innocuous omission amounting to contradiction - contradictory dying declarations - acquittal is correct = innocuous omission amounting to contradiction = It is well settled that an innocuous omission is inconsequential omission amounting to contradiction that militate against the meat or core of the prosecution case are alone material. - The statement made by the deceased to P.W.1, that the accused poured kerosene and set fire to her is clearly an improvement, which has not been stated by him when he was examined under Section 161(3) Cr.P.C. This omission cannot be brushed aside as insignificant. In view of that, no reliance can be placed on the evidence of P.W.1 to show that he is the eye witness to the incident.- When he questioned her sister, she stated that the accused suspected her character and poured kerosene and set fire to her. This aspect of the case has not been stated to police when he was examined by the police. Therefore, his statement that the accused poured kerosene and set fire to his sister is an improvement and that improvement cannot be brushed aside because it is an omission, which amounts to contradiction. Therefore, no reliance can be placed on the evidence of P.W.2. ; Contradictory dying declarations one is by constable another by JFCM - The other evidence, which remains on record, is the evidence of P.W.10, who recorded Ex.P4-statement of the deceased. No doubt, Ex.P4 would go to show that accused is the person, who poured kerosene and set fire to her. - Similarly, the deceased also gave dying declaration as in Ex.D6, which is recorded by D.W.1 (Judicial First Class Magistrate, Nellore). The deceased has categorically stated that she set fire to herself with a match stick. Therefore, the dying declaration recorded by P.W.10 and the dying declaration recorded by D.W.1 are contradictory to each other. If there are more than one dying declaration, they should be consistent particularly in material particulars. Where there was no such consistency and one dying declaration indicates that the incident was a suicide and other points a case of homicidal in nature, it is not possible to have a conviction basing on the dying declaration which is favourable to prosecution. If the dying declaration recorded by Judicial First Class Magistrate, Nellore is to be accepted, it is a clear case of suicide. When two views are reasonably possible in the evidence adduced by prosecution, the view in favour of accused should be adopted. Therefore, for that reason, the trial Court has given the benefit of doubt to the accused. In view of these contradictory dying declarations, it is not safe to place implicit reliance on Ex.P4, which is recorded by P.W.10 in the first instance. Hence, the trial Court rightly acquitted the accused and the said order needs no interference of this Court as there are no compelling and circumstantial reasons to interfere with the same. The Appeal is devoid of merits.

CRLA 614 / 2013

CRLASR 24138 / 2008

PETITIONER RESPONDENT THE STATE OF A.P., REP BY PP.,   VS SHAIK KHADER BASHA, PET.ADV. : PUBLIC PROSECUTOR RESP.ADV. :  SUBJECT: U/s.302 I.P.C Acquittal DISTRICT:  NELLORE

http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CRLA&mno=614&year=2013

HON'BLE SRI JUSTICE K.C. BHANU

AND

HON’BLE SRI JUSTICE CHALLA KODANDA RAM

CRIMINAL APPEAL No.614 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 by the State against the judgment, dated 15.11.2006, in Sessions Case No.30 of 2005 on the file of IV Additional Sessions Judge, Nellore, whereunder and whereby, the accused was acquitted of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “I.P.C.”).

2.      The brief facts that are necessary for the disposal of the appeal are stated as follows:

          Shaik Madar Bee (hereinafter referred as the ‘deceased’ in this case) was given in marriage to the accused about six months prior to 09.03.2003.  After marriage, the accused was addicted to drink alcohol and used to quarrel with his wife (deceased) suspecting her fidelity.  Unable to bear the harassment, the deceased went to her mother’s house at Golagamudi village on 07.03.2003.  The accused also followed her and they both stayed in the house of the mother of the deceased. 

On 09.03.2003 at about 7:30 p.m., the accused taking advantage of the loneliness of his wife at her mother’s house, picked up a quarrel with her, beat her and threatened her to kill her. Out of fear, the deceased ran towards the fields, but the accused, who determined to put an end to her life, picked up a kerosene tin, chased her and poured kerosene on her body when she was present at the fields of Nalagalla Subbaiah and set fire to her.  As a result, she sustained burn injuries and raised cries.  On hearing the cries, the neighbourers, who are present nearby the scene of occurrence, rushed to the scene of occurrence and on seeing them, the accused ran away.  The persons who rushed to the scene of occurrence extinguished the flames and shifted the deceased to the Government Hospital, Nellore for treatment. 

