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Monday, March 10, 2014

Murder -Un creditworthy injured eye witness - Delay in filing complaint to police - absence of Injuries on the body of injured eye witness - absence of light how the injured eye witness identified the accused - Motive for offence not supported by independent evidence - Non- Recovery of bed, bed sheet, pillow etc., - unnatural conduct of injured eye witness/wife after the incident - their lordships of High court held that Though the existence of an injured eye witness is an important factor to be taken into account, and would help the prosecution to bring the accused close to the crime, we find that the evidence of PW-2 does not command the required amount of credibility and acceptability. It is not at all safe to convict the accused on the basis of untrustworthy account of a witness, who is none other than the wife of the deceased. In the result, the Criminal Appeal is allowed. The conviction and sentence ordered in S.C.No.148 of 2008 on the file of the I Additional Sessions Judge, Mahabubnagar, dated 28-08-2009, against the appellant, are set aside. = Vemula Jagadish..appellant The State of A.P. Rep. by its Public Prosecutor, High Court of A.P...Respondent = 2014 (Feb. Part) judis.nic.in/judis_andhra/filename=10933

Murder - Un creditworthy injured eye witness - Delay in filing complaint to police - absence of Injuries on the body of injured eye witness - absence of light how the injured eye witness identified the accused - Motive for offence not supported by independent evidence - Non- Recovery of bed, bed sheet, pillow etc., - unnatural conduct of injured eye witness/wife after the incident - their lordships of High court held that Though the existence of an injured eye witness is an important factor to be taken into account, and would help the prosecution to bring the accused close to the crime, we find that the evidence of PW-2 does not command the required amount of credibility and acceptability.  It is not at all safe to convict the accused on the basis of untrustworthy account of a witness, who is none other than the wife of the deceased. In the result, the Criminal Appeal is allowed.  The conviction and sentence ordered in S.C.No.148 of 2008 on the file of the I Additional Sessions Judge, Mahabubnagar, dated 28-08-2009, against the appellant, are set aside. =

Delay in lodging complaint

The submission of Ex.P-1 at 8:00 a.m. in the morning of
14-09-2007 is an important factor, to be taken into account.
The incident occurred at 10:30 p.m. of the preceding day.  Even if PWs 1 and 2
cannot be expected to inform the Police during the night, they could have
availed the earliest opportunity, to intimate the incident to the Police on the
next morning.  It was not necessary for them to physically hand over the
complaint to the police.  Even a telephonic message would have served the
purpose.  Ex.P-1 was submitted only at 8:00 a.m. on the next day i.e. 14-09-
2007.
In between, plenty of time was available to think over the matter,
in the context of providing missing links, if any, to connect the accused with
the incident.
Motive no support evidence
She contends that
no independent witness has spoken about the allegation pertaining to the motive
of the accused to commit the murder of the deceased.

Identification of accused is doubtful
It is her specific case that she identified the accused in the light of the
electric bulb in the premises.  However, her evidence is not clear as to whether
the light emanated from any bulb, in their house, or any street light in the
neighbourhood or vicinity.  To a specific question put to her, in the cross-
examination, in this behalf, she replied,

"...I did not give any documentary evidence to show that there was electricity
supply to our house...  It is not true to suggest that there was no electricity
supply and light to our house in those days and that I deposed false in the said
context also..."

PW-13 was working as Assistant Sub-Inspector of Police, when the incident had
occurred.  He is the person, who went to the spot on receiving the complaint;
recorded the statements of PW-2 and other witnesses; conducted the inquest over
the dead body of the deceased, and prepared the scene of offence panchanama. 
When asked about the source of light, during the night, at that place, he
stated,

"...There is no mention in Ex.P-1 that in the illuminating light of electric
bulb, PW-2 saw the accused at the time of alleged offence.  Witness volunteers
that it was stated by witness in her 161 Cr.P.C. statement.   There is no
mention in the inquest about the existence of such light.  It is not mentioned
in the scene of offence panchanama about existence of electricity poles, wire,
bulb, electricity connection etc., to the house of the deceased..."
Similar answer was given by PW-14, the Investigating Officer.  
Therefore, the
very identification of the accused, by PW-2, becomes doubtful.  If the incident
has taken place at 10:30 p.m., and if there was illumination in the Verandah, or
in the surroundings, it becomes highly improbable that PW-2 was asleep by that time, and was able to identify any one, soon after she woke up.=

