*THE HON’BLE SRI JUSTICE K.G. SHANKAR +Crl.R.C.No.113 of 2006 % 11.08.2011 Between: #Sri Dayaram Agarwal … Revision Petitioner Vs. $Mr. Luice Pushparaj and another … Respondents ! Counsel for the petitioner: Kowturu Vinaya Kumar Counsel for the Respondents: Public Prosecutor for R-2 <Gist: >Head Note: ? Cases referred: 1. (2004) 1 SCC 64 2. (2008) 16 SCC 582 3. 1984 CRI. L.J. 324 THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.113 of 2006 Date: 11.08.2011 Between: Sri Dayaram Agarwal … Petitioner/ De facto complainant AND 1. Mr. Luice Pushparaj, s/o. Dhanraj, aged 36 years, Kothagudem. 2. The State of A.P. rep.by P.P., High Court of A.P., Hyderabad. … Respondents/ Respondents THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.113 of 2006 ORDER: This is a revision against the order of acquittal passed by the learned V Additional Sessions Judge, Khammam at Kothagudem in S.C.No.136 of 2004. PW.1, who is the father of the deceased Luice Sadhya Rani, preferred the present revision. This is a case of uxoricide. As many as 18 witnesses were examined. In a well written judgment, the learned V Additional Sessions Judge held that the case was not made out against the sole accused and acquitted him of the solitary charge under Section 302 of the Indian Penal Code (IPC). 2. The case of the prosecution is that the accused is a Christian arising from a Scheduled Caste. His wife, who is the deceased, belonged to Marvadi Community. They fell in love and got their marriage solemnized in 1993 against the wish of the parents of the deceased. The accused and the deceased begot a son (PW.18) and a daughter in the wedlock. 3. The accused, his father and brothers used to run a Photo Studio in the name and style of Raj Photo Studio at M.G. Road, Kothagudem. It is the case of the prosecution that the deceased started a separate colour lab styled as Rahul Colour Lab abutting Raj Photo Studio so much so the business of the photo studio run by the family of the accused dwindled. Added to it, the accused started suspecting the fidelity of the deceased. Consequently, misunderstandings developed between the accused and the deceased. Since about 5 years prior to the death of the deceased, the accused and the deceased were residing separately. Claiming that the accused was ill-treating her, the deceased filed several complaints against the accused, which were registered as Crime Nos.97 of 2001, 124 of 2001, 65 of 2002, 173 of 2002 and 12 of 2003 and a petty case in S.T.No.33 of 2002 on the file of the III Town Police Station, Kothagudem relating to various offences allegedly committed by the accused. 4. It is the further case of the prosecution that on 06.05.2003, the accused made preparations to kill the deceased and that at about 7.30 p.m., while the deceased was proceeding on M.G. Road along with PW.6, attacked the deceased and inflicted multiple injuries upon the deceased with MO.1 knife. The mob allegedly witnessed the incident and hurled stones at the accused to scare him. The deceased who was moved to the Government hospital, Kothagudem subsequently died at the hospital. This is the sum and substance of the prosecution case. 5. The point for consideration is whether the prosecution brought home the guilt of the accused beyond reasonable doubt. 6. As already pointed out, the prosecution examined as many as 18 witnesses. PW.1 who is the revision petitioner herein is the father of the deceased. PW.2 is the elder brother of the deceased. PW.3 is another elder brother of the deceased. PW.3 is elder to PW.2 also. These are the three witnesses who primarily spoke about the incident proper. It may be noticed that none of them amongst PWs.1 to 3 was an eyewitness for the incident. PW.1 claimed that he and his sons were in his shop (in the shop of PW.1) when PW.1 received a telephonic call at about 9 p.m. about the attack of the deceased by the accused. He deposed that while the deceased was going home from her shop along with her employees PW.6 and one Bharathi, the deceased was attacked by the accused on the road in front of Popular Shoe Mart and that on hearing the same, PWs.1 to 3 rushed to the scene where the deceased was lying unconsciously. 7. PW.2 claimed that that he received a telephonic message at 9.30 p.m. on 06.05.2003 from PW.6 about the incident, that he informed the same to PW.1 and that he (PW.2) along with PW.1 rushed to the scene of offence. PW.3 supported the stand of PW.1 that he was in the shop of PW.1 when the telephonic message was received from PW.6. Curiously, PW.3 deposed that PW.1 reached the scene of offence at the outset, that PW.2 reached the scene of offence thereafter and that he (PW.3) reached the scene of offence subsequently. It would appear to be the case of PW.3 that although he heard about the attack on his sister, he did not proceed to the scene of offence immediately along with PW.1, but took some time to reach the scene of offence. It is not the case of PW.3 that he took time to close down the shop of PW.1 and that consequently it took some time for him to reach the scene of offence. He merely stated the sequence in which PW.1, PW.2 and PW.3 reached the scene of offence. 