IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE 29th DAY OF JUNE, TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.201 of 2007 Between:
Thurumella Ramesh Babu And State of A.P., Represented by Public Prosecutor.
… Appellant … Respondent This Court made the following:
THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU
CRIMINAL APPEAL No.201 of 2007
JUDGMENT: (per the Hon’ble Sri Justice K.C.Bhanu)
This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973, (for short, "Cr.P.C.") is filed by the appellant/sole accused against the Judgment, dated 05.09.2006, in Sessions Case No.81 of 2004 on the file of the XI Additional District & Sessions Judge, (Fast Track Court), Guntur at Tenali, whereunder and whereby, the appellant was convicted of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, "IPC") and sentenced to undergo Rigorous Imprisonment for life and also to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for a period of three months.
2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows:
Accused is a resident of Vemuru village. One Perli Gnana Raju, (hereinafter referred to as “the deceased”) was the resident of the Varahapuram Village. P.W.1 is the father of the deceased. P.W.2 is the sister of P.W.1. P.W.4 is the co-victim of the deceased. About one month prior to the death of the deceased, the deceased went to the house of P.W.2 at Vemuru to look after the work relating to the marriage of son of P.W.2. The marriage of son of P.W.2 was performed on 10.06.2003. On 15.06.2003 a function was performed in the night in the house of P.W.2. P.W.1 and his family went to the house of P.W.2 to attend the function. At about 9.00 p.m. they heard the cries from the house of P.W.5 saying that the deceased fell down. By the time P.W.1 went there, the deceased and P.W.4 were found lying on the ground and foam was coming from their mouth. There they found two disposable glasses and one empty quarter Brandi Bottle. They shifted the deceased and P.W.4 to the Hospital of P.W.9 at Vemuru. P.W.9 stated that the condition of the deceased was critical and advised them to take the deceased to the Government Hospital, Tenali. P.W.1 shifted the deceased to a private hospital, Tenali. The doctor P.W.10 examined the deceased and declared that the deceased was brought dead and advised to take P.W.4 to the Government Hospital, as it is a medico legal case. P.W.4 was shifted to the Government Hospital, Tenali and thereafter the deceased was brought back to Vemuru. When P.W.1 along with the deceased and others reached the center at Vemuru in the auto, they found the accused. P.W.7 got down from the auto and questioned the accused about the death of the deceased. The accused confessed before P.W.7 stating that he mixed poison in the Brandi and gave it to P.W.4, which was consumed by the deceased and P.W.4. P.W.7 informed the same to P.W.1. The dead body of the deceased was taken to the house of one Perne Sekhar in Vemuru Village. P.W.1 gave a report to the police under Ex.P1.
On 16.06.003 at 7.45 p.m., L.W.24-the Station House Officer, Vemuru Police Station, registered a case in crime No.30 of 2003 for the offence punishable under Section 302 of IPC, under Ex.P12 F.I.R. P.W.13, the Circle Inspector of Police, Tenali Rural Circle received information from the Station House Officer, Vemuru Police Station and immediately reached to Vemuru at 7.45 a.m., and took up investigation. Immediately he visited the scene of offence along with mediators. During the course of investigation, P.W.13 examined P.Ws.1 to 6, recorded their statements; observed the scene of offence in the presence of P.W.11 and others, drafted the scene of observation report under Ex.P9; held inquest over the dead body of the deceased in the presence of P.W.11, under Ex.P5 inquest report; recorded the confessional statement of the accused in the presence of P.W.11 and others; and on 18.06.2003 he arrested the accused.
On 16.06.2003 P.W.12, the Civil Assistant Surgeon at Government Hospital, Tenali conducted autopsy over the dead body of the deceased and opined that the deceased would appear to have died of nitrite poison and issued Ex.P6 postmortem report and Ex.P7 final opinion. P.W.14, the Civil Assistant Surgeon at District Hospital, Tenali examined P.W.4 on 16.06.2003 at 12.05 a.m. and gave treatment. P.W.4 was discharged from the hospital on 23.06.2003 at 2.00 p.m. After completion of investigation, P.W.13 the Circle Inspector of Police, filed charge sheet.