Unnatural reaction of Eye Witness
PW-2 further stated that soon after noticing the death of her husband, the
deceased, and herself receiving injuries,
she raised hue and cry and ran to the house of PW-5, where her son PW-1 was  
sleeping.  This appears to be not a natural reaction or event.  The reasons are:
a) PW-5's house is about 150 yards away from the place of occurrence, b) the
houses of PWs 3 and 4; the brother of the deceased, PW-7, are in the immediate neighbourhood of about 30 yards, and c) even according to PW-2 several persons were there in the
vicinity, and when a ghastly incident like murder takes place, just on the
hearing of it, the persons in the neighbourhood would gather.  The very fact that PW-2 did not
speak of the presence of any third party, but has gone straightaway to her son,
PW-1, where he was sleeping in the house of his friend, PW-5, at a distance of
150 yards; presents something unnatural.=
Non - Recovery of Bed , Bedsheet and Pillow etc., and Absence of blood stains and injuries of Eye Witness 
The death of the deceased occurred on account of a blow with an axe.  The axe is
said to have been recovered and is marked as MO-1.  The shirt and towel of the
deceased were taken on record, as MOs 2 and 3.  However, no part of the bed,
such as bed sheet, the cot, pillow were taken as MOs.  The major quantity of the
blood would have accumulated on the bedding, and failure of the prosecution to
collect the clothes on the bed, and to send them for examination by Forensic
Science Laboratory is certainly a lapse on the part of the prosecution.

PW-2 stated that she too received injuries in the hands of the accused, that
too, with the same material objective.  The Doctor, PW-12, who treated her,
stated that he did not notice any stains of blood on her.  In case PW-2 was
sleeping by the side of the deceased, and the deceased died on a stroke of axe,
his blood would certainly have spilled on PW-2.  If she received an injury with
an axe, blood is bound to come out.  The record discloses that there were no
stains on the clothes of PW-2, either of her own blood or the blood of the
deceased. =

Though the existence of an injured eye witness is an important factor to be
taken into account, and would help the prosecution to bring the accused close to
the crime, we find that the evidence of PW-2 does not command the required
amount of credibility and acceptability.  It is not at all safe to convict the
accused on the basis of untrustworthy account of a witness, who is none other
than the wife of the deceased.

In the result, the Criminal Appeal is allowed.  The conviction and sentence
ordered in S.C.No.148 of 2008 on the file of the
I Additional Sessions Judge, Mahabubnagar, dated 28-08-2009, against the
appellant, are set aside. 
2014 (Feb. Part) judis.nic.in/judis_andhra/filename=10933

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K.JAISWAL                    

Criminal Appeal No.1203 of 2009 

10-02-2014 

Vemula Jagadish..appellant 

The State of A.P. Rep. by its Public Prosecutor, High Court of A.P...Respondent

Counsel for the appellant: Smt. A. Gayatri Reddy

Counsel for the Respondent: Addl. P.P.
                                                
<GIST: 

>HEAD NOTE:    

?Cases referred

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY          

AND  

THE HON'BLE SRI JUSTICE M.S.K. JAISWAL       


Criminal Appeal No.1203 of 2009 


JUDGMENT:  (Per the Hon'ble Sri Justice L. Narasimha Reddy)  

        
The sole accused in S.C.No.148 of 2008 on the file of the
I Additional Sessions Judge, Mahabubnagar filed this appeal, feeling aggrieved
by the judgment dated 28-08-2009, rendered therein.  The accused was tried for
the offence under Section 302 I.P.C. for committing the murder of one Sri
Cheerala Keshavulu, 
on 13-09-2007.  Sentence of imprisonment for life and fine of Rs.100/- was
imposed.  He was also tried for the offence under Section 324 I.P.C. for causing
injuries to the wife of the deceased, PW-2;
and found guilty of the same.  Sentence of rigorous imprisonment for one year
and fine of Rs.100/- was imposed for that offence.

The case of the prosecution was that the deceased was a shepherd by profession 
and the accused has enmity with the deceased on the ground that the latter used
to make his sheep to graze in the field of the former, despite the objection.
It was also alleged that a tamarind tree in the agricultural land of the accused
withered away all of a sudden, and he suspected the accused of doing sorcery,
and on verification, he came to know that many persons became victims of the
sorcery performed by the deceased.  A child of the brother of the accused, by
name, Shiva Prasad, is said to have fallen seriously ill and died within a
month, and in that context, the deceased was called to a place in the Village,
and there, the deceased is said to have given a blunt answer to the effect that
he would kill the other members of the family of the accused, one after the
other, in the same way.  Afraid of the sorcery by the deceased, the accused and
his mother are said to have migrated to a different place for livelihood and
that about 20 days prior to the incident, i.e. 13-09-2007, the mother of the
accused came back to their Village, Srirangapur and within two days after her
arrival, she is said to have got sores over the knees and her health condition
deteriorated, despite the treatment taken from an R.M.P in the Village.