8. Passing for a while at this stage, the inconsistency in the evidence of PWs.1 to 3 regarding the circumstances in which they received information may be noticed. According to PW.1, he received the information at about 9 p.m. and he reached the scene of offence along with his son. He did not specify which son of him out of PWs.2 and 3 accompanied him to the scene of offence. He also did not state which son was with him at the time of the receipt of the telephonic information. In the cross-examination, he pointed out that both his sons were present with him in his shop when he received telephonic information. PW.3 more or less corroborated PW.1. He supported his father that he was in the shop of his father at the time of receipt of the information. However, admittedly PW.3 has been running a hardware shop on M.G. Road under the name and style of Om Ganesh. If PW.3 was running a shop of his own, whether the shop is beside the shop of PW.1 or otherwise, there must be specific reason why PW.3 was at the shop of PW.1 at the time of receipt of the information. PW.3 would not state that he habitually goes to the shop of his father after closing hours to go home jointly with his father. At the same time, he insisted upon his presence at the shop of his father at the time of receipt of information. The conduct of PW.3 is not reasonable. If PW.3 was running business of his own, it was not probable for him to be present at the shop of his father at the time of the receipt of information. If PW.3 received information separately, it was more probable for him to reach the scene of offence after PWs.1 and 2 reached the scene of offence. Albeit this fact is not material, the attempt on the part of PW.3 to create a watertight case is patent from his evidence and his statement that he was at the shop of his father when telephonic information was received by PW.1. 9. PW.2 contradicts PWs.1 and 3. Indeed, PW.3 did not speak about the presence of PW.2 at the shop of PW.1 at the time of the receipt of the information from PW.6. It is PW.1 who stated that both his sons were with him at the time of the receipt of the information about the incident. PW.2 on the other hand contended that he was at his own shop and received telephonic information from PW.6 about the incident and that he reached the scene of offence on receipt of the information along with his father. He further amplified that it is he who passed on the information to his father. 10. PW.1’s story is otherwise. His claim is that the informant was PW.6. Thus, PWs.1 to 3 do no agree as to how they received the information, where were they at the time of the receipt of the information and how did they react on receipt of the information. I would again venture to state that the inconsistency in this context is not a contradiction, but a mere minor consistency. However, it shall be borne in mind that even in relation to the genesis of the incident, PWs.1 to 3 did not agree and exhibit inconsistency. 11. On the material question as to who caused the death of the deceased Luice Sandhya Rani, PWs.1 to 3, however, are unanimous that the accused murdered the deceased. It may, however, be noticed that none amongst PWs.1 to 3 was an eyewitness to the murder of the deceased. Their case is that they came to know about the attack on the deceased by the accused through PW.6. Keeping aside the evidence of PW.6 for consideration, I may point out that apart from the inconsistency as to where PWs.1 to 3 were at the time of the receipt of the information from PW.6, the very evidence regarding the complicity of the accused is improbable. 12. PW.1 claimed that by the time he reached the scene of offence, the deceased was in a pool of blood in front of Popular Shoe Mart and that he noticed the accused fleeing away with a knife on a scooter with the assistance of his brother Vijay Kumar. PW.1 further claimed that his shop where he received information about the offence was at a distance of about half a furlong from the scene of offence. It would take some time for PW.1 to reach the scene of offence on receipt of the information. However, it is his case that the accused was still at the scene of offence, more or less exhibiting the knife heroically so as to allow PW.1 conveniently to notice the presence of the accused. I am afraid that the natural conduct of the accused would have been to run away from the scene of offence as soon as the deceased fell down near Popular Show Mart. For this reason, I consider that the evidence of PW.1 is not only not natural and artificial, but also cannot be swallowed to assume the presence of the accused at the scene of offence at the time of the incident. 13. PW.2 deposed that he was not running an Iron Mart under the name and style of Shiva Shakthi Enterprises. PW.1 on the other hand claimed that his sons were running their own hardware shop near Ganesh Temple, Kothagudem in the names of Shiva Shakthi Enterprises and Om Ganesh Enterprises. Thus, PWs.1 and 2 do not agree whether PW.2 was running M/s. Shiva Shakthi Enterprises by the date of the death of the deceased. As rightly submitted by the learned counsel for the revision petitioner, this inconsistency is indeed is trivial and insignificant. It is not clear why PW.1 did not spoke the truth in this context. At any rate, PW.2 deposed that he received telephonic message from PW.6 that the accused attacked the deceased near Airtel showroom (and not near Popular Shoe Mart). It is his evidence that by the time he reached the scene of offence, the accused was very much at the scene of offence holding a knife in his hand so that PW.2 could see the accused. He deposed very specifically that PW.1, PW.3 and himself reached the scene of offence separately. He further claimed that it normally takes 15 minutes to reach the scene of offence from the place where he was at the time of the receipt of the information. Nevertheless, he claims that the accused was at the scene of offence by the time he reached the scene of offence. In other words, it is the evidence of PW.2 that the accused remained at the scene of offence for about 15 minutes after the commission of the offence by him. I am afraid that it would not have been the conduct of the accused who was attempting to commit murder in a public place. I consider that the evidence of PW.2 deserves to be viewed with great suspicion. His evidence that he was at a distance of 15 minutes from the scene of offence by the time the incident occurred and that the accused was present at the scene of offence by the time he reached the scene of offence cannot reasonably be reconciled. 