Sec.302 ,341 r/w 34 I.P.C. = No grounds to interfere the acquittal orders of lower court - Appeal is dismissed Appreciation of Evidence = P.Ws.1 and 2 are not eye witnesses to the incident and Other witnesses turned hostile and there is no other evidence to show that the accused are the assailants of the deceased; that opinion of P.W.19 does not lead to draw an inference that it is the accused, who committed the murder of the deceased = THE STATE OF AP REP BY ITS PP HYD., VS MALLAVARAM SANKAR REDDY, & 6 OTHERS, = http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CRLA&mno=574&year=2013

 Sec.302 ,341 r/w 34 I.P.C. = No grounds to interfere the acquittal orders of lower court - Appeal is dismissed
Appreciation of Evidence = P.Ws.1 and 2 are not eye witnesses to the incident and Other witnesses turned hostile  and there is no other evidence to show that the accused are the assailants of the deceased; that opinion of P.W.19 does not lead to draw an inference that it is the accused, who committed the murder of the deceased =

P.W.1 admitted that he was residing in Harijanawada along with his wife and two children.  
The incident is alleged to have taken place at about 11 p.m.  
In view of the fact that he is having wife and children, in normal circumstances, P.W.1 would have been present at his house.  If he was present at his house, there was no scope or possibility for him to witness the incident.  
He had not given any convincing reason for staying in the upstairs of the house of the deceased on the fateful day of the incident.  
Therefore, that is the reason why the trial Court doubted his presence.
P.W.2 admitted that he was residing in Harijanawada, which is at a distance of two furlongs from the house of the deceased.  
There is no other acceptable reason for P.W.2 to be present at the house of the deceased.  
Further, when his house is located at a distance of two furlongs from the house of the deceased, it is not possible for him to hear the commotion or cries from the house of the deceased.
It is the evidence of P.Ws.1 and 2 that after P.Ws.2 to 5 came to the spot and some other villagers came there, A-1 and A-2 ran away from the scene of occurrence.  If that is the case, again, A-1 and A-2 obstructing P.W.1 from taking the deceased to the hospital does not arise.  
It is the case of the prosecution that P.Ws.1 to 5 had taken the injured to the road and stopped the auto of P.W.12 and lifted the injured into the auto.  But P.W.12 did not support the case of the prosecution.   If really the accused had taken the injured high handedly in the auto with a view to take her to the hospital, nothing prevented P.Ws.1 and 2 to lodge a complaint. 


Chance prints =

According to P.W.19, he developed chance prints at the scene of occurrence.  
On 16.12.2006, he received finger print slips of the accused along with a requisition letter from the police for comparison with the chance prints. 
The evidence of P.W.19 appears to be incorrect because Ex.P-21 report does not reveal about the lifting of chance prints and it does not give the detailed data.  
He has not sent the developed photographs of the chance prints either to the Court or to the concerned police.  He retained with him.  
The receiving of fingerprint slips from A-1 to A-3 appears to be false because P.W.20 had stated that on 14.12.2006, P.W.19 obtained fingerprints of A-1 to A-3 in the Court hall, which is contradictory to the evidence of P.W.19.  
It is in evidence that on 16.12.2006, he received the fingerprints of A-1 to A-3.  
Therefore, in view of these contradictory statements, no reliance can be placed on the evidence of P.W.19 and Ex.P-21.  Therefore, the trial Court rightly acquitted the accused and that order needs no interference by this Court.


CRLA 574 / 2013
CRLASR 32259 / 2008
PETITIONERRESPONDENT
THE STATE OF AP REP BY ITS PP HYD.,  VSMALLAVARAM SANKAR REDDY, & 6 OTHERS,
PET.ADV. : PUBLIC PROSECUTORRESP.ADV. : UGRANARASIMHA
SUBJECT: U/s.302 I.P.C AcquittalDISTRICT:  CHITTOOR


                        HON'BLE SRI JUSTICE K.C.BHANU

AND
HON’BLE SRI JUSTICE CHALLA KODANDA RAM

CRIMINAL APPEAL No.574 OF 2013



JUDGMENT:- (per Hon’ble Sri Justice K.C.Bhanu)



This Criminal Appeal, under Section 378(3)& (1) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), is directed against the judgment, dated 15.05.2008, in Sessions Case No.102 of 2007 on the file of the VI Additional District and Sessions Judge, (Fast Track Court), Tirupathi by the State whereunder and whereby, respondent Nos.1 to 3/A-1 to A-3 were found not guilty of the offences punishable under Sections 302  and 341 I.P.C; and respondent Nos.5 to 7/A-5 to A-7 were found not guilty of the offence punishable under Section 341 read with 34 I.P.C.