The prosecution alleged that with the grievance and motive referred to above,
the accused went to the house of the deceased at 10:30 p.m. on 13-09-2007, armed 
with an axe and gave a blow on the right side of the neck of the deceased, while
he was sleeping in the Verandah of his house along with his wife, PW-2.
The deceased is said to have died on the spot, and that PW-2 identified the
accused, since there was light through electric bulb
in that house, at that time.  On the alarm raised by PW-2,
the accused is said to have caused injury to her, with the same axe, on the
right side of the chest, with an intention to kill her also,
but she is said to have fled away.  The son of the deceased and PW-2, i.e. PW-1,
was said to be sleeping in the house of his friend, PW-5, and that PW-2
immediately went to the house of PW-5 to inform about the incident to PW-1.
Complaint about this was given to the Police Station in the next day morning at
8:00 a.m., i.e.
14-09-2007 by PW-1 and Crime No.44 of 2007 was registered.  

The Station House Officer, PW-14, got the scene of offence panchanama drawn, 
caused inquest and post-mortem, and on the basis of the same, investigation was
conducted.  He filed the charge-sheet, alleging offences under Section 302
I.P.C., against both, the deceased, and 324  I.P.C., vis--vis PW-2.

Before the trial Court, PWs 1 to 14 were examined and Exs.P-1 to P-14 were
filed.  MOs 1 to 3 were taken on record.  The trial Court convicted and
sentenced the accused as indicated at the threshold of this judgment.

Smt. A. Gayatri Reddy, learned counsel for the accused submits that PW-2 was 
shown as the injured eye witness, but there are any number of improbabilities
and inconsistencies in her evidence.  She submits that though PW-2 stated that
she was able to identify the accused in the light of electric bulb, she admitted
that there is no electric supply for her house.  It is also pleaded that in the
scene of offence panchanama, no indication was given as to the existence of
electric wires or the bulb.  She contends that when PW-2 stated that there were
many persons in the neighbourhood, but she did not speak of the presence of any
of them.  It is also argued that though the house of the brother of the
deceased, PW-7, is in the immediate neighbourhood, the statement of PW-2, that 
she went to the house of PW-5 about 150 yards away from her house to inform her
son, PW-1, about the incident; is totally unbelievable, particularly, when PW-5
did not accompany them to the spot. 

Learned counsel further submits that the distance between the Village and the
Police Station is hardly 15 KMs and the FIR was submitted only at 8:00 a.m.  on
14-09-2007, i.e. about 10 hours after the alleged incident.  She contends that
no independent witness has spoken about the allegation pertaining to the motive
of the accused to commit the murder of the deceased.  Another plea of the
learned counsel is that though the deceased is said to have been killed, when he
was sleeping on the bed, neither any bed sheet, nor any other material of the
bed was alleged to be containing any stains of blood, nor they were marked as
MOs.  It is also pleaded that though PW-2 is said to have received injuries in
the hands of the accused, no stains of blood, either of her, or that of the
deceased, were found on the clothes or body of PW-2.

Learned Additional Public Prosecutor submits that PW-2,
the wife of the deceased, was not only the eye witness, but also sustained
injuries, and thereby, her evidence cannot be doubted
at all.  She contends that the accused had a clear motive to kill the deceased,
suspecting sorcery, and the prosecution has established a clear chain of
evidence, to connect the incident with the deceased.

The death of the deceased is said to have occurred at 10:30 p.m. on 13-09-2007.
PW-2, the wife of the deceased, stated that at the time of the incident, herself
and the deceased were sleeping on a bed in the Verandah of their house, in their
native village, and when she woke up on hearing the hue and cry, she found the
accused armed with an axe, and that a blow was already given upon the neck of
the deceased.  She further alleged that the accused caused injuries to her also.
It is her specific case that she identified the accused in the light of the
electric bulb in the premises.  However, her evidence is not clear as to whether
the light emanated from any bulb, in their house, or any street light in the
neighbourhood or vicinity.  To a specific question put to her, in the cross-
examination, in this behalf, she replied,

"...I did not give any documentary evidence to show that there was electricity
supply to our house...  It is not true to suggest that there was no electricity
supply and light to our house in those days and that I deposed false in the said
context also..."

PW-13 was working as Assistant Sub-Inspector of Police, when the incident had
occurred.  He is the person, who went to the spot on receiving the complaint;
recorded the statements of PW-2 and other witnesses; conducted the inquest over
the dead body of the deceased, and prepared the scene of offence panchanama. 
When asked about the source of light, during the night, at that place, he
stated,

"...There is no mention in Ex.P-1 that in the illuminating light of electric
bulb, PW-2 saw the accused at the time of alleged offence.  Witness volunteers
that it was stated by witness in her 161 Cr.P.C. statement.   There is no
mention in the inquest about the existence of such light.  It is not mentioned
in the scene of offence panchanama about existence of electricity poles, wire,
bulb, electricity connection etc., to the house of the deceased..."


