In the absence of DIRECT EVIDENCE - basing only on prior galat , no conviction can be given - Lower court rightly acquitted the accused 2&3 due to lack of identification and absence of evidence under sec.302 and sec.302/109 IPC =
As there was a traffic jam, he went near the place and found the dead body.
PW.5, who is son of PW.3 stated that he was a mason by profession; that on the date of incident when he went to answer the calls of nature to a vacant place, where he saw accused No.1 causing an injury to the deceased with a Kathi (knife) on the neck and another person wearing helmet caused injury with a knife on the abdomen of the deceased.
Therefore, this witness did not identify accused No.2 as the person who wore the helmet, or accused No.3 abetted accused Nos.1 and 2 to cause death of the deceased. =
Ex.P1 – report lodged by PW.1 would clearly go to show that two persons came on a scooter and attacked the deceased and left the scene of occurrence. The identity of the two persons has not been established. There is no other evidence to show that accused No.2 participated in commission of the offence or accused No.3 instigated or abetted accused Nos.1 and 2, to cause death of the deceased. That is the reason why the trial Court disbelieved the evidence of prosecution, and has rightly acquitted the respondents – accused Nos.2 and 3. In view of the fact that the person, who caused the injury to the deceased viz., accused No.1, was acquitted by this Court as stated supra, and there is no evidence to show that the involvement of the respondents – accused Nos.2 and 3 in commission of the offence, the judgment of acquittal insofar as accused Nos.2 and 3 is concerned, needs no interference by this Court. For the foregoing discussion, there are no compelling and substantial reasons to interfere with the judgment of the trial Court, and that the appeal is devoid of merits.
Published in http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CRLA&mno=610&year=2013
| CRLA 610 / 2013 | CRLASR 26149 / 2009 |
|
HONOURABLE SRI JUSTICE K.C.BHANU
AND
HON’BLE SRI JUSTICE CHALLA KODANDA RAM
CRIMINAL APPEAL No.610 OF 2013
JUDGMENT: (Per Hon’ble Sri Justice K.C.Bhanu)
This Criminal Appeal (S.R.) is preferred by the appellant - State under Section 378(1) &(3) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), against the judgment, dated 12-09-2008 in Sessions Case No.487 of 2006 passed by the learned III Additional District and Sessions Judge, East Godavari Division at Kakinada,
whereunder and whereby respondent No.2/A-2 was found not guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “IPC”) and respondent No.3/A-3 was found not guilty of the offence punishable under Section 302 read with 109 IPC and accordingly, they were acquitted.
whereunder and whereby respondent No.2/A-2 was found not guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “IPC”) and respondent No.3/A-3 was found not guilty of the offence punishable under Section 302 read with 109 IPC and accordingly, they were acquitted.
2. The brief facts of the prosecution, which are necessary for disposal of the appeal, may be stated as follows:
a) Avula Sitharama Reddi @ Pedda Reddi (hereinafter referred to as ‘the deceased’) was the elder brother of accused Nos.1 and 3. Accused No.2 is son-in-law of the co-son-in-law of accused No.3. The alleged incident took place on 11-06-2004.
b) The deceased was initially doing edible oil business at Kothuru Centre of Kakinada Rural Mandal. Later, he brought his brothers accused Nos.1 and 3, and they were also doing the business along with him. He was purchasing the edible oil from oil tankers and used to sell it to the other retail dealers.
Due to some or the other reason, disputes arose between the deceased and his two brothers – accused Nos.1 and 3, and therefore, accused Nos.1 and 3 started doing business separately.
c) Ten days prior to the incident in question, the deceased raised a dispute with accused Nos.1 and 3 near the Coffee Hotel of PW.2 -Sivakoti Annavaram, and at that time accused Nos.1 and 3 threatened the deceased that they would see his end. The same was witnessed by PWs.1 to 3 and another. One Medisetti Abbulu, who was also present at that time, pacified the incident.
d) Because of the said incident, accused Nos.1 and 3 developed a grudge against the deceased. Accused No.2 happened to come to Kakinada. He joined hands with accused Nos.1 and 3, and they all hatched a plan to kill the deceased.
On 11-06-2004 at about 6.30 AM, the deceased went to an open area near his house to answer the calls of nature, and at that time, accused Nos.1 and 2, who were present at the hotel of PW.2, followed the deceased and attacked him with knives.
This was witnessed by PW.3 and PW.5.
They informed the same to PW.1, wife of the deceased, who lodged Ex.P1 – report with the police, Thimmapuram police station.
The police registered a case and conducted an inquest over the dead body of the deceased and then it was subjected to post-mortem examination.
e) On 09-07-2004, all the accused were arrested and MO.1 – knife was seized at the instance of accused, and after completion of investigation, the police filed charge sheet against the accused for the offences stated above.
3. The trial Court framed the charges punishable under Section 302 IPC against accused Nos.1 and 2 and for the offence under Section 302 read with 109 IPC against accused No.3.
