Depally Praveen Goud vs The State Of Ap.,
2023 Latest Caselaw 750 Tel

THE HONOURABLE Dr. JUSTICE CHILLAKUR SUMALATHA
                       &
  THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

              CRIMINAL APPEAL No.275 OF 2014

JUDGMENT:- (Per the Hon'ble Sri Justice A.Santhosh Reddy)

      This criminal appeal arises out of the judgment dated

04.03.2014 in Sessions Case No.170 of 2013, on the file of the

Family Court-cum-VIII Additional District and Sessions Judge at

Mahabubnagar.


2.    The appellant/A-1, along with other accused (A-2),

was found guilty, convicted and sentenced for the offences

punishable under Sections 302, 379, 201 read with Section 34 IPC.

The appellant/A-1 was sentenced to undergo imprisonment for life

and pay a fine of Rs.500/-, in default of payment of fine to undergo

simple imprisonment for three months for the offence punishable

under Section 302 IPC. The appellant/A-1 was further sentenced

to undergo rigorous imprisonment for two years for the offence

punishable under Section 379 IPC and also to undergo rigorous

imprisonment for four years and pay a fine of Rs.500/-, in default
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of payment of fine to undergo simple imprisonment for three

months for the offence punishable under Section 201 IPC.


3.    The crux of the allegations of the prosecution is that the

appellant/A-1 along other accused (A-2) caused the death of

the Manchanpally Satyanarayana (hereinafter referred to as 'the

deceased') by beating him with a custard apple stick and commited

theft of motorcycle of the deceased bearing No.AP 22K 2289,

pan card and SBH ATM card and copy of registration certificate

and threw him into the bushes and tried to conceal the evidence.


4.    Investigation commenced with the registration of Ex.P-14

F.I.R on the basis of complaint Ex.P-1 lodged by P.W.1 on

26.10.2012 wherein he stated that on that day at about 09:00 AM,

he found the dead body of his son in the field bushes of Veeraiah

which is behind PT lamination Company Plant II. P.W.12, Circle

Inspector of Police, completed the investigation and filed final

report.


5.    The prosecution case, in brief, is that the deceased and

P.W.1 were working in PT Lamination Company. Appellant/A-1
                                3




also worked in the same company for some time, but he lost his

job and he suspected that P.W.1 might have given adverse remarks

against him to the management.     P.W.1 abused the mother of

the appellant/A-1 that her character is not good about five or

six years ago. The appellant/A-1 developed grudge on the family

members of P.W.1 and decided to do away with the life of the

deceased. On 25.10.2012, as per the plan, appellant (A-1) and A-2

went to turning point behind the PT Lamination Company and was

waiting for the deceased. At about 01:30 PM., the deceased came

on his bike and suddenly the appellant/A-1 beat him with custard

apple stick and caused severe injury on his left side temporal

region. The deceased fell on the ground in unconscious state with

blood bleeding from mouth and ears. Subsequently, the appellant

(A-1) and A-2 dragged him beside the road and threw him into the

bushes and tried to conceal the evidence. They found ATM card,

pan card and copy of RC in the pocket of the deceased and

the appellant/A-1 handed over the Hero Honda motorcycle of the

deceased along with ATM, Pan Card and RC to A-2.      Later, they

proceeded to Shadnagar and parked motorcycle of the deceased
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bearing No.AP 22K 2289 in RTC bus parking stand and obtained

receipt. Thereafter, the appellant (A-1) took A-2 on his bike and

dropped him at Ayyappaswamy temple and gave an amount of

Rs.100/- and told him not to disclose to anybody. After having

lunch, while the appellant (A-1) was returning to toddy shop, on

the way near the scene of offence P.W.5 (Anjaiah) stopped him at

03:20 PM and asked him that some noise was coming from the

bushes. Later, the appellant (A-1) went there and returned to him

and told him that someone belonging to Orissa State consumed

toddy and fell in the bushes and thereafter, the appellant (A-1)

came to his toddy shop. On the complaint given by P.W.1, a case

in Cr.No.152 of 2012 was registered by the police and investigated

into.


6.      During the course in investigation, on 22.11.2012 at about

08:00 AM., P.W.12, Inspector of Police, arrested the appellant

(A-1) and A-2 and seized M.O.4 motorcycle belonging to the

appellant (A-1) and also M.O.5 motorcycle belonging to the

deceased from A-2. Their confessional statements were recorded

in the presence of panch witnesses and seized M.Os.4 to 6 and
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Exs.P-8 to P-11 under Exs.P-7 and P-12. After completion of

investigation, P.W.12 filed charge sheet.