3. The charge levelled against the accused is that: -
“That you on or about the 15th day of June, 2003 during the night time, at the house of Turumella Manikyam in Vemuru village, did commit murder by intentionally (or knowingly) causing the death of Perli Gnana Raju, S/o.Pushparaju, 21 years, Mala, Varahapuram (v) by giving liquor mixed with some poison known as ‘Kongalanu Champe Mandu’ and that you thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance.”
When the charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried.
4. To substantiate its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P.1 to P.13, besides case properties-M.Os.1 to 3.
5. After the prosecution evidence is closed, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating evidence appearing against him in the evidence of prosecution witnesses and he denied the same. No evidence, either oral or documentary, has been adduced, on behalf of the accused.
6. The trial Court upon accepting the evidence of P.Ws.4 and 7 and also taking note of the fact that the deceased died of nitrite poison, found the accused guilty and accordingly convicted and sentenced him as above. Challenging the same, the present appeal is filed by the accused.
7. Now, the point for determination is:-
“Whether the prosecution proved its case for the offence punishable under Section 302 IPC against the appellant/sole accused, beyond all reasonable doubt?”
P O I N T :-
8. Learned counsel appearing for the appellant contended that there is no evidence to show that the accused was in the possession of poisonous substance namely nitrite; and that he mixed the poisonous substance into the brandy bottle and for that reason the deceased died; that there was a possibility for mixing the poisonous substance into the brandy bottle by the enemies of the accused and sending the same through the accused to give the same to the deceased and P.W.4; that if really the accused had mixed the nitrite poison into the brandy bottle, police would have sent the said brandy bottle, which was seized at the scene of offence, to the Chemical Analyst, but no explanation was forthcoming by the investigating officer for not sending the said brandy bottle for chemical examination; that had the stomach wash of P.W.4 been sent to the chemical examiner for analysis, certainly it would have revealed about the presence of nitrite poison, as it is the case of the prosecution that both P.W.4 and the deceased consumed the brandy which was allegedly given by the accused; that there was no motive for the accused to administer the poison to the deceased or to P.W.4; and that without considering these aspects, the trial Court came to the wrong conclusion and, therefore, she prays to set aside the conviction and sentence recorded by the trial Court against the accused.
9. On the other hand, learned Public Prosecutor contended that the accused gave the brandy bottle to the deceased and P.W.4; that immediately after consuming the said brandy by both the deceased and P.W.4, they fell unconscious, and then, immediately, the deceased was shifted to a private nursing home at Tenali and later to Government hospital, where the Doctor examined him and declared that the deceased was brought dead and later P.W.4 was sent to the Government Hospital and he was treated for the poisonous substance; that immediately after consuming the brandy, which was given by the accused, the deceased and P.W.4 fell unconscious, which would clearly indicate that the brandy containing bottle was mixed with some poisonous substance and there was a scope or possibility for the accused alone to mix the poison into brandy; that mere some irregularity committed by the investigating officer in not sending the brandy bottle to the Chemical Analyst during the course of investigation, cannot be taken advantage by the accused or cannot be taken as a ground to discredit the testimony of the prosecution witnesses; that the trial Court on elaborate consideration of evidence on record, rightly found the accused guilty; and that there are absolutely no grounds to interfere with the same.
10. P.W.11 is one of the inquest mediators, who was present when the police conducted inquest on the dead body on 16.06.2003 at 11 a.m. The inquest mediators opined under Ex.P5 that the deceased died as a result of consuming liquor mixed with poison.
11. P.W.12 is the Doctor who conducted autopsy on the dead body of the deceased on 16.06.2003. He found no external injuries, but found almost all internal organs congested. He preserved the liver, stomach and intestine, kidney and sample of saturated salt solution. The analyst, after analysis, gave Ex.P8 report, which reveals that stomach and intestine part contains a chemical substance called “Nitrate” which is a poisonous substance. The chemical examiner did not find the said poisonous substance in the liver and kidney and also empty glass bottle and two plastic disposable glasses, which were seized at the time of observation of the scene of occurrence. P.W.12 after receipt of Ex.P8 report opined that the deceased would appear to have died of nitrite poison and he gave Ex.P7 final opinion. There was no cross-examination for P.W.12. Therefore, the evidence of P.W.12- Doctor and the recitals in Ex.P7 remained unchallenged. Hence, it is established that the death of the deceased was due to nitrite poison.
12. Now it has to be seen whether the accused was in the possession of poisonous substance or whether he had a clear motive or whether he had a reason to administer the poison.
