HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Between:
Criminal Appeal No.296 of 2010 Dated: 10.04.2014 M.Narayanagoud … Appellant And State of Andhra Pradesh, Represented by PP. High Court, Hyderabad.
… Respondent HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.296 of 2010 JUDGMENT: (Per Hon’ble Sri Justice M.S.K.Jaiswal) The appellant/accused was charged with an offence punishable under Section 302 of I.P.C., for having caused the death of a 75 year old man Bheemaiah (hereinafter referred to as ‘the deceased’) on 06-12-2008 in Bheemaram village o f Medipalli Mandal. He was tried in S.C.No.419 of 2009 on the file of the II- Additional Sessions Judge, Karimnagar at Jagtial, and through the Judgment, dated 30-10-2009, he was found guilty and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for two months.
2. The facts, in brief, are as under:-
The deceased and the accused are residents of Bheemaram. Suspecting that the deceased is practising sorcery, the accused took him to his house on 06-12-2008 and killed him by strangulating him with the help of a towel. Thereafter, the accused went around the village proclaiming that he killed the deceased. The information reached Bheemaiah, the son of the deceased – PW.1 through Mohd.Khajoddin. PW.1 returned home and after seeing his father lying dead, went to P.S.Medipalli and lodged complaint Ex.P.1. P.W.9 – the S.I. of Police registered crime No.136 of 2008 and issued F.I.R. Investigation was taken up by the Inspector of Police PW.11, visited the scene of offence, observed the same, held inquest over the dead body and got the post-mortem conducted. The Medical Officer PW.10 opined that the cause of death is ‘mechanical asphyxia due to strangulation’, and issued the post-mortem report Ex.P.14. After completing the investigation, charge-sheet was filed.
Cognizance was taken and the case was committed to the Court of Sessions. Charge under Section 302 of I.P.C. was framed. The accused pleaded not guilty. The prosecution examined PWs.1 to 11, filed Exs.P.1 to P.17 and M.Os.1 to 9 were taken on record.
The accused was examined under Section 313 Cr.P.C., where he denied the evidence on record. No defence is produced.
The learned Sessions Judge believed the evidence of the prosecution witnesses, convicted the accused, and imposed the sentence stated above.
3. Learned Counsel for the accused submits that the findings of the trial Court are not based on proper appreciation of the evidence on record, that the evidence does not conclusively establish that it is the accused who committed the crime, and based on surmises and conjuctures, the accused has been convicted. Learned Counsel further submits that even according to the prosecution witnesses, except for the self-proclamation said to have been made by the accused of having caused the death of the deceased, that too in an inebriated condition, there is absolutely no evidence. It is further submitted that Mohd.Khajoddin, the person who is said to have informed PW.1 about the death of the deceased, has not been examined.
4. Learned Additional Public Prosecutor, on the other hand, submits that the evidence on record clearly established that it is the accused, who killed the deceased, an aged person, merely on suspicion that he is practicing sorcery. It is further submitted that the accused informed several people that it is he who killed the deceased. It is also argued that the findings are based on the legally acceptable evidence, warranting no interference.
5. The point for consideration is as to whether the prosecution proved its case against the accused beyond reasonable doubt, so as to sustain the conviction and sentence, or whether it needs to be modified, set aside or varied?
6. POINT:- The accused and the deceased are residents of the same village and both of them are elderly persons. The accused is alleged to have developed suspicion that the deceased is performing blackmagic. On 06-12-2008, both of them were in an inebriated condition and from the shop of PW.5, the accused took the deceased to his house and thereafter, killed him by strangulation with the help of a towel M.O.3. Admittedly, there are no eye-witnesses to the incident. The entire case is based upon the extra-judicial confession said to have been made by the accused before the villagers. It is admitted fact that at that time the accused was in a fully intoxicated condition. Therefore, how far the self-inculpation said to have been made by such a person can be believed is required to be examined from the evidence on record.
