*THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY +Criminal Appeal No.513 of 2002 % 15-11-2010 # Iilapuram Narayana S/o Chinna Bagappa and another … Appellants/Accused Vs. $ State of Andhra Pradesh, Rep. By Public Prosecutor, High Court, Hyderabad … Respondent/State ! Counsel for the Appellants: Sri N.Vasudeva Reddy Counsel for the Respondent: Addl. Public Prosecutor, High Court of A.P., Hyderabad. < Gist: > Head Note: ? Cases referred: 2003 Supreme Court Cases (Crl.) 201 (2007)2 Supreme Court Cases (Crl.) 162 (2008) 15 Supreme Court Cases 551 (2006)10 SCC 172 (2005) 12 SCC 438 THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.513 of 2002 (Dated : 15-11-2010) Between: Iilapuram Narayana S/o Chinna Bagappa And another …Appellants A n d State of Andhra Pradesh, rep. by Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.513 of 2002 JUDGMENT: This Criminal Appeal is directed against the judgment dated 05.6.2002 passed in S.C.No.327 of 2002 on the file of III Additional District & Sessions Judge, Ranga Reddy District, at N.T.R.Nagar, whereby and whereunder, the learned Additional Sessions Judge found A-1-Iilapuram Narayana and A-2-Iilapuram Kistaiah guilty for the offence under Section 304-II IPC and convicted them accordingly and sentenced each of them to suffer RI for a period of five years. 2. The prosecution case, in brief, is : Iilauram Laxmaiah and Pw-1-Iilapuram Bakkaiah are brothers. A-1-Iilapuram Narayana and A-2-Iilapuram Kistaiah are nephews of Laxmaiah and Pw-1-Bakkaiah. They own fields nearby Edigone Bavi, which is a joint well. Power connection to the electric motor to pump water from the joint well for wetting their fields was obtained in the name of father of A-1. Expenses for installation of motor was shared by A-1, A-2, Laxmaiah and Pw-1. The motor went out of order. The accused got the motor repaired and sold it away. Laxmaiah and Pw-1 purchased a new motor and got it installed at the well. They have been asking the accused to pay their share of cost of the motor. The accused refused to pay their share. Therefore, Laxmaiah and Pw-1 stopped supply of water to the fields of the accused. Disputes arose between them and the same came to be placed before the elders about a year prior to the incident. The elders advised the accused to purchase separate motor to bail out water from the well. But the accused refused to install separate motor and instead, demanded Laxmaiah to allow them to use the motor already fixed to the well to wet their fields. Laxmaiah refused to oblige them. About a year prior to the date of incident, there was an altercation between the accused and Laxmaiah in relation to disputes over wetting the fields. On the date of the incident, the accused questioned Laxmaiah as to who switched on the motor, for which Laxmaiah replied that he himself switched on the motor. The accused went to the field. Thereafter, Laxmaiah also went to the field. Pw-6, who is mother of Laxmaiah, witnessed the accused and Laxmaiah proceeding to the field. Pw-4, who is the father-in-law of Laxmaiah came to know that the accused and Laxmaiah quarrelled with each other and Laxmaiah fell on ground. He rushed to the field and found Laxmaiah lying near the well. He shifted Laxmaiah from the scene to the village by a jeep and by that time Laxmaiah breathed lost. Pw-3-Golla Ananthaiah, Village Administrative Officer, Kollapadakala village came to know the death of Laxmaiah (hereinafter referred to as `the deceased’). Pw- 1 told him the circumstances under which the deceased died. Pw- 3 prepared Ex.P-1 report and sent the same to the S.H.O., Bayyaram P.S. Pw-10-Ch.Satish Reddy, S.I of Police received Ex.P-1 report and registered a case in Crime No.39 of 2000 under Section 302 IPC and issued Ex.P-7 F.I.R. Pw-11-S.Seetha Ramaiah, Inspector of Police, Vikarabad, took up investigation, held inquest over the dead body of the deceased in the presence of Pw-8-Inalli Venkataiah and examined Pws 1 to 4 during the inquest. The opinion arrived at by the panchas, on hearing the statements of the witnesses examined during inquest, came to be incorporated in column No.15 of the inquest report, which has been exhibited as Ex.P-3. He got the dead body of the deceased photographed through Lw-14-Ponna Ramesh. Exs.P-8 to P-11 are the positive photographs and Exs.P-12 to P-15 are the corresponding negatives. After the inquest, the dead body was sent to community hospital, Marpally, for Post Mortem Examination. He affected arrest of A-1 and A-2 on 6.2.2001 and sent them for remand. Pw-9-Dr. S.Mohan Singh conducted Post Mortem Examination on the dead body of the deceased on 31.10.2000 at about 3.30 PM. He found the following external injuries on the dead body of the deceased:- (i) Small multiple contusions ½ to 1 cm present over both sides of neck; (ii) Swelling of the anterior surface of neck; and (iii) Multiple contusions over both the scapula He reserved his opinion pending receipt of the report from F.S.L. After receiving report from A.P.Forensic Laboratory, Redhills, Hyderabad, he has given his final opinion with regard to the cause of death of the deceased. According to him, the death of the deceased was due to throttling. Ex.P-4 is the Post Mortem Certificate, Ex.P-5 is the Chemical Analyst report and Ex.P-6 is the expert opinion. After completing the investigation, Pw-11 filed final report under Section 173 Cr.P.C. in the court of Judicial First Class Magistrate, Vikarabad. 