Telangana High Court
Palleboina Sadaiah vs The State Of A.P. on 7 March, 2024
THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
CRL.APP.NO.804 OF 2012
JUDGMENT:
This is a Criminal Appeal filed by the sole accused in
SC.No.605 of 2010 on the file of Principal District and
Sessions Judge, Warangal. This appeal has been filed under
Section 74(2) of Criminal Procedure Code (for short 'Cr.P.C.')
challenging the judgment and conviction recorded by the trial
Court dated 10-07-2012 by the trial Court, where under, the
appellant herein was convicted under Section 235 (2) Cr.P.C.
for the offence under Section 304-II of Indian Penal Code (for
short 'I.P.C.') and was sentenced to undergo Rigorous
Imprisonment for a period of Five years and to pay a fine of
Rs.1,000/- in default of payment of fine to undergo further
Simple Imprisonment of Six months.
2. As could be seen from the impugned judgment,
it appears that the appellant herein was tried before the
learned Principal District and Sessions Judge, Warangal in
SC.No.605 of 2010 with an allegation that he has committed
an offence under Section 302 of IPC. However, after the trial,
the trial Court came to the conclusion that the prosecution
2 SSRN, J
was not able to prove the guilt of appellant for the offence
under Section 302 of IPC. However, held that the evidence
placed before the Court proved the guilt of appellant for the
offence under Section 304-II of IPC, accordingly, convicted
him under Section 235 (2) of Cr.P.C. with the sentence as
referred above.
3. As per the charge sheet filed by the
respondent/complainant, it was alleged that one Palleboina
Ramesh (herein after will be referred as 'deceased') and
appellant herein were brothers and sons of one Palleboina
Mallamma, who was examined as PW.5 before the trial Court.
Palleboina Ilamma, who was examined as PW.1 is the wife,
PWs.2 and 3 namely Anusha and Akhila were the children of
the deceased.
4. The prosecution has alleged that on 27-04-2010,
PW.1 had been to Odela to attend Mallanna Jathara for
offering the prayer and on her return from Jathara on 28-04-
2010 and when she reached the house at about 4.00 p.m.,
she found a mob of villagers near her house. When she
rushed to the place, she found the dead body of her husband
in front of the house of Kandi Sammaiah with stab injuries on
his body. When she caused enquiry, she came to know from
3 SSRN, J
his another brother-in-law by name Sammaiah that at about
3.30 p.m., the children of PW.1 and deceased were playing in
front of the house of LW.5 Palleboina Sammaiah, the accused
abused them, thereby, his mother i.e., PW.5 intervened and
questioned him as to why he was abusing the children,
thereby, accused started scolding his mother in filthy
language. The deceased who is no other than the brother of
accused and son of PW.5 intervened and questioned his
brother as to why he was abusing their mother in such a filthy
language. Therefore, the accused went into his house,
brought a knife and stabbed him on his chest and left side
armpit due to which he died on the spot. PW.1 having come
to know about the incident, went to police station, Parkal and
presented a report to the Sub-Inspector of Police, who was
examined as PW.12. Basing on the said report, a case in
Crime No.85/2010 for the offence under Section 302 of IPC
has been registered and the same was investigated by the
Inspector of Police, Parkal, who was examined as PW.11
before the trial Court.
5. The prosecution has claimed that during the
course of his investigation, PW.11 visited the scene of offence,
secured the independent mediators, who were examined as
4 SSRN, J
PW.6 and PW.10, conducted a panchanama at the scene of
offence and seized the blood stained earth and control earth
from the scene of offence. After completing the other
investigation including the preparation of a rough sketch at
the scene of offence, obtaining photographs and conducting
inquest etc., the dead body was referred for post-mortem
examination. The accused herein was arrested by PW.11 on
05-05-2010 and he was interrogated in the presence of two
mediators. PW.8, one Sampath and accused said to have
confessed the commission of offence. Later, he was produced
before the Court for judicial custody. PW.11 having
completed investigation, filed charge sheet against the
accused alleging that he has committed an offence under
Section 302 of IPC.
6. The charge sheet was registered as PRC No.65 of
2010 and on committal of the case, the learned District Judge
after supplying copies of the charges sheet, examined the
appellant under Section 228 (2) of Cr.P.C. and framed a
charge under Section 302 of IPC. The appellant denied the
charge and claimed to have been tried. During the trial, the
prosecution has examined PWs.1 to 12 and marked Exs.P1 to
P12 and MOs.1 to 8. After conclusion of the trial, the
5 SSRN, J
appellant herein was examined under Section 313 Cr.P.C. The
learned District Judge after hearing the Public Prosecutor and
learned defence counsel found the accused not guilty for the
offence under Section 302 of IPC and found him guilty under
Section 304-II of IPC and convicted him for the said offence,
sentenced him to undergo Rigorous Imprisonment for Five
years and fine of Rs.1,000/- with default sentence.
