MOs.4 and 5 – knifes were seized from the house of PW.3 in their presence - Mere seizure of MOs. 4 and 5 does not lead to an irresistible conclusion that accused are the assailants of the deceased. = Accused Nos.1 and 2 gave confessional statement as in Ex.P-6 and in pursuance of Ex.P-6, MOs.4 and 5 – knifes were seized from the house of PW.3 in their presence. MOs.4 and 5 were sent to the Forensic Science Laboratories at Tirupati (for short “FSL”) for its report. The FSL report would go to show that it contained blood group of the deceased. But, this circumstance alone cannot be taken into consideration to infer that the accused are assailants of the deceased. If any one of the accused is having the same blood group of the deceased, then it cannot be said to be an incriminating circumstance against the accused. Therefore, this circumstance can be taken as an incriminating provided that there are other circumstances in the evidence of prosecution to show that the accused are the assailants of the deceased. Mere seizure of MOs. 4 and 5 does not lead to an irresistible conclusion that accused are the assailants of the deceased. there are no circumstances to indicate that the deceased was last seen alive in the company of accused Nos.1 to 3 immediately prior to the incident or at the time of incident or after the incident. Except proving that some altercation took place between the deceased and accused No.1 to 3 on three different occasions, there is no other evidence to connect the accused to the crime. But, such a motive is not sufficient to infer that the accused are the assailants of the deceased. So, except recovery of Mos.4 and 5, absolutely there is no evidence to show that the accused are the assailants of the deceased. Hence, the trial Court has rightly passed the judgment acquitting the accused. There are no compelling or substantial reasons to interfere with the judgment under challenge. Hence, the appeal is devoid of merits and is liable to be dismissed.

HONOURABLE SRI JUSTICE K.C. BHANU

                                         AND            
HONOURABLE SRI JUSTICE CHALLA KODANDA RAM

 

CRIMINAL APPEAL No.612 OF 2013



JUDGMENT: (Per Honourable Sri Justice K.C. Bhanu)     



This Criminal Appeal (S.R.) is preferred by the appellant – State, under Section 378 (3) & (1) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), against the judgment dated 14-12-2007 in S.C. No.297 of 2005 passed by the learned VI Additional District and Sessions Judge (Fast Track Court), Tirupathi, whereunder and whereby, accused Nos.1 to 3 were found not guilty of the offences punishable under Sections 120-B, 302 and 302 read with 109 of the Indian Penal Code, 1860 (for short, “IPC.”), and were acquitted for the same.

2.  Brief facts of the prosecution case that are necessary for disposal of the appeal, may be stated as follows:

          a) Accused No.1 – Arcot Eswara Reddy, was working as tractor driver under accused No.2 – Poojari Gangi Reddy, while accused No.3 – Arcot Viswanadha Reddy is close friend and associate of accused No.1.  Hariprasad @ Hari (hereinafter referred to as ‘the deceased’) was also working as tractor driver under one N. Murali. The deceased is the maternal nephew of one Subramanyam.  The alleged incident took place on the intervening night of 14/15-10-2004.

          b) Two years prior to the date of incident, when the father of accused No.1 attempted to erect a hut over a house plot purchased from the aunt of M. Subramanyam, Subramanyam raised an objection.  In that regard, a quarrel was ensued between the family members of accused No.1 and Subramanyam.  The deceased being the maternal nephew of Subramanyam, supporting his maternal uncle, threatened accused No.1 and beat him.  Since then, accused No.1 developed hatred against the deceased. Accordingly, once there was a quarrel between accused No.2 and the deceased at Pathakaluva village.  At that time also, the deceased beat accused No.2 indiscriminately in the presence of the villagers.  Therefore, accused No.2 developed a grudge against the deceased.  Both accused Nos.1 and 2 were waiting for an opportunity to murder the deceased. 

c) Five months prior to the death of deceased, when the parents of the deceased were sleeping in front of their house, accused No.3 drove his scooter dangerously.  Then, the father of the deceased scolded him for his rash driving and accused No.3 picked up a quarrel with the father of the deceased and beat him with hands.  The deceased rushed to the spot and beat accused No.3 indiscriminately and insulted him before the public by tearing his shirt and banyan and made him to fall down on the ground. Therefore, all the accused, who are the victims in the hands of the deceased, joined together and hatched up a conspiracy to do away with the life of the deceased. 