Basing on the statement of the deceased, a case in Crime No.32 of 2003, for the offence punishable under Section 307 I.P.C was registered by the police of Venkatachala Satram Police Station.  A requisition was given to the Magistrate and he recorded the statement of the deceased.  The deceased succumbed to the burn injuries on 15.03.2003 and then the section of law was altered from Section 307 to 302 I.P.C.  The Inspector of Police-P.W.12 held inquest on the dead body of the deceased.  Then, the body was subjected to postmortem examination.  The doctor, who conducted autopsy on the dead body of the deceased opined that the deceased died as a result of burn injuries.  Thereafter, the accused was arrested and sent to Court for judicial remand.  After completion of investigation, police filed the charge sheet.

3.      The trial Court framed the charge for the offence under Section 302 I.P.C against the accused.  When the above charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried.

4.      To substantiate the case of the prosecution, P.Ws.1 to 12 were examined and Exs.P.1 to P.11 were got marked besides the case properties M.Os.1 to 4.

5.      After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses.  He denied the same and got examined D.W.1, who was the then IV Additional Judicial Magistrate of First Class, Nellore and got marked Exs.D1 to D6.

6.      The trial Court upon considering the evidence on record, came to the conclusion that there was inconsistency in the two dying declarations and therefore, it is not safe to place an implicit reliance on the dying declaration recorded by the Head constable and accordingly, acquitted the accused.  

Challenging the same, the State preferred the present appeal.

7.      Now, the points for determination are:

Whether the prosecution proved its case beyond all reasonable doubt for the charge under Section 302 I.P.C against the accused and whether the judgment of the trial Court is correct, legal and proper or not?

8.      POINTS:-   The learned Additional Public Prosecutor appearing for the appellant/State contended that the evidence of P.W.1 and the dying declaration-Ex.P4 would go to show that it is the accused, who poured kerosene and set fire to the deceased and the dying declaration-Ex.P4 recorded by P.W.10 is not shown to be an outcome of tutoring or prompting by any of the relatives of the witnesses and therefore, she prays to set aside the conviction and sentence.

9.      This appeal is filed by the State challenging the order of acquittal.  Ordinarily, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by an order of acquittal.  So, in order to interfere with the order of acquittal, the prosecution must show that there are compelling and substantial reasons for interfering with the same.  If the reasoning given by the trial Court is contrary to the weight of evidence, the Court of appeal would be justified in discarding the same in exercise of its appellate jurisdiction.  The paramount consideration of the Court is to prevent miscarriage of justice.  A miscarriage of justice which may arise from acquittal of guilt is no less than from the conviction of an innocent.  Therefore, now, it has to be seen whether there are any such compelling and substantial reasons for interfering with the order of acquittal.

10.    P.W.1 was projected as the eye witness.  

As per his evidence, he was going towards Brahmamgari Matam near Golagamudi village.  

At that time, he saw the deceased running towards the fields and her husband was following her. 

He followed them and found that in the fields of Subbaiah, the accused poured kerosene on the body of the deceased and set fire to her.  

But in the earliest statement recorded by the police, which is marked as Ex.D2, it is clearly stated that on seeing the flames in the field of Nalagala Subbaiah, he rushed there.  

It is well settled that an innocuous omission is inconsequential omission amounting to contradiction that militate against the meat or core of the prosecution case are alone material.  

An omission would not discredit the evidence of a witness.  

The evidence of a witness will have to be assessed by its intrinsic worth.  

Therefore, this witness as not been telling the whole truth and he cannot be put in the category of wholly reliable.  

The statement made by the deceased to P.W.1, that the accused poured kerosene and set fire to her is clearly an improvement, which has not been stated by him when he was examined under Section 161(3) Cr.P.C. This omission cannot be brushed aside as insignificant.  In view of that, no reliance can be placed on the evidence of P.W.1 to show that he is the eye witness to the incident.

11.    P.W.2 is no other than the elder brother of the deceased is not an eye witness. After hearing the cries of the deceased, he along with some others went to the fields, where the deceased was caught with flames and they immediately shifted her to the Government hospital.  

When he questioned her sister, she stated that the accused suspected her character and poured kerosene and set fire to her.  

