IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FOURTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1240 of 2002 Between: Sama Ananthaiah, s/o. Ramaiah, Aged about 32 years, Occ:Mason, R/o.Chenchupally, Pudur Mandal, Ranga Reddy District Appellant / Accused AND The State of A.P., through Police, Vikarabad, Ranga Reddy District, Rep. by its Public Prosecutor, High Court of A.P., Hyderabad …Respondent / Complainant The Court made the following: THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1240 of 2002 JUDGMENT: 1. This Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’, for brevity) is directed against the judgment, dated 13.11.2002, in Sessions Case No.149 of 2000, on the file of the Court of the V Additional Sessions Judge, Ranga Reddy District at L.B.Nagar, whereunder and whereby, the sole accused was found guilty for the offence punishable under Section 304 part II of Indian Penal Code, 1860 (‘I.P.C.’, for brevity) and sentenced to undergo Rigorous Imprisonment for a period of five years. 2. The brief facts, that are necessary for disposal of the prosecution case, may be stated as follows. The accused – Sama Ananthaiah is the son of P.W.1. The accused and Buchaiah (hereinafter referred to as ‘deceased’) were residents of the same village i.e., Peerampalli Village. Some disputes arose between the accused and P.W.1 with regard to the right of usufructs of the mango tree. Though the Panchayat was held, the accused did not attend the Panchayat. On 20.05.1999 at about 08:00 A.M., the accused took three boys to the mango tree and were plucking the mangoes. At that time, the deceased came there. Then both the accused and the deceased quarreled with each other claiming the ownership of the mangoes. At that time, P.W.7, who was one of the boys engaged by the accused to pluck the mangoes, was taking food at some distance. He heard some sound from the mango tree and went there and found the deceased dead with an injury on the head and the accused was also present at the scene of occurrence. On coming to know through P.W.2 that he found the dead body in the mango garden, P.W.1 lodged Ex.P.1 complaint with the police. P.W.12 – Sub-Inspector of Police received Ex.P.1 – complaint and registered a case in Crime No.161 of 1999 and informed about the registration of the case to P.W.13 – V.N.V.Satyanarayana, Inspector of Police, Madanapeta. P.W.13 proceeded to the scene of occurrence at about 10:30 A.M. and examined the witnesses. He conducted the inquest on the dead body of the deceased in the presence of P.W.9 – P. Janardhan Reddy and another. After inquest, he sent the dead body to the Post Mortem examination. He also seized bloodstained earth and control earth from the scene of occurrence in the presence of P.W.9. On 23.05.1999, he examined other prosecution witnesses and on 28.05.1999, he arrested the accused and seized the blood stained clothes of the accused under Ex.P.7, and also seized M.O.7 – Axe under Ex.P.8 from the house of the accused in pursuance of his statement under Ex.P.7 which is to the effect that he concealed the axe in his house. He sent the material objects to the Forensic Science Laboratory and after the completion of the investigation, the police filed the charge sheet for the offence punishable under Section 302 I.P.C. 3. The learned I Additional Sessions Judge, Ranga Reddy District at L.B.Nagar, Hyderabad framed the following charge against the accused: CHARGE: That you accused on 20.05.1999 at 08.00 A.M. at outskirts of peerampally village which comes within the jurisdiction of P.S.Vikarabad did commit the murder by intentionally causing the death of the deceased Beerla Buchaiah by hitting with an axe on his head ude to land dispute and you thereby committed an offence punishable under Section 302 of Indian Penal Code and within my cognizance. When the above charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charge leveled against the accused, the prosecution examined P.W.s 1 to 14 and got marked Exs.P.1 to P.13 besides case property M.Os.1 to 6. 5. After closure of the prosecution evidence, the Accused was examined under Section 313 Cr.P.C. with reference to the incriminating material found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, no oral or documentary evidence has been adduced. 6. The trial Court, placing reliance on the evidence of P.Ws.7 and 8, found the accused guilty for the offence punishable under Section 304 Part II I.P.C. and accordingly sentenced and convicted him as stated above. Challenging the same, the present Criminal Appeal is filed. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt for the offence punishable under Section 304 Part II I.P.C. and whether the judgment of the trial Court is correct, legal and proper? 8. Learned counsel for the appellant contended that the initial version, as mentioned in Ex.P.1, reveals more than three persons participated in the commission of offence; that all the circumstances, if taken as true and correct, were not leading to an irresistible conclusion that the offence was committed by the accused and none else; that at best, the presence of the accused at the time of incident may give rise to a suspicion; that the suspicion, however strong, cannot take place the place of legal proof; that the presence of P.Ws.7 and 8 is very much doubtful, as their presence has not been spoken to by any witnesses, and therefore, the trial Court committed error by placing reliance on the evidence of P.Ws.7 and 8. Hence, he prays to set aside the conviction and sentence recorded by the trial Court. 