d) In pursuance of their conspiracy, accused Nos.1 and 2 took the deceased with them on the pretext of going to hunting on the night of 14-10-2004 and made him to consume liquor.  When they reached Swarnamukhi river bund, both accused Nos.1 and 2 attacked the deceased with a billhook and small dagger respectively, which were carried by them and hacked the deceased till his death.  It is alleged that accused No.3 abetted accused Nos.1 and 2 to commit murder of the deceased.  On coming to know about the death of the deceased, father of the deceased went to the spot and found his son lying dead with bleeding injuries all over his body.  Then, he went to the police and lodged a report with the police.     

e) Basing on Ex.P-1 - report given by PW.1 –
K. Munirathnam, father of the deceased, PW.17 – Sub-Inspector of Police, M.R. Palle Police Station, registered a case, and thereafter, the police held inquest over the dead body of the deceased in the presence of the inquest mediators - PW.10 and others.  The police got photographed the dead body of the deceased.  Thereafter, police arrested accused No.1 and 2 and in pursuance of their confessional statements, MOs.4 and 5 were seized.  After inquest, the dead body was sent to post-mortem examination.  The doctor, who conducted autopsy over the dead body of the deceased, opined that the cause for death of the deceased was due to multiple injuries on his body. 

f) After receipt of the post-mortem report and Forensic Science Laboratories report, the police filed charge sheet for the offences punishable under Sections 120-B IPC against accused Nos.1 to 3, Sections 302 IPC against accused Nos.1 and 2 and for the offence punishable under Section 302 read with 109 IPC against accused No.3. 

3.  The basis for framing charges against accused Nos.1 and 2 is that they entered into a criminal conspiracy to do away with the life of the deceased; that in pursuance of such conspiracy, they took the deceased for hunting near the cart track at Swarnamukhi river on Paidipalle – Sivagiri road; that they knowingly or intentionally stabbed the deceased with their respective weapons causing his instantaneous death.  Charge levelled against accused No.3 is that he also conspired with accused Nos.1 and 2 to do away with the life of the deceased in pursuance of the humiliation caused by the deceased to him, and therefore, he abetted accused Nos.1 and 2 to cause the death of the deceased, and thereby, accused Nos.1 to 3 are liable for punishment for the offence punishable under Section 120-B IPC, and accused Nos.1 and 2 are liable for punishment for the offence under Section 302 IPC while accused No.3 is liable for punishment for the offence punishable under Section 302 read with 109 IPC; and accordingly, the trial Court framed the said charges.  When the said charges were read over and explained to the accused, they pleaded not guilty and claimed to be tried.

4. To substantiate the aforesaid charges, the prosecution examined PWs.1 to 18 and got marked Exs.P-1 to P-16, besides the case property of MOs.1 to 16.

5.  After closure of the prosecution evidence, when the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances against them appearing in the evidence of prosecution witnesses, they denied the same.  When they were called upon to adduce the evidence on their behalf, they have not let in any evidence, but Exs.D-1 to 5 were marked, which are the relevant portions in the statements recorded under Section 161 Cr.P.C. by police.

6.  The trial Court, upon considering the evidence on record, came to the conclusion that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt, and therefore, acquitted them.  Challenging the same, the present appeal is preferred by the appellant – State. 






7.     Now, the point that arises for determination is:
“Whether the prosecution proved its case beyond all reasonable doubt against the accused for the offences punishable under Sections 120-B and 302 IPC against accused Nos.1 and 2, and Sections 120-B and 302 read with 109 IPC against accused Nos.3; and whether there are any substantial or compelling reasons to admit the appeal?”

POINT:                                        

          8.  The learned Additional Public Prosecutor contended that there is a clear motive for the accused to commit murder of the deceased because he beat accused Nos.1 to 3 on different occasions and also insulted them in the presence of villagers;
that at the instance of accused Nos.1 and 2, the weapons used in the commission of offence were seized and when they were sent to the laboratories, it is reported that the bloodstains contained on it belonging to the blood group of the deceased, and therefore, it is established that MOs.4 and 5 had been used in the commission of offence as MOs.4 and 5 had been seized at the instance of the accused.  Therefore, it can be presumed that accused Nos.1 and 2 are the assailants of the deceased, and hence, she prays to allow the appeal by setting aside the judgment of acquittal passed by the trial Court.

9.  On the other hand, learned counsel, appearing for respondent No.3 – accused No.3, contended that there are no circumstances to connect the accused with the crime; that the prosecution miserably failed to establish its case beyond all reasonable doubt against the accused; that the trial Court has rightly passed the judgment of acquittal and there are absolutely no grounds warranting interference of this Court, and ultimately, prays to dismiss the appeal.

