IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD PRESENT THE HONOURABLE SRI JUSTICE B.N.RAO NALLA DATE: 04-03-2011 CRIMINAL APPEAL Nos. 168 AND 197 OF 2003 Between: Nallagonda Dasaradha, S/o Keshavulu, aged about 28 years, Puttapaka, Narayanpur Mandal, Nalgonda district. … Appellant V/s. The State of Andhra Pradesh Represented by Public Prosecutor High Court of AP, Hyderabad. … Respondent Counsel for the appellant : Sri D.V.Ramanamurthy Legal-aid In Crl.A.No. 168/2003 Sri M.Venkatram Reddy In Crl.A.No. 197/2003 Counsel for the respondent : Addl. Public Prosecutor The Court made the following : (Common Judgment follows 2nd page) THE HONOURABLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL Nos. 168 & 197 of 2003 COMMON JUDGMENT : Criminal Appeal No. 168 of 2003 has been filed by the appellant-accused through A.P. High Court Legal Services Committee, High Court Buildings, Hyderabad, and Criminal Appeal No.197 of 2003 has been filed by the same appellant-accused when he came out of the judicial custody on bail. Therefore, both the criminal appeals are filed by the sole appellant-accused against the judgment dated 28-10-2002 passed in SC. No. 291 of 2002 by the learned II Additional Sessions Judge, Nalgonda, whereby and whereunder the sole accused was convicted for the offence under Section 304 Part-II and 382 IPC and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for two months for the offence under Section 304 Part-II IPC and further he was sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.500/-, in default, to undergo simple imprisonment for two months for the offence under Section 382 IPC and directed to run both the sentences concurrently by giving the benefit of set-off under Section 428 Cr.P.C. 2. The facts of the case, in brief, are that on 28-03-2002 while the deceased was grazing his goats in the outskirts of Utkur village, the accused approached him and introduced himself as a “naxalite”, borrowed his axe promising him to return it in the evening and taking advantage of the loneliness of the deceased, the accused pushed him into an agricultural well with an intention to do away with his life, as a result the deceased died due to head injury on account of falling in the well. Thereafter, the accused took away 29 goats of the deceased. However, on the following day, i.e., on 29-03-2002, the patrolling I.D. Party of Police apprehended the accused on suspicion and on interrogation, he has confessed to the crime in the presence of the mediators and the goats were seized. Basing on Ex.P1 complaint being preferred by the son of the deceased on the date of incident i.e., on 28-03-2002, a case in Cr.No.16 of 2002 was registered by the Nidamanoor Police Station under Sections 302 and 379 of IPC against the accused. Thereafter, the accused was sent to judicial custody. During the course of investigation, the police examined the witnesses and recorded their statements. After completion of the investigation, the Inspector of Police, Haliya filed charge sheet against the accused. 3. On appearance of the accused, the learned Judicial Magistrate of First Class, Miryalguda has complied the formalities as contemplated under Section 207 Cr.P.C., and thereafter committed the case to the Court of Session in PRC.No. 23 of 2002 and the same was made over to the Court of the learned II Additional Sessions Judge, Nalgonda for disposal according to law. 4. After production of the accused, hearing the arguments of the learned Additional Public Prosecutor and also defence counsel, charges under Sections 302 and 382 IPC were framed, read over and explained to the accused. Accused pleaded not guilty and claimed to be tried. 5. To prove the main substratum, the prosecution examined PWs 1 to 12 and got marked Exs.P1 to P17 besides MOs 1 to 4 on its behalf. However, no witnesses were examined and no documents were marked on behalf of the accused. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. for the incriminating circumstances appearing against him. Accused denied the same. 6. On appreciation of the oral and documentary evidence and taking into consideration the evidence adduced by the prosecution and other material placed on record, the learned trial Judge found the accused guilty for the offences under Sections 304 Part-II IPC and 382 IPC and accordingly convicted and sentenced him as referred supra. Aggrieved by the impugned judgment of conviction and sentence, the accused filed these criminal appeals, as has already been specified hereinabove. 