This aspect of the case has not been stated to police when he was examined by the police.  

Therefore, his statement that the accused poured kerosene and set fire to his sister is an improvement and that improvement cannot be brushed aside because it is an omission, which amounts to contradiction. Therefore, no reliance can be placed on the evidence of P.W.2.  

Similarly, P.W.3, who is no other than the mother of the deceased did not speak anything about the incident.  

But she stated only that previously, accused pledged the gold ear studs of the deceased and obtained loan.  

Even that aspect has not been stated before the police and Ex.D3 is marked.

12.    P.W.4 is the another brother of the deceased, who came to know about the incident subsequently.  Therefore, he is not an eye witness to the incident. P.W.7, who is one of the inquest mediators is examined to show that he is present when police conducted inquest on the dead body of the deceased.  The inquest mediators opined that the deceased died as a result of burn injuries.  

Though it is incorporated in the inquest report that the deceased died due to the burn injuries sustained by her and those burn injuries were caused by her husband, it cannot be accepted under law as it is hearsay evidence.  

The other evidence, which remains on record, is the evidence of P.W.10, who recorded Ex.P4-statement of the deceased.  

No doubt, Ex.P4 would go to show that accused is the person, who poured kerosene and set fire to her.  

At the same time it has to be scrutinized carefully and cautiously before it can be acted upon under law that the dying declaration is found to be true and trustworthy, made voluntarily and it is not an outcome of tutoring or prompting by the relatives of the deceased, it can be acted upon.  

Similarly, the deceased also gave dying declaration as in Ex.D6, which is recorded by D.W.1 (Judicial First Class Magistrate, Nellore).  

The deceased has categorically stated that she set fire to herself with a match stick.  

Therefore, the dying declaration recorded by P.W.10 and the dying declaration recorded by D.W.1 are contradictory to each other.  

If there are more than one dying declaration, they should be consistent particularly in material particulars.  

Where there was no such consistency and one dying declaration indicates that the incident was a suicide and other points a case of homicidal in nature, it is not possible to have a conviction basing on the dying declaration which is favourable to prosecution.  

If the dying declaration recorded by Judicial First Class Magistrate, Nellore is to be accepted, it is a clear case of suicide.  

When two views are reasonably possible in the evidence adduced by prosecution, the view in favour of accused should be adopted.  

Therefore, for that reason, the trial Court has given the benefit of doubt to the accused. In view of these contradictory dying declarations, it is not safe to place implicit reliance on Ex.P4, which is recorded by P.W.10 in the first instance.  Hence, the trial Court rightly acquitted the accused and the said order needs no interference of this Court as there are no compelling and circumstantial reasons to interfere with the same.  The Appeal is devoid of merits. 

13.    Accordingly, the Criminal Appeal is dismissed at the stage of admission, confirming the judgment, dated 15.11.2006, in Sessions Case No.30 of 2005 on the file of IV Additional Sessions Judge, Nellore.  Miscellaneous petitions, if any, pending in this appeal shall stand closed.

                     ______________________

JUSTICE K.C. BHANU

____________­­­_______________________

JUSTICE CHALLA KODANDA RAM

April 29 2013

SR/PN                                                        

`

                

                 HON'BLE SRI JUSTICE K.C. BHANU

AND

HON’BLE SRI JUSTICE CHALLA KODANDA RAM

CRIMINAL APPEAL (SR) No.24138 of 2008

April 29, 2013

SR/PN  

Recovered knife contains no human blood, No test Identification - acquittal is correct - Motive is not one of the essential ingredients of the offence.= He arrested the accused and in the presence of P.W.16 and other, seized the knife and stick alleged to have been used in the commission of offence. As a matter of fact, those material objects have been sent to the Forensic Science Laboratory. The Forensic Science Laboratory report shows that no human blood was detected on those items. - Since P.W.3 does not know the accused prior to the occurrence, police have not taken any steps to conduct any Test Identification Parade to test the memory of P.W.3 with regard to the identification of the assailants of the deceased. Except proving the motive, there is absolutely no evidence or circumstances to infer that the accused are the assailants of the deceased. = Law is well settled that suspicion however strong, cannot take the place of legal proof. Courts decision must not rest upon suspicion but upon legal grounds established by legal testimony. A finding cannot be made without evidence. Where the proof at best leads to strong suspicion, the benefit should be given to accused. Judicial belief must be founded on reasonable grounds and must rest upon evidence and reasonable inferences thereupon. Therefore, in the absence of any incriminating evidence, the trial Court rightly acquitted the accused for the charges leveled against them. The said order needs no interference of this Court as there are no compelling or circumstantial reasons to interfere with the same. The Appeal is devoid of merits.

