVR,J & GAC,J Crl. Appeal No.584 of 2014

and whether the facts proved are consistent with the guilty

of the accused. The chain of evidence must be unbroken,

complete and not to leave any reasonable ground for a

conclusion consistent with the innocence of the accused so

as to show that with all human probability the act must

have been done by the accused alone.

21. Be it stated that the evidence discussed above

clinchingly establishes that on that day initially at about

11:30 a.m. the deceased went to the toddy shop of PW.4

consumed toddy and fell down in the toddy compound,

PW.2 brought him to the house and PW.1 served food and

made him to sleep, again the deceased woke up at about

04:00 p.m., left the house, went to the toddy shop of PW.4

where he along with A.1 to A.3 consumed toddy and there

was quarrel among them, accused 1 & 2 demanded for

repayment of the amount towards arrears of the wages, but

the deceased failed to pay the same and PW.4 has asked

them to leave the toddy shop, then they went to the kirana

shop of PW.5 and PW.5 also asked them to leave that

place, on that all the accused 1 to 3 along with the

AVR,J & GAC,J Crl. Appeal No.584 of 2014

deceased who were in inebriated condition left towards the

kanuga trees at a distance of about 1/4th k.m. from the

kirana shop of PW.5. The evidence of PWs.1 to 5 as

discussed above also gains support from the evidence of

PWs.7 and 10 who found the accused and deceased alive

and quarrelling in the kanuga trees and the evidence of

PWs.6 and 9 who found the dead body of deceased alone in

the kanuga trees near the school of their village.

22. Thus, the entire episode of deceased consuming

liquor along with accused in the shop of PW.4 till his death

took place between 04:30 p.m. to 06:00 p.m. on that

particular day and the principle of "last seen theory"

applies to the facts of the case on hand, as the time gap is

so small that the possibility of any other person being the

author of the crime becomes impossible. Hence, it is for

the accused to explain how and when they parted with the

company of the deceased. But no such explanation is

forthcoming from any of the accused. Their case is of total

denial while answering the questions under Section 313 of

Cr.P.C. and they did not choose to adduce any defence

AVR,J & GAC,J Crl. Appeal No.584 of 2014

evidence. Nothing worth mentioning either elicited in the

cross-examination of prosecution witnesses or suggested to

them in the form of defence.

23. Thus, the unbroken chain of circumstances on

the fateful day right from 11:30 a.m. onwards till the death

of the deceased is clinchingly established with cogent and

convincing evidence of PWs.1 to 5 supported by the

circumstantial evidence of PWs.6, 7, 9 and 10. That apart,

PWs.7 and 10 also identified the accused 1 to 3 during test

identification parade as the very same persons whom they

saw along with the deceased on that day near kanuga trees

and immediately thereafter PW.9 found the dead body of

the deceased in kanuga trees with injuries on his face.

24. The law is well settled that where a case rests

squarely on the circumstantial evidence, the inference of

guilt of the accused can be justified only when all the

incriminating facts and circumstances are found to be

incompatible with the innocence of the accused or the guilt

of any other person. The onus is on the prosecution to

prove that the chain is complete and false defence or plea

AVR,J & GAC,J Crl. Appeal No.584 of 2014

cannot cure the infirmity or lacuna in the prosecution case

(Gamparai Hrudayaraju v. State of A.P. through Public

Prosecutor1, Raju v. the State, represented by Inspector of

Police2 and Vithal Eknath Adlinge v. State of Maharashtra3).

25. Therefore, on a overall consideration of the

evidence of PWs.1 to 5, 6, 7, 9 and 10, as discussed above,

in our considered view, the prosecution is able to establish

the unbroken chain of events consistent with the guilt of

the accused and also able to establish that A.1 to A.3 were

last seen together with the deceased before his death.

