IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTYEIGHTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.259 of 2008 Between: Bangi Chinna Babu and another .. Appellants AND The State represented by Public Prosecutor, High Court of Andhra Pradesh, Hyderabad .. Respondent JUDGMENT: This appeal is directed against the judgment in S.C.No.393 of 2005 on the file of III Additional Sessions Judge, Kurnool at Nandyal dated 25-02-2008, by which the appellants were convicted and sentenced for an offence punishable under Section 304 Part-II of the Indian Penal Code. The appellants were charge sheeted in Crime No.131 of 2004 of Mahanandi Police Station in PRC.No.56 of 2005, alleging that Mendraguthi Harikrishna @ Chinna, the deceased, and the accused/ appellants were good friends. Mendraguthi Chandrakala is the wife of Harikrishna and Sudhakar is the cousin of Harikrishna, while Mendraguthi Hari Mohan is the elder brother of Harikrishna. They are residents of Viswanagar colony of Mahanandi Mandal. It was alleged by the prosecution that prior to 1-10-2004 Harikrishna gave a loan of Rs.5,000/- to the 1st accused and on 1-10-2004, the 1st accused became successful bidder for a chit of Rs.15,000/- in respect of which Harikrishna stood as his surety. Harikrishna demanded the 1st accused to pay the earlier loan of Rs.5,000/- with interest due to which misunderstandings were claimed to have arisen between the 1st accused and the deceased. The deceased Harikrishna was also claimed to have advanced another loan of Rs.500/- to the 2nd accused and he was alleged to have continued his friendship with the accused in spite of the advice of Sudhakar and Hari Mohan. The prosecution further alleged that on 19-10-2004 at about 4.00 P.M. when Harikrishna and Chandrakala were in their house, the accused went to their house and invited Harikrishna for consuming liquor. They were claimed to have gone together to Siva Wines at about 4.30 P.M. where they purchased liquor worth Rs.370/- from Kayala Narasinga Rao, the Manager of the shop. They were claimed to have gone further to the outskirts of the village towards “Puttakura” rastha, which was witnessed by Sudhakar, Hari Mohan, Chandrakala and her mother Gangamma. Manipati Ramesh and Mendraguthi Gangadhar were also claimed to have witnessed the accused and Harikrishna going towards bushes near “Puttakura” rastha. The prosecution alleged that Harikrishna was made to consume liquor heavily at about 5.30 P.M., and then the 1st accused hacked with a dagger on the left side of neck, left shoulder and back of head of Harikrishna, while the 2nd accused took the dagger and hacked twice on the neck of Harikrishna. Harikrishna was alleged to have died on the spot with bleeding injuries and the dead body was dragged near the bushes by the accused. The accused were claimed to have covered themselves with the lungi of Harikrishna and ran away from the scene along with dagger. The prosecution further claimed Sudhakar and Hari Mohan went towards “Puttakura” rastha in search of Harikrishna and they found the accused running on seeing them with the 1st accused covering himself with the lungi of the deceased and they were further claimed to have found the dead body of Harikrishna in the bushes adjacent to “Puttakura” rastha. Mahanandi police registered Crime No.131 of 2004 on the report of Sudhakar on 19-10-2004 at 9.00 P.M. and an inquest was conducted over the dead body on 20-10-2004 between 7.00 A.M. and 10 A.M. by the Sub-Inspector of Police, Mahanandi. The medical officer, who conducted autopsy over the dead body, opined the death to be due to shock and haemorrhage due to multiple injuries described in the Post Mortem report more than 24 hours prior to the Post Mortem examination. The accused were claimed to have been arrested by the Sub-Inspector of Police, Mahanandi on 01-11-2004 at 11.30 A.M. at Nagulakatta in the presence of panchayatdars and on the voluntary confessions of the accused, the weapon of offence was claimed to have been recovered from them in the presence of Chakali Pullaiah and Mooka Naga Sreenivasa Rao. The accused were forwarded to the Court and remanded to judicial custody and were later released on bail. Hence, the prosecution charged them for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. On the case being taken cognizance by the Judicial First Class Magistrate, Nandyal in PRC.No.56 of 2005, the case was committed to the Court of Session, Kurnool, after the accused entered appearance and copies of documents were furnished to them. The Court of Session made over the case in S.C.No.393 of 2005 to the trial Court, which framed a charge under Section 302 IPC against both the accused to which the accused pleaded not guilty. During trial, the trial Court had examined PWs.1 to 15 and marked Exs.P.1 to P.11, D.1 and D.2 and M.Os.1 to 15. The accused denied all the incriminating circumstances appearing in the evidence against them when they were examined under Section 313 of the Code of Criminal Procedure and they did not produce any defence evidence. The trial Court thereafter rendered the impugned judgment referring to the events that led to the prosecution of the accused and the evidence produced before it and observed that even assuming that PWs.1 to 3 are interested witnesses, the evidence of PW.8 about 1st accused being indebted to the deceased can be accepted. The trial Court also noted that the evidence of PWs.1 to 3 clearly disclosed a scuffle between Harikrishna and the accused about