7. It is the case of the accused that he is innocent and that he was falsely implicated in the above crime. The son of the deceased, who was examined as PW-1 was not an eyewitness to the scene of occurrence. His evidence is hearsay. Therefore, his evidence is of no consequence to the case of the prosecution. PW.2, the brother-in-law of the deceased, deposed that on the fateful day he and the deceased went towards the outskirts of Utukur hamlet of Venkatapuram village and that both of them were grazing their goats in different directions. During afternoon time, he went to the deceased and on seeing the deceased not holding axe, he asked him as to what happened to his axe. The deceased informed him that a person claiming to be an extremist borrowed his axe with a promise to return it in the evening. At that time, the accused appeared with the axe and thus PW-2 saw the accused and after drinking water, PW-2 went away from there towards his goats. He also stated that he identified the accused during the course of test identification parade. However, he has admitted in his cross-examination, having seen the accused in jail after seeing him in the company of the deceased on the date of the incident. Therefore, it is the case of the accused that PW2 identified the accused during the course of test identification parade stands falsified. 8. It is the further case of the accused that PW2, who was said to have grazing goats in Srinadhapuram, gone to the deceased, who was grazing his goats in the outskirts of Utukur village to take drinking water, is a story invented for the purpose of prosecution case. So also the story of lending axe by the deceased to the accused is in order to implicate him falsely. Therefore, it is contended that the evidence of PW.2 cannot be relied. 9 . It is the case of the accused that though the deceased appeared to have slipped into agricultural well while collecting green leaves for his goats and died, the story of drinking water and lending axe are invented to implicate the accused falsely in this case. 10. It is also contended that though PW3 was not an eyewitness to the scene of occurrence, he has spoken on the similar lines of PW-2 stating that he was also grazing his goats on the fateful day in a different direction and that the deceased happened to meet him at 5-00 p.m., on that day and informed that some body had taken away his axe with a promise to return the same in the evening and so saying the deceased proceeded towards the well of Adinarayana. Half-an-hour thereafter, he saw the accused taking away the goats of the deceased and on being questioned, accused answered that the deceased was cutting a branch of tree and asked him to bring his goats there. PW3 also stated that while he was sitting under a tree, he saw the accused in the field and when he questioned the accused, he informed him that he belongs to “annalu” group and he was possessing axe at that time. It is contended that there is inconsistency in the evidence of PW.3 as to the time when he saw the accused and also the deceased. Therefore, it is contended that the evidence of PW.3 must be appreciated cautiously. 11. PW.4 has stated that by 7-00 p.m., on the same day he found the goats being kept in the dilapidated house adjacent to his residence, whereas the outskirts of Utkur village is 15 KMs away from the dilapidated house at Pulimamidi village of Haliya Mandal. It is contended that it is impossible to cover 15 KMs within about one and half hours or two hours to bring the goats. Therefore, the evidence of PW.4 is not relevant, though he has stated that having seen the accused along with goats in the dilapidated house, it is improbable that the accused could keep the goats in the house in the village of PW-4. 12. PW-5 is examined to show that the accused asked him food between 7-00 and 8-00 p.m., a day prior to the incident, stating that he is extremist and as such he provided meals to him. He also stated that he had identified the accused during the course of test identification parade. However, it is contended that if he had supplied food to the accused, it is quite natural to expect a villager to inform the other villagers about supplying food to extremist (naxalite). However, he has denied in his cross-examination that having informed any of the villagers about the same. Therefore, his evidence is unworthy of credence. PW-6 is the photographer who had photographed the scene of offence and the dead body of the deceased. His evidence is not relevant in proving the case of the prosecution. 