7. The appellant/accused has filed the present
appeal on the ground that the trial Court committed an error
by convicting him on the evidence of highly interested
witnesses without considering the discrepancies,
contradictions elicited from the witnesses. The Court below
failed to appreciate the fact that PWs.2 to 5, who were
supposed to have been present and witnessed the alleged
attack by the appellant did not intervene and they were like
spectators which is highly improbable. The trial Court failed
to appreciate that PWs.2 to 5 are only planted witnesses. If
really, they were present, they could have prevented the
accused from killing his own brother. The Court below failed
to notice that there is no strong motive for the appellant to
kill his brother. The trial Court did not consider the
discrepancy with regard to scene of offence as mentioned in
6 SSRN, J
Ex.P1 and as per the evidence of the witnesses examined
before the trial Court. The appellant has also claimed that
except the evidence of interested witnesses, there is no other
independent witness to depose about the offence. Therefore,
sought for setting aside the conviction and sentence.
8. Heard both parties.
9. The learned defence counsel has submitted that
the evidence of PW.1 that she alone went to police station,
Parkal, that too after her return from Jathara, in spite of the
fact that there were other elders including the own brother of
deceased creates any amount of doubt whether the details
mentioned in Ex.P1 are really showing the correct incident or
it was prepared as an after thought. The learned counsel also
argued that the conduct of the other witnesses, who were
supposed to be present and witnessed the offence without
reacting to the alleged attack and without even trying to shift
the deceased to Hospital or with regard to their failure to
present their report till the arrival of PW.1 creates any amount
of doubt. The learned counsel has also argued that PWs.2, 3
and 5 are only chance witnesses, planted for the purpose of
deposing against the accused. Admittedly, PWs.2 and 3 are
school going children, when the offence took place on
7 SSRN, J
28-04-2010 which happened to be a working day. The
presence of both the girls at the time of alleged offence is
highly suspicious. He has also argued the evidence of
PW.5, who is none other than the mother of the deceased is
highly suspicious because she was under the shelter of PW.1
and the deceased. Therefore, the chances of her giving false
evidence cannot be ruled out.
10. On the other hand, the learned Public Prosecutor
has argued that the evidence of PWs.2, 3 and 5 is quite
natural because they are none other than the children and
mother of the deceased. In fact, the appellant is also the son
of PW.5. Therefore, if really there was no such offence, she
could not have implicated her own son in the murder case of
the other son. Therefore, evidence of PW.5 cannot be
discarded on the ground of interestedness.
11. As already stated in the previous paragraphs, the
specific case of prosecution against the present appellant was
in view of a petty quarrel between appellant herein and PW.5,
when he abused the children of the deceased, and when the
mother of the appellant - PW.5 questioned the abuses, he said
to have started abusing PW.5. It is also alleged that when the
deceased found the appellant herein abusing his mother said
8 SSRN, J
to have intervened and questioned the accused but the
accused brought a knife and stabbed his brother. According
to the complaint lodged by PW.1, the offence took place on
28-04-2010 but by the time of offence, she was not present in
the village. According to the first version of PW.1 before the
police vide Ex.P1, that she had been to Mallanna Jathara on
27-04-2010 and returned home on 28-04-2010 at about 3.30
p.m., By the time she came, she found a big gathering near
her house and that she found the dead body of her husband
in front of the house of one Kandi Sammaiah. Ex.P1
complaint was presented to police at 5.30 p.m., on the same
day.
12. As per the evidence of PW.1, soon after she came
to know about the alleged murder, she got prepared a
complaint through a villager and she went to police station,
Parkal and presented a report. Therefore, PW.1 got Ex.P1
prepared in the village and after satisfying with the contents
only, she presented the same before the police. In the
examination in chief itself, PW.1 categorically deposed that
after the report was presented, the contents of the same were
read over to her, explained to her and after satisfying with the
9 SSRN, J
contents, she affixed her thumb impression and presented the
same to police.
13. Therefore, according to her first version, she
found dead body of her husband in front of the house of Kandi
Sammaiah and when she enquired, her brother-in-law
Palleboina Sammaiah as to what happened. He said to have
informed the de facto complainant about the alleged quarrel
and about the accused killing her husband. As per the
evidence of PW.1, it was elicited that her children were going
to school but she did not explain as to how they were present
and playing near the house at the time of alleged offence.
PW.1 categorically admitted before the trial Court that all the
children including the children of accused and other brothers
used to go to school on every working day. Even though, the
evidence of PW.1 shows that number of villagers was present,
the prosecution has examined PWs.2, 3 and 5 to prove the
guilt of the accused. PW.4 is an independent witness about
whose presence, there was no whisper in the complaint or in
the statement made by PW.1 before the trial Court. As per
the cross-examination, PW.1 has admitted that by the time
she reached the scene of offence, she found a large mob
consisting of all the villagers was present. PW.1 stated before
10 SSRN, J
the Court that though she presented Ex.P1 to police on the
same day, the police did not visit the village on that
particular day.
14. PW.1 has admitted that prior to the above said
offence, there were no disputes between the accused and the
deceased. PW.1 has deposed before the Court that her
husband used to work in digging wells and crushing stones.
PW.1 has admitted that on the date of the above said offence
also her husband went to attend his work and returned home.