CRLA 613 / 2013

CRLASR 29041 / 2008

PETITIONER RESPONDENT THE STATE OF A.P., REP BY PP.,   VS YADLA SATYANARAYANA AND 2 OTHERS, PET.ADV. : PUBLIC PROSECUTOR RESP.ADV. :  SUBJECT: U/s.302 I.P.C Acquittal DISTRICT:  KHAMMAM

http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CRLA&mno=613&year=2013

HON'BLE SRI JUSTICE K.C. BHANU

AND

HON’BLE SRI JUSTICE CHALLA KODANDA RAM

CRIMINAL APPEAL No.613 of 2013

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

                                    

This Criminal Appeal, under section 378 (1) & (3) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), is directed by the State against the judgment, dated 26.11.2007, in Sessions Case No.394 of 2003 on the file of V Additional Sessions Judge, (F.T.C), Khammam at Kothagudem, whereunder and whereby, the accused were acquitted of the offences punishable under Sections 448, 342 and 302 r/w 34 of the Indian Penal Code, 1860 (for short, “I.P.C.”).

2.      The brief facts that are necessary for disposal of the appeal are that:

On 06.09.2000 at about 09:00 a.m. late Datla Anjaneya Raju lodged Ex.P.7 report stating that his brother Datla Gopala Krishnam Raju purchased a land to an extent of Ac.7.09 cents from Edla Appanna (father of A.1) of Edira village about 48 years back.  About 6 years back after the death of his brother Gopal Krishnam Raju, his sister and deceased sold the said land to P.W.4 in the presence of elders.  Later, A.1 filed a petition before Mandal Revenue Officer, Pinapaka claiming that the said land belongs to him and threatened the deceased not to sell the land in favour of P.W.4, but the deceased refused.  On 05.09.2000, while the deceased is sleeping in her house along with her nephew (P.W.3), some unknown culprits beat the deceased with sharp weapons and killed her.  On 06.09.2000 morning at about 05:00 a.m., P.W.5 while proceeding to the fields found the deceased lying infront of the house and informed the same to late Datla Anjaneya Raju.  On receipt of Ex.P.7, P.W.13, the Sub-Inspector of Police, registered a case in Crime No.27 of 2000 for the offence punishable under Section 302 I.P.C and issued express F.I.R to all the concerned.

During the course of investigation, the Sub-Inspector of Police examined the witnesses and recorded their statements.  The Inspector prepared the rough sketch of scene of occurrence and seized blood stained earth and control earth and got photographed the dead body of the deceased.  

In the presence of P.W.9 and others, the Sub-Inspector of Police conducted inquest on the dead body of the deceased.  

Thereafter, the body was sent to postmortem examination to the Government Hospital, Bhadrachalam.  

Thereafter, Inspector of police took up further investigation, visited the scene of occurrence and examined other witnesses.  

P.W.12, the doctor, who conducted autopsy on the dead body of the deceased opined that the deceased died due to shock and hemorrhage of vital organs of lung, liver and brain.  

After receipt of report from the Forensic Science Laboratory and after completion of investigation, P.W.14 filed charge sheet.

3.      The trial Court framed the charges under Sections 448, 342 and 302 r/w 34  I.P.C against A.1 to A.3.  

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

4.      In support of the case of the prosecution, P.Ws.1 to 16 were examined and Exs.P-1 to P-16 were got marked.

5.      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 evidence either oral or documentary.

6.      The trial Court after considering the evidence on record, came to a conclusion that the prosecution failed to establish all the circumstances of the chain and accordingly acquitted them.   Challenging the same, the present appeal is filed by the State.

7.      The points for determination are:

Whether the prosecution proved its case beyond all reasonable doubt for the charges under Sections 448, 342 and 302 r/w 34  I.P.C against the accused and whether the judgment of the trial Court is correct, legal and proper or not?