Harikrishna demanding 1st accused for repayment of his debt. The trial Court further observed that the non-production of the chit book referred to by PW.2 is not fatal to the prosecution as the chit transaction is otherwise probablised by the evidence of PWs.1 and 2. The trial Court also felt that notwithstanding the absence of any eye witness for the alleged offence, the prosecution evidence disclosed that the deceased was last seen in the company of both the accused till his death and was not found alive later. The evidence of PW.2 that Harikrishna was a drunkard was referred to believe the claim of the accused taking advantage of the weakness of Harikrishna as a boozer to take him out on 19- 10-2004. The evidence of PW.5 about both the accused coming to the shop on 17-10-2004, but not on 19-10-2004 was also analyzed. The evidence of PWs.6 and 7 disclosed an occasion for them to see both the accused in the company of Harikrishna when they proceeded towards “Puttakura” rastha and no interestedness was attributed at least to PW.7. The trial Court also stated that the First Information Report was presented at 9.00 P.M. on 19-10- 2004 itself and though the brother of the deceased-PW.2 did not go to the police station for presenting the report, the consistent evidence of the witnesses about the deceased and the accused going together and later the deceased being found dead was not discredited. The trial Court also did not act upon the suggestion made to the witnesses about the illicit intimacy between PW.1 and PW.3, the wife of the deceased, and the trial Court also refused to read any abnormal delay in presentation of the First Information Report to the police. It also observed that the time of death stated by the doctor is only in approximation and not in exactitude and the medical evidence and the other circumstantial evidence was not considered by the trial Court to be contradictory in any manner. The trial Court noted that the death of the deceased as seen from the inquest report and the Post Mortem report was not natural, but was due to the injuries found on the dead body and the weapon of offence was seized from the accused in the presence of the mediators under Ex.P.3-Panchanama. Though the case was based only on the circumstantial evidence, the trial Court found the chain of circumstances to be beyond all reasonable doubt consistently pointing out the guilt of the accused and the trial Court concluded from the medical and occular evidence that the guilt of the accused was established by the circumstantial evidence, more so, by the seizure of M.O.1 on the arrest of the accused on their own confession. The trial Court, therefore, concluded on the basis of circumstantial evidence, an offence punishable under Section 304 Part-II of the Indian Penal Code being committed by both the accused and accordingly, found them guilty for such offence. On convicting them under Section 235 (2) of the Code of Criminal Procedure, the trial Court heard both the accused on the question of sentence and taking into consideration the circumstances stated by them, the trial Court sentenced the 1st accused to undergo Rigorous Imprisonment for a period of three years and the 2nd accused to undergo Rigorous Imprisonment for a period of two years and gave set off against the sentences imposed regarding the period of detention already undergone by them under Section 428 of the Code of Criminal Procedure. It is this conviction and sentence under Section 235 (2) of the Code of Criminal Procedure that led to the accused to file the present appeal contending that there was no eye witness account and the circumstances placed by the prosecution before the trial Court were totally insufficient to prove the guilt of the accused under Section 302 or Section 304 of the Indian Penal Code. They contended that PW.5 did not support the prosecution case at all and the prosecution failed in showing that the accused and the deceased went together to the wine shop on the date of occurrence. They also contended that the evidence of PW.6 also was not supporting the prosecution and the evidence of PWs.4 and 5 is tainted with interestedness. In the absence of any motive for the accused to commit murder, any alleged confessions are totally unreliable and therefore, the accused desired the conviction and sentences to be reversed. Heard Smt. A. Gayathri Reddy, learned counsel for the appellants and Sri Rudresh Deshpande, learned counsel, representing the learned Public Prosecutor. The point for consideration is whether the guilt of either accused had been proved beyond reasonable doubt in respect of an offence punishable under Section 304 Part-II of the Indian Penal Code, for which they were convicted and sentenced by the trial Court? The earliest version in Ex.P.1 report by PW.1 to the police was presented to the police by 9.00 P.M. on 19-10-2004, while the dead body of the deceased was claimed to have been found during a search by PW.1 and PW.2 after 5.30 P.M. The report by the cousin of the deceased-PW.1 could not have been considered to be unduly delayed when it was within three hours after the detection of the dead body of the deceased and the mere fact that the brother of the deceased-PW.2 did not accompany PW.1 to the police station by itself cannot make the First Information Report doubtful, when in pursuance of the registration of Crime No.131 of 2004 on the report of PW.1, an inquest was held on the dead body of Harikrishna on 20-10-2004 at 7.00 A.M. and the inquest