13. PW-7 is one of the mediator to the inquest and scene of offence panchanama. He has testified as to the inquest panchanama proceedings having been conducted in the presence of another mediator whereat they concluded that the deceased died due to injury on account of fall into the well. However, it is contended that the prosecution examined only one of the mediators and has not examined another mediator. If the other witness was also examined, perhaps, his evidence would have seen the light of the day. 14. PW-8 is the sole mediator to the confession and seizure panchanama. His evidence is to the effect that the said proceedings were held in his presence and the accused confessed to the crime in Ex.P12 and the goats were seized. It is contended that the evidence of PW-8 cannot be relied on since he is an interested witness having been related to the deceased. 15. PW-9 is the medical witness who conducted autopsy over the dead body of the deceased and who issued Ex.P13 postmortem examination report, wherein the cause of death is shown to be head injury. 16. It is contended that PW-10 is the VIII Junior Civil Judge, City Civil Court, Hyderabad, who had conducted test identification parade. He has spoken as to the way in which he conducted the test identification parade duly complying with the procedure prescribed therefor. He has also stated that when he asked the accused he submitted that the police apprehended him while he was returning home from his brother’s house at Koppole and that the police took his photograph and shown to the witnesses. It is also contended that the accused was shown to the witnesses in the police station while he was in their custody. Therefore, it is contended that in view of the oral submission made by the accused before PW-10, the proceedings of test identification parade are vitiated. 17. PWs 11 and 12 are Investigation Officers, who registered the crime and issued FIR and also laid charge sheet against the accused. They have spoken only the way in which they have conducted investigation in this case and as such it is contended that their evidence does not improve the case of the prosecution since they are the official and interested witnesses. 18. It is to be seen that there is no direct witness in the case. There are no eye-witnesses to the incident. It is possible that while getting the green branches of tree to feed the goats, the deceased accidentally slipped, fell into the well and died instantaneously. The entire case of the prosecution depends on the circumstantial evidence and it is a settled law that in the case of circumstantial evidence, the chain of events must tilt towards the guilt of the accused. However, the evidence of prosecution witnesses does not improve the case of the prosecution. The prosecution case cannot be said to have been proved before the trial court as none of the personnel of I.D party were examined who actually apprehended the accused. Though the accused was not present there at the time of the incident, he has been falsely implicated. Therefore, the appeal may be allowed by setting aside the impugned judgment of conviction and sentence recorded by the trial court. 19. On the other hand, it is the contention of the prosecution that there are no eye-witnesses to the scene of occurrence. The entire case of the prosecution, no doubt, depends on circumstantial evidence. It is in the evidence of PW.2 that he had lastly seen the accused in the company of the deceased. It is also in the evidence of PW.3 that he saw the accused while sitting under a tree. PW.4 has testified that he saw the accused along with goats in the dilapidated house, which is adjacent to his residence. It is in the evidence of PW.5 that a day prior to the incident, the accused reached his house and on his request he supplied meals between 7-00 and 8-00 p.m. PW-7 is one of the mediator to the scene of offence and inquest panchanamas. The dead body of the deceased was found in the well and the axe was lying on the bank of well. Whereas PW-8 identified the accused and the accused made confessional statement in his presence and goats were seized from his possession. Moreover, it is contended that since the deceased failed to return home on the fateful day and along with goats, PWs 1 to 3 searched and found the dead body of the deceased lying in the well of one Adinarayana. Therefore, the evidence of the prosecution witnesses points out that in all probabilities, it was the accused, who caused the death of the deceased by pushing him in to the well. 20. In the circumstances, this court is of the view that the impugned order of conviction and sentence as passed by the trial Court does not suffer from any error or irregularity. Moreover, it cannot be said to be perverse and as such the appeal is liable to be dismissed. 21. In the result, the Criminal Appeals are dismissed. ____________________________ JUSTICE B. N. RAO NALLA 04 - 03 - 2011 I s L/Stp THE HONOURABLE SRI JUTICE B.N. RAO NALLA CRL.APPEAL Nos. 168 & 197 of 2003 04-03-2011 I