THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR DATED: 15-04-2011 CRIMINAL APPEAL No. 1151 OF 2007 Between: Kampa Venkateswarlu ..... APPELLANT AND State of Andhra Pradesh through the Inspector of Police, Piduguralla, Guntur District rep., by Public Prosecutor, High Court of A.P., Hyderabad .....RESPONDENT THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL APPEAL Nos. 1151 OF 2007 JUDGMENT: (Per the Hon’ble Sri Justice A. Gopal Reddy) The appellant – accused who was tried for the offence punishable under Section 302 IPC in S.C No. 361 of 2004 and convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for a period of six months by the learned X Additional Sessions Judge (Fast Track Court), Guntur at Narsaraopet vide judgment dated 09-07-2007 preferred this appeal challenging the conviction and sentence recorded against him. The substance of the charge against the accused is that on 14- 01-2004 at 9.30 AM at Yerukala Colony, Piduguralla, Guntur District he committed the murder of Mogili Kumarasway (hereinafter referred to as ‘the deceased’) by means of knife i.e., by stabbing the deceased indiscriminately as a result of which the deceased fell in pool of blood and lost his breath and thereby he committed the offence punishable under Section 302 IPC. The prosecution story as narrated during the course of trial, briefly stated, is as under: PW 4 is the wife and PW 5 is the father of the deceased. The deceased worked as a Constable in GRP and took voluntary retirement. His younger brother Narayana Swamy also worked as a Police Constable and died while in service. The deceased forwarded a proposal to Subba Rao, the father-in-law of his brother Narayana Swamy and the accused that a part of Narayana Swamy’s death benefits be given to his parents. On 14-01-2004, the deceased along with his wife PW 4 went to the house of Subba Rao, but Subba Rao was not present in the house at that time. The other son-in-law of Subba Rao i.e., the accused who was present there questioned the deceased as to why a share has to be provided to his parents and picked up a quarrel with him and then stabbed him with a knife indiscriminately. When PW 4 tried to intervene, she was threatened by the accused that she would be killed. On seeing the neighbours, the accused fled away. Thereafter, PW 4 lodged a report under Ex.P-4. On the same day at about 1.00 PM on receiving Ex.P-4 from PW 4, PW 11, the Inspector of Police, Piduguralla registered the same as Crime No. 11 of 2004 under Section 302 IPC and issued F.I.R marked as Ex.P-16. He then proceeded towards the scene of offence and prepared an observation report and held inquest over the dead body of the deceased in the presence of PW 6 marked as Ex.P-6 and Ex.P-7 respectively. Thereafter, he forwarded the dead body for postmortem examination. On 15-04-2004 on receipt of requisition, PW 10, Deputy Civil Surgeon, Government Hospital held autopsy over the dead body of the deceased and gave a report under Ex. P-13 opining that the cause of death was due to shock and hemorrhage. On 09-02-2004, PW 11 arrested the accused in the presence of PW 7 and at his instance recovered a knife MO-6 under Ex.P-9 panchanama. On completion of investigation, he laid the charge sheet against the appellant - accused before the I Additional Munsif Magistrate, Gurazala who registered it as PRC No. 14 of 2004 and later committed to the Court of Sessions. On committal, the learned Sessions Judge, Guntur registered the same as S.C No. 361 of 2004 and made over to the learned X Additional Sessions Judge, Narsaraopet who framed the charge against the accused for the offence under Section 302 IPC as aforementioned and explained the same to him in Telugu. The accused pleaded not guilty and claimed to be tried. To substantiate the guilt of the accused, the prosecution examined PWs 1 to 12 and marked Exs.P-1 to P-16 and produced MOs 1 to 8. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C on the incriminating evidence. He denied the incriminating evidence and reported no defence witnesses. The learned Sessions Judge on an exhaustive consideration of the evidence on record came to the conclusion that the prosecution has successfully established the guilt of the accused and convicted and sentenced him to imprisonment as aforementioned. Hence, the appeal. Sri C. Padmanabha Reddy, learned Senior Counsel appearing for the appellant – accused contended that except the evidence of PW 4, the wife of the deceased, there is no other evidence to support the case of the prosecution. The burn injuries on the dead body of the deceased have not been properly explained by the prosecution as mere drawing of rough sketch Ex.P-14 showing a firewood oven at the scene of offence itself is not sufficient to prove that the deceased received burn injuries after the incident. Further, according to the learned Senior Counsel the incident is alleged to have happened at 9.30 AM but the report is lodged at 1.00 PM which was registered as Crime No. 11 of 2004 on the next day at 1.00 AM and, therefore, the entire case has been concocted against the appellant – accused by the prosecution. PW 