8.      POINTS:-   The death of the deceased is not in dispute.  P.W.12 conducted autopsy on the dead body of the deceased and issued Ex.P6 postmortem examination report.  He opined that the deceased died due to shock and hemorrhage as a result of injuries to vital organs of lung, liver and brain.  Thus, the homicidal nature of the death of the deceased is established. 

9.      In view of the fact that it is an appeal against the order of acquittal, the appellant must show substantial and compelling reasons to admit the appeal.  

The evidence of P.Ws.1 & 4 would only go to show that there was a land dispute between the deceased and A.1 and therefore, for that reason both suspected that this crime must have been committed by the accused.  

Motive for the incident seems to be the land dispute.  

Motive is not one of the essential ingredients of the offence.  It can be taken as an aid and assessment of the criminality.  

So their evidence is not much relevant for the purpose of deciding the facts in issue.  

The prosecution is not ordinarily bound to prove motive in cases where direct evidence is reliable and convincing motive can only support the case of prosecution, but the absence of motive cannot annul or destroy the direct testimony where the positive evidence against the accused is clear, convincing and reliable, the question of motive is of no consequence.

                                                                   

10.    P.Ws.9 and 10 who are mediators for the inquest, did not support the case of the prosecution.  Ex.P9 is the inquest report. The opinion was expressed in the inquest report saying that the deceased died as a result of sustaining injuries. P.W.14 is the investigating officer.  

He arrested the accused and in the presence of P.W.16 and other, seized the knife and stick alleged to have been used in the commission of offence.  

As a matter of fact, those material objects have been sent to the Forensic Science Laboratory.  

The Forensic Science Laboratory report shows that no human blood was detected on those items. 

Therefore, the arrest of the accused and seizure of knife and stick cannot be said to be an incriminating circumstance against the accused. 

11.    The entire case rests upon the evidence of P.W.3, who claimed to be present at the time of occurrence.  

As a matter of fact, he also turned hostile and did not support the case of the prosecution.  

He has not identified the accused as the assailants of the deceased.  

Since P.W.3 does not know the accused prior to the occurrence, police have not taken any steps to conduct any Test Identification Parade to test the memory of P.W.3 with regard to the identification of the assailants of the deceased.  Except proving the motive, there is absolutely no evidence or circumstances to infer that the accused are the assailants of the deceased.  P.Ws.1, 4 and 15 entertained the idea of suspicion against A.1 as responsible for the death of the deceased. 

Law is well settled that suspicion however strong, cannot take the place of legal proof. Courts decision must not rest upon suspicion but upon legal grounds established by legal testimony.  A finding cannot be made without evidence.  Where the proof at best leads to strong suspicion, the benefit should be given to accused. Judicial belief must be founded on reasonable grounds and must rest upon evidence and reasonable inferences thereupon.  Therefore, in the absence of any incriminating evidence, the trial Court rightly acquitted the accused for the charges leveled against them.  The said order needs no interference of this Court as there are no compelling or circumstantial reasons to interfere with the same.  The Appeal is devoid of merits. 

12.    Accordingly, the Criminal Appeal is dismissed at the stage of admission, confirming the judgment, dated 26.11.2007, in Sessions Case No.394 of 2003 on the file of V Additional Sessions Judge, (F.T.C), Khammam at Kothagudem.  Miscellaneous petitions, if any, pending in this appeal shall stand closed.

                     ______________________

JUSTICE K.C. BHANU

____________­­­_______________________

JUSTICE CHALLA KODANDA RAM

April 25, 2013

SR/PN

 

 

