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Friday, April 11, 2014

Sec.302 IPC- DNA test - Once the DNA test did not yield any result - No conviction as no other evidence to prove that the body is that of victim - The confession itself does not accord with law atleast to a larger extent. - conviction by trial court is set aside - their Lordships of High court held that Once the DNA test did not yield any result, it cannot be said that the prosecution proved that the mortal remains that were recovered on exhuming the dead body, at the place shown by the accused are that of the deceased. This finding is sufficient to hold that the accused cannot be held guilty of the offence alleged against him.= Gandham Ravi, S/o.Shankaraiah, Aged about 21 years, R/o.Kothapalli, Ramagundam Mandal, Karimnagar District,.... Appellant State of Andhra Pradesh Rep. by its Public Prosecutor, High Court of A.P.Hyderabad.... Respondents = 2014(March. Part ) judis.nic.in/judis_andhra/filename=11088

Sec.302 IPC- DNA test - Once the DNA test did not yield any result - No conviction as no other evidence to prove that the body is that of victim - The confession itself does not accord with law
atleast to a larger extent. - conviction by trial court is set aside - their Lordships of High court held that Once the DNA test did not yield any result, it cannot be said that the prosecution proved that the mortal remains that were recovered on exhuming the dead body, at the place shown by the accused are that of the deceased.  This finding is sufficient to hold that the accused cannot be held guilty of the offence alleged against him.=

The corpus delecti is said to have been recovered after exhuming it at a place
shown by the accused.  
Two factors assume importance in this regard. 
First is
the proof that what was exhumed is the mortal remains of the deceased and 
the
second is that the accused caused the murder of the deceased.  
The prosecution
recovered certain bones hardly with any traces of flesh upon them. 
An attempt
was made to prove that those remains are that of the deceased.  
For that
purpose, the blood sample of the father of the deceased was taken. 
Parts of
skeleton, and the blood sample were sent to the Forensic Science Laboratory.
The report thereof is filed as Ex.P.7.  
The result mentioned therein reads as
under:
"DNA is extracted from item Nos.1, 7 and 14 and subjected to Autosomal STR  
analysis by using indentifiler kit.  
There is no proper amplification of DNA in item nos.1 and 7.
DNA could not be extracted from item nos.2, 8, 9, 10 and 11.
DNA profile of item nos.1, 7 are necessary to compare with the DNA profile item
no.14.
Hence, no result/conclusion can be given."

Once the DNA test did not yield any result, it cannot be said that the
prosecution proved that the mortal remains that were recovered on exhuming the
dead body, at the place shown by the accused are that of the deceased.  This
finding is sufficient to hold that the accused cannot be held guilty of the
offence alleged against him.

Even if there is any doubt about the identity of the mortal remains recovered at
the instance of the accused, the conviction against him can be upheld, if there
exists any other evidence to prove the murder of the deceased.

As observed in the preceding paragraphs, the prosecution relied exclusively upon
the confession of the accused.  The confession itself does not accord with law
atleast to a larger extent.

Viewed from any angle, we do not find any basis for holding that the accused is
guilty of committing the offence of murder of the deceased Laxminarayana.
        
In the result, the Criminal Appeal is allowed. 
2014(March. Part ) judis.nic.in/judis_andhra/filename=11088
THE HONOURABLE SRI JUSTICE L. NARASIMHA REDDY and THE HONOURABLE SRI JUSTICE M.S.K.JAISWAL      
                   

CRIMINAL APPEAL No.1637 of 2009    

06-03-2014

Gandham Ravi, S/o.Shankaraiah,   Aged about 21 years, R/o.Kothapalli,
Ramagundam Mandal, Karimnagar District,.... Appellant

State of Andhra Pradesh Rep. by its Public Prosecutor, High Court of
A.P.Hyderabad.... Respondents

Counsel for the Appellant: SRI Y. HYMA KUMAR  

Counsel for Respondent: PUBLIC PROSECUTOR      

<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.1637 of 2009    

JUDGMENT: (Per LNR,J)  

        The sole accused in S.C.No.109 of 2009 on the file of the III Additional
Sessions Judge, Karimnagar, filed this appeal, feeling aggrieved by the
conviction and sentence ordered against him by the trial Court through judgment
dated 24.09.2009.

The prosecution against the accused commenced with the submission of a
complaint-Ex.P.1 by P.W.1 before the Station House Officer, Medaram Police
Station. P.W.1 complained that his brother Laxminarayana, the deceased, was
involved in a case of theft of iron scrap in the limits of Bellampalli Police
Station and the accused herein, his cousin brother, is also involved in the said
case. All the accused therein were said to be attending the Court at Asifabad
now and then. On 12.12.2005, the accused and the deceased were said to have
attended the Court and thereafter, proceeded to the house of their maternal aunt
and thereafter, to the house of their maternal grand mother but ever since then,
the whereabouts of the deceased were not known. He suspected the involvement of
the accused for the disappearance of his brother and prayed for action in that
behalf.

        A case was registered and is said to have been handed over to C.I of
Police-P.W.15.  In the course of investigation, the accused is said to have been
nabbed and that he has confessed in the presence of P.Ws.11 and 14 that he
committed the murder of the deceased and buried the dead body at a particular
place.  The police and officials of the Revenue Department are said to have
followed the accused to a place shown by him and when it was dug, the skeleton
with shoes and clothes on it, is said to have been exhumed. Based upon the
result of the further investigation, charge sheet was filed and accordingly, a
charge was framed.