9. On the other hand, the learned counsel representing the learned Public Prosecutor contended that the death of the deceased is not in dispute, that the two boys who were engaged by the accused himself for plucking the mangoes have no grouse or enmity against the accused to foist a false case; that the trial Court, after elaborate consideration of the evidence on record, rightly found him guilty, and there are no grounds to interfere with the same. 10. P.W.9 is one of the Inquest Mediators who was present, when police conducted inquest on the dead body under Ex.P.4. The Inquest Mediators opined that the deceased died as a result of head injury. The scene of occurrence is not in dispute. The police seized the control earth and blood stained earth from the scene of occurrence immediately after inquest under Ex.P.6 – Observation Panchanama. Even the accused did not deny or dispute the scene of occurrence near the mango tree. 11. P.W. 14 is the Doctor who conducted postmortem examination on the dead body of the deceased on 22.05.1999, and found the following external ante-mortem injuries: 1. “Three penetrating injuries over the back of left side of the skull. a. Above and to the left of occipital protuberance 3 x ½ inches. b. Over the left lateral aspect of occipital region of skull 3” x ½”. c. Below and to the left of occipital protuberance 3½” x ½” each are produced by sharp instrument. 2. There were curve linear extensions of fractures from upper angle of ‘a’ and inter- communicating fractures between ‘a’ and ‘b’ and ‘b’ and ‘c’ referred above. On dissection, I found the following internal ante-mortem injuries. 1. Meninges torn beneath the turee wounds referred to above. 2. The brain was liquefied. The internal injury No.1 corresponds to all the external injuries. The above injuries are grievious and could have been caused by an axe like M.O.7.” P.W.14 opined that the deceased died of shock and hemorrhage due to head injury and cardio respiratory failure due to penetrating injury. The death of the deceased is caused due to the head injury, as opined by P.W.14 and as recited in Ex.P.13, remains unchallenged. 12. Now, it is to be seen whether the accused is the assailant of the deceased or not? 13. There are no direct witnesses to show that the accused is the assailant of the deceased. The entire case rests upon the circumstantial evidence. When a case rests solely on circumstantial evidence, such evidence has to satisfy the following tests as laid down by the Apex Court in a decision reported in Padala Veera Reddy V. State Of Andhra Pradesh & Others [1], wherein, it was held thus: The circumstances, from which an inference of guilt is sought to be drawn, must be cogent and firmly established. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” Bearing the above principles in mind, it has to be seen whether the accused is the assailant of the deceased or not. 14. P.W.1, who is the father of the deceased, sets criminal law into motion. Admittedly, there are no eyewitnesses to the incident. P.W.1 came to know through others that the accused and three others committed murder of the deceased. There is no evidence, which would go to show that the accused took two boys and his son to the disputed mango tree for the purpose of plucking the mangoes from the tree. But there is evidence on record, which would go to show that four persons were proceeding towards the scene of occurrence. The persons who saw them going might have informed P.W.1 that the four persons attacked the deceased. Therefore, the said evidence is not based upon any admissible evidence on record. Therefore, much importance cannot be given to the evidence of P.W.1. The case solely rests upon the evidence of P.Ws.4, 7 and 8. P.W.2, who found the dead body of the deceased near the mango tree, went and informed the same to P.W.1. 15. P.W.4 is the resident of Peerampalli Village. According to him, his land is near the scene of occurrence. About three years back, he found the accused and some others plucking mangoes from a mango tree in Laxmaiah Chenu. One day later, he came to know about the death of the deceased. No doubt, his evidence did not show that the deceased was present at the scene of occurrence at that time. But the fact remains that on the date of the incident, the accused and some others were plucking mangoes from the mango tree of P.W.1. His evidence remains unchallenged, because, there is no cross-examination of P.W.4. P.Ws. 5 and 6 were declared hostile. Even after the cross-examination of P.Ws.5 and 6, nothing has been elicited from them to connect the accused with the offence for which, he was charged. 