HON'BLE SRI JUSTICE K.C. BHANU

AND

HON’BLE SRI JUSTICE CHALLA KODANDA RAM

CRIMINAL APPEAL (SR) No.29041 of 2008

April 25, 2013

SR/PN

Abetment’ - Section 107 I.P.C = To make a person liable under Section 302 r/w 114 I.P.C, there must be abetment. This section applies to case where a person abets the commission of an offence sometimes before it takes place and happens to the present at the time when the offence is committed and is not applicable to a case where the abetment is at the time when the offence takes place and the abettor helps in the commission of offence and not merely of abetment. ‘Abetment’ is defined under Section 107 I.P.C. For abetment, there must be instigation or there must be conspiracy or there must be intentional aiding. The acts of the accused shall facilitate the other accused to commit the murder. Then, he can be punished with the aid of Section 114 I.P.C. Respondent No.2/A.2 has not stated or uttered anything to A.1 and A.3, so as to cause the death of the deceased or cause any injury to the deceased. Except pointing out his finger towards the deceased, there is absolutely no motive for A.2 to take the extreme decision to eliminate the deceased through A.1 and A.3. A.1 and A.3 are not related to him. The prosecution sought to establish that there was a prior incident took place between A.2 and the deceased as the accused abused the deceased after consuming toddy and in that connection the deceased grew wild and beat A.2 indiscriminately with his legs and to take retaliation, A.2 with the help of A.1 and A.3 caused the death of the deceased. But, P.Ws.1 to 3, who were present at the time of incident that took place on 05.02.1999 did not speak about the same. Nodoubt, there is a mention in Ex.P1 with regard to that aspect, but it is not a substantial evidence. Therefore, there is no evidence to show that two days prior to the incident, the deceased beat A.2 indiscriminately. So, there is absolutely no motive for A.2 to cause the death of the deceased through A.1 and A.3. As there was no instigation or intentional aiding or conspiracy, A.2 cannot be convicted for the offence punishable under Section 302 r/w 114 I.P.C. The trial Court on proper appreciation of the evidence on record, rightly acquitted A.2 and there are no grounds to interfere with the order of the trial Court. The Appeal is devoid of merits.

CRLA 615 / 2013

CRLASR 32247 / 2008

PETITIONER RESPONDENT THE STATE OF A.P.   VS PUDURU RAMESH & 2 OTHERS PET.ADV. : PUBLIC PROSECUTOR RESP.ADV. :  SUBJECT: U/s.302 I.P.C Acquittal DISTRICT:  NELLORE published in http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CRLA&mno=615&year=2013

HON'BLE SRI JUSTICE K.C. BHANU

AND

HON’BLE SRI JUSTICE CHALLA KODANDA RAM

CRIMINAL APPEAL No.615 of 2013

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

                                    

This Criminal Appeal, under section 378 (1) & (3) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), is directed by the State against the judgment, dated 22.06.2007, in Sessions Case No.250 of 2001 on the file of IV Additional District & Sessions Judge, (F.T.C), Nellore, whereunder and whereby, respondent No.2 (A.2) is acquitted of the offence punishable under Section 302 r/w 114 of the Indian Penal Code, 1860 (for short, “I.P.C.”).

2.      The case of the prosecution in brief is as follows:

On 05.02.1999 at about 04:30 p.m. while
M. Venkateswarlu Reddy (hereinafter referred as ‘deceased’) and two others were going to the fields, A.2 came after consuming toddy and intercepted the deceased and abused the deceased in filthy language.  For that, the deceased beat A.2 with hands and legs indiscriminately, due to which, A.2 grew wild and threatened the deceased that he would see his end and went away.  Thereafter, A.2 secured the presence of A.1 and A.3 and was waiting for an opportunity to take revenge against the deceased. 

While so, on 07.02.1999 at about 4:00 p.m, the deceased, P.W.6 and P.W.5 started to go to the Palmyrah trees situated at Brindavan Nagar Colony to consume toddy, at that time, all the accused came in opposite direction and picked up a quarrel with the deceased.  Then on instigation of A.2, A.1 stabbed the deceased twice while A.3 caught hold the deceased with an intention to facilitate A.1 to cause stab injuries.  On seeing the incident, two persons who were accompanying the deceased ran away from the scene of occurrence.  On hearing the cries of the deceased, the persons nearby came and took the deceased to Government Hospital, Kavali, where, he was declared as brought dead.  On intimation from the Government Hospital, the Head Constable of Kavali I-Town Police Station went to the Government Hospital and recorded the statement of P.W.1 and registered it as a case in Crime No.15 of 1999 for the offence punishable under Section 302 I.P.C.  Police observed the scene of occurrence and held inquest over the dead body of the deceased.  Thereafter, the dead body was subjected to postmortem examination. The doctor who conducted postmortem examination opined that the deceased died as a result of shock and hemorrhage due to the injury on the abdomen (intestine injury).  After completion of investigation, police filed charge sheet.