5 who is the father of the deceased was examined by the prosecution only to prove the motive on the part of the accused which itself is not sufficient to connect the accused to the crime. As per Ex.P-9, the accused is shown to have arrested on 09-02-2004, but whereas in her evidence PW 4 deposed that the accused was arrested on the day of lodging of report. In view of the same, recovery of crime weapon MO 6 and other recoveries as per the mediators report cannot be given credence in proving the guilt of the accused. As per the evidence of PW 4, herself and the deceased have not taken meals prior to the incident, but as per Ex.P-13 post mortem report and as per the evidence of PW 10, the doctor who conducted postmortem examination, there is some undigested food in the stomach of the deceased which he might have taken four hours prior to his death and, therefore, the evidence has not been properly considered by the Court below. Thus arguing he contended that the appeal be allowed. Learned Public Prosecutor sustained the conviction and sentenced recorded against the appellant – accused stating that as per ExP-14 the deceased fell on hearth when he was being attacked by the accused and sustained injuries 15 to 18 and that they are postmortem injuries as per Ex.P-12 postmortem examination report. He fairly conceded that PW 7 who is the mediator to the seizure panchanama was mediator for 50 to 60 cases. In the light of the submissions as referred to above, the point that arises for consideration is whether the prosecution is able to bring home the guilt of the accused beyond all reasonable doubt and the conviction and sentence recorded against the appellant – accused are liable to be set aside or modified? The entire case of the prosecution rests upon the evidence of the alleged eye witness PW 4 who is the wife of the deceased and the evidence of PW 5, the father of the deceased who is examined to prove that the deceased and PW 4 went to the house of the father-in- law of the accused and Ex.P-9, mediators report for recovery of crime weapon – knife used in commission of the offence. PWs 1 to 3 were turned hostile by the prosecution as they did not support the case of the prosecution. PW 4 the wife of the deceased who lodged report Ex.P-4 deposed that Narayana Swamy is the younger brother of the deceased and that Narayana Swamy worked as a Police Constable and died on 29-12-2003. PW 5 and Papamma are the parents of the deceased and Narayana Swamy. On the death of Narayana Swamy, the deceased proposed Subba Rao that some part of his death benefits be given to her parents-in-law i.e., PW 5 and his wife. On 14-01-2004, herself and the deceased went to Piduguralla to demand a share to her parents-in- law out of the amount received by the wife of Narayana Swamy. Subba Rao was not available in the house. The accused who is one of the son-in-laws of Subba Rao questioned her deceased husband as to why a share has to be provided to her in-laws and quarreled with him at about 9.00 or 9.30 AM. Then the accused abused the deceased and stabbed him with a knife indiscriminately all over his body. When PW 4 interfered, the accused threatened to kill her. Some neighbours witnessed the offence. After their arrival, the accused ran away. Till 1.00 PM she was not in a position to think as to what she has to do but submitted report Ex.P-4 to the police. Thereafter, the police came to the scene of offence, prepared panchanama and conducted inquest over the dead body of the deceased in the presence of herself, D. Venkateswarlu, PWs 2 and 3, M. Papamma and PW 5. In the cross examination, PW 4 admitted that as on the date of incident, the death benefits of Narayana Swamy were not disbursed by the Government. The wife and children of Narayana Swamy used to stay in Hyderabad and that they have no disputes with Narayana Swamy. Herself and the deceased went to Piduguralla on the date of incident by having a journey time of two hours. They went to the house of Subba Rao on that date. She also stated that they have not taken meals prior to the incident. Except the altercation that took place on that date, there were no prior disputes between the accused and the deceased. The offence took place inside the house of Subba Rao after one and a half hours they reached Subba Rao’s house. After the incident, the accused left the place. Since her husband died on the spot, herself and neighbours who gathered have not made any attempts to shift the body. Except a burn mark with a sigar in between the two eyebrows of the deceased, there is no other burn injury on his body. According to PW 4, herself, her in-laws and one Srinu went to Piduguralla Police Station where they have prepared Ex.P-4 report drafted by the Assistant Sub Inspector of police on her instructions. The police visited the scene of offence after 1 ½ hours of submission of Ex.P-4 and she does not know as to who drafted the inquest report and its timings though it was prepared on the same day. On the date of giving of report itself, the accused was arrested. MO 6 – knife is used by the accused to kill the deceased. PW 5 who is the father