26. The Doctor, who conducted post-mortem

examination, is not examined, however, the post-mortem

examination report as in Ex.P.19 is marked in the evidence

of Investigating Officer disclosing that the deceased was

having multiple lacerations over the forehead of scalp

which are ante-mortem in nature and the cause of death is

shown as "neurogenic shock due to subdural haematoma",

but all the witnesses, who saw the deceased immediately

AIR 2009 SC 2364

AIR 2009 SC 2171

AIR 2009 SC 2067

AVR,J & GAC,J Crl. Appeal No.584 of 2014

after his death, have stated that the face of the deceased

was towards sky and not towards the earth indicating that

the death of the deceased is homicide and that quarrel took

place in the kanuga trees.

27. Be it stated that at the time of incident the

deceased and all the accused 1 to 3 were in inebriated

condition, they were not in full senses and started

quarrelling right from the toddy shop of PW.4 with a

demand for payment of the due amount to the accused and

they moved slowly from the toddy shop towards the kirana

shop of PW.5 and from there they moved towards kanuga

trees where PWs.7 and 10 found the accused and the

deceased alive. Thereafter, PW.9 noticed the dead body of

deceased alone when he went to attend the calls of nature

and informed PW.6. Since the Doctor is not examined, the

exact cause of death is not established and whether the

injuries are found on the dead body of the deceased were

sufficient in the normal course to cause death of deceased

is also not explained, as the cause of death as mentioned

AVR,J & GAC,J Crl. Appeal No.584 of 2014

in Ex.P.19 is due to "neurogenic shock due to subdural

haematoma".

28. The learned counsel for the appellants would

submit that there is no intention or knowledge on the part

of any of the accused to cause death of deceased and all of

them are in intoxicated condition, if really they had any

intention to kill the deceased, they would have killed him

either at the toddy shop of PW.4 or at the kirana shop of

PW.5, but all the way they were only exchanging words,

none of the witnesses have stated about the accused

assaulting the deceased either at the toddy shop of PW.4 or

at the kirana shop of PW.5 and prayed for altering the

conviction from the offence punishable under Section 302

of IPC to Section 304 Part-II of IPC.

29. The Hon'ble Supreme Court in Kalu Ram v.

State of Rajasthan4 in similar circumstances held that in

the absence of knowledge, intention or motive of the

accused to kill the deceased, the conviction under Section

AIR 2000 SC 3630

AVR,J & GAC,J Crl. Appeal No.584 of 2014

302 of IPC cannot sustain and altered into Section 304

Part-II of IPC.

30. Thus, considering the factual scenario of the

case on hand, circumstantial evidence available on record

as none of the witnesses have spoken that about motive of

any of the accused to kill the deceased, in view of the

principles laid by the Apex Court in Kalu Ram's case (4th

supra), we arrive at an inevitable conclusion that the

accused 1 to 3 and the deceased were in inebriated

condition and all the accused were not in their senses and

it was not a pre-meditated act, though the deceased owes

an amount of Rs.150/- and Rs.300/- to the accused 1 & 2

and there was only verbal exchange among them, and they

had no knowledge or intention to kill the deceased and as

such the offence committed may fall under Section 300

exception-IV of IPC, consequently, the conviction of the

accused 1 to 3 is altered from Section 302 of IPC to Section

304 part-II of IPC.

31. In the result, the Criminal Appeal is partly

allowed, to meet the ends of justice, the conviction of

AVR,J & GAC,J Crl. Appeal No.584 of 2014

appellant/A.1 to A.3 is altered from the offence punishable

under Section 302 of IPC to the offence punishable under

Section 304 Part-II of IPC and the sentence of life

imprisonment is altered and modified to the one for the

period already undergone and to pay a fine of Rs.2,000/-

each, in default to suffer simple imprisonment for one

month each. Since A.1 to A.3 are in jail from 18.04.2013

to 03.01.2014, 08.11.2014 and 03.01.2014 respectively

and all they were lodged in jail from 21.02.2014 to till this

day, they shall be set at liberty forthwith, if they have

already paid the fine amount, as indicated above.

The MOs.1 to 13 shall be destroyed, as ordered by

the trial Court.

__________________________________ A. VENKATESHWARA REDDY, J.

_____________________________________ G. ANUPAMA CHAKRAVARTHY, J.

Date: 29.10.2022 Isn