14. As already pointed out, PW.3 admittedly has been running a separate hardware shop styled as Om Ganesh Enterprises. His claim is that he reached the scene of offence in about 10 minutes after receipt of the information. Again, he deposed that the accused was holding a big knife and ran away from the scene of offence after threatening the public. In other words, the accused was waiting for PW.3 to arrive at the scene of offence so that PW.3 could see the accused. Again, I am constrained to conclude that the conduct of the accused as deposed by PW.3 is not natural. I, therefore, consider that the evidence of PW.3 regarding the presence of the accused at the scene of offence at the time of the commission of offence should be viewed with suspicion. 15. It is the admitted case of the prosecution that the marriage between the accused and the deceased was a love marriage, an inter-caste marriage and more or less an inter-religious marriage. Added to it, the accused is a deaf and dumb person, so much so the family of PW.1 discarded the deceased after her marriage. Admittedly, ill feelings exist between the accused and the members of the family of PW.1. Adding fuel to fire, misunderstandings arose between the accused and the deceased as well, so much so the deceased had been residing separately from her matrimonial home by the date of her death. PW.1 went to the extent of stating that he did not know anything about the deceased after she went away from the house by contacting marriage with the accused. PWs.1 to 3 were reluctant to admit that the accused was a Christian and belonged to scheduled caste. They plead ignorance about the same. The reading of the evidence of PWs.1 to 3 leaves a distinct impression that there is no love lost between the accused on the one side and the family of PW.1 on the other side, which is quite explainable. A lady member (the deceased) more or less ran away with the accused becoming pray to the inducement of the accused and in the process, the deceased violated the family norms. It would be a surprise if PW.1 continued to maintain cordial relationship with the deceased after the deceased ran way with the accused. Relevant for the purpose of the present case is the fact that the relationship between the accused on the one side and PW.1 and the members of his family on the other side is quite cold and definitely not cordial. In such an event, I am afraid that the evidence of PWs.1 to 3, who are ill- disposed towards the accused, would not be sufficient to accept the guilt of accused beyond reasonable doubt, more so, where PWs.1 to 3 were not eyewitnesses to the incident proper. 16. PW.1 admitted that he has been running a shop styled as Ganesh Jewellery in the same shopping complex where the shop of the accused is situate. The colour lab of the deceased is situate beside the shop of the accused. In other words, the accused, the deceased and PW.1 have their respective shops in the same shopping complex. PW.1 also owns a hardware shop in Pedda Bazar at Kothagudem. 17. PW.1 admitted that the scene of offence was a busy locality. The offence occurred at or near Popular Shoe Mart. Popular Shoe Mart is said to be situate beside Vasundhara Textiles and at a distance of about 100 meters from III Town Police Station, Kothagudem. The importance of the distance between Popular Shoe Mart and III Town Police Station, Kothagudem is the failure of PW.1 and the members of his family to lodge a police report soon after the attack. It is the case of PWs.1 to 3 that they saw the accused with a knife in his hands. The wounded deceased was lying in the street in front of Popular Shoe Mart. Indeed, the first reaction would be to shift the deceased to the Government Hospital, Kothagudem. However, according to PW.1 no one amongst the family of PW.1 ventured to go to III Town Police Station to lodge a complaint against the accused. 18. Added to it, it was stated by PW.1 that he did not notice whether any Traffic Police was present at the scene of offence at that time. He also could not mention the details of the auto in which the deceased was shifted to the Government Hospital. I consider that when the daughter of PW.1 was mortally injured by no other than the son-in-law, it would not strike PW.1 to take precautions like noting down the registration number of the auto rickshaw in which the deceased was shifted to the hospital. At any rate, it is not anybody’s case that the deceased was not shifted in an auto from the vicinity of the Popular Shoe Mart to the Government Hospital. 19. Curiously, PW.1 deposed that a Sub- Inspector was present at the scene of offence by the time PW.1 reached the scene of offence and that such a Sub- Inspector did not accompany the injured Luice Sandhya Rani to the Government Hospital. It is also surprising why the Sub-Inspector had not attempted to apprehend the accused. PW.1 deposed that when he questioned the Sub-Inspector of Police why the Sub-Inspector had not taken any action, the Sub-Inspector allegedly claimed that the accused attacked the deceased on account of his mental disorder. It is the case of PW.1 that the Sub- Inspector had two constables along with him and that the Sub-Inspector nevertheless did not react although the accused was still at the scene of offence wielding the knife. 