THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE K.C. BHANU DATED: 23-06-2010 CRIMINAL APPEAL No. 94 OF 2007 Between:
Chinta Pedda Laxmaiah and another ..... APPELLANTS AND The State of Andhra Pradesh rep., by Public Prosecutor, High Court of A.P., Hyderabad . RESPONDENTS THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No. 94 OF 2007 JUDGMENT: (Per the Hon’ble Sri Justice A. Gopal Reddy) The appellants – A1 and A2 in S.C No. 317 of 2004 on the file of the III Additional Sessions Judge (FTC-II), Khammam were tried for the offence under Section 302 IPC. The learned Sessions Judge found them guilty for the said offence and sentenced them to undergo imprisonment for life and to pay a fine of Rs.200/- each, in default to suffer imprisonment for 30 days. Questioning the conviction and sentence, the present appeal has been filed.
The case of the prosecution is that Kursa Papaiah the complainant and his wife Kursa Badramma (hereinafter called ‘the deceased’) are residents of Vaddugudem. They were blessed with four daughters and a son. Third daughter Rambai, PW 3 was given in marriage to one Chinta Raju, son of the accused about three years prior to the date of incident. Due to disputes between PW 3 and her husband Chinta Raju, a case under Section 498-A IPC was filed against the accused and their son in C.C No. 15 of 2003 on the file of the learned Judicial First Class Magistrate, Yellandu on the complaint lodged by PW3.
PW 1 set the criminal law in motion by filing a complaint on 02- 12-2003 stating that the son of the accused used to beat her daughter PW3 and used to harass her for getting additional dowry and in this regard, she got a complaint moved in the month of November, 2002 and since then disputes arose between them. On 01-12-2003 in the night, the deceased who is his wife went into the village and did not return. Later, himself and his son enquired about her in the village, but in vain. On 02-12-2003 at about 5.00 AM PW 5 told him that his wife Bhadramma was found dead by the side of Murreduvagu, that the villagers including PWs 1 to 3 went and saw the dead body with injuries and he suspects that due to disputes between them, A1 might have killed her by beating and throttling.
PW 15, the Assistant Sub-Inspector of Police, Bodu Police Station on receipt of report from PW 1 under Ex.P-1 registered a case in Crime No. 47 of 2003 under Section 302 IPC and issued FIR Ex.P-
12. PW 14, the Circle Inspector of Police, Tekulapally took up investigation from PW 15, visited the scene of offence at Murreduvagu of Voddugudem Village and examined PWs 1 to 8 and recorded their statements. After recording their statements, he observed the scene of offence and prepared CDF Ex.P-9 in the presence of PW 11 and LW 12. He photographed the scene of offence through PW 8. Exs.P-2 to P-7 are photos along with negatives. He also conducted inquest over the dead body of the deceased in the presence of PWs 10 and 11 and LW 12, prepared inquest report Ex.P-8 and after completion of inquest sent the dead body to the Government Hospital, Yellandu for postmortem examination.
PW 13, the Civil Assistant Surgeon, Government Civil Hospital, Yellandu on the requisition from PW 14 conducted autopsy on the dead body on 02-12-2003 and found internal and external injuries and issued Ex.P-11 postmortem examination report opining that the cause of the death was due to shock from multiple injuries and throttling. PW 14 arrested A-1 and A-2 on 06-12-2003 and on their confession recovered a stick in the presence of PW 12 and LW 13 under a cover of panchanama. Ex.P-10 is the disclosure-cum-seizure report.
After completion of investigation, PW 14 filed charge sheet for the offence under Section 302 IPC before the Judicial First Class Magistrate, Yellandu who registered it as PRC No.17 of 2004 and later committed to the Court of Sessions. On committal, the learned Sessions Judge, Khammam registered the same as S.C No. 317 of 2004 and made over to the learned III Additional Sessions Judge (FTC-II), Khammam who framed the charge against the accused for the offence under Section 302 IPC. The accused denied the same and claimed to be tried.
In order to prove the guilt of the accused, the prosecution examined PWs 1 to 15 and marked Exs.P-1 to P-12 and MO 1. When the accused were examined under Section 313 Cr.P.C they stated that the case is foisted against them with suspicion only and that they have defence evidence, but their counsel reported no evidence. The learned Sessions Judge on consideration of the oral and documentary evidence was of the view that Pws 1 to 4 have established the motive for the incident which is also corroborated by Ex.P-1 report, that the evidence of PW 5 who is an eye witness to the incident is trustworthy and reliable and that the medical evidence also corroborates the evidence of PW 5 and hence, convicted them for the offence under Section 302 IPC and sentenced them to imprisonment as aforementioned.
We have heard Sri P. Damodar Reddy, learned counsel for the appellants – accused who contended that PW 5 is a chance witness who has not disclosed the factum of the accused beating the deceased in the night to anyone in the village and on the next day early morning when he was going to Koppirai informed the same to PWs 6 and 7 whom he met on the way. According to the learned counsel, the abnormal conduct of PW 5 in not informing the villagers about the incident on the same night itself is a suspicious circumstance which goes against the case of the prosecution. He further contended that in Ex.P-1 PW 1 merely suspected A-1 about the commission of the offence. Mere filing of case by the daughter of PW 1 and the deceased against the son of A-1 and A-2 itself is not sufficient to make accusation against the accused and, therefore, the accused are entitled for acquittal.
