| CRLA 615 / 2013 | CRLASR 32247 / 2008 |
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.
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.
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
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