report before independent panchayatdars specifically stated about the dead body being found on 19-10-2004 at about 5.30 P.M. by PW.2 when it was lying in the bushes of “Puttakura” rastha half kilometre from Viswanagar. It also specified then itself as stated in Ex.P.1 that the deceased was last found alive by PW.1-Sudhakar on 19- 10-2004 evening at 4.30 P.m. while the deceased was going along with both the accused towards “Puttakura” rastha. Various injuries on the dead body were found at the scene and the injuries were described in detail in the inquest report and the opinion of the independent panchayatdars was that Harikrishna was taken with them by the accused with trust and after getting him intoxicated with liquor, the accused killed him with a sharp edged weapon causing bleeding injuries. The inquest report made similar allegations as in Ex.P.1-First Information Report about the financial background and the misunderstandings between the accused and the deceased Harikrishna. Subsequent to the inquest, the dead body was subjected to Post Mortem during which the various injuries found on the person of the deceased were noted in detail and partly digested food with full of water being present in the stomach as detected during the post mortem was attempted to be relied on by the learned counsel for the appellants as a circumstance improbablising the story of the prosecution. If the accused and the deceased went out together by about 4.30 P.M., and when his dead body was found after about 5.30 P.M., and in between the accused and the deceased were alleged to have consumed liquor at which time, consumption of some food might not have been unnatural, the Post Mortem report disclosing the presence of partly digested food with full of water in his stomach is not inconsistent with the claims of PW.1. The statement in the Post Mortem report about the death being more than 24 hours prior to the Post Mortem held between 1.00 P.M. and 3.00 P.M. on 20-10-2004 was also relied on as a very strong circumstance for improbablising the prosecution story, but as noted, by the trial Court, the time of the death was noted in the post mortem report only in approximation and could not have been in exactitude. The doctor, who conducted the post mortem, was examined as PW.13 and in her statement during cross- examination about the death being possible between 24 and 48 hours prior to the post mortem itself shows that the estimated time of death was only in approximation and not exactly. The possibility of the deceased breathing his last more than 24 hours earlier does not automatically exclude the possibility of the death being between about 4.30 P.M. and 5.30 P.M. on 19-10-2004 when the post mortem was conducted between 1.00 P.M. and 3.00 P.M. on 20-10-2004. The First Information Report-Ex.P.7 was forwarded to the Magistrate having jurisdiction forthwith and no delay was alleged to be involved in forwarding the First Information Report to the Magistrate having jurisdiction. When the material objects were forwarded to the Forensic Science Laboratory with a letter of advice, the Forensic Science Laboratory report also found presence of human blood on items 1, 2 and 4 that is shirt, the blood stained earth at the scene and the sickle seized from the accused. Though the laboratory was unable to determine the blood group of the blood stains on item No.4, the sickle, the blood stains present on the said sickle being those of a human being not being denied by the report, the presence of human blood on the sickle can also be taken as a corroborating circumstance for the claims of the prosecution. Exs.P.2 and P.3 are Confessional statement and Seizure Panchanamas under which the accused were stated to have made confessions voluntarily and their voluntary confessions were claimed to have led to the seizure of the weapon of offence and the panchanamas were conducted by the police before independent mediators. Thus, there is nothing in Exs.P.1 to P.11, which throws any serious doubts on the credibility of the prosecution story. Coming to the oral evidence of PW.1, the cousin of the deceased Harikrishna, though his claim of running chit business in connection with the alleged chit that led to the dispute between the accused and Harikrishna is not evidenced by any document, such transactions in the rural areas taking place is an accepted common practice which need not be doubted and it is also seen that otherwise, there is absolutely no other connection alleged between the accused, the deceased and the witnesses to prompt the witnesses to foist any false case against the accused or make statements against them falsely before the police or the Court. The alleged illicit intimacy between PW.1 and PW.3 as suggested to the witnesses remained a mere suggestion without any corroborating circumstances arising out of the evidence and the relationship between PWs.1 to 4 and the deceased is not in dispute. Though the relationship may make PWs.1 to 4 interested witnesses, mere interestedness is no proof of falsehood and the only caution to be exercised by the Court in accepting such interested evidence is to look for some independent corroboration from the other circumstances on record. The evidence of PWs.1 to 4 was positive about the deceased Harikrishna being taken out by both the accused on 19-10-2004 at about 4.00 P.M. and they are the natural witnesses who would have witnessed such an occurrence if it had happened. The suggestion to PW.1 and other witnesses that it was PW.1 