        To prove its case, the prosecution examined P.Ws.1 to 16 and Exs.P.1 to
P.15 were filed.  On behalf of the defence, though none was examined, Ex.D.1 was
filed.  M.Os.1 to 8 were also taken on record.

Through its judgment, dated 24.09.2009, the trial Court convicted the accused of
the offence punishable under Section 302 I.P.C. and sentenced him to undergo
imprisonment for life and to pay a fine of Rs.2,000/-, in default, to undergo
Rigorous Imprisonment for six months. He was also convicted of the offence
punishable under Section 201 I.P.C. and was sentenced to undergo Rigorous
Imprisonment for three years and pay fine of Rs.1,000/-, in default, to undergo
Rigorous Imprisonment for three months. Both the sentences were directed to run
concurrently.  Hence, this appeal.

Learned counsel for the appellant submits that the very submission of the
complaint by P.W.1 was 14 months after the so-called date of missing of the
deceased and except expressing some vague suspicion about the involvement of the
accused, no other facts were mentioned.  He contends that the confession said to
have been extracted from the accused is contrary to law and everything was
stage-managed. Learned counsel further submits that though the mortal remains
said to have been recovered at the instance of the accused, were sent for DNA
test, no result in favour of the prosecution has emerged and that would have
been sufficient for acquittal of the accused.

The learned Public Prosecutor, on the other hand, submits that the delay in
filing of the complaint was on account of the fact that P.W.1 was not sure as to
what happened to his brother and as long as it is not disputed that the accused
and the deceased were moving together, the finding recorded by the trial Court
cannot be found fault with.  He further submits that the procedure prescribed by
law was followed in the context of recording the confessional statement and the
recovery effected on the clues given by the accused would certainly clinch the
case against him.  As regards the result of the DNA test, the learned counsel
submits that the helplessness expressed by the Agency cannot be a factor to
doubt the truth of the case of the prosecution.

This is a typical case where a complaint in respect of a missing person was
submitted 14 months after the event.  Though P.W.1 made a mention that his
brother was missing since 14.12.2005, he did not state the measures said to have
been taken by him to trace him, till the complaint was submitted.  The person,
whom he suspected, is none other than his nephew, the son of his mother's
sister.  Even according to him, the deceased and the accused were together not
only in committing theft but also in moving to various places. Except that he
had a speculation about the enmity between those two, he did not suggest any
motive as such, that warranted the accused to put the brother of P.W.1 to death.

The entire case of the prosecution rested upon the confession said to have been
extracted from the accused.  Though the confession made before an official of
the Government cannot be ignored, in case there exist other independent
witnesses to prove it, failure to examine such witnesses would certainly dilute
the acceptability of the confession itself.  The record discloses that apart
from P.W.14, there were other independent witnesses for the alleged confession
of the accused.  However, those witnesses were not examined.

The corpus delecti is said to have been recovered after exhuming it at a place
shown by the accused.  Two factors assume importance in this regard. First is
the proof that what was exhumed is the mortal remains of the deceased and the
second is that the accused caused the murder of the deceased.  The prosecution
recovered certain bones hardly with any traces of flesh upon them. An attempt
was made to prove that those remains are that of the deceased.  For that
purpose, the blood sample of the father of the deceased was taken. Parts of
skeleton, and the blood sample were sent to the Forensic Science Laboratory.
The report thereof is filed as Ex.P.7.  The result mentioned therein reads as
under:
"DNA is extracted from item Nos.1, 7 and 14 and subjected to Autosomal STR  
analysis by using indentifiler kit.  There is no proper amplification of DNA in
item nos.1 and 7.
DNA could not be extracted from item nos.2, 8, 9, 10 and 11.
DNA profile of item nos.1, 7 are necessary to compare with the DNA profile item
no.14.
Hence, no result/conclusion can be given."

Once the DNA test did not yield any result, it cannot be said that the
prosecution proved that the mortal remains that were recovered on exhuming the
dead body, at the place shown by the accused are that of the deceased.  This
finding is sufficient to hold that the accused cannot be held guilty of the
offence alleged against him.

Even if there is any doubt about the identity of the mortal remains recovered at
the instance of the accused, the conviction against him can be upheld, if there
exists any other evidence to prove the murder of the deceased.

As observed in the preceding paragraphs, the prosecution relied exclusively upon
the confession of the accused.  The confession itself does not accord with law
atleast to a larger extent.

Viewed from any angle, we do not find any basis for holding that the accused is
guilty of committing the offence of murder of the deceased Laxminarayana.
        
In the result, the Criminal Appeal is allowed. The conviction and sentence
ordered in S.C.No.109 of 2009 on the file of the III Additional Sessions Judge,
Karimnagar, dated 24.09.2009, against the appellant-accused, are set aside. The
appellant-accused shall be set at liberty forthwith, unless his detention is
needed in any other case.  The fine amount, if any, paid by the appellant-
accused shall be refunded to him.
____________________  
L.NARASIMHA REDDY, J    
___________________  
M.S.K.JAISWAL,J  
Dt:  06.03.2014

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