IN THE COURT OF JUDGE, FAMILY COURT CUM III ADDITIONAL
SESSIONS JUDGE, VIZIANAGARAM
Present: Sri B. Srinivasa Rao
Judge, Family Court
Cum III Additional Sessions Judge
Tuesday , this the 12th day of April, 2017
SESSIONS CASE No. 29/2016
(P.R.C. 32/2015 of Additional Judicial Magistrate of I Class, Vizianagaram) 1Name of the Complainant:State represented by the Inspector of Police, II town Police Station, Vizianagaram 2Name of the accused:1. Rayi Ramesh, S/o Surya Rao, aged 23 years, T.Kapu by caste, Gurandarapalemvillage, Narsipatnam,Visakhapatnam District.
2. Agraharapu Kondala Rao, S/o late Ganga Raju, aged 24 years, Dobi by caste, SC colony, Narsipatnam, Visakhapatnam 3Date of offence:14.11.2014 4Place of offence:Neelathi Tank, Vizianagaram 5Date of complaint:15.11.2014 6Date of apprehension of:04.05.2016 accused in this Court 7Whether the accused is in:On bail. jail or bail 8Date of commencement of:23.01.2017 trial 9Date of close of trial:03.04.2017 10Date of sentence or:12.04.2017 Judgment
EXPLANATION FOR DELAY IN SESSIONS COURT
After receipt of the record from Committal Court, the case was numbered as Sessions Case. On 04.05.2016 the accused appeared before the Court and on 19.07.2016 charges framed and trial schedule was fixed w.e.f 19.12.2016. Trial was commenced on 23.01.2017. In this case P.ws. 1 to 17 were examined and Ex.P.1 to P.25 marked and M.O. 1 marked. Accused were examined U/sec. 313 Cr.P.C. on 07.03.2017/03.04.2017. Arguments heard on 04.04.2017 and Judgment was pronounced on 12.04.2017.
Judge, Family Court cum
III Additional Sessions Judge,
Vizianagaram
III ASJ cum Family Court, VZM Sessions Case 29/20162
IN THE COURT OF JUDGE, FAMILY COURT CUM III ADDITIONAL
SESSIONS JUDGE, VIZIANAGARAM
Present: Sri B. Srinivasa Rao
Judge, Family Court
Cum III Additional Sessions Judge Tuesday, this the 12th day of April, 2017
SESSIONS CASE No. 29/2016
(P.R.C. 32/2015 of Additional Judicial Magistrate of I Class, Vizianagaram) 1Name of the Complainant:State represented by the Inspector of Police, II Town Police Station, Vizianagaram 2Name of the accused:1. Rayi Ramesh, S/o Surya Rao, aged 23 years, T.Kapu by caste, Gurandarapalemvillage, Narsipatnam,Visakhapatnam District.
2. Agraharapu Kondala Rao, S/o late Ganga Raju, aged 24 years, Dobi by caste, SC colony, Narsipatnam, Visakhapatnam.
3Charge:302, IPC –Punishment for Murder 201, IPC – Causing disappearance of evidence of an offence committed or giving false information touching it to screen the offender, if a capital offence; 354, IPC – Assault or use of criminal force to woman with an intent to outrage her modesty.
364, IPC – Kidnapping or abducting in order to murder.
READ WITH
34, IPC – Acts done by several persons in furtherance of their common intention.
4Plea of Accused:Not guilty 5Finding of the Judge:Accused are found not guilty for the charge U/s.302, 201, 364 and 354 read with 34, IPC.
6Sentence or Order:The accused 1 and 2 are found not guilty for the charges U/s.302,201,354 and 364 read with 34, IPC and they are, accordingly, acquitted U/s.235(1), Cr.P.C., for the said charges. The accused are directed to execute bond for their due appearance in the event of appeal. M.O.1
III ASJ cum Family Court, VZM Sessions Case 29/20163 and other unmarked property, if any, shall be destroyed after appeal time is over. Bail bonds of the accused and that of their sureties, if any, shall stands cancelled.
7Prosecution conducted by:AdditionalPublicProsecution, Vizianagaram.
8Defence conducted:Sri K.V.N. Thammana Setty and Sri K. Ashok Babu Advocates, Vizianagaram
J U D G M E N T
The accused was charge sheeted by the Inspector of Police, II town P.S., Vizianagaram for the offences U/s. 302, 201,354,364 read with 34,
IPC in Crime No. 285/2014 of Vizianagaram II town P.S.,
2. The case of the prosecution, in brief, is that the 1st accused is a resident of Gurandarapalem village and working in Sri Srinivasa Medical
Agency as Sales Boy; the 2nd accused is a resident of SC colony of
Narsipatnam and working as a fish cutter and dresser in the fish market and both accused 1 and 2 are close friends.
