Wadde Venkatesh Bottusatyam vs The State Of Ap.,
2022 Latest Caselaw 4694 Tel

          THE HON'BLE SRI JUSTICE M.LAXMAN
                         AND
      THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

             CRIMINAL APPEAL No.378 OF 2014

JUDGMENT: (per Hon'ble Sri Justice M.Laxman)

     This criminal appeal is filed against the judgment dated

10.02.2014

in Sessions Case No.580 of 2013 on the file of the

Judge, Family Court-cum-VIII Additional Sessions Judge,

Mahabubnagar, whereunder the appellant was convicted for the

offence under Section 302 of IPC and sentenced to life

imprisonment and to pay a fine of Rs.5,000/- and in default, to

undergo a simple imprisonment for three months.

2. The case of the prosecution, in brief, is that on 23.10.2012

at about 11.30 pm., there was a quarrel among deceased No.1

(Boyalagudem Uppari Ramakrishna), deceased No.2 (unknown

person) and the accused. The dispute was on account of the

deceased uttering the accused to verify the availability of arrack

by calling him as 'gunduga', for which, the accused felt insulted

and took a stick (M.O.1) and caused the head injuries;

resultantly, both the deceased died instantaneously. This

incident was witnessed by P.W.1 while he was going to his

home. The accused, having seen P.W.1, ran away with the stick.

On the basis of the said allegation, the FIR was initially issued

and subsequently, charge sheet was laid against the accused for

the offence under Section 302 of IPC.

3. Upon committal, the trial Court framed charges under

Section 302 against the accused. The accused denied the

charge and claimed to be tried.

4. The prosecution, to support its case, examined P.Ws.1 to

12 and got marked Exs.P.1 to P.15 and M.Os.1 to 5. The

accused has not produced any evidence and denied the

incriminating material.

5. After appreciating the evidence brought on record, the trial

Court found the accused guilty for the said charge. Accordingly,

the trial Court convicted and sentenced the appellant as

aforestated. Challenging the same, the present appeal came to

be filed.

6. Heard both sides.

7. Learned counsel for the appellant/accused contended that

the trial Court has not considered the truthfulness of the

statement of P.W.1 with regard to identify of the accused in the

light of his admission in the cross examination that there was

no street light at the place of incident and that in test

identification parade, there was no proper selection of

non-suspect with the suspect. Further, the evidence of P.W.12

with regard to complexion of the suspect and hair growth are

not matching with the accused since the identify particulars

given by P.W.1 in the First Information Report were only the

dark complexion and shaved head. It is also her contention that

the Police have taken the photographs of the accused through

P.W.7 and there was scope for the Police to show to P.W.1 as to

the identity of the accused before he was subjected to test

identification parade. It is her further contention that P.W.5, in

his evidence, stated that when he went to the scene of offence to

take the photographs, the place was dark. According to him,

except the street light, there was no other light to show that the

place was illuminated so that P.W.1 had an occasion to see the

accused.

8. The learned counsel for the appellant/accused further

contended that P.W.2, who was the security guard posted at

HDFC Bank where the incident took place, did not identify the

accused and did not support the case of the prosecution. It is

her further contention that the extra-judicial confession relied

upon by the prosecution is a weak piece of evidence and the

case set up by the prosecution with regard to accused

approaching P.W.6 - Tahsildar for making the confession is very

unnatural, since there was no such proximity or closeness in

between the Tahsildar and the accused. According to her, the

evidence placed on record creates a doubt about the involvement

of the accused. The accused was implicated in the case on

account of his past history. According to her, the conviction is

unsustainable.

9. The learned Public Prosecutor supported the conviction.

According to her, the evidence of P.Ws.1 and 2 clearly shows

that the incident was occurred at the HDFC Bank and this is not

seriously in dispute. In fact, the guilt of the accused was proved

beyond any doubt. P.Ws.1 and 2 are the direct witnesses to the

incident, and though P.W.2 turned hostile with regard to identity

of the accused, the evidence of P.W.1, the FIR and the

identification of the accused in the test identification parade go

to show the establishment of identity of the accused involved in

the commission of offence. It is also her contention that the

evidence of P.W.12 and the report submitted by her clearly show

that while selecting the non-suspect, P.W.12 took all safeguards

in maintaining the similarity in between the suspect and non-

suspect. Merely report is silent about the complexion of the

suspect and his hair do not vitiate the test identification parade

which is otherwise very reliable one.