2.       Case of the prosecution, as delineated by the prosecution witnesses, may be stated as follows:

          A-1 and A-2 are the brothers of one Manjulamma (hereinafter, referred to as “the deceased”).  
A-3 is the elder daughter of the deceased, who was given in marriage to A-1.  
On 26.08.2006, at about 11 p.m., A-1 to A-3 picked up a quarrel with the deceased in her house with regard to her behaviour with her farm servant – Kaki Sivaiah (P.W.1) and also her giving Ac.1.00cs of landed property to him. 
 In that quarrel, an altercation took place between them as a result, the accused beat the deceased indiscriminately.  
On hearing the cries of the deceased, the farm servant, who was sleeping over the roof of the house, came down and noticed the accused beating the deceased.  
Thereupon, P.W.1 raised cries.  The neighbourers – P.Ws.2 to 5 came to the house of the deceased.  
As A-1 and A-2 threatened them to go away, they left the place. 
As some more villagers came to the place of occurrence, A-1 to A-3 fled away.  
When P.W.1 tried to shift the injured to the hospital, A-1 and A-2 along with A-4 to A-7 obstructed him to do so.  
A-1 and A-2 took away the injured in an auto belonging to P.W.12 on the pretext of admitting her in the hospital and abandoned her on a railway track resulting in her death.  
Basing on the complaint given by P.W.1, the Sub Inspector of Police, Renigunta Police Station registered a case. 
Basing on the information received from the Deputy Station Superintendent, Renigunta Railway Station about the presence of an unknown female dead body on the railway track between Renigunta and Mamundur Railway Stations, on 27.08.2006, at 11 a.m., the Railway Police Head Constable registered a case under  Section 174 Cr.P.C. and the dead body was sent to S.V.Medical College, Tirupathi for Post Mortem Examination.  
On the same day, P.W.1, P.W.8, who is another daughter of the deceased, and one Venkatamuni Reddy identified the dead body of the deceased and then, the section of law was altered from 174 Cr.P.C. to 302 and 341 read with 34 I.P.C.  
The police held inquest over the dead body of the deceased under Ex.P-9.  Police also observed the scene of occurrence and after receipt of reports from the Doctor and from the Regional Forensic Science Laboratory, the Inspector of police, Renigunta filed the charge sheet.   

3.       The charges levelled against A-1 to A-3 are that they beat the deceased in her house and A-1 and A-2 obstructed P.W.1 and drove him away while he was attempting to shift the injured to the hospital and took her in the same auto and abandoned her on the railway track resulting in her death and hence, liable for punishment under Sections 302 and 341 I.P.C., 
while A-4 to A-7 obstructed the auto in which P.W.1 tried to shift the injured to the hospital and thereby, aided A-1 and A-2 to take her in the same auto and hence, A-4 to A-7 are liable for punishment under Section 341 read with 34 I.P.C.

4.       When the above charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried.

5.       During the pendency of the case, A-4 died.  Therefore, the case against him was abated.

6.       To substantiate the charges, the prosecution examined P.Ws.1 to 20 and got marked Exs.P-1 to P-23 besides case properties-M.Os.1 to 13.

7.       After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses.  They denied the same and reported no oral evidence, but Ex.D-1 was got marked.

8.       The trial Court, after considering the evidence available on the record, came to a conclusion that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt and accordingly, acquitted them.  Challenging the same, State filed the present appeal.

9.       The points for determination are:
“Whether the prosecution proved its case beyond all reasonable doubt for the charges under Sections 302 and 341 I.P.C. against A-1 to A-3, and 341 read with 34 I.P.C. against A-5 to A-7 beyond all reasonable doubt and whether there are any compelling and substantial reasons to interfere with the order of acquittal?”


10.     POINTS:- Learned Public Prosecutor contended that P.Ws.1 and 2 are the direct witnesses to the incident and their presence at the scene of occurrence is found to be acceptable; that basing on the evidence of eye witnesses coupled with the opinion of the Finger Print Expert – P.W.19, the prosecution proved its case beyond all reasonable doubt and hence, he prays to set aside the impugned judgment and convict the accused.
11.     On the other hand, learned counsel appearing for the respondents contended that P.Ws.1 and 2 are not eye witnesses to the incident and there is no other evidence to show that the accused are the assailants of the deceased; that opinion of P.W.19 does not lead to draw an inference that it is the accused, who committed the murder of the deceased, and the trial Court, after considering the evidence on record, rightly acquitted the accused as there are no compelling and substantial reasons and the order of acquittal needs no interference by this Court and hence, they pray to sustain the impugned judgment. 
12.     Ordinarily, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal.  The court of appeal is required to take into consideration the reasons given by the trial Court in passing the judgment of acquittal very carefully, and if such reasons are consistent with the evidence, as a matter of prudence, this Court should not interfere with the impugned judgment by                                 re-appreciating the evidence and to take some other view.  

(A) In Chadrappa v. State of Karnataka[1]

wherein it is held thus:

“From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge.


(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4)   An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

(5)   If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court.”