4. When the said charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried.
5. To substantiate the aforesaid charges, the prosecution examined PWs.1 to 11 and got marked Exs.P-1 to P-16, besides the case property - MOs.1 to 10.
6. After closure of the prosecution evidence, when the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing in the evidence of prosecution witnesses, they denied the same. When they were called upon to adduce the evidence on their behalf, they have not let in any evidence, but Exs.D1 to 4 were got marked, which are the relevant portions in the statements of PWs.2, 3 and 5 recorded under Section 161 Cr.P.C. by the police.
7. The trial Court, upon considering the evidence on record, came to the conclusion that the prosecution has established the guilt of the accused No.1 for the charge under Section 302 IPC, and accordingly, convicted and sentenced to undergo life imprisonment and also to pay a fine of Rs.100/-, in default to undergo 15 days simple imprisonment.
But, however, the trial Court found the accused Nos.2 and 3 not guilty of the charges levelled against them and accordingly, acquitted them.
Challenging the same, the present appeal is preferred by the appellant – State against the judgment of acquittal insofar as accused Nos.2 and 3 is concerned.
8. Now, the point that arises for determination is:
“Whether the prosecution proved its case beyond all reasonable doubt against the accused Nos.2 and 3 for the offences punishable under Sections 302 IPC against accused No.2 and Section 302 read with 109 IPC against accused Nos.3; and whether there are any substantial or compelling reasons to admit the appeal?”
POINT:
9. The learned Additional Public Prosecutor has fairly conceded that the Criminal Appeal No.1305 of 2008 filed by accused No.1 was allowed by this Court by judgment dated
03-10-2012, and accordingly, acquitted him on the ground that the prosecution has failed to establish the guilt of the accused No.1 beyond all reasonable doubt.
03-10-2012, and accordingly, acquitted him on the ground that the prosecution has failed to establish the guilt of the accused No.1 beyond all reasonable doubt.
10. The oral evidence and the documents produced by the prosecution against all the accused in the trial Court is one and the same. PW.1 is the wife of the deceased. She stated that ten days prior to the incident, accused Nos.1 and 3 attacked the deceased with a knife and threatened him that they would see his end. PW.2 was also present at that time. Their evidence is not much relevant for the purpose of charges framed against the respondents - accused Nos.2 and 3 herein. A categorical finding has been given by this Court while allowing the criminal appeal preferred by accused No.1 that the prosecution failed to establish the motive for the accused to kill the deceased.
11. PW.9 – Dr. P.Sarathkumar Babu is the doctor, and he conducted autopsy over the dead body of the deceased. He found as many as 15 external injuries along with 13 corresponding internal injuries. The doctor opined that the deceased died due to haemorrhage and shock as a result of multiple injuries associated with the injuries to visceral organs. All PWs.1 to 4 reached the scene of occurrence only after the alleged attack made on the deceased by accused Nos.1 to 3. PW.4 is an employee in a Lorry Organization Office.
As there was a traffic jam, he went near the place and found the dead body.
PW.5, who is son of PW.3 stated that he was a mason by profession; that on the date of incident when he went to answer the calls of nature to a vacant place, where he saw accused No.1 causing an injury to the deceased with a Kathi (knife) on the neck and another person wearing helmet caused injury with a knife on the abdomen of the deceased.
Therefore, this witness did not identify accused No.2 as the person who wore the helmet, or accused No.3 abetted accused Nos.1 and 2 to cause death of the deceased.
12. Ex.P1 – report lodged by PW.1 would clearly go to show that two persons came on a scooter and attacked the deceased and left the scene of occurrence. The identity of the two persons has not been established. There is no other evidence to show that accused No.2 participated in commission of the offence or accused No.3 instigated or abetted accused Nos.1 and 2, to cause death of the deceased. That is the reason why the trial Court disbelieved the evidence of prosecution, and has rightly acquitted the respondents – accused Nos.2 and 3. In view of the fact that the person, who caused the injury to the deceased viz., accused No.1, was acquitted by this Court as stated supra, and there is no evidence to show that the involvement of the respondents – accused Nos.2 and 3 in commission of the offence, the judgment of acquittal insofar as accused Nos.2 and 3 is concerned, needs no interference by this Court. For the foregoing discussion, there are no compelling and substantial reasons to interfere with the judgment of the trial Court, and that the appeal is devoid of merits.
13. In the result, the Criminal Appeal (S.R.) is dismissed confirming the judgment dated 12-09-2008 in Sessions Case No.487 of 2006 passed by the learned III Additional District and Sessions Judge, East Godavari Division at Kakinada. As a sequel, miscellaneous petitions, if any, pending in this appeal shall stand dismissed.
________________
K.C.BHANU, J
_______________________
CHALLA KODANDA RAM, J
June 20, 2013.
Mgr
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