3. The learned Magistrate took the charge sheet on file as P.R.C.No.18 of 2001 and committed the case to the Sessions Division, Ranga Reddy District, as the offence under Section 302 IPC is exclusively triable by a Court of Session. The learned Sessions Judge took the case on file as Sessions Case No.327 of 2002 and made over the same to the III Additional District and Sessions Judge, Ranga Reddy District. 4. On appearance of the accused and on hearing the prosecution and the accused, the learned Additional District Judge framed a charge under Section 302 IPC, read over and explained the same to the accused, for which they pleaded not guilty and claimed to be tried. 5. To bring home the guilt of the accused for the offence with which they stood charged, prosecution examined 11 witnesses as Pws.1 to 11 and exhibited 15 documents as Exs.P-1 to P-15. The plea of the accused is one of total denial of the case. Their further plea is that the deceased died by a fall on ground in an inebriated mood, and the case has been foisted against them by Pw-1 and others after due deliberations. On behalf of the accused, they marked a portion of 161 Cr.P.C statement of Pw-1 as Ex.D-1.The learned Additional Sessions Judge, on appreciation of evidence brought on record and on hearing the prosecution and the accused, found the accused guilty for the offence under Section 304-II I.P.C., and convicted them accordingly, and sentenced each of them to suffer RI for a period of five years, by judgment dated 05.6.2002. Hence, this Criminal Appeal. 6. Heard learned counsel appearing for the appellants-accused and the learned Additional Public Prosecutor for the respondent- State. 7. Learned counsel appearing for the appellants submits that Pws.1,2,4 and 6 are the interested witnesses and therefore, no reliance can be placed on their testimony. A further submission has been made that the sole eye witness to the incident is Pw-7 and since he did not support the prosecution, the trial Court ought to have recorded a finding that the appellants-accused are not responsible for the death of the deceased. Even otherwise, the death of the deceased cannot be said to be homicidal since the post mortem doctor, who has been examined as Pw-9, admits of the possibility of the deceased sustaining injuries appearing on his person due to a fall in an inebriated mood. It is also contended by the learned counsel that the prosecution has not established that the deceased was last seen in the company of the accused soon before his death. Even if the said circumstance is established, that itself is not sufficient to connect the appellants-accused with the death of the deceased. Learned counsel took me to the evidence of Pws.1, 4 and 6 to convince that their evidence is artificial and does not deserve acceptance. 8. In support of his contentions, reliance has been placed on the decisions of the Supreme Court in Bodhraj @Bodha vs. State of Jammu & Kashmir[1], State of Goa v. Sanjay Thakran [2] and State of Uttar Pradesh v. Ram Balak[3]. In Bodha’s case (1 supra), the Supreme Court held that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In State of Goa’s case (2nd supra), the Supreme Court held that the settled rule of criminal jurisprudence is that suspicion, however grave, cannot be substituted for proof and the Courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence. The Supreme Court referred the proposition of law laid down in Bodhraj v. State of J&K (1 supra). In Bodhraj’s case, the Supreme Court held as hereunder:- “The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases”. 9. In Ramreddy Rajesh Khanna Reddy v. State of A.P[4], the Supreme Court observed that the last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such cases, the court should look for some corroboration. In Jaswant Gir v. State of Punjab[5], the Supreme Court observed that in the absence of any other links in the chain of circumstantial evidence, it is not possible to convict the appellant solely on the basis of the `last seen’ evidence. The Supreme Court in State of Goa v. Sanjay Thakran (2nd supra), after referring Bodhraj’s case ( 1 supra) and Ramreddy Rajesh Khanna Reddy’s case (4 supra) observed as hereunder:- “From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case”. 