Similar answer was given by PW-14, the Investigating Officer.  
Therefore, the
very identification of the accused, by PW-2, becomes doubtful.  If the incident
has taken place at 10:30 p.m., and if there was illumination in the Verandah, or
in the surroundings,
it becomes highly improbable that PW-2 was asleep by that time, and was able to
identify any one, soon after she woke up.

PW-2 further stated that soon after noticing the death of her husband, the
deceased, and herself receiving injuries,
she raised hue and cry and ran to the house of PW-5, where her son PW-1 was  
sleeping.  This appears to be not a natural reaction or event.  The reasons are:
a) PW-5's house is about 150 yards away from the place of occurrence, b) the
houses of PWs 3 and 4; 
the brother of the deceased, PW-7, are in the immediate neighbourhood of about
30 yards, and c) even according to PW-2 several persons were there in the
vicinity, and when a ghastly incident like murder takes place, just on the
hearing of it,
the persons in the neighbourhood would gather.  The very fact that PW-2 did not
speak of the presence of any third party, but has gone straightaway to her son,
PW-1, where he was sleeping in the house of his friend, PW-5, at a distance of
150 yards; presents something unnatural.

The death of the deceased occurred on account of a blow with an axe.  The axe is
said to have been recovered and is marked as MO-1.  The shirt and towel of the
deceased were taken on record, as MOs 2 and 3.  However, no part of the bed,
such as bed sheet, the cot, pillow were taken as MOs.  The major quantity of the
blood would have accumulated on the bedding, and failure of the prosecution to
collect the clothes on the bed, and to send them for examination by Forensic
Science Laboratory is certainly a lapse on the part of the prosecution.

PW-2 stated that she too received injuries in the hands of the accused, that
too, with the same material objective.  The Doctor, PW-12, who treated her,
stated that he did not notice any stains of blood on her.  In case PW-2 was
sleeping by the side of the deceased, and the deceased died on a stroke of axe,
his blood would certainly have spilled on PW-2.  If she received an injury with
an axe, blood is bound to come out.  The record discloses that there were no
stains on the clothes of PW-2, either of her own blood or the blood of the
deceased. 

PW-3 is the younger brother of the deceased.  He was very much in the Village,
when the incident is said to have taken place.  In his chief-examination, he
stated that he heard weeping of
PWs 1 and 2, went to the house of the deceased, and saw him in a pool of blood.
He, however, stated that due to fear, he left the said house and sat at a
distant place, and that he did not ask
PWs 1 and 2 as to how the deceased died, nor they have informed him about it.
This witness was declared hostile and was cross-examined by the Public
Prosecutor.  He was confronted with Ex.P-3, the portion of statement recorded
under 161 Cr.P.C.  PW-2 stated that on hearing the cries of herself and PW-1,
PW-3 came to the place of occurrence and she narrated the incident to him.
This does not accord with the evidence of PW-3.  Though PW-4 is said to have
reached the place of occurrence, on hearing the cries of PW-2, the presence of
this witness was not spoken to by PW-2.  PW-2 admitted that she did not inform
the police about the accused suspecting the role of the deceased, for his
becoming sick or death of his bulls.

PW-7 is one of the brothers of the deceased. He was examined, his evidence is
not much of help, since he was at Hyderabad on the day of incident.

The submission of Ex.P-1 at 8:00 a.m. in the morning of
14-09-2007 is an important factor, to be taken into account.
The incident occurred at 10:30 p.m. of the preceding day.  Even if PWs 1 and 2
cannot be expected to inform the Police during the night, they could have
availed the earliest opportunity, to intimate the incident to the Police on the
next morning.  It was not necessary for them to physically hand over the
complaint to the police.  Even a telephonic message would have served the
purpose.  Ex.P-1 was submitted only at 8:00 a.m. on the next day i.e. 14-09-
2007.
In between, plenty of time was available to think over the matter,
in the context of providing missing links, if any, to connect the accused with
the incident.

Though the existence of an injured eye witness is an important factor to be
taken into account, and would help the prosecution to bring the accused close to
the crime, we find that the evidence of PW-2 does not command the required
amount of credibility and acceptability.  It is not at all safe to convict the
accused on the basis of untrustworthy account of a witness, who is none other
than the wife of the deceased.

In the result, the Criminal Appeal is allowed.  The conviction and sentence
ordered in S.C.No.148 of 2008 on the file of the
I Additional Sessions Judge, Mahabubnagar, dated 28-08-2009, against the
appellant, are set aside.  The appellant shall be set at liberty forthwith,
unless his detention is needed in any other case.  The fine amount, if any, paid
by the appellant shall be refunded to him.

There shall be no order as to costs.
_______________________    
L. NARASIMHA REDDY, J.     
_______________________    
M.S.K. JAISWAL, J.  
Dt.10-02-2014

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