The learned Public Prosecutor sustained the judgment of the lower Court contending that PW 5 is an independent witness and on the date of incident while returning to home he found A-1 and A-2 beating the deceased but did not inform the same as it was night and informed the same to PW 1 and others on the next day morning. Therefore, the conviction and sentence recorded by the lower Court does not call for any interference.
PW 1 is the husband of the deceased who lodged Ex.P-1 report suspecting that A-1 might have killed the deceased by beating and throttling. He stated in his evidence that PW 3 Rambai was given in marriage to Raju who is the son of A1 and A2 and that Raju sent away his daughter Rambai demanding dowry and he brought his daughter to his house. PW 3 gave a report against Raju and A1 and the case is pending. The deceased abused A1 and A2 as PW 3 was deserted by their son. On the date of the incident, the deceased left the house in the evening stating that she was going to the house of PW 9 for collecting money but she did not return home on that night. On the next day morning, PW 5 came to him and informed that he saw the dead body of the deceased at the Murreduvagu, that he himself along with his son and daughter went to Murreduvage and found the dead body. Later, villagers also came there and he saw the injuries on the neck, right hand and on the left side of the abdomen of the deceased.
Thereafter he lodged the complaint and suspected that A-1 and A-2 are responsible for the death of the deceased. He admitted that the police person scribed Ex.P-1 and also that the deceased had the habit of drinking.
PWs 2 and 3 who are the son and daughter of PW 1 also stated on the same lines, but PW 3 stated that PW 5 informed at their house that A1 and A2 have killed the deceased at Murreduvagu.
PW 5 who is the alleged eye witness to the incident stated that on the date of the incident while he was returning home at 10 PM from Koppirai to Vadlagudem and when he reached Murreduvagu, he found A-1 and A-2 killing the deceased and that they have thrown away the dead body in a pit which is situated by the side of Murreduvagu. He further stated that then he left to his house and did not inform the incident to anybody due to fear. At about 4.00 AM on the next day when he started from his house to go to Koppirai on the way PWs 6 and 7 met him and there he informed them about the incident. Then himself and PWs 6 and 7 went to the pit and found the dead body with injuries in the pit. They have returned to the Vadlagudem and informed about the presence of the dead body at Murreguvagu to PW 1. He found a stick in the hand of A1 at the time of incident.
PW 6 to whom PW 5 had informed about the incident on the next day morning stated that PW 5 informed him and PW 7 that he had seen somebody falling down from height on the previous night, that he did not go to that place due to fear and asked them to come to that place and after going to the pit, they found the dead body of the deceased with injuries. PW 5 informed them that two persons have thrown away a person in a pit and ran away. His evidence is not as that of the evidence of PW 5 who stated that he saw A1 and A2 beating the deceased on the previous night and found the stick in the hand of A1 at the time of the incident.
PW 7 who was declared hostile did not support the case of the prosecution but stated that himself and PW 6 went to Murreduvagu at 6.00 AM and there they met PW 5. When they were returning they found a group of persons near the pit. Himself and PW 5 went to that place and found the dead body of the deceased.
Admittedly, the incident had taken place at 10.00 PM. Eight days after Amavasya (23-11-2003), i.e., on 01-12-2003, the incident had occurred. Unless there is a source of light, it will be difficult to identify the faces of the persons. Therefore, it is highly doubtful whether PW5 had identified the persons who beat the deceased as the accused. Further, the abnormal conduct in which PW 5 had behaved viz., non disclosure of the factum of the accused beating the deceased and throwing the dead body in the pit and again informing the same in the next day morning creates suspicion about his witnessing the incident, particularly when PW 6 also has not supported the case of the prosecution that PW 5 has informed them about A1 and A2 beating the deceased. That apart, one omission was also elicited i.e. that PW 5 did not state about the accused using the stick either in the statement before the police or in his chief examination. He did not state that the said stick was used by A1 for beating the deceased. The same is also admitted by PW 14 Investigating Officer in his evidence.
By examining PW 13 doctor, the prosecution could only establish the homicidal death of the deceased due to shock from multiple injuries received by the deceased and throttling under Ex.P- 11 post mortem examination report. Since the evidence of PW 5 is not trustworthy and unless it is corroborated with other evidence, it is highly unsafe to convict the accused solely basing on the uncorroborated evidence of PW 5 whose evidence has also not been supported by PW 6. Therefore, the conviction and sentence passed by the trial Court are liable to be set aside.
In the result, the criminal appeal is allowed. The conviction and sentence recorded against the appellants (A1 and A2) for the offence under Section 302 IPC in S.C No. 317 of 2004 by the learned III Additional Sessions Judge (FTC-II), Khammam are set aside and they are set at liberty forthwith, if they are not required in any other case. Fine amount, if any, paid by the appellants – A1 and A2 shall be refunded to them.
A. GOPAL REDDY, J K.C. BHANU, J 23-06-2010 ks