that murdered the deceased at about noon time on 19-10-2004 itself clearly indicates that the homicidal death of the deceased Harikrishna itself is admitted and it is only the circumstances under which such unnatural death had taken place that is in dispute. PWs.1 and 2 claimed to have advised the deceased not to continue friendship with the 1st accused and though otherwise the whereabouts of the deceased Harikrishna would not have been suspected within two hours after his going out with the accused, it may be this suspicion of PWs.1 and 2 against the 1st accused that made them go in search for the deceased within two hours. The same cannot be considered to be an improbablising circumstance to discredit the prosecution story as sought to be canvassed by the learned counsel for the appellants. It is true that PW.5 stated about both the accused coming to their shop and purchasing whisky on 17-10-2004, but, firstly he admitted that he did not maintain any list of purchasers on 17-10- 2004. He also admitted that he cannot give the details of the purchases, the shop being a busy shop. He further stated that it is only on his remembrance he was stating about that visit. Therefore, his claim that except on 17-10-2004 A.1 and A.2 did not come to his shop at any other time cannot be considered to be based on any convincing record or memory or reason. When even assuming that both the accused visited the shop of PW.5 on 17- 10-2004, the same cannot disprove the possibility of both the accused and the deceased visiting the shop on 19-10-2004. Even assuming that the evidence of PW.5 throws some doubt on the purchase of liquor by all the three persons together on that day, still there is no reason to disbelieve the claims of PWs.1 to 4 about both the accused taking Harikrishna from his house on 19- 10-2004 at about 4.00 P.M. for the purpose of consuming liquor, as the further evidence of PW.7 clearly shows that PWs.6 and 7 saw both the accused and the deceased Harikrishna at the scene of offence. Even PW.6, who turned hostile, admitted what he stated to the police and gave no reason as to why he stated so to the police if it were not true. Even in his chief-examination, he stated about the deceased being murdered by both the accused and only tried to say that he cannot say anything further obviously for some undisclosed reasons. The evidence of PWs.6 and 7 as it stands can be satisfactory corroboration to the claims of PWs.1 to 4 and the independent evidence of PW.8 about the chit transactions also further supports the prosecution version. The evidence of PW.9 and PW.10, the independent mediators for the arrest, confession and recovery of the weapon from the accused further strengthens the prosecution story and no reason or motive has been established for PWs.9 and 10 to depart from the truth alleging the involvement of the accused falsely in the crime. The evidence of PW.12, the inquest mediator, who turned hostile, is not of much significance, while PWs.14 and 15, the investigating officers faithfully reiterated what was alleged by the prosecution about the manner of incident and the manner of investigation by the independent statutory agency. The oral evidence also thus does not disclose any fatal flaws in the prosecution version as to deserve rejection of the case. The trial Court had the benefit of observing the demeanour of the witnesses examined before it and it did not notice any circumstances, which make the acceptability of the witnesses not acceptable. In fact, in discussing the oral and documentary evidence in detail, the trial Court had dealt with the various defences put forward by the accused referring to various circumstances and had sufficiently answered them to differ from which there is no serious ground. While it may also be noted that the grounds of appeal confined itself specifically only to incredibility of PWs.4 to 6 and did not say anything specifically against the other witnesses, it may have to be considered that the establishment of the guilt of the accused by the prosecution by the circumstantial evidence can be stated to be proving such chain of circumstances as would conclusively and consistently point out the possible guilt of both the accused. If the deceased Harikrishna was found in the company of accused for the last time and was later found to be dead without any other intervening event or circumstance, it may be for the accused to show why the story should be discarded and in the absence of any such circumstances arising out of the evidence on record, the conclusion of the trial Court cannot be considered wrong. In fact, while the accused were charged with the offence punishable under Section 302 IPC, the trial Court had been rather lenient in concluding their guilt to be under Section 304 Part-II of the Indian Penal Code without any elaborate reasons specified which persuaded the trial Court to come to such conclusion. Even concerning the sentences imposed after hearing the accused, the trial Court was very considerate in imposing a punishment of only three years and two years Rigorous imprisonment respectively on the 1st and 2nd accused taking into account the age and responsibilities of the 1st accused and the state of health of the 2nd accused as well as his responsibilities. So, neither the conviction nor the sentences need any interference in this appeal and the criminal appeal has to fail. Accordingly, the Criminal Appeal is dismissed. _____________________ G. BHAVANI PRASAD, J Date: 28-10-2011 Ksn