302 I.P.C. - Circumstantial evidence - not established - trial court rightly acquit the accused - their lordship of High court dismissed the state appeal = PETITIONER RESPONDENT THE STATE OF A.P. VS NATTA YESUPADAM AND 2 OTHERS=2014(Feb.Part ) http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CRLA&mno=109&year=2014

302 I.P.C. - Circumstantial evidence - not established - trial court rightly acquit the accused - their lordship of High court dismissed the state appeal =
When appellant court disturb the lower court judgement =
SIDHARTHA VASHISHT @ MANU SHARMA VS. STATE (NCT OF DELHI)[1], the following principles have to be kept in mind by the Appellate Court while dealing with the 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.
Circumstantial evidence =
There is no direct evidence to show that the accused are the assailants of the deceased.  The entire case rests upon circumstantial evidence. When a case rests upon circumstantial evidence, law is well settled that all the circumstances must firmly and unerringly point out the guilt towards the accused; that all the circumstances if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else.
If accused too of that same blood group ?
As seen from Ex.P17, which is the Forensic Science Laboratory report the clothes of the deceased were also sent to the same laboratory and ‘B’ group of blood was found on the clothes. But there is no evidence to show that the blood group of A2 and A3 is also same blood group. If the blood group of A2 and A3 is also same, it cannot be incriminating against the accused. Therefore, it is a neutral circumstance and it cannot be taken as an incriminating circumstance against the accused.
Scene of offence not visible 
but on their own admission it is clear that it is not possible for them to see any person coming down from the rooftop of the church from the place where they were sleeping; that there was a delay of seven hours in lodging the report to the police though Police Station is located at a distance of 2 Kms., from the scene of occurrence; that Ex.P1 was brought into existence after due deliberations and if the evidence of PWs.1 and 2 is disbelieved, there is no other evidence to show that A2 and A3 are the assailants of the deceased and that after giving cogent and substantial reasons the trial Court rightly acquitted them and that order of acquittal needs no interference by this Court.


2014(Feb.Part ) http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CRLA&mno=109&year=2014

CRLA 109 / 2014
CRLASR 31093 / 2008
PETITIONERRESPONDENT
THE STATE OF A.P.  VSNATTA YESUPADAM AND 2 OTHERS
PET.ADV. : PUBLIC PROSECUTORRESP.ADV. : 
SUBJECT: U/s.302 I.P.C AcquittalDISTRICT:  PRAKASAM


HON'BLE SRI JUSTICE K.C. BHANU

AND
HON’BLE MRS JUSTICE ANIS
                                              

CRIMINAL APPEAL No.109 OF 2014


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 by the State against the judgment, dated
05-02-2008, in Sessions Case No.241 of 2006 on the file of the VII Addl. Sessions Judge, Prakasam division, Ongole, whereunder and whereby, the respondents/A2 and A3 were acquitted of the charges leveled against them.

2.      The brief facts that are necessary for the disposal of the present appeal may be stated as follows:
Natta Veera Kumar (hereafter referred to as ‘the deceased’) is no other than the husband of PW1. PW2 is the mother, PW3 is the neighbourer and PWs.4 and 5 are closely related to the deceased. The accused and the deceased belonged to Peda Maddali Village of Pamarru mandal of Krishna District. All of them settled at Jaya Prakash Colony in Ongole. A1 and A2 constructed a church, which is named as Navajeevana Sahavasa Prardhana Mandiram and they were preaching to the disciples. To the east of the said church the deceased purchased a house site. A1 was having a site on the east of the site of the deceased. On mutual understanding they exchanged the sites. A1 constructed a house to the east of the Church, whereas the deceased constructed a house with sheets roof to the east of the house of A1. The church was facing towards east, whereas the house of A1 and the house of the deceased were facing towards north. Due to indecent behaviour of A1, the devotees removed him as pastor and so A2 was managing the church. The image of A1 was decreased and the image of the deceased was increased in that locality. So, it became eyesore to A1. A1 and A2 were suspecting that the deceased might capture the church due to his popularity and so they developed grudge against the deceased and were waiting for an opportunity. All the accused conspired together to do away the life of the deceased. In pursuance of their conspiracy A3 took the deceased to the rooftop of the church on the night of 04-06-2004 at about 10:30 PM for the purpose of sleeping. On 05-06-2004 at about 5:00 AM, A1 to A3 went to the top of the church, where the deceased was sleeping and attacked the deceased. The deceased made hue and cry and then died in a pool of blood at the place where he was sleeping. On hearing the cries of the deceased, PWs.1 to 3 and others rushed to the scene of occurrence and saw A1 to A3 coming down from the church. At that time, A1 was armed with an axe. When PWs.1 to 3 went to the scene of occurrence, they found the deceased lying in a pool of blood. On the next day, at about
12:00 noon, PW1 went to the Police Station and lodged a report. The police registered a case in Crime No.203 of 2004 for the offence punishable under Section 302 r/w.109 IPC.
The Inspector of Police visited the scene of occurrence and observed the scene in the presence of mediators. During the course of investigation, he seized the blood stained slab portion, controlled slab portion, pieces of bed sheet, pillow cover etc.,. He prepared rough sketch of scene of occurrence and got photographed the scene of occurrence. Thereafter he held inquest on the dead body of the deceased in the presence of mediators. After inquest the dead body of the deceased was subjected to post mortem examination. On 15-06-2004 at about 4:45 PM the Inspector of Police arrested the accused and in pursuance of their confessional statements the bloodstained clothes were seized from the bushes near V.V. & M College, Ongole under a cover of panchanama. The material objects were sent to the chemical examination. After completion of investigation the police filed charge sheet.
In view of the fact that A1 was absconding the case against A1 was split up and separated.