7.       The learned Magistrate committed the case to the Court of

Sessions. The learned Sessions Judge took cognizance of the

offences alleged against the appellant (A-1) and A-2 and

framed charges against them for the offences punishable under

Sections 302, 379, 201 read with Section 34 IPC.         Both the

accused denied the charges framed against them and preferred to be

tried.    Thereupon, the prosecution examined P.Ws.1 to 12 and

Exs.P-1 to P-15 were proved.


8.       The appellant/A-1 when examined under Section 313

Cr.P.C., took up a defence of total denial. No defence evidence,

oral or documentary, was adduced by the appellant.


9.       On appreciation of the oral and documentary evidence, the

learned Sessions Judge came to the conclusion that all the

circumstances relied on by the prosecution have been established

and the cumulative effect of these circumstances proved the

complicity of the appellant (A-1) and A-2. The learned Sessions
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Judge, accordingly, convicted and sentenced the appellant herein

and A-2 in the manner as stated above.


10.      We have heard learned counsel appearing for the

appellant/A-1 and learned Public Prosecutor for the respondent-

State.

11. Learned counsel for the appellant/A-1 contends that the

prosecution has not proved the offence against the appellant/A-1

with any cogent evidence. Therefore, the accused is entitled to the

benefit of doubt and prayed to acquit the accused.

12. Learned Public Prosecutor, on the other hand, contends that

the prosecution had proved the alleged offence against the

appellant/A-1 with cogent and reliable evidence and there is no

room for reasonable doubt and prayed to dismiss the appeal.

13. The indictment rests entirely on circumstantial evidence.

It is trite that the burden rests always on the shoulders of the

prosecution to prove its case beyond doubt. Such burden continues

to heavily rest on the shoulders of the prosecution whatever be the

defence taken by the accused. From the beginning to the end of

the criminal trial, this onerous of burden continues on the shoulders

of the prosecution to prove the indictment beyond reasonable

doubt.

14. In a case resting on circumstantial evidence, it is the

bounden duty of the prosecution to prove all the circumstances

firmly and satisfactorily. The proved circumstances must constitute

strong links and the links, in turn, must be part of a strong chain of

circumstances which chain must unerringly and clinchingly point

to the guilt of the indictee, to the exclusion of any reasonable

hypothesis of innocence of the indictee.

15. In MAHMOOD v. STATE of U.P1, the Hon'ble Supreme

Court held that the circumstances must be established by

unimpeachable evidence beyond doubt and at paragraph 9 of the

said decision, it is held as under:

"It is well settled that in a case dependent wholly on circumstantial evidence, the Court before recording a conviction on the basis therefor must be firmly satisfied -

AIR 1976 SC 69

(a) that the circumstances from which the inference of guilt is to be drawn, have fully established by unimpeachable evidence beyond a shadow of doubt;

(b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and

(c) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him.

16. In HANUMANT v. STATE OF M.P2, which is reckoned as

a classical decision of the Hon'ble Apex Court on the point of

circumstantial evidence, the Hon'ble Apex Court had referred to

the requirement of proof as under:

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to

AIR 1952 SC 343

show that within all human probability the act must have been done by the accused".

17. We shall initially attempt to narrate the circumstances

relied on by the prosecution. Thereafter, we shall consider whether

these circumstances can be established satisfactorily. We shall then

proceed to consider whether the proved circumstances do justify a

safe inference of guilt against the appellant.

18. The prosecution relies on the following circumstances:

(i) the deceased died by homicidal injury suffered by him with a stick M.O.6 recovered from the scene of offence at the instance of appellant;

(ii) the appellant is son of P.W.1's younger sister and there were family disputes between the appellant and the deceased and whether the motive behind offence is proved from the evidence of P.W.1;

(iii) P.W.1, who is the father of the deceased, stated that the deceased left home on 25.10.2012 and did not return and on the next day, he found his dead body in bushes behind PT Lamination company;

(iv) the recovery of ATM card, pan card, copy of registration certificate and purse i.e., Exs.P-8 to P-11 under seizure panchanama of A-2 in Ex.P-7 as stated by P.W.9 and also recovery of M.O.5 motorcycle of the deceased; and

(v) the appellant had not offered any explanation for the circumstances proved against him.