10. Learned Additional Public Prosecutor contends that the evidence of Pws.5 and 6 is crystal clear that they saw the deceased and the accused proceeding to the field and within one and half an hours time the deceased found dead and there was no time gap between the deceased last seen in the company of the accused and his death near the well and therefore, the accused alone were to be held responsible for the death of the deceased. He would also contend that by the time Pw-1 went to the field, he found A-1 and A-2 assaulting the deceased, in which case, the prosecution is able to prove the chain of circumstances to draw an irresistible conclusion that it is the appellants-accused alone responsible for the death of the deceased. 11. The prosecution examined 11 witnesses to bring home the guilt of the accused for the offences with which they stood charged. Pw-1 is brother, Pw-2 is wife, Pw-4 is father-in-law and Pw-5 is mother of the deceased. Pw-3 is the Village Administrative Officer of Kollapadakala village. Pw-5 is brother of Pw-4. Pw-7 is an eyewitness to the incident. Pw-8 is the panch witness for the inquest held on the dead body of the deceased. Pw-9 is the doctor, who conducted Post Mortem Examination on the dead body of the deceased.Pw-10 is the Sub Inspector of Police , who received Ex.P-1 report and registered a case in Crime No.39 of 2010 and issued Ex.P-7 F.I.R. Pw.11 is the Investigating Officer. 12. Of these witnesses, Pw-7 did not support the prosecution and the prosecution declared him hostile and marked his 161 Cr.P.C statement as Ex.P-2. The entire case rests on circumstantial evidence. In case of circumstantial evidence, it is necessary to find whether the circumstances relied on are capable of supporting the sole inference that the appellant is guilty of the crime charged. The circumstances in the first place have to be established by the prosecution by clear and cogent evidence and these circumstances must not be consistent with the innocence of the accused. For determining whether the circumstances established on the evidence raise but one inference consistent with the guilt of the accused, regard must be had to the totality of the circumstances. 13. In a case dependent wholly on circumstantial evidence the Court before recording a conviction on the basis thereof, must be firmly satisfied: (a) That the circumstances from which the guilt of the accused is to be drawn have been fully established by unimpeachable evidence beyond a shadow of doubt; (b) That the circumstances are of a determinative tendency unerringly pointing to the guilt of the accused; (c) That the circumstances takes collectively are incapable of explanation on any reasonably hypothesis save that of the guilt sought to be proved against him 14. Pw-3 is the Village Administrative Officer of Kollapadakala village. He sent Ex.P-1 report basing on the information given to him by Pw-1. Pw-7 has been examined as an eyewitness to the incident. He did not support the prosecution version and therefore, prosecution treated him hostile and marked his 161 Cr.P.C statement as Ex.P-2. 15. The prosecution placed reliance on the following circumstances to draw an inference that it is the appellants/accused alone, who are responsible for the death of the deceased. (i) Homicidal death of the deceased; (ii) Disputes over the use of electric motor for bailing water from the well to wet fields of the deceased and A-1 and A-2; (iii) The deceased was last seen alive in the company of the appellants/accused. 16. The trial Court heavily relied on the evidence of Pws.1,4, 5 and 6 to prove last seen circumstance. For better appreciation, I may refer the relevant portion of the judgment impugned in the appeal. It reads as hereunder: - “ The evidence of Pws.4,5 and 6 corroborates the evidence of Pw 1 on the material aspects, particularly, with regard to the deceased last seen in the company of the accused and that the deceased and accused went to the motor at the well in the fields having quarrelled with each other and that later they came to know that the deceased Laxmaiah died at the well in the fields. Pw-7 was sought to be examined as direct witness to the occurrence. But he did not support the case of the prosecution and did not speak that he is direct witness to the occurrence. But he stated in his evidence that on the death of the death of Laxmaiah he was passing by the side of the well at about 7.00 PM., and at that time the water was flowing into the field, that about 2 to 4 persons were present at the well and he did not notice who are they and he went away to his house. The evidence of Pw.7, though turned hostile, read with the evidence of Pws.1 and 4 to 6 leads to the inference in my opinion, that the persons found by Pw-7 at the well are no other than the deceased and A-1 and A-2 