10. The learned Public Prosecutor further contended that there

was a prior acquaintance between P.W.6 and the accused and

that is why the accused has selected P.W.6 to confess the

commission of offence, so as to save himself from the reach of

Police, and hence, such a confession is believable and the trial

Court rightly believed the same while convicting the accused. It

is her further contention that the recovery of the stick - M.O.1

and presence of blood would demonstrate one of the

circumstances which corroborate the involvement of the accused

in the offence. According to her, all the above aspects were

rightly considered by the trial Court in convicting the accused

and hence, no interference of this Court is required.

11. The evidence of P.W.1 shows that he went to the Police

Station on the same night to lodge the complaint, whereas the

FIR shows that the compliant was lodged at 6.30 am. This has

not been properly explained by the prosecution. Apart from

that, the evidence of P.Ws.1 and 5 clearly show that there were

no street light at the scene of offence. The prosecution also

failed to establish that there was any other source of light, so

that the witness could able to see the identity particulars of the

accused. Further, P.W.1 stated that the accused is of dark

complexion and head was shaved. However, the test

identification parade report is silent with regard to the

complexion of the accused and the growth of the hair on the

head, since on the date of incident, the accused head was

shaved.

12. If the evidence of P.W.12 and her report are examined, it is

clear that the report did not refer the two important aspects,

basing on which P.W.1 claims he could identify the accused i.e.,

dark complexion and shaving of the head. The report also

shows that while selecting the non-suspect with the suspects,

P.W.12 only gave priority to the height, built and age. These are

all not at all important factors for establishing the identity

basing on the claim made by P.W.1. Therefore, the test

identification parade is not inspiring confidence of this Court so

as to believe the claim made by the witness in the trial Court as

to the identity of the accused.

13. P.W.2 is not supporting the identity of the accused, though

he supported the incident. Therefore, his evidence is of little

relevance. The other circumstance relied upon by the

prosecution is the extra-judicial confession. P.W.6 is the

Tahsildar and his evidence shows that the accused has chosen

P.W.6 for making confession. The evidence is silent with regard

to how the acquaintance was there in between them, so that the

accused had a chance to select P.W.6 to make such a

confession. Selection of P.W.6 for making confession is highly

doubtful, that too just prior to arrest of the accused. Therefore,

this evidence is also not inspiring confidence of this Court.

14. Leaving the above evidence, the other evidence is recovery

of M.O.1 based on the confession. The stick was recovered from

the open place and that too without any incriminating evidence

to link the circumstantial evidence leading to fix the accused

with the crime. The FIR shows that they could only identify the

blood on M.O.1, but they could not able to identify the origin of

the group of blood of the deceased so as to link the usage of the

stick in the commission of offence. Therefore, this evidence is

also not much helpful to the prosecution.

15. The other important factor is that the accused seems to

have criminal history and there is chance to the Police, keeping

in view of the past history, implicate the accused in the case.

The reason is that there was inordinate delay in making the

request for conduct of test identification parade. There are

photographs available with the Police to show to P.W.1 to

identify him as the accused. Further, when P.W.1 says that this

report was given in the same night, but FIR shows that it was

lodged on the next day morning 6.30 am. Further, P.W.5 claims

that in the morning 3.00 am., he went to scene of offence. This

shows that the Police were aware of the incident even much

prior to that.

16. It is to be noted that in the evidence of P.W.1, it is stated

that some persons gathered at the time of quarreling among the

three persons and they tried to stop the quarrel before P.W.1

reached the place of incident. P.W.1, in his report i.e., Ex.P.1,

could not mention the same. The same also give a doubt about

the evidence of P.W.1. These are all the circumstances which

give a great amount of doubt as to the involvement of the

accused in the commission of offence. All these aspects were

not considered by the trial Court. Therefore, benefit of doubt

would therefore have to be extended to the accused as the

prosecution failed to establish the charge beyond reasonable

doubt to link the accused for the death of the deceased. Hence,

the conviction and sentence passed by the trial Court are liable

to be set aside.

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

judgment and sentence imposed by the Judge, Family Court-

cum-VIII Additional Sessions Judge, Mahabubnagar, against the

accused in Sessions Case No.580 of 2013 dated 10.02.2014 for

the offence under Section 302 of IPC is hereby set aside and the

accused is acquitted for the said offence. The appellant/accused

shall be set at liberty forthwith unless his detention is required

in connection with any other case. The fine amounts, if any,

paid by him shall be refunded.

_______________ M.LAXMAN, J

_____________________________ SMT.M.G.PRIYADARSINI, J Date: 16.09.2022 TJMR