19. Circumstance No.1:

We shall now proceed to consider whether these

circumstances have been established. The deceased died of

homicidal injuries is established by the evidence of P.W.1. From

the evidence tendered by the doctor P.W.10 and the post-mortem

certificate Ex.P-13 issued by him, we can safely endorse the

finding of learned Sessions Judge that the deceased succumbed to

homicidal injuries, as described in Ex.P-13. We have also

convincing indications to suggest that the said injures must have

been inflicted with the stick M.O.6, seized at the instance of the

appellant/A-1.

20. P.W.10 (doctor) in his evidence stated that the approximate

time of death of the deceased is 18 to 24 hours prior to post-

mortem examination. So, we are satisfied that circumstance No.1

can safely be held to be proved to the extent indicated above.

21. Circumstance No.2:

In a case resting on circumstantial evidence, proof of

motive is indeed relevant. The motive for the alleged occurrence,

according to the prosecution, is that the appellant (A-1), who is

none other than the son of his younger sister, developed ill-will

against P.W.1 and the his family and P.W.1 is the leader of

BMS, a labour trade union. P.W.9, who is panch witness,

deposed that the appellant (A-1) confessed before him that there

were family disputes between him and the son of his maternal

uncle (P.W.1). Except the evidence of P.W.9, none of the

witnesses have spoken about the motive part of the alleged

occurrence. Though the motive part is held relevant, but the same

is not an ingredient of the offence and if the incident is otherwise

proved even in case of circumstantial evidence, ritualistic

insistence on proof of motive need not be made by the court.

22. Circumstance No.3:

The father of the deceased P.W.1 and sister of the deceased

P.W.2 deposed that on 25.10.2012, at about 08:00 AM, P.W.1

and the deceased left their house to go to PT Lamination Company

at Nandigama. P.W.1 was working in another PT Lamination

Company. The deceased did not return home on 25.10.2012.

On 26.10.2012, P.W.1 went to the work place of the deceased.

On enquiry, he came to know that his son left the company at

01:00 PM., on 25.10.2012. Later, they found the dead body of

the deceased on the back side of the PT Lamination company

with injuries on the left forehead temple side. P.W.1 had

identified M.O.1 shirt and M.O.2 jeans pant of the deceased.

P.W.1 lodged a complaint with police on 26.10.2012 under Ex.P-1.

In cross-examination, P.W.1 admitted that the appellant/A-1 is

none other than the son of his younger sister and is resident of

Anthireddyguda. P.W.8 is the panch witness for the scene of

offence Ex.P-4. In the presence of P.W.8 and another, police held

inquest over the dead body of the deceased under Ex.P-5. P.W.8 in

his evidence stated that during the inquest panchanama, they found

an injury near the left eye of the deceased. The evidence of P.Ws.1

and 2 is supported by the evidence of P.W.3. P.W.3 specifically

deposed that they found dead body of the deceased in thorny

bushes by the side of the road behind plant No.2 of PT Lamination

Company. P.W.3 further stated that they found bleeding injury on

the left eyebrow of the deceased. P.W.4 stated that he came to

know about the death of the deceased and he found the dead body

in the bushes on the right side behind the plant. The evidence of

P.W.5 is quite relevant to consider. He found the appellant (A-1)

coming in the opposite direction on motorcycle on the day of

incident. When he enquired about the noise that came from

the land of Veeraiah, the appellant (A-1) told him that a labour

person might have fallen in a drunken state. Later, he came

to know that the deceased was found in the bushes. From the

evidence of P.W.5, not only circumstance No.3 is established

but also the fact that the appellant was seen after the alleged

incident. The prosecution case is that after having lunch, while the

appellant (A-1) was returning to his toddy shop, on the way P.W.5

stopped and enquired with him about the noise which was coming

from the bushes.

23. Circumstance No.4:

The prosecution case is that the accused was apprehended on

22.11.2012 at Ayyappaswamy Temple, Nandigama and in the

presence of panch witnesses P.W.9 and another recorded their

confessional statements and seizure panchanamas. The evidence of

P.W.9 discloses that the appellant (A-1) and A-2 confessed before

them and pursuant to their confession, led the police and recovered

motorcycle of A-1 and seized the same under Ex.P-4. M.O.4 is

motorcycle of A-1 and also seized M.O.5 motor cycle of the

deceased and also Exs.P-8 to P-11 belongings of the deceased.