3.      The trial Court framed the charges under Sections
120-B, 302 r/w.120-B or 302 r/w.109 IPC against the accused. When the said charges were read over and explained to A2 and A3 in Telugu, they pleaded not guilty and claimed to be tried.

4.      To substantiate the charges, the prosecution examined P.Ws.1 to 12 and got marked Exs.P-1 to P-17, besides case properties M.Os.1 to 15.
5.      After closure of prosecution evidence, A2 and A3 were examined under Section 313 Cr.P.C. to explain the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same and reported no oral evidence on their behalf. But, Ex.D1 was got marked on behalf of the defence.

6.      The trial Court upon considering the evidence on record, found that the prosecution failed to establish the guilt of A2 and A3 beyond all reasonable doubt and it has not placed any reliance on the evidence of PWs.1 and 2, and accordingly, acquitted A2 and A3. Challenging the same, the present appeal is preferred by the State.

7.      The points for determination are:
Whether the prosecution proved its case beyond all reasonable doubt with regard to the charges leveled against A2 and A3 and whether the judgment of the trial Court is correct, legal and proper or not?

8.      POINTS:-   The learned Additional Public Prosecutor contended that PWs.1 and 2 are the natural witnesses who rushed to the scene of occurrence immediately after the incident and their evidence is clear that they saw A1 to A3 coming down from the rooftop of the church in the early hours of the date of incident and at that time A1 was armed with an axe and they hurriedly left the scene of occurrence, and therefore, this circumstances would conclusively establish that it is the accused who committed the murder of the deceased; that without properly appreciating the evidence on record the trial Court acquitted A2 and A3; that the death of the deceased is established as homicidal in nature and the Doctor who conducted autopsy has categorically stated that the death of the deceased was due to injuries on the neck.

9.      On the other hand, learned counsel for the second respondent/A2 contended that the entire case rests upon solitary circumstance of PWs.1 and 2 seeing A1 to A3 coming down from the rooftop of the church in the early hours on the date of incident, but on their own admission it is clear that it is not possible for them to see any person coming down from the rooftop of the church from the place where they were sleeping; that there was a delay of seven hours in lodging the report to the police though Police Station is located at a distance of 2 Kms., from the scene of occurrence; that Ex.P1 was brought into existence after due deliberations and if the evidence of PWs.1 and 2 is disbelieved, there is no other evidence to show that A2 and A3 are the assailants of the deceased and that after giving cogent and substantial reasons the trial Court rightly acquitted them and that order of acquittal needs no interference by this Court.

10.    There cannot be any dispute that in dealing with the Criminal Appeal against the order of acquittal, though Appellate Court has got full power to re-appreciate the evidence available on record, still it will be slow in interfering with the findings in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved by the prosecution beyond all reasonable doubt and that presumption of innocence is further strengthened by an order of acquittal.  Unless there are compelling or substantial reasons viz., the findings are perverse, or not based upon any evidence, or admissible evidence has not been taken into consideration, or inadmissible evidence was taken into consideration, ordinarily this Court would not interfere with the same. In short, there must be compelling or substantial reasons for interfering with the order of acquittal.  In view of the decision reported in SIDHARTHA VASHISHT @ MANU SHARMA VS. STATE (NCT OF DELHI)[1], the following principles have to be kept in mind by the Appellate Court while dealing with the 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.

Keeping the above principles in mind, it is to be seen whether there are any compelling or substantial reasons to interfere with the judgment of the trial Court. 

11.    PW12 is the Inspector of Police who conducted inquest on the dead body of the deceased in the presence of mediators under Ex.P4. The inquest mediators opined that the deceased died as a result of injuries on the neck. PW10 is the Doctor who conducted autopsy on the dead body of the deceased found two cut injuries on the right side of the neck and three abrasions on the other parts of the body. The Doctor opined that the deceased died due to shock and hemorrhage as a result of ante-mortem injuries on the neck. Ex.P13 is the post mortem examination report. The opinion expressed by the Doctor remained unchallenged. From the evidence of PWs.10 and 12 and the recitals in Exs.P4 and P13, the homicidal nature of the death of the deceased is established.

12.    There is no direct evidence to show that the accused are the assailants of the deceased.  The entire case rests upon circumstantial evidence. When a case rests upon circumstantial evidence, law is well settled that all the circumstances must firmly and unerringly point out the guilt towards the accused; that all the circumstances if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. All the circumstances should not only consistent with the case of prosecution but also should be inconsistent with the hypothesis of the guilt of the accused. On this aspect, it is pertinent to refer to a decision reported in Sharad Birdhichand Sarda Vs. State of Maharashtra[2] wherein it is held at para No.153 as under:
         “A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

      It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made :
      "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there   must  be a chain of evidence so complete as not to leave
     any  reasonable  ground for the conclusion consistent with the    
     innocence  of  the  accused  and  must show that in all human   
     probability the act must have been done by the accused.