20. PW.14 registered Ex.P.1 complaint of PW.1 as FIR under Ex.P.15. The complaint was lodged after the demise of the deceased. It is not clear whether it was PW.14 who was present at the scene of offence by the time PW.1 reached the scene of offence. If PW.14 was the same Sub-Inspector, he was not questioned why he did not apprehend the accused, while the accused was still in possession of the weapon with which he committed the murder. If PW.14 was not the Sub-Inspector who was at the scene of offence, the prosecution did not choose to examine the concerned Sub-Inspector. PW.1 did not give any particulars to identify the Sub-Inspector who was present at the scene of offence at the time of incident. I consider that the evidence of PW.1 which does not find any corroboration from PW.14 and which is not explained by the Investigating Officer cannot be accepted. 21. PW.2 deposed that Traffic Police as well as other police personnel were present at the scene of offence and did not attempt to shift the injured to the hospital. PW.2 also did not explain why police did not take any action either against the accused or in trying to shift the deceased to the hospital, as she did not die by then. 22. PW.3 on the other hand deposed that the Sub-Inspector, who was present at the scene of offence merely asked PW.1 to lodge a police complaint and that PW.1 could not do so as PW.1 was in a hurry to move the deceased to the Government Hospital for treatment. The evidence of PWs.1 to 3 thus is not in agreement with the evidence of PW.14 if it is their case that PW.14 was the Sub-Inspector who was present at the scene of offence. PW.17 is the Investigating Officer. He did not refer to the presence of any Sub-Inspector at the scene of offence at the time of the commission of the offence. The evidence of PWs.1 to 3 regarding the presence of police officer or police personnel at the scene of offence at the time of offence has not been corroborated. 23. However, the learned counsel for the revision petitioner contended that the investigation was perfunctory, reluctant and half-hearted for the reasons best known to it and that in fact the revision petitioner tried his best to force the police officials to discharge their duty truthfully. He referred to W.P.No.11048 of 2003 on the file of this Court laid by the revision petitioner against the Superintendent of Police and the Deputy Superintendent of Police and the Inspector of Police, Kothagudem to cajole them to discharge their duty properly. 24. The private complaint was laid by PW.1 in February, 2005 against the father of the accused and brothers of the accused for the offence u/s.302 IPC. It is the case of PW.1 that on 06.05.2003 at about 9 p.m. the accused herein attacked the deceased near Popular Shoe Mart on M.G. Road, Kothagudem, that the accused attacked the deceased with a large knife, that the deceased ran into Popular Shoe Mart with a view to escape from the clutches of the accused, that the father of the accused as well as the younger brother of the accused had a common intention of murdering the deceased and that in furtherance of common intention, the accused caused several injuries upon the person of the deceased with the said knife in the presence of the employees of Popular Shoe Mart. PW.1 further alleged in the complaint that police including PW.14 witnessed the incident and that the attack of the deceased by the accused was on account of the common intention of the accused in A.1 to A.3. It would appear that no action was taken on the complaint. 25. PW.1 consequently laid Writ Petition No.11048 of 2003 seeking for a Writ of Mandamus to direct the Superintendent of Police, Khammam to entrust the investigation of the case in Crime No.85 of 2003 on the file of the III Town Police Station, Kothagudem to any competent authority other than the local police. After due consideration, a single judge of this Court directed that charge sheet should be filed within the time specified in the writ petition. The private complaint by PW.1 as well as the writ petitioner by him would show, first, that all is not well, and secondly, that the private complaint establishes the consistency of the stand of PW.1 as in the present case. However, mere anxiety on the part of PW.1 to bring home the culprit of the murder of his daughter to book does not automatically make the accused guilty of the murder of the deceased. The learned counsel for the revision petitioner/PW.1 referred to the private complaint and the writ petition as instances to show that the accused was guilty. In the private complaint itself, PW.1 was very clear that he was not an eyewitness for the incident and that he received the information from PW.6 as to what transpired at and near Popular Shoe Mart, M.G. Road, Kothagudem. Where PW.1 himself was not a direct witness for the murder of the deceased, I am afraid that the mere private complaint and the writ petition do not establish the case of the prosecution against the accused, much less beyond reasonable doubt. The prosecution shall have to prove the case clinchingly and beyond doubt. 26. As already pointed out, PWs.1 to 3 are not direct witnesses. They are the father and brothers of the deceased. They have admitted animosity and ill feelings towards