The appellant/A-1 also led them to the scene of offence and there

he produced a stick used in the commission of the offence and the

same was seized under a cover of panchanama Ex-P-12. M.O.2 is

the stick. In cross-examination of P.W.9, nothing material was

elicited to discredit her testimony. These are the most crucial

circumstances proved and relied on by the prosecution.

24. We have carefully considered the evidence of P.Ws.9 and 12

and their evidence, if accepted, can only help the court to come to

conclusion that there are circumstances to believe that there were

family disputes between the appellant/A-1 and the son of his

maternal uncle (P.W.1) and he intended to do away with the life of

the deceased and in pursuance of the said intention, he took the

help of A-2 and attacked the deceased with a stick and beat him

on his head and he fell down on the ground and subsequently

succumbed to injuries. The glaring circumstance which supports

the prosecution case is the recovery of motorcycle of the deceased

at the instance of the appellant/A-1 and the evidence of P.W.7

corroborates the said circumstances. Though P.W.7 deposed that

he cannot identify the persons who kept the vehicles in the bus

stand, but the motorcycle of the deceased was found at the parking

place of the bus stand at Shadnagar and that he maintained a

register wherein it contains the entry of the motorcycle number on

25.10.2012 and 26.10.2012 and subsequently also.

25. We shall now see the evidence of the Medical Officer

P.W.10. In his evidence, he stated that on 26.12.2012, he received

requisition from the Circle Inspector of Police, Shadnagar Rural

and on the same day, he conducted post-mortem over the dead

body of the deceased and opined that the cause of death was due to

head injury. He found the following injuries:

i) contusion over the left side of frontal region

4 x 2 cms

ii) Fractures skull over the left side frontal region 9 x 2 cms

iii) Bleeding from the nose, left ear and mouth.

P.W.10 further deposed that he issued post-mortem certificate

Ex.P-13 dated 26.10.2012 and that above injuries might have been

caused with a blunt object like M.O.6 stick. In cross-examination,

P.W.10 stated that undigested food is present in the body of the

deceased and within half an hour of taking food, the deceased died.

26. In the also relevant to consider the important aspects of the

investigation part done by P.W.12. In his evidence, P.W.12 stated

that on 26.12.2012, he took up investigation and visited the scene

of offence and held inquest over the dead body of the deceased.

Prior to him, P.W.11 investigated the case and received Ex.P-1

complaint from P.W.1 and registered the case and Ex.P-14 is

the FIR. P.W.12 further stated that during investigation, he

arrested the appellant (A-1) and A-2 and secured the presence of

mediators P.W.9 and one Krishna and in their presence, he

interrogated the accused and recorded their confessional statements

and in pursuance of those statements, the accused led them to

recovery of material objects as stated above. P.W.12 also deposed

that the appellant/A-1 led them to the scene of offence and

produced M.O.6 stick which was used in the commission of the

offence. However, M.O.6 did not contain any blood stains.

27. The evidence of prosecution and the cumulative effect of the

above said circumstances, which are proved by the prosecution

clinchingly, establish the fact that the deceased had suffered fatal

injuries at the hands of the appellant/A-1 and it appears that A-1

armed with M.O.6 stick caused the fatal injuries on the temporal

region of the head of the deceased and as a result of which he died.

28. Circumstance No.5:

The prosecution relies on the circumstances that the

appellant had not offered any explanation for the circumstances

proved against him. It is now trite that absence of explanation for

an incriminating circumstance can itself be reckoned as another

circumstance to strengthening the chain of circumstances against

the appellant. In a case based on circumstantial evidence where

no eyewitness account is available, there is another principle of law

which must be kept in mind. The principle is that when an

incriminating circumstance is put to the accused and the said

accused either offers no explanation or offers an explanation which

is found to be untrue, then the same becomes an additional link in

the chain of circumstances to make it complete. This view has

been taken in a catena of decisions of the Hon'ble Supreme Court.

In view of the authoritative pronouncements, the law required the

accused to provide explanation regarding the circumstances

appearing against him, but in the instant case, he offered complete

denial. We do note that the appellant had not offered any

explanation about the recovery of the motorcycle of the deceased

and also the recovery of ATM card, pan card, RC and pursue at his

instance. We do note that the law does not mandate that for not

giving any explanation to these aspects, an inference can be drawn

against the accused and the probative significance of these

circumstances of not offering any explanation shall be considered

as incriminating circumstances. However, the conduct of the

appellant/A-1 for not furnishing satisfactory explanation about the

relationship with the family of the deceased and P.W.1 and not

offering any explanation about the recovery made at his instance,

the probative significance can be taken into consideration.