13. On this aspect, it is pertinent to refer to a decision reported
[1]
in Anant Lagu v. State of Bombay wherein at para 65 it was held that:-
“A case of murder by administration of poison is almost always one of secrecy. The poisoner seldom takes another into his confidence, and his preparations for the commission of the offence are also secret. He watches his opportunity and administers the poison in a manner calculated to avoid its detection. The greater his knowledge of poisons, the greater the secrecy, and consequently the greater the difficulty of proving the case against him. What assistance a man of science can give he gives; but it is too much to say that the guilt of the accused must, in all cases, be demonstrated by the isolation of the poison, though in a case where there is nothing else such a course would be incumbent upon the prosecution. There are various factors, which militate against a successful isolation of the poison and its recognition. The discovery of the poison can only take place either through a post-mortem examination of the internal organs or by chemical analysis.
[2]
14. In Sharad v. State of Maharashtra wherein at para 164 it was held that: -
“So far as this matter is concerned, in such cases the Court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction:
1) There is a clear motive for an accused to administer poison to the deceased.
2) That the deceased died of poison said to have been administered.
3) That the accused had the poison in his possession.
4) That he had an opportunity to administer the poison to the deceased.”
[3]
15. In Ramgopal v. State of Maharashtra wherein at para 15 it was held that:
“15. Further, this Court, in Dharambir Singh v. State of Punjab, Crl.App.No.98 of 1958, dated 04.11.1958 (SC) dealing with a case of poisoning observed that where the evidence is circumstantial the fact that the accused had motive to cause death of the deceased, though relevant, is not enough to dispense with the proof of certain facts which are essential to be proved in such cases. Three questions arise in such cases, namely (firstly), did the deceased die of the poison in question? (secondly), had the accused the poison in question in his possession? And (thirdly), had the accused an opportunity to administer the poison in question to the deceased? It is only when the motive is there and these facts are all proved that the court may be able to draw the inference, that the poison was administered by the accused to the deceased resulting in his death.”
So from the above decisions, it is clear that the prosecution has to prove the four circumstances.
16. Insofar as the first circumstance i.e., motive, is concerned, though it is stated that the deceased fell in love with the sister of the accused, that cannot be the motive for the accused to eliminate the deceased. There is no evidence to show that the deceased fell in love with the sister of the accused and thereby the accused developed grouse against the deceased to eliminate him. If really the accused has entertained any idea of committing the murder of the deceased, because the deceased fell in love with the sister of the accused, certainly he would have given the liquor mixed with poisonous substance to the deceased alone. But it is the specific case of the prosecution that the accused allegedly gave the brandy bottle mixed with poison to the deceased as well as to P.W.4. Motive is not an integral part of the crime, but is only an aid in assessment of criminality. Motive looses its significance when there is an acceptable evidence on record to show that it is the accused and none else committed the murder. Therefore, there is absolutely no motive for the accused to commit the murder of the deceased.
17. Coming to the next circumstance, viz., the deceased died of consuming poison, it is established beyond all reasonable doubt in view of the medical evidence coupled with the chemical examiner’s report Ex.P8.
18. The third circumstance is whether the accused had the poison in his possession. There is absolutely no evidence to show that the accused purchased the nitrite poison from any shop, in and around the village, or in the town nearby the village, or that he mixed the poison in the brandy bottle, or that after mixing the poison in the brandy, he gave the same to the deceased.