of the deceased corroborated the evidence of PW 4 stating that the deceased demanded their share through Subba Rao who is the father-in-law of his son Narayana Swamy and of the accused. On 14-01-2004, PW 4 and the deceased went to Piduguralla to the house of Subba Rao for demanding their share in the death benefits of Narayana Swamy. At about 11.00 AM, PW 4 made a phone call to him at Stuartpuram that the accused killed the deceased and asked them to run to Piduguralla. Then himself, his wife and other persons rushed to Piduguralla and enquired about the incident and thereafter, himself, his wife and PW 4 went to the police station and gave report. In the cross examination, PW 5 admitted that the accused used to stay in the house of Subba Rao. The deceased went to Piduguralla on 14-01-2004. Himself, his wife, another person and PW 4 went to Piduguralla Police Station. Inquest was held at 3.00 PM. PW 7, the mediator who is working as Panchayat Secretary of Perecherla and earlier worked as Panchayat Secretary, Piduguralla deposed that on 09-02-2004, the police called him and one R. Venkateswararao (LW 12) and took them to Yerukala Colony of Piduguralla and on seeing them, the accused ran away. The police apprehended the accused and when questioned, he informed his name and confessed about his guilt and led them to bushes in the field of Yerravagu and had shown a knife by removing it from the bushes. Ex.P-9, dated 09-02-2004 is the recovery panchayama prepared at 5.15 PM in pursuance of the confession made by the accused. In the cross examination, he admitted that knife was recovered from vaguporamboke and it is accessible to anybody and Ex.P-9 was drafted by a Constable at the place of recovery. He deposed as mediator of Piduguralla Police Station in 50 to 60 cases. MO 6 is the knife that was produced by the accused from the bushes. PW 10, the doctor who conducted postmortem examination of the deceased found the following external injuries: 1. A lacerated injury on the right favedetal region 6 ½ x 2 bony deep. 2. A lacerated injury on the left occipatel region of 4 x 1 c.m. of boney deep. 3. A lacerated injury on the right fore head of 3 x ½ c.m. of boney deep. 4. A lacerated injury on the right temple region of 4 ½ x 2 c.m. of boney deep. 5. A lacerated injury on the chin of 3 x ½ c.m. of muscle deep. 6. A lacerated injury on the left fore head of 6 ½ x ½ c.m of boney deep. 7. A lacerated injury above the left eyebrow of 4 ½ and 2 ½ c.m of boney deep. 8. A contusion on the left cheek of blue colour. 9. A cut injury below the right ripple of 3 x 1 c.m communicating with the chest cavity of 21 cms. depth injury to the left lung. 10. A cut injury medical to the right nipple of 3 ½ x 1 c.m. of 21 c.m. depth communicating with chest cavity. 11. A cut injury in the mid line 3 c.m apart from injury No.10 3 x ½ x 1 c.m communicating with chest cavity of 21 cms depth injuring the sternum. 12. A cut injury near the injury No.11 of 2 ½ x ½ c.m. of 21 c.m. depth communicating with the chest cavity. 13. A cut injury in the center 10 cms. medial to the left nipple of 3 x 2 cms. of 21 cms. depth communicating with the chest cavity. 14. A cut injury near the Zyphi sternum of 3 x 2 cms. of 20 cms. depth communicating with the chest cavity. 15. A Post Mortem burn on the right shoulder of 20 x 15 cms. 16. A Post Mortem burn on the left fore arm of 15 x 10 cms. 17. A Post Mortem burn on the left elbow of 10 x 10 cms. 18. A post mortem burn on the left lower abdomen of 12 x 12 cms.” PW 10 opined that the deceased would appear to have died of shock and hemorrhage due to injury Nos.9, 10, 11, 13, 14 and 12 and the approximate time of death was 12 to 24 hours prior to his postmortem examination. Ex.P-13 is the postmortem report. In the cross examination, he admitted that the lacerated injuries were caused by blunt objects. Injury Nos. 1 to 4 are possible if a person is in sitting position, but not contra as suggested. According to him, injury Nos.15 to 18 are postmortem injuries. He found undigested food in the stomach which the deceased might have taken four hours prior to his death. PW 11, the Investigating Officer deposed that on 14-01-2004, at about 1.00 PM, PW 4 came to the police station and presented a report Ex.P-4 and on the strength of Ex.P-4 he registered the crime and sent the F.I.R to the Court. He left the circle office at 1.30 PM and visited the scene of offence at 2.00 PM and in the presence of mediator, prepared the rough sketch Ex.P-14, collected blood stained earth and controlled earth Mos 7 and 8 in the presence of mediators and got the scene of offence and the dead body photographed by a photographer under Exs.P-10 to P-12. During the inquest, he examined PWs 4, 1, 2, 3, 5 and two others and recorded their statements and sent the dead body to the Government Hospital, Gurazala for autopsy. He admitted in the cross examination that PW 4 alone came to the police station and the contents of Ex.P-4 were got drafted by her outside and she submitted the same in the police station. He also admitted that the house of Subba Rao is the scene of offence and it is located in