10.  In dealing with appeals against the judgments of acquittal, the Court must see whether there are any compelling and substantial reasons to interfere with the judgment of acquittal.  There is a presumption under law that accused is presumed to be an innocent unless contrary is proved. The presumption of innocence is further strengthened by the judgment of acquittal.  Unless the findings are perverse or not based upon any evidence, ordinarily, this Court would not interfere with the same.  Now, it is pertinent to refer to the decision in SIDHARTHA VASHISTH ALIAS MANU SHARMA v. STATE (NCT OF DELHI)[1]wherein it is held thus: (PARA 27)

“The following principles have to be kept in mind by the Appellate Court while dealing with appeals, particularly, against the order of acquittal:

(i) There is no limitation on the part of the Appellate Court to review the evidence upon which the order of acquittal is found.

(ii) The Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions.

(iii) The Appellate Court can also review the Trial Court's conclusion with respect to both facts and law.

(iv) While dealing with the appeal preferred by the State, it is the duty of the Appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.

(v) An order of acquittal is to be interfered only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.

(vi) While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether finding of the Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.

(vii) When the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc., the Appellate Court is competent to reverse the decision of the Trial Court depending on the materials placed.”


11.  In the case on hand, the entire case rests upon the circumstantial evidence.  There is no direct evidence to show that the accused are assailants of the deceased.  PW.1 – K. Munirathnam is the father of the deceased.  He simply stated that on 15-10-2004 at about 4.00 AM, he woke up and noticed that the deceased was not available in the house and that at 7.00 AM, as one Ramakrishna Reddy came and informed him that the deceased fell down on the cart track at Swarnamukhi river bed in Sivagiri and his (deceased’s) tractor is stationed at a distance of 10 feet, he lodged Ex.P-1 - complaint with the Police.  He stated that a galatatook place between accused No.3 and the deceased five months prior to the incident.   From that day onwards, they were not on talking terms with accused No.3.  Except with regard to motive, he has not stated anything, which incriminates against the accused.  So, his evidence is not much helpful to the case of the prosecution.  On the other hand, in the cross-examination, he admitted that the deceased was having illicit intimacy with one Munilakshmi, wife of Chandraiah and one Maheswari, wife of Ramadas, resident of N.T.R. Colony, Peruru village.  In the first instance, he suspected that the husbands of the aforesaid persons might be responsible for the death of the deceased.  Therefore, his evidence is not much relevant.
12.  PW.2 – K. Rajendra Prasad is the brother of the deceased.  He also spoke in the similar lines as testified by PW.1, but he stated that accused No.1 accompanied the villagers, who went to the place where the deceased was lying with injuries at Swarnamukhi river bed.  He also suspects that accused No.3 was the person, who is responsible for murder of the deceased. Therefore, his evidence also not much relevant to the case of the prosecution.

13.  Coming to the evidence of PW.3 – V. Ramakrishna Reddy, who is an Ex-Sarpanch of the village, on 15-10-2004 at about 6.00 AM, when he reached his lands, he noticed a stationed tractor at the end of his land.  When he went there, he found the dead body.  At that time, there were no clothes on the body. 
On identifying the body, he went to the village and informed about the incident to PW.1; that thereafter the police visited the place of occurrence, where accused No.1 was also present.   
       
14.  PW.4 – D. Nagi Reddy, is a coolie.  About three years back, on one day at about 9.00 PM, the deceased asked him to push his tractor at Rachabanda of their village.  At that time, one Sudhakara Reddy and G. Munirathnam Reddy, who were also present, assisted him in pushing the tractor.  On the next day morning at about 10.00 AM, he came to know about the death of the deceased.

15.  PW.5 – K. Govindamma is the mother of the deceased.  She stated that about five months after a quarrel between accused No.3 and the deceased, at about 9.00 PM, after finishing the dinner, the deceased went near the pial situated near their house and talked to accused Nos.1 and 2.  Except the said version,
she has not stated anything against the accused.   

16.  PW.6 – B. Lakshmi Devi @ Lakshmamma spoke about the galata that took place between the deceased and accused No.3, and in that galata, accused No.3 threatened the deceased with dire consequences. 

17.  PW.7 – M. Subramanyam is a Junior Assistant in Sree Venkateshwara College of Engineering at Tirupati.  He stated that on coming to know about the incident, he went to the place of occurrence.  He also spoke about the motive.  According to him, he got suspicion against accused No.3 for the reason that five months prior to the incident, there was a galata between accused No.3 and the deceased.