3.      The case against A.1 and A.3 was split up and renumbered as S.C.No.346 of 2005 and S.C.No.59 of 2007 respectively in view of the fact that they are said to be absconding.  

4.      The trial Court framed the charge for the offence under Section 302 r/w 114 I.P.C against A.2.  When the above charge was read over and explained to A.2 in Telugu, he pleaded not guilty and claimed to be tried.

5.      To substantiate the case of prosecution, P.Ws.1 to 12 were examined and Exs.P-1 to P-12 were got marked besides the case properties M.Os.1 to 6. 

6.      After closure of the prosecution evidence, A.2 was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses.  He denied the same and no oral evidence was adduced on his behalf but Ex.D1 was got marked through P.W.4.

7.      The trial Court after considering the evidence on record, came to a conclusion that the prosecution failed to establish the guilt of A.2 beyond all reasonable doubt for the offence punishable under Section 302 r/w 114 I.P.C and therefore, acquitted him.   Challenging the same, the present appeal is filed by the State.

8.      The points for determination are:

Whether the prosecution proved its case beyond all reasonable doubt for the charge under Section 302 r/w 114  I.P.C against A.2 and whether the judgment of the trial court is correct and proper or not?

9       POINTS:-   The learned Additional Public Prosecutor contended that the presence and participation of A.2 is established beyond all reasonable doubt; that all the eye witnesses P.Ws.1 to 4 have stated the presence and participation of A.2; that the evidence of P.Ws.1 to 3 would clearly go to show that A.2 pointed out towards the deceased to take revenge against him and as a result, A.3 caught hold of the deceased while A.1 stabbed the deceased on his abdomen resulting his death; that the death of the deceased is homicidal and there is a clear motive for A.2 to cause the death of the deceased and therefore, she prays to set aside the order of acquittal.

10.    In dealing with the appeal against order of acquittal, the prosecution must show substantial or compelling reasons to admit the appeal.  There is a presumption under law that the accused is presumed to be innocent unless contrary is proved.  Generally the order of acquittal shall not be interfered with because the presumption of innocence of accused is further strengthened by acquittal.  The Court of appeal is required to take into consideration the reasons given by the trial Court in basing the judgment of acquittal very carefully and if such reasons are consistent with the evidence, as a matter of prudence, the court of appeal should not interfere with the order of acquittal by reappreciating the evidence and taking some other view.  In STATE OF UTTAR PRADESH V. RAM SAJIVAN AND OTHERS[1], it is held at Para No.59 as follows:

“The following principles emerge from the aforementioned cases.

1. The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court’s conclusion with respect to both facts and law.

2. The accused is presumed to be innocent until proved guilty. The accused possessed this presumption when he was before the trial court.  The High court’s acquittal bolsters the presumption that he is innocent.

3. There must also be substantial and compelling reasons for reversing an order of acquittal.

This court would be justified in interfering with the judgment of acquittal of the High Court only when there are very substantial and compelling reasons to discard the High Court decision.  When we apply the test laid down by this Court repeatedly in large number of cases, the irresistible conclusion is that the High Court in the impugned judgment has not correctly followed the legal position.”

11.    The death of the deceased is not in dispute.  P.W.9 is the doctor who conducted autopsy over the dead body of the deceased on the requisition from the Inspector of Police, Kavali.  She found injury on the abdomen and she opined that the deceased died as a result of shock and hemorrhage due to the injury to the abdomen and that injury can be possible by stabbing with a knife.  Ex.P8 is the postmortem report. 

12.    So, the homicidal nature of the death of the deceased is established.  P.W.10 is one of the inquest mediators who was present when the police conducted inquest.  The eye witnesses and other relations were examined during the course of inquest.  The inquest mediators opined that the death of the deceased was due to stab injury.  Ex.P9 is the inquest report.

13.    P.W.11 is the Head Constable who went to Government Hospital on the date of incident at about
8:30 p.m and recorded the statement of P.W.1 and registered the case.  P.W.12 is the Inspector of Police, who conducted investigation.  Except arrest of the accused, his evidence is not much helpful to the case of the prosecution.  P.W.8 is one of the mediators, who was present at the time of observation of scene of occurrence.  There is no dispute about taking place of the incident.  M.Os.1 to 6 were seized under Ex.P7.  P.W.8 is one of the relatives of the deceased.  He simply stated that P.Ws.1 and 3 came in an auto-rickshaw along with the deceased with bleeding injury and thereafter, all of them took the deceased to the hospital.  The doctors who examined the deceased declared him as brought dead. 