7. The dead body of the deceased was found in the open yard in front of the house of the accused. There are several houses around it. The incident is alleged to have taken place in a broad day light. When a person is done to death violently in the open ground surrounded by houses during day time, it is bound to attract the attention of the neighbours. It is not as though that the scene of offence is a secluded place far away from the village or that the crime was alleged to have committed inside the house. Therefore, it is difficult to believe that the incident occurred, but none of the villagers came to know about the death of the deceased, till the accused himself proclaimed having done so.
8. The source of information to PW.1, the son of the deceased, is one Mohd.Khajoddin. He has not been examined by the prosecution. On being told by Mohd.Khajoddin, PW.1 came home and verified the fact and thereafter gave his statement to the police. He deposed that on the date of the incident, when he was performing his duty on a tractor, his employer Mohd.Khajoddin came and informed that the accused killed his father. He further deposed that he got the report Ex.P.1 prepared and submitted the same to the police. According to PW.1, he has noticed his father lying dead and that a towel was around his neck. It was suggested to PW.1, that since he and his wife PW.2 were not taking proper care of the deceased, who was aged more than 75 years, the deceased committed suicide. This was, no doubt, denied. In the cross-examination, PW.1 admitted that except Mohd.Khajoddin, no one informed him that they have seen the accused killing the deceased. What could be gathered there-from is that Mohd.Khajoddin is an eye-witness to the incident. Non- examination of such a person is fatal to the prosecution.
9. PW.2 is the wife of PW.1 and her evidence is similar to that of her husband. According to her, the deceased had lunch and went out during afternoon, and at about 07.00 or 08.00 p.m., Chilveri Narsaiah – PW.4, who is the husband of the Sarpanch of the village, came and informed her that the accused killed her father-in-law.
10. PWs.3, 4 and 5 are the villagers and it is in their evidence that on the date of the incident, they heard the accused saying that he killed the deceased. It was admitted by them that at that time, the accused was in an inebriated condition. Significantly, when the accused was going round declaring as such, none of the witnesses, particularly PWs.3, 4 and 5, who are all persons aged about 30 years, apprehend him, who was aged more than 65 years. If really, the accused was claiming that he killed the deceased, the immediate reaction of the residents who heard it, particularly PW.4, would have been to apprehend him and hand him over to the law enforcing agency. Nothing of that sort was done by three of them. It creates any amount of doubt about their plea that the accused went round the village claiming that he killed the deceased. According to the prosecution, the accused was arrested four days after the incident i.e., on 10-12-2008 by the police.
11. PWs.7 and 8 are the panch witnesses who spoke about the scene of offence and inquest panchanama being conducted. PW.10 is the Doctor, who conducted autopsy over the dead body and found about ten injuries and opined that the cause of death was strangulation. The Medical Officer did not rule out the possibility of the death, due to hanging. P.Ws.9 and 11 are the Investigating Officers.
12. On perusing the evidence on record, particularly that of the independent witnesses P.Ws.1 to 5, we have no hesitation to hold that prosecution failed to establish beyond reasonable doubt, that it is the accused who committed the crime. None of them have seen the incident and no eye-witness to the incident was examined. Except the extra-judicial confession said to have been made by the accused before PWs.3, 4 and 5, there are no other circumstances, to connect the accused with the crime. The evidence of PWs.3, 4 and 5 does not inspire confidence of the Court. The trial Court did not appreciate these aspects from the proper perspective and held the accused guilty. The said findings are not sustainable and the same are liable to be set aside. The point is accordingly answered.
13. In the result, the Criminal Appeal is allowed. The conviction and sentence ordered against the appellant/accused, in S.C.No.419 of 2009 on the file of II-Additional Sessions Judge, Karimnagar at Jagtial, through Judgment, dated 30-10-2009, are set aside. The appellant shall be set at liberty forthwith, unless his detention is needed with reference to any other crime. The fine amount, if any, paid by the appellant shall be refunded to him.
L.Narasimha Reddy,J.
M.S.K. Jaiswal,J.
Dt.10.04.2014
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HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.296 of 2010 (Judgment of the Division Bench delivered by Hon’ble Sri Justice M.S.K.Jaiswal) Dated: 10.04.2014
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