1 9 . Coming to the fourth circumstance, that whether the accused had an opportunity to administer the poison to the deceased, no doubt on this aspect the evidence of P.W.4 is very clear that when himself and the deceased went to the house of P.W.5 and standing in front of their house, at about 10.45 p.m., the accused came and gave a brandy bottle to him and requested him and the deceased to consume it. He also handed over two disposable glasses. M.O.1 is the brandy bottle, M.Os.2 and 3 are the disposable glasses. The deceased and P.W.4 collected water from the nearby tap and consumed the brandy. After consumption of the liquor, they fell unconscious. Immediately, the deceased was shifted to a private nursing home of P.W.9- Dr.L.Purushotham of Vemuru and the Doctor advised the persons, who brought the deceased, to shift him to the Government Hospital, Tenali. But the deceased was taken to the Nursing Home of P.W.10- Dr.K.Ravindra Babu in Tenali. According to him on 15.06.2003 at 10 p.m., some people brought one person in a serious condition, whose name was Gnanaraju and another person by name Srinivasarao and while he was giving first aid, the attendants of Srinivasarao shifted him to Government Hospital, Tenali. From his evidence, it is clear that the deceased must have consumed the liquor along with the brandy prior to 10 p.m. Whereas the evidence of P.W.4 would go to show that at about 10.45 p.m., the accused allegedly gave the brandy bottle to him for the purpose of consuming the same by himself and the deceased. If really P.W.4 consumed the liquor along with the deceased, certainly, the stomach wash of P.W.4 would contain the nitrite poison. Though P.W.14-Doctor examined P.W.4, collected the stomach wash of P.W.4 and handed over the same to the police, but the stomach wash of P.W.4 was not sent to the Chemical Examiner. His evidence coupled with the recitals in Ex.P13 would go to show that P.W.4 alleged to have consumed 90 ml. of whisky at about 8.30 p.m. on 15.06.2003 at his residence at Vemuru. Had the police sent the stomach wash of P.W.4, which was furnished by P.W.14 to the F.S.L., certainly the Forensic Science Laboratory would have found the nitrite poison. No explanation is forthcoming by the investigating officer as to why the stomach wash of P.W.4 was not sent to the Chemical Examiner.
20. It is the specific case of the prosecution that the brandy mixed with nitrite poison was consumed by P.W.4 and the deceased and that the brandy bottle was given by the accused. The accused also allegedly gave two plastic disposable glasses. The police also seized one empty quarter brandy bottle, two disposable glasses, which were sent to the Chemical Examiner and after analysis, it was found that they did not contain any nitrite poison substance or its traces. Similarly, the police have not given any explanation as to why they have not sent the brandy bottle, which was seized from the scene of occurrence, to the chemical examiner, which is the main crux of the prosecution case.
21. The evidence of P.W.1 would go to show that the incident is alleged to have taken place at about 9 p.m. They heard the cries from the house of P.W.5 and went there and found the deceased and P.W.4 lying on the ground and foam was coming from the mouth. His evidence is contrary to the evidence of P.W.4 with regard to the time of consuming liquor by the deceased and P.W.4. He did not speak that the accused gave the brandy bottle to his son and P.W.4.
22. It is not in dispute that the incident is alleged to have taken place in front of the house of P.W.5. So, he is the best person to speak about the accused giving the brandy bottle to P.W.4 and the deceased. P.W.5 did not support the case of the prosecution. Though he stated that P.W.4 and the deceased had consumed brandy and thereafter they fell down, it is the specific case of P.W.4 that in front of the house of P.W.5, the accused gave a brandy bottle to the deceased and P.W.4. P.W.2 deposed that the deceased came to his house, to attend a feast that was arranged by him in connection with the marriage of his son, which was performed on 10.06.2003 and that the deceased and P.W.4 left the house at about 9.45 or 10 p.m. and after some time, he heard some cries from the house of P.W.5 and went there and found the deceased and P.W.4 lying on the ground; when he enquired with P.W.5, he informed him that the accused gave brandy bottle and after consumption of the same by the deceased and P.W.4, they fell down. But that fact has not been spoken to by P.W.5. Therefore, the evidence of P.W.5 is not helpful to the case of the prosecution. Further more, he was also declared hostile by the prosecution.
2 3 . Similarly P.W.3, who is the closely related to P.W.1, deposed that he came to know through P.W.5 that the accused gave a brandy bottle to the deceased and later they consumed it and fell down. But this aspect of the case has not been spoken to by P.W.5. Therefore, her evidence is also not helpful to the case of the prosecution.