13.     It is not in dispute before this Court that P.W.1 is the Farm Servant of the deceased.   A-1 and A-2 are the brothers of the deceased and A-3 is her elder daughter, who is the wife of A-1.  
P.W.1 admitted that he was residing in Harijanawada along with his wife and two children.  
The incident is alleged to have taken place at about 11 p.m.  
In view of the fact that he is having wife and children, in normal circumstances, P.W.1 would have been present at his house.  If he was present at his house, there was no scope or possibility for him to witness the incident.  
He had not given any convincing reason for staying in the upstairs of the house of the deceased on the fateful day of the incident.  
Therefore, that is the reason why the trial Court doubted his presence.

14.     P.W.2, who is the brother of P.W.1, did not speak about the presence of P.W.1 at the house of the deceased.  
P.Ws.3 to 5, who are the neighbourers rushed to the scene of occurrence, did not support the case of the prosecution.  
They were declared as hostile to the prosecution.  
Even after cross examination by the learned Public Prosecutor, nothing has been elicited in their evidence to connect the accused with the crime.  
P.W.2 admitted that he was residing in Harijanawada, which is at a distance of two furlongs from the house of the deceased.  
There is no other acceptable reason for P.W.2 to be present at the house of the deceased.  
Further, when his house is located at a distance of two furlongs from the house of the deceased, it is not possible for him to hear the commotion or cries from the house of the deceased.

15.     Barring the evidence of P.Ws.1 and 2, there is no other evidence to show that the accused were the assailants of the deceased.  
It is the evidence of P.Ws.1 and 2 that after P.Ws.2 to 5 came to the spot and some other villagers came there, A-1 and A-2 ran away from the scene of occurrence.  If that is the case, again, A-1 and A-2 obstructing P.W.1 from taking the deceased to the hospital does not arise.  
It is the case of the prosecution that P.Ws.1 to 5 had taken the injured to the road and stopped the auto of P.W.12 and lifted the injured into the auto.  But P.W.12 did not support the case of the prosecution.  
If really they were present at the scene of occurrence and had taken the deceased in the auto of P.W.12 to the hospital, there was no explanation from the case of the prosecution as to how the dead body of the deceased was found lying in between the two railway stations.  That means, P.Ws.1 to 5 are not eye witnesses to the incident.  If really the accused had taken the injured high handedly in the auto with a view to take her to the hospital, nothing prevented P.Ws.1 and 2 to lodge a complaint. 

16.     The other circumstance is 
the evidence of P.W.19 with regard to the taking of the chance prints at the scene of occurrence. 
According to P.W.19, he developed chance prints at the scene of occurrence.  
On 16.12.2006, he received finger print slips of the accused along with a requisition letter from the police for comparison with the chance prints. 
The evidence of P.W.19 appears to be incorrect because Ex.P-21 report does not reveal about the lifting of chance prints and it does not give the detailed data.  
He has not sent the developed photographs of the chance prints either to the Court or to the concerned police.  He retained with him.  
The receiving of fingerprint slips from A-1 to A-3 appears to be false because P.W.20 had stated that on 14.12.2006, P.W.19 obtained fingerprints of A-1 to A-3 in the Court hall, which is contradictory to the evidence of P.W.19.  
It is in evidence that on 16.12.2006, he received the fingerprints of A-1 to A-3.  
Therefore, in view of these contradictory statements, no reliance can be placed on the evidence of P.W.19 and Ex.P-21.  Therefore, the trial Court rightly acquitted the accused and that order needs no interference by this Court.

17.     In the result, the appeal is dismissed confirming the judgment, dated 15.05.2008, in Sessions Case No.102 of 2007 on the file of the VI Additional District and Sessions Judge, (Fast Track Court), Tirupathi.

18.     Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.
                             ___________________

                                                             JUSTICE K.C.BHANU


____________­­­________________________

JUSTICE CHALLA KODANDA RAM



17th July, 2013                            
AMD

                         

                         

                         


                     



AMD




[1] (2007) 4 SCC 415

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

cancellation of the sale deeds = Under the Registration Act, 1908 and the Rules framed thereunder, which provide that registration/cancellation of document is only with reference to the executant and the claimant under a document, which is already registered. Petitioner, being a third party, is, therefore, not entitled to approach the registering authority and seek cancellation of the documents executed by third party in favour of any other party. Petitioner’s reliance upon Rule 26 of the Rules framed under the Registration Act is also misconceived inasmuch as Rule 26(k)(i) of the Rules specifically refer to the duty of the registering authority to ensure that the deed of cancellation is executed by all the executants and the claimants, who are parties to previously registered document and only on mutual consent a deed of cancellation can be registered. Since petitioner is not a party to the impugned sale transactions between two different individuals, he is not entitled to seek cancellation thereof and in any case, the petitioner does not satisfy even the requirement of Rule 26, referred to above.