13.    Three circumstances relied upon by the prosecution are namely 1) The accused were last seen alive were coming down from the rooftop of the church and the dead body of the deceased was found in the pool of blood on the rooftop of the church.
2) The blood-stained clothes of the deceased were seized at their instance which contained same blood group of the deceased.
3) The homicidal nature of the death of the deceased. 

14.    The homicidal nature of the death of the deceased is established. In pursuance of the disclosure statement made by the accused, bloodstained clothes have been seized. They were sent to the Forensic Science Laboratory and the report of Forensic Science Laboratory shows that it contains ‘B’ group blood. As seen from Ex.P17, which is the Forensic Science Laboratory report the clothes of the deceased were also sent to the same laboratory and ‘B’ group of blood was found on the clothes. But there is no evidence to show that the blood group of A2 and A3 is also same blood group. If the blood group of A2 and A3 is also same, it cannot be incriminating against the accused. Therefore, it is a neutral circumstance and it cannot be taken as an incriminating circumstance against the accused.
15.    The only circumstance remained on record is PWs.1 and 2 saw A1 to A3 coming down from the rooftop of the church. They saw them at about 5:00 AM on 05-06-2004. PWs.1, 2, 4 and 5 are closely related to the deceased. PW1 is the wife, PW2 is the mother, PW4 is the brother and PW5 is the brother-in-law, of the deceased respectively. They did not speak anything with regard to the motive for A1 to A3 to commit the murder of the deceased. On the other hand, their evidence would clearly go to show that A2 and A3 were in cordial terms with the deceased prior to the incident. Therefore, the prosecution has failed to establish the motive. No doubt, motive is not an integral part of the crime but at the same time motive plays an important role when a case rests upon circumstantial evidence.

16.    PW3 who is a neighbourer and who saw A1 to A3 coming down from the rooftop of the church building did not support the case of the prosecution. Except marking his statement as in Ex.P2 nothing has been elicited in his cross-examination to connect A2 and A3 with the crime. Therefore, the evidence of PW3 is not at all relevant for the purpose of proving the charge leveled against the accused.

17.    The trial Court has not placed any reliance on the evidence of PWs.1 and 2 because it is not possible for them to see the place through which A1 to A3 were coming down from rooftop, from the place where they were sleeping. The scene of occurrence is not in dispute. PW6, one of the panch witnesses who was present at the time of observing the scene of occurrence, has categorically stated that the dead body of the deceased was found lying in a pool of blood on the roof of the church building. It is not in dispute that the church is facing towards east, whereas the house of PWs.1 and 2 is facing towards north. It is admitted by PWs.1 and 2 that it is not possible for them to see any person coming down from the church from the place where they were sleeping. Therefore, on their own admission, it is clear that it is not possible for them to see A2 and A3 coming down from the rooftop of the church building. So, that is the reason why the trial Court has not placed an implicit reliance on the evidence of PWs.1 and 2. If really, they had seen A2 and A3 coming down from the church, either one of them must have gone to the Police Station, which is situated at a distance of 2 Kms. from the scene of occurrence. No explanation is forthcoming as to why PW1 did not go to Police Station for lodging the report immediately after the incident. The delay in lodging the report by itself is not a ground to over throw the case of the prosecution. But, at the same time, it can be taken as one of the circumstances to doubt the case of the prosecution. After the relations came to the scene of occurrence PW1 went to Police Station and lodged report. Therefore, till 12:00 noon on the date of the incident, PW1 might not have known as to the assailants of the deceased and perhaps that is the reason why the delay of 7 hours had taken place.

18.    If the evidence of PWs.1 and 2 is disbelieved, there is no other evidence to show that A2 and A3 are the assailants of the deceased. The trial Court after recording the reasons disbelieved the evidence of PWs.1 and 2 and there are no compelling or substantial reasons to interfere with the same. None of the finding is shown to be perverse or contrary to the weight of evidence. Therefore, in the absence of any perverse findings, the well reasoned judgment of the trial Court needs no interference by this Court and the appeal is devoid of merits.

19.    Accordingly, the Criminal Appeal is dismissed confirming the judgment, dated 05-02-2008, in Sessions Case No.241 of 2006 on the file of the VII Addl. Sessions Judge, Prakasam division, Ongole.

20.    Miscellaneous petitions, if any, pending in this appeal shall stand closed.

                     ______________________

JUSTICE K.C. BHANU


____________­­­___

                                                           JUSTICE ANIS

January 22, 2014
PN

 

 

HON'BLE SRI JUSTICE K.C. BHANU

AND
HON’BLE MRS JUSTICE ANIS
































CRIMINAL APPEAL No.109 OF 2014



January 22, 2014



PN


[1] 2010 (6) SCC 1
[2] AIR 1984 SC 1622

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