24. Coming to the evidence of P.W.6, he stated that when he went to the house of P.W.5 to see the T.V., the deceased and P.W.4 came and standing in front of the house of P.W.5 and at that time the accused came there and gave a brandy bottle and two disposable glasses to P.W.4, then P.W.4 and the deceased consumed it and thereafter, they fell down and that they were shifted to the hospital at Vemuru. P.W.6 appears to be a chance witness as he is not supposed to be present at the house of P.W.5 on that day, because on his own saying on 15.06.2003 at about 9.30 p.m., he went to the house of P.W.5 to see the T.V. and at that time, a film was broadcasted in E.T.V. He also admitted that while watching the T.V., he cannot see the persons coming on the road. He admitted that when he was watching the T.V. in the house of P.W.5, there was no scope to see what was happening on the road or in front of the house of P.W.5. The presence of P.W.6 in the house of P.W.5 watching the T.V. had not been spoken to by any one of the witnesses, including P.W.5, the house owner. Though he stated that he was talking with P.W.5 at that time, PW.5 did not speak about that aspect. When he went to the house of P.W.5, naturally he would have entered into the house of P.W.5 to witness a T.V. and there was no need for him to talk with P.W.5. As his presence was not spoken to by P.W.5 or P.W.4, it is not safe to place an implicit reliance on the evidence of P.W.6.
25. The other circumstance relied upon the prosecution is the extra judicial confession said to have been made by the accused to P.W.7, who lives by doing labour work. He also went to the house of P.W.5 after hearing the cries and saw P.W.4 and the deceased lying on the ground, then they shifted both the deceased and P.W.4 to Vemuru hospital and later to the hospital of P.W.10 at Tenali. His evidence would further go to show that he questioned P.W.4 as to what happened. P.W.4 informed him that while himself and the deceased were standing infront of the house of P.W.5, the accused came there and gave a brandy bottle and after consumption of it they fell down. But P.W.4 did not state that he informed P.W.7 that the accused gave a brandy bottle to them. When P.W.4 was in a serious condition as per the evidence of P.W.10, it is highly improbable to believe the version of P.W.7 that he was informed by P.W.4 that the accused gave a brandy bottle to them. His evidence would further go to show that on seeing the accused he got down from the auto and confronted him as to what he had done and then he told her that he purchased a brandy from Sai Baba wines, mixed the poison (kongala mandu) and gave it to P.W.4 and the deceased. Then he informed the same to P.W.1. The extra judicial confession alleged to have been made by the accused to P.W.7 cannot be said to be voluntary. At what place, what time and on what date, the accused gave the said extra judicial confession to him, has not been stated by this witness. Further, on his own saying that when he confronted the accused, then he gave a extra judicial confession stating that he purchased the brandy and mixed the poisonous substance and gave it to P.W.4 and the deceased. Therefore, the evidence of P.W.7 is very vague. Further, P.W.7 did not state that the accused gave extra judicial confession in the presence of P.Ws.1, 2 and others. As the extra judicial confession is very vague and not voluntarily made by the accused, no reliance can be placed upon the evidence of P.W.7.
26. Except the fact that the deceased died as a result of consuming nitrite poison, there is no other evidence to show that the accused alone had an opportunity to mix the poison into the brandy bottle; that he had a clear motive to eliminate the deceased and P.W.4; and that the accused was found in possession of nitrite poison. It is in the evidence that at the time of accused allegedly giving the brandy bottle, the cap of the bottle was opened. Therefore, the possibility of some enemies of the deceased mixing the poison into the brandy bottle and giving it to the accused for giving the same to the deceased and P.W.4, cannot be ruled out. The prosecution has not taken any steps to investigate as to where the accused purchased the poison or the accused was found in the possession of poison. Similarly, the prosecution has not explained from where the accused purchased the brandy bottle. Though the prosecution examined P.W.8, who was working as a clerk in the brandy shop, he did not support the case of the prosecution and he did not identify the accused, as the person who purchased the brandy bottle from his shop. So in view of these aforementioned discrepancies, it is not safe to place an implicit reliance on the evidence of P.Ws.4, 6 and 7, so as to base a conviction. These aspects have been completely overlooked by the trial court, which came to wrong conclusion. Therefore, a benefit of doubt should be given to the accused, as the prosecution failed to establish the case beyond all reasonable doubt.
27. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/accused for the offence punishable under Section 302 IPC by the XI Additional District & Sessions Judge, (Fast Track Court), Guntur at Tenali, in the Judgment, dated 05.09.2006, in Sessions Case No.81 of 2004, are set aside. The appellant/accused is found not guilty of the charge leveled against him and is accordingly acquitted. He shall be released forthwith, if he is not required in any other case. The fine amount, if any, paid by the appellant shall be returned to him forthwith.
A. GOPAL REDDY. J K.C.BHANU.J
29th June 2010 lmv.
[1] AIR 1960 SC 500
[2] AIR 1984 SC 1622
[3] AIR 1972 SC 656