The offence took place in the intervening night of 14/15.11.2014 at FCI Gowns, Dasannapeta and Neelathi Tank within the limits of II town P.S.,
Vizianagaram; one Bhimini Ramu [herein after referred to as “deceased”] is a native of Veeravaram village of Kadiyam Mandal of East Godavari District and he is residing in Plot No. 202 of Chandu Residency, Anandapuram colony,
Jammu Narayanapuram village and he is working as Chemist in Mylan company of Pusapatirega.
On 14.11.2014 the deceased had attended to “A” shift duty i.e.
from 06:00 a.m., to 02:00 p.m., and reached his house; on the same day at about 21:30 hours, the deceased went out from his house with his motor cycle AP 05 CS 1997; on the next day, i.e. on 15.11.2014 at about 08:00 a.m.
Kasireddy Naga Venkata Tulasi (L.w.1) received information that the dead body of the deceased was found floating in the water of Neelathi tank,
Dasannapeta of Vizianagaram and then he went to the spot and identified the
III ASJ cum Family Court, VZM Sessions Case 29/20164 dead body, as that of the deceased and he lodged a report to Y.K.Kishore
Kumar, S.I. of Police (P.w.15).
Basing on the same, S.I. of Police registered the same as a case in Crime No. 255/2014 U/s.174, Cr.P.C., and investigated into; during course of investigation, S.I. of Police inspected the scene of offence in the presence of
Mamidi Adi Narayana and Sappati Appa Rao (P.w.11 and 5) and during the course of inspection, Gedela Bangari and Andiripalli Appa Rao (L.w.s12 and
P.w.10) brought out the dead body and motor cycle from the water of Neelathi tank and kept on the bund and seized sample water of Neelathi tank under the cover of scene observation report; he inspected the dead body very minutely and examined the witnesses Kasireddy Naga Venkata Tulasi, Bhimini
Mahalaxmi (L.ws.1 and Pw2) and Thummalapudi Ramu, Marisa Lova Raju,
Bhimini Satti Babu and Bhimini Demullu (L.w.7, P.w.6,8 to 10) and recorded their statements; he also got conducted inquest over the dead body in the presence of Mamidi Adi Narayana and Sappati Appa Rao, Raghpatruni
Jagadeesh, Yennamsetty Satti Babu and Gundu Ganesh (P.w.11 and Lw 8) and after that, S.I. of Police sent the dead body for postmortem examination.
On 10.12.2014, at about 08:00 p.m., Bhimini Mahalaxmi (P.w.2) who is the wife of the deceased, lodged a report under Ex.P2 to S.I. of Police (P.w15) that about two years back, her marriage alliance was settled with her relative A.1, but it was cancelled as A.1 was involved in a love affair case with another woman; on 15.02.2014, her marriage was performed with the deceased who is working in Mylan company and that she joined in conjugal society with deceased at Narayanapuram village; while so, A.1, somehow got acquaintance with the deceased and used to visit their house and misbehave towards her; while so, on 10.11.2015 she was dropped at her parents’ house by the deceased, as she was pregnant; on 15.11.2014 she learnt on phone through her brother-in-law by name Bhimini Satti Babu (L.w.9) that on the night of 14.11.2014 her husband went into a water tank at Dasannapeta,
Vizianagaram, along with his motor cycle and died; she went to her in laws’ house after completion of rituals and she reached her parents’ house on 08.12.2014; at about 15:00 hours on the same day, while she was alone in
III ASJ cum Family Court, VZM Sessions Case 29/20165 her parents’ house, A1 attempted to cower her down and informed that he and his friend A.2 killed her husband on the night of 14/15.11.2014 and thrown away the dead body of her husband in the water tank along with his motor cycle to make, if appear as an accidental death as her husband is hindrance to fulfill his sexual desire with her. Basing on the report of
Mahalaxmi (P.w2), S.I. of Police (L.w.25) issued altered F.I.R. Ex.P2 U/s.
302,201 read with 34, IPC on 10.12.2014 at 08:00 p.m., and on receipt of altered F.I.R., K.Rama Rao, Inspector of Police (L.w26) took up investigation and examined the witnesses and recorded their detailed statements.