29. Having thus recorded our conclusions about the

circumstances relied on by the prosecution, the next and most

crucial question is - whether these circumstances satisfactorily

point out to the guilt of the appellant/A-1. Having seen that the

five circumstances are established by the prosecution, in order to

re-affirm the guilt of the appellant/A-1, some of the important

circumstances from the evidence of the prosecution which

connects the appellant/A-1 with the alleged offences are that from

the evidence of P.W.4, it is established that the deceased was

coming from PT Lamination Company to Anthireddyguda on the

day of incident at about 01:00 or 01:30 PM., while P.W.4 was

proceeding from Jangoniguda from his village. P.W.5 stated that

one Narahari (L.W.8) informed him that some noise was coming

from the land of Veeraiah at about 03:00 PM and he did not go to

the land of Veeraiah on that day. He further stated that he found

the appellant/A-1 coming in the opposite direction on a motorcycle

at the same time. When he enquired A-1 about the noise, he told

that a labour person might have fallen in a drunken state. Their

evidence establishes that P.W.4 saw the deceased prior to the

incident at about 01:30 PM., whereas P.W.5 saw the appellant at

03:00 PM., after commission of the offence. Apart from these

witnesses, the evidence of P.W.6 establishes the fact that the

appellant was not present at his toddy shop from 12:30 noon to

03:30 PM., on the day of incident. The confessions of A-1 and A-2

made in the presence of P.W.9 and another led the police to

recovery of M.Os.1 to 5 and Exs.P-8 to P-11 which are crucial

aspects of evidence to connect the accused with the alleged

offences. The confessional statements recorded in the presence

of P.W.9 and another categorically show that the appellant/A-1

armed with M.O.6 stick attacked the deceased and beat him on

his left forehead temporal region while he was coming on

his bike, as a result of which, the deceased fell down and died.

The injuries sustained by the deceased are proved with the

evidence of the doctor P.W.10, who stated that the cause of

death of the deceased was due to head injury and the said injuries

might have been caused with a blunt object like M.O.6 stick.

In these circumstances, we have no reason to doubt that

the prosecution had proved all the circumstances firmly and

satisfactorily which clinchingly point out to the guilt of the

appellant/A-1.

30. The further question that remains to be considered is -

whether the appellant/A-1 is liable to be convicted under Section

302 IPC or 304-II IPC. From the circumstantial evidence

established by the prosecution, it is clear that the appellant/A-1 had

beat the deceased with M.O.6 stick on the temporal region of the

head and caused severe head injury, as a result of which the

deceased died on the spot. It is evident that there is no clear

evidence in proof of the motive part for the alleged offence by

the appellant/A-1. Except the evidence of P.W.9 before whom the

appellant/A-1) is alleged to have made a statement that there are

family disputes between him and P.W.1 and he wanted to eliminate

his son, the deceased, there is no other evidence. Keeping in view

the nature of the weapon used in the commission of the offence and

as there is cogent and convincing evidence about the motive part

and he did not act in a cruel and unusual manner and dealt only a

single blow, which resulted in the death of the deceased, we feel

that it is a fit case to convict the accused for the offence punishable

under Section 304-II IPC and, accordingly, we modify the

judgment of the Court below to this effect. As regards the sentence,

having regard to the nature of the offence, we feel that interests of

justice would be met if the appellant/A-1 is sentenced for a period

of ten years, besides fine of Rs.500/-.

31. In the result, the criminal appeal is partly allowed.

The conviction recorded against the appellant/A-1 in the judgment,

dated 04.03.2014 in Sessions Case No.170 of 2013, on the file of

the Family Court-cum-VIII Additional District and Sessions Judge

at Mahabubnagar, for the offence punishable under Section 302

IPC is modified to that of the offence under Section 304 Part II

IPC. The appellant/A-1 is, accordingly, convicted and sentenced to

suffer rigorous imprisonment for a period of ten years and to pay

fine of Rs.500/- (Rupees five hundred only), in default of payment

of fine, to suffer simple imprisonment for two months for the

offence punishable under Section 304 Part II IPC. The conviction

and sentences passed against the appellant/A-1 for the offences

punishable under Sections 379 and 201 IPC remain unaltered.

32. Pending miscellaneous petitions, if any, stand closed.

______________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA

______________________________ JUSTICE A.SANTHOSH REDDY 13.02.2023 Lrkm