as it is clear from the evidence of Pws 1 and 4 to 6 that deceased and the accused after heated discussion and quarrel went to the well from the village. Though there is no direct evidence to the occurrence, the evidence of Pws.1 and 4 to 6 coupled with the evidence of Pw.7, it leads to the inference that the offence has been committed by the accused as it is clear from the evidence produced by the prosecution in the evidence of Pws1 and 4 to 6 that the deceased was seen last in the company of the accused, who together with the deceased went to the fields from the village, after heated discussion and quarrel between them with regard to the switching on the motor and bailing of the water. As seen from the evidence of Pw.3, as pointed out earlier Pw.3 prepared Ex.P-1 report on the information given by Pw.1, and forwarded the same to the police station, Bantaram, through his village Servant on the next morning and therefore, I am of opinion that it cannot be said that there is delay in giving FIR. The evidence of Pw.2, the wife of the deceased, and Pw.4, the father-in-law of the deceased establishes that there are disputes between the accused and the deceased, since 1 or 1 ½ years as they have deposed that the accused attempted to beat the deceased about 1 or 1 ½ years prior to his death with regard to the motor and bailing of the water and that they intervened and separated the accused from beating the deceased. The evidence brought on record by the prosecution clearly shows that there are disputes between the accused and the deceased prior to the death of the deceased with regard to the motor at the well and bailing of the water to the fields from the well. So, in view of my above discussion, I am of opinion that the prosecution has established its case against the accused and the guilt of the accused is brought home.” 17. Pws.1, 2, 4, 5 and 6 are the witnesses to speak of the disputes between the accused and the deceased over bailing of water from the joint well through motor. These disputes were there since 1 ½ year prior to the date of incident. There is no particular reason for the appellants/accused to make up their mind to do away the life of the deceased on the date of incident. The prosecution is not able to adduce any evidence for prompting the appellants/accused to do away the life of the deceased on the date of the incident. Pw-9 is the doctor, who conducted post mortem examination on the dead body of the deceased. He stated in his cross-examination that he did not notice any internal injuries during the course of conduct of Post mortem examination on the dead body of the deceased. All the three injuries found on the dead body are superficial in nature. He also admits in cross- examination that in external appearance of the dead body, he noticed whitish froth with food material and smell suggestive of presence of alcohol. He also admits in cross-examination that if the person consumed alcohol and in intoxicated state fell on the ground, there is possibility of receiving injuries found on the dead body of the deceased, without being throttled. There is no fracture of hyoid bone. No opinion has been given by the expert with regard to the nature of soft tissues around the neck. It cannot be said with certainty that the deceased died of throttling. 18. The strong circumstance on which the prosecution relied on is that the deceased was last seen in the company of A-1 and A- 2. Pw-6 is the mother of the deceased. He testified that on the date of the incident, the accused questioned the deceased as to who switched on the motor and thereupon, the deceased stated them that he was the person, who switched on the motor. The accused went away and thereafter, the deceased also went to the well. Pw-6 did not assert that the deceased and accused went to the well together. For better appreciation, I may refer the evidence of Pw-6 in her own words and it is thus:- “ I am resident of Boppanaram. Pw.1 and the deceased are my sons. I know both the accused. My son Laxmaiah died about 1 ½ years back, at the well in the fields. On the date of the death of my son Laxmaiah, he came to the house from fields in the evening and had some rotti and at that time the accused wee also there. The accused questioned my son Laxmaiah who switched on the motor and my son told them that he himself switched on the motor. The accused went away and my son went to the well. The accused might have also gone to the well. Immediately, I informed Pw.1 and Pw.4 and asked them to go to the well. Later I came to know that my son Laxmaiah died near the well. I was examined by the police in this case.” 19. Pw-5 is brother of father-in-law of the deceased. He testifies that on the date of the incident, he saw the deceased at Narahari Hotel in the village, and at the same time, the accused also came there and questioned the