14.    P.W.6 is resident of Mulapet, Nellore.  He deposed that on the fateful day, while he was returning from the fields, some unknown persons picked up a quarrel with the deceased; that when himself and P.W.5 tried to separate them, one of the persons attacked the deceased and escaped.  He did not identify the present accused as the assailant of the deceased. 

15.    P.Ws.4 and 5 stated that on 7.2.1999 while they were returning to the fields at about 5 or 5:30 p.m, when they reached near Brindavan Nagar Colony, one friend of the deceased came and was talking with the deceased and at that time, A.1 to A.3 came there and picked up quarrel with the deceased, and that A.3 caught hold of the deceased from behind and A.1 stabbed the deceased with a knife, and thereafter, A.1 and A.3 escaped from the scene, and that later, P.Ws.1 to 4 had taken the deceased to the hospital.  So except speaking the presence of A.2, no specific overtact is attributed by him.  Mere presence at the scene of occurrence by itself is not a ground to infer that A.2 abetted the offence. 

16.    Coming to the evidence of P.Ws.1 to 3, they stated that on the date of incident, A.2 and A.3 were quarrelling with the deceased.  At that time, A.3 caught hold the deceased and A.1 stabbed the deceased on the left side of the abdomen and A.2 (present appellant) was pointing out towards the deceased.

17.    To make a person liable under Section 302 r/w 114 I.P.C, there must be abetment.  

This section applies to case where a person abets the commission of an offence sometimes before it takes place and happens to the present at the time when the offence is committed and is not applicable to a case where the abetment is at the time when the offence takes place and the abettor helps in the commission of offence and not merely of abetment.  

‘Abetment’ is defined under Section 107 I.P.C.  

For abetment, 

there must be instigation or 

there must be conspiracy or 

there must be intentional aiding.  

The acts of the accused shall facilitate the other accused to commit the murder. 

Then, he can be punished with the aid of Section 114 I.P.C.  

Respondent No.2/A.2 has not stated or uttered anything to A.1 and A.3, so as to cause the death of the deceased or cause any injury to the deceased.  

Except pointing out his finger towards the deceased, there is absolutely no motive for A.2 to take the extreme decision to eliminate the deceased through A.1 and A.3.  A.1 and A.3 are not related to him. 

The prosecution sought to establish that there was a prior incident took place between A.2 and the deceased as the accused abused the deceased after consuming toddy and in that connection the deceased grew wild and beat A.2 indiscriminately with his legs and to take retaliation, A.2 with the help of A.1 and A.3 caused the death of the deceased.  

But, P.Ws.1 to 3, who were present at the time of incident that took place on 05.02.1999 did not speak about the same.  

Nodoubt, there is a mention in Ex.P1 with regard to that aspect, but it is not a substantial evidence. 

Therefore, there is no evidence to show that two days prior to the incident, the deceased beat A.2 indiscriminately.  

So, there is absolutely no motive for A.2 to cause the death of the deceased through A.1 and A.3.  

As there was no instigation or intentional aiding or conspiracy, A.2 cannot be convicted for the offence punishable under Section 302 r/w 114 I.P.C. The trial Court on proper appreciation of the evidence on record, rightly acquitted A.2 and there are no grounds to interfere with the order of the trial Court.  The Appeal is devoid of merits.  

18.    Accordingly, the Criminal Appeal is dismissed at the stage of admission, confirming the judgment, dated 22.06.2007, in Sessions Case No.250 of 2001 on the file of IV Additional District & Sessions Judge, (F.T.C), Nellore. Miscellaneous petitions, if any, pending in this appeal shall stand closed.

                     ______________________

JUSTICE K.C. BHANU

____________­­­_______________________

JUSTICE CHALLA KODANDA RAM

April 25, 2013

SR/PN

 

 

                                                                          

HON'BLE SRI JUSTICE K.C. BHANU

AND

HON’BLE SRI JUSTICE CHALLA KODANDA RAM

CRIMINAL APPEAL (SR) No.32247 of 2008

April 25, 2013

SR/PN

---

[1] (2010) 1 SCC 529