18.  PW.8 -  A. Sudhakar, who is native of Mutharajupalle village, stated that he went to the scene of occurrence and found the body of the deceased lying at a distance of 10 feet from the tractor, which was stationed at the corner of the road, and that he also noticed a knife’s cover by the side of the body of the deceased; that on the next day, he went and asked Durvasulu Reddy about the knife’s cover stitched by him, who informed him that the knife and its cover are missing; and that he informed the said fact to PW.7.  Except this, he did not speak anything.

19.  PW.9 – N. Murali is the owner of the tractor and trailer bearing Nos.AP03 T 6928 and AP03 T 7208 respectively. According to him, on 14-10-2004, he asked the deceased to load the gravel and get it on the next day morning; that he paid certain amount to the deceased; and that on the next day morning, he came to know about the death of the deceased.  Except the same, this witness did not say anything.

20.  PW.10 – K. Naga Bhushanam is one of the inquest mediators, who was present when the police conducted inquest over the dead body of the deceased.  According to this witness, they opined that the deceased died as a result of injuries sustained by him.     

21.  PW.11 – B. Ramaiah is the person, who was present when the galata took place between the deceased and accused No.3, but he did not support of the case of prosecution.

22.  PW.12 – M. Ravi Shankar is Cashier in Padmavathi Wines at Pathakaluva village.  He stated that accused Nos.1 and 2 used to visit his wine shop and purchase liquor bottles, that the police brought MOs.2 and 3 and he identified the same being sold by him; but he did not state that he sold the said two liquor bottles to any one of the accused.

23.  PW.13 – K.Ravi is Photographer.  He stated that he had taken photographs in respect of the scene of occurrence and dead body of the deceased.

24.  PW.14 - T.C. Padmanabha Varma is Village Revenue Officer.  According to him, on 19-12-2004, while he was going with the police, accused Nos.1 and 2, on seeing them, tried to ran away from the spot and then the police arrested them.  Accused Nos.1 and 2 gave confessional statement as in Ex.P-6 and in pursuance of Ex.P-6, MOs.4 and 5 – knifes were seized from the house of PW.3 in their presence.

25.  MOs.4 and 5 were sent to the Forensic Science Laboratories at Tirupati (for short “FSL”) for its report. 
The FSL report would go to show that
it contained blood group of the deceased
But, this circumstance alone cannot be taken into consideration to infer that the accused are assailants of the deceased. 
If any one of the accused is having the same blood group of the deceased, then it cannot be said to be an incriminating circumstance against the accused.  
Therefore, this circumstance can be taken as an incriminating provided that there are other circumstances in the evidence of prosecution to show that the accused are the assailants of the deceased.  
Mere seizure of MOs. 4 and 5 does not lead to an irresistible conclusion that accused are the assailants of the deceased.  

26.  PW.15 -  A. Thulasi Ramudu is a Scientific Officer in Regional Forensic Science Laboratories, Tirupati.  He found ‘B’ Group blood on item Nos.1 to 5, 8 and 10; and that he issued Ex.P7 report.

27.  PW.16 – Dr. B. Venkateswarlu is an Assistant Professor in Department of Forensic Medicine in S.V. Medical College. 
He identified the signature of Dr. S.V. Phaneendra, who conducted autopsy; as the said doctor was in abroad.  The opinion of the doctor was incorporated in Ex.P-10 with regard to the injuries sustained by the deceased. 

28.  PW.17 and 18 are the Investigating Officers and they spoke about their conducting investigation etc.  

29.  From the above evidence, it is clear that 
there are no circumstances to indicate that the deceased was last seen alive in the company of accused Nos.1 to 3 immediately prior to the incident or at the time of incident or after the incident.  
Except proving that some altercation took place between the deceased and accused No.1 to 3 on three different occasions, there is no other evidence to connect the accused to the crime. 
But, such a motive is not sufficient to infer that the accused are the assailants of the deceased. 
So, except recovery of Mos.4 and 5, absolutely there is no evidence to show that the accused are the assailants of the deceased.  
Hence, the trial Court has rightly passed the judgment acquitting the accused.  
There are no compelling or substantial reasons to interfere with the judgment under challenge. 
Hence, the appeal is devoid of merits and is liable to be dismissed.      

          30. In the result, the Criminal Appeal (S.R.) is dismissed confirming the judgment dated 14-12-2007 in S.C. No.297 of 2005 passed by the learned VI Additional District and Sessions Judge (Fast Track Court), Tirupathi.  As a sequel, miscellaneous applications, if any, pending in this appeal shall stand dismissed.   


____________________________

                                          K.C. BHANU, J



 _______________________

CHALLA KODANDA RAM, J

June 18, 2013.
Mgr


[1].  (2010) 6 SCC 1

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