If really, he had been to attend the work, the presence of
accused before 3.00 p.m., is highly impossible. However, as
per the evidence of the witnesses, the death of the deceased
occurred even before the arrival of PW.1. According to PW.1,
though she presented Ex.P1 to police at 5.30 p.m., police did
not visit the village on 28-04-2010 but they came to their
village on the next day. However, in the further cross-
examination, PW.1 tried to say that police visited the village
on the same day. The evidence of other witnesses i.e., PWs.3
and 4 is contradicting the evidence of PW.1 when PW.1
deposed before the Court that the police have visited the
scene of offence on the same day, the Investigating Officer,
who is examined as PW.12 deposed before the Court that he
11 SSRN, J
has examined PWs.2 to 5 and PW.10 at the scene of offence
but he could not conduct scene of observation panchanama
and inquest on the date of offence. PW.11 has claimed that on
29-04-2010 again he visited the scene of offence and
conducted inquest on the dead body.
15. With regard to the offence proper, the evidence of
PW.1 goes to show that she did not state before police that
she noticed the dead body of her husband in front of the
house of Palleboina Sammaiah and she stated before the
police that she found the dead body in front of the house of
Kandi Sammaiah. However, according to the investigation
conducted by PW.11, the Prosecution has claimed that the
dead body of the deceased was in front of the house of Kandi
Sammaiah. It is elicited from PW.1 that her mother-in-law
was residing with the deceased and PW.1. as she had no
other independent house. Even though, she claimed before
the trial Court that she came to know about the offence
through her brother-in-law and mother-in-law, who was
examined as PW.5, the same was not found in her statement
before the police.
16. Whatever may be the evidence of PW.1,
admittedly, she is not an eye- witness to the alleged offence.
12 SSRN, J
In the light of her own admission, her children used to go to
school on every working day, the presence of PWs.2 and 3 at
the time of offence creates any amount of doubt. According
to the evidence of PW.2, when herself and her sister were
playing on the road in front of the house of Sammaiah, and
when the accused abused them, PW.5 intervened and
questioned him as to why he was abusing the children and
when their father intervened, the accused brought a knife
from his house and stabbed him. It is elicited from PW.2 that
prior to the above said incident, her father had been to attend
the regular work but she did not state as to when he returned
home. It is elicited from PW.2 that she did not state before
police that at the time of offence, she and her sister were
playing in front of the house of Palleboina Sammaiah and
accused came to the said spot. Another important
circumstance elicited from PW.2 is about the presence of
accused throughout the day of 28-04-2010. When it is alleged
by the prosecution that the accused stabbed his brother and
killed him and when the de facto complainant having got
prepared a complaint, attended police station and presented a
complaint, if really the accused was the culprit, he could not
13 SSRN, J
have waited at the house expecting the arrival of police who
would arrest him.
17. PW.3 deposed before the Court that in spite of the
above evidence, the accused was very much present in the
house for the entire day. According to the evidence of PWs.2
and 3, both of them were playing on the road in front of the
house of their paternal uncle Sammaiah. It is elicited from
PW.2 that the distance between their house and house of
accused is about 100 yards and it is elicited from PW.3 that by
the time of the alleged offence, herself and her sister were
playing near the house of Erukala Sammaiah. Even though, it
is suggested to PWs.2 and 3 that the place at which they were
allegedly playing is not visible to the scene of offence. As per
the scene of offence panchanama marked as Ex.P7, there is a
road on the rear side of the house of accused. The distance
between the place where the children were allegedly playing
and the house of Kandi Sammaiah at which of the dead body
of the deceased was found is about 31 feet.
18. The presence of PWs.2 and 3 itself at the time of
alleged offence is doubtful. In addition to that in view of the
distance between the above said two places, the chances of
these two girls, who were playing, witnessing the offence in
14 SSRN, J
which the accused said to have killed his own brother is not
visible. In the light of the cross-examination of PW.1, where
in, she has admitted that her children and children of her
brothers-in-law used to attend the classes on every working
day, her evidence about the presence of PWs.2 and 3 is highly
doubtful. As per the evidence of PW.1 that till she came to
the scene of offence, there was no attempt by any of the
villagers to approach the police or to shift the injured to the
Hospital. It also creates a doubt as to whether the incident
has really occurred as deposed by PW.1 or they have
suppressed something to implicate the accused herein in the
case.
19. It is true, the evidence of PW.1 and Medical
Officer and other witnesses proved the death of deceased due
to stab injuries. However, the other circumstances explained
by the material witnesses, more particularly, about the
accused staying in the house without making any attempt to
escape and showing the school going children of PW.1 alone
as eye-witnesses, without showing the other villagers as
eye-witness to the offence and their silence without
presenting any report to police, creates any amount of doubt
whether the de facto complainant and other witnesses were
15 SSRN, J
presenting a real version or they have deposed false by
implicating the accused herein into case. Therefore, the
appellant is entitled to benefit of doubt.
20. In the result, the appeal filed by the
appellant/accused is allowed. The conviction recorded by the
trial Court is set aside. The fine amount paid by the accused
shall be returned to him after the appeal time is over.
Consequently, Miscellaneous Petitions if any, are closed.
________________________
SAMBASIVA RAO NAIDU, J
07-03-2024.
PLV