16. P.W.7 is one of the boys who was taken to the scene of occurrence by the accused for plucking the mangoes from the mango tree of P.W.1. He was engaged by the accused to pluck the mangoes from the tree on payment of Rs.25/-. The accused took him along with P.W.8 to the mango tree for plucking mangoes. In the mean time, the deceased came there. At that time, the accused and the deceased quarreled with each other claiming their ownership over the mangoes of the tree. At that time, P.W.7 and the son of the accused were taking food at some distance. After hearing some sound from the mango tree, P.W.7 went to the mango tree and found the deceased with injury on the head. The accused was present by the side of the dead body of the deceased. He was a young boy aged about 13 years. He is also resident of the same village. 17. The fact that P.W.2, along with P.W.8, were plucking the mangoes from the mango tree of P.W.1 on the date of incident remains unchallenged. There is no other reason for him to speak false against the accused. If he would not have been present at the time of incident, he would not have stated that the deceased was found lying with a head injury near the mango tree. Except giving the suggestion that he was not present at the time of incident and he was deposing falsely, nothing has been elicited to the discredit the testimony of P.W.7. P.W.8 has clearly stated that he, along with P.W.7, was taken to the mango tree at Peerampalli village and the accused promised to pay Rs.25/- each to pluck the mangoes from the mango tree and he and P.W.7 were plucking the mangoes. At that time, the deceased came there. At that time, the accused sent P.W.8 to take lunch to the village, where as P.W.1 remained there near the mango tree by taking lunch. While he was going towards mango tree, P.W.7 came in the opposite direction and informed him that the accused killed the deceased. 18. From the evidence of P.Ws.7 and 8, it is clear that they were engaged by the accused to pluck the mangoes from the mango tree. Their presence at the scene of occurrence is established beyond all reasonable doubt. Similarly, their evidence is also clear that the deceased came to the place of incident. From the evidence of P.Ws.7 and 8, it is clear that except five persons, no other person was present at the time of incident. P.W.8 was going to village for taking lunch, while P.W.7 and the son of the accused were present near the scene of occurrence. Therefore, there is no scope or possibility of any other person to commit the murder of the deceased, except the accused. Thus, before the incident, the accused was in the company of the deceased and immediately after the incident also, accused was present near the dead body. The deceased was found lying with an injury on the head. From the evidence of P.Ws.7 and 8, an irresistible conclusion can be drawn that the crime has been committed by the accused and none else. No doubt, the names of P.Ws.7 and 8 have not been mentioned in Ex.P.4 by the police, who conducted inquest on the dead body of the deceased. These two witnesses are young boys aged about 13 and 14 years by the date of incident. They have no axe to grind against the accused. 19. Simply because they were not examined during the inquest, that does not mean they were set up witnesses for the purpose of this case. The young boys would not have accommodated P.W.1 or the police in deposing against the accused unless they were having some bitter enmity or grouse. There is no such enmity existing between the accused on one hand and P.Ws.7 and 8 on the other. They are natural witnesses to be present at the time of incident because they were taken to the mango tree by the accused himself. The evidence of P.W.13 would clearly go to show that the accused was arrested on 28.05.1999 in the presence of P.Ws.10 and 11, and the case properties were seized. 20. The recovery of M.O.1 at the instance of the accused would be another incriminating circumstance, because it contained human blood, as seen from the Forensic Science Laboratory report marked as Ex.P.10. The mediator, who participated in the arrest and recovery proceedings, did not support the case of prosecution, but there is no reason to disbelieve the evidence of P.W.13, who is the Investigating Officer. Except suggesting to P.W.13 that the accused was not arrested and that the accused had not given any disclosure statement leading to the recovery of M.O.1, nothing has been elicited to doubt the testimony of P.W.13. From the evidence on record, it is clear that the accused alone has committed the offence and none else had possibility to commit the culpable homicide amounting to murder of the deceased. After elaborate consideration of evidence on record, the trial Court has rightly found the accused guilty of the offence punishable under Section 304 Part II I.P.C. Therefore, the conviction of the accused of the offence punishable under Section 304 Part II I.P.C. is confirmed. 21. With regard to sentence, considering the facts that a decade has been elapsed from the date of incident, that the dispute is very trivial in nature i.e., with regard to plucking of mangoes from a mango tree, that there is no prior intention of the accused to kill the deceased and in a spur of moment the accused beat the deceased on the head, a lenient view can be taken with regard to the sentence. Accordingly, the sentence of Rigorous Imprisonment for five years is reduced to Rigorous Imprisonment for three years. 22. With the above modification of sentence, the Criminal Appeal is accordingly dismissed. ________________ JUSTICE K.C.BHANU November 24, 2009 BVV [1] AIR 1990 Supreme Court 79