Yerukala Colony. The family members of the accused are staying in the house but he has not examined the said family members and his investigation revealed that PW 4 went to Narsaraopet to her relatives house and later gave a report to the police. He found one burn injury on the dead body as the deceased is said to have fell on hearth when he was being stabbed. He also admitted that the distance between Stuvartpuram and Piduguralla is 70 KMs having no direct buses. As on the date of offence, the death benefits of Narayana Swamy were disbursed and he has not examined the wife and children of Narayana Swamy so also Subba Rao. The arrest mahazar of the accused was started at 4.00 PM from the place of arrest on 09-02-2004. The weapon of offence was recovered from palmera grove, but as per Ex.P-9 the weapon was seized from thorny bushes and it is curved knife. From the above evidence, it is clear that PW 4 who accompanied the deceased and witnessed the incident has stated that the accused was arrested on the same day but according to PW 11, the accused was arrested on 09-02-2004. She has also not stated anything about the burn injuries received by the deceased and his falling on hearth at the scene of offence. She also stated that as on the date of incident, death benefits of Narayana Swamy were not disbursed, whereas PW 11 stated that the death benefits of Narayana Swamy were disbursed which fact has been stated to him by PW 5. When admittedly the wife and children of Narayana Swamy who received the death benefits are staying at Hyderabad, the deceased and PW 4 going to the house of Subba Rao and demanding for a share does not arise. Further, PW 4 in her evidence stated that the accused was arrested on 14-01-2004 itself but as spoken to by PW 7 and PW 11 – Investing Officer, the accused was arrested on 09-02-2004. Thus, the arrest of the accused, his making confession while he was in police custody cannot be given any credence. According to the medical evidence, the deceased received four burn injuries which are injury Nos.5 to 18 for which there is no proper explanation. Mere preparation of scene of offence panchanama under Ex.P-14 and showing a firewood oven at the scene of offence itself is not sufficient to prove that the deceased fell on the firewood oven after the incident and received the said injuries which fact has not been stated by PW 4. As per the evidence of the doctor who conducted postmortem examination, the injuries 1 to 14 are possible only when the same were inflicted on the deceased when he was in a sitting position, but not contra as suggested. PW 4 has not stated in her evidence that the deceased was in a sitting position at the time of inflicting of injuries by the accused and after inflicting the injuries, the deceased fell on the oven and received the burn injuries. In view of the same, the presumption drawn by the trial Court at para 21 of its judgment that the Investigating Officer admitted in the cross examination that he found one burn injury on the dead body as the deceased fell on the hearth probablises about the possibility of the deceased sustaining burn injuries 15 to 18 and the deceased appears to have fell on the hearth when he was being attacked by the accused and sustained injury Nos. 15 to 18 mentioned in Ex.P-13, is without there being any evidence adduced by the prosecution. Therefore, such presumption cannot be drawn merely on the basis of Ex.P-14 rough sketch showing firewood oven at the scene of offence. Further, PW 4 admitted in her cross examination that herself and the deceased have not taken any meals prior to the incident before reaching Piduguralla, but the medical evidence found undigested food in the stomach of the deceased which supposes that the deceased might have taken food three or four hours prior to his death. Therefore, it is clear that the incident has not happened in the morning as stated by the prosecution, but it might have happened immediately on the previous day night, which the prosecution has failed to establish. In view of the same, the evidence of PW 4 witnessing the incident is also doubtful. If the said evidence is excluded, there is no other evidence to connect the accused with the commission of the offence. Further, the F.I.R reached the Magistrate at 1.00 AM on 15-01-2004, which delay has not been properly explained by the prosecution and it also creates a doubt as to whether PWs 4 and 5 went to the police station and lodged the report. It is also contrary to the evidence of PWs 11 and 12. In view of the same, it is unsafe to convict the accused on the sole evidence of PW 4 and therefore, the conviction and sentence recorded against the appellant are liable to be set aside. In the result, the criminal appeal is allowed. The conviction and sentence recorded against the appellant in S.C No. 361 of 2004 by the learned X Additional District and Sessions Judge (FTC), Guntur at Narsaraopet are set aside and he is set at liberty forthwith, if he is not required in any other case. Fine amount, if any, paid by the appellant shall be refunded to him. A. GOPAL REDDY, J B. CHANDRA KUMAR, J 15-04-2011 ks