While so, on 10.12.2014, Kasireddy Venkata ramana (P.w.9) produced accused 1 and 2 before Inspector of Police (p.w16?) with his report stating that h e is one of the village elders of J.Naidupalem village and living by working as a News Reporter; about two years ago, the marriage alliance of
Mahalaxmi (p.w2) was settled with A.1 but as A.1 was involved in a Criminal case it was cancelled; later, the marriage alliance of Mahalaxmi was settled with A.1, but, as A.1 was involved in a Criminal case it was cancelled, later, the marriage of Mahalaxmi (P.w2) was perfomed with deceased on 15.02.2014; the deceased and Mahalaxmi took a rented house at
Vizianagaram as it is nearest to the working place of the deceased; while so on 15.11.2014, Kasireddy Venkata Ramana (p.w9) came to know that on the night of 14.11.2014 the deceased drowned in water of a tank at Vizianagaram along with his motor cycle and died; on 12.12.2014 at about 08:00 a.m., accused 1 and 2 who are close friends approached Kasireddy Venkata
Ramana (P.w 9), where, A.1 narrated that he is having keen interest over
Mahalaxmi (P.w.2), so that he got acquaintance with the deceased by visiting their house and developed friendship with him; 2 or 3 times, he forced
Mahalaxmi to fulfill his sexual desire but she refused his sexual advances on the plea that she is married one and had husband; A.1 decided to clear the hurdle of deceased to get fulfilled his sexual desire with Mahalaxmi (p.w2) and narrated the same to his friend i.e.A.2 and required his assistance for it;
A.2 agreed to give assistance; while so, on 14.11.2014, A.1 came to know that the deceased is alone at Vizianagaram; A.1 and A.2 together came down
III ASJ cum Family Court, VZM Sessions Case 29/20166 to Vizianagaram, met the deceased in the night and enticed him to come to
Dasannapeta godowns to take beer and after going there asked him to go to his house and bring a tower to set their comfortably and made him consume beer; while the deceased was under the influence of it, A.1 placed a towel around the neck of deceased and tightened it by way of pulling while A.2 caught the hands of the deceased firmly at Dasannapeta godowns; in a short time, they found deceased dead; then they together shifted the dead body in order to screen themselves to the tank which is adjacent to the BT road and threw away the dead body in the tank water along with motor cycle; on 08.12.2014, A.1 meat Mahalaxmi (P.w2) and confessed the facts to her; on knowing that, she went to Vizianagaram and lodged a report with the policy and thereby they got fear and decided to surrender before the police, for which, they requested Venkata Ramana (P.w.9) to produce before police; so that Venkata Ramana (P.w.9) brought them to police station and produced them along with his report.
Inspector of Police (P.w.16) arrested the accused at 11:45 hours on 10.12.2014 and recorded their confessional statements in the presence of
Pothurajula Koteswara Rao and Eedubilli Suryanarayana (L.ws. 19 and P.w.13) under the cover of mediators report; in pursuance of the confession he seized the red colored towel (MO1) which was used by accused to kill the deceased from the bushes at the rear side of Kummara street shown by the accused and sent the accused for judicial custody.
Dr.P.V.K. Sharma (P.W.14) conducted postmortem over the dead body of the deceased and preserved viscera and sent them for chemical analysis; the viscera of the deceased and sample water of the Neelathi Tank were analyzed by the Scientific officer, RFSL, Visakhapatnam who opined that poisonous substance is not found and similar type of diatoms are detected in the piece of sternum bone in turbid marked as item No.1 and turbid liquid marked as item No.2.
After receipt of analyst report, the Medical Officer issued postmortem certificate opining that the deceased died due to asphyxia resulting from ante mortem drowning; on submitting a questionnaire, the
III ASJ cum Family Court, VZM Sessions Case 29/20167 Medical officer (L.w.24) answered that it might have been possible that the deceased sustained injuries noted and subsequently could have died of asphyxia resulting from ante mortem drowning.
The call logs of the mobile phones were collected. On a perusal, it is found that there are frequent incoming and outgoing calls in between the accused 1 and 2 as well as A.1 and deceased; the investigating Officer examined the witnesses and recorded their statements and after completion of investigation, filed the charge sheet.
3. The learned Additional Judicial Magistrate of I Class,
Vizianagaram, before whom charge sheet is filed took cognizance against the accused for the offence U/s. 302,201,354,364 read with 34 IPC and PRC 32/2015 and after appearance of accused, the learned Additional Judicial
Magistrate of I Class, Vizianagaram, furnished the case copies of documents
and after observing the formalities, committed to the case to the Court of
Session, Vizianagaram.
4. The Hon’ble Sessions Judge, Vizianagaram having received the case record, numbered the same as Sessions Case 29/2016 and made over to this court for disposal according to Law.
5. Upon receiving the case file and after appearance of Accused and on hearing both sides, charges under Sections 302,201,354,364 read with 34, IPC have been framed against the accused and read over and explained the accused in Telugu for which the accused pleaded not guilty and claimed to be tried.
6. A schedule of the dates for examination of witnesses was fixed and process for compelling the witnesses was posted U/Sec. 230 Cr.P.C.
7. During the course of trial P .W.s 1 to 17 were examined and Ex.P1 to
P.25 were marked on behalf of the prosecution and the prosecution exhibited
M.O.1.
8. The learned Additional Public Prosecutor has given up Marisa Lova
Raju (L.w.8), Gedela Bangari (L.w.12), Sappati Appa Rao, Raghupatruni
Jagadeesh, Gundu Ganesh, Pothurajula Koteswara Rao, Eedubilli
Suryanarayana, B.Koti PC 817 (L.ws. 15 to 21), P. Sreenu (L.w.23) and Ch.
III ASJ cum Family Court, VZM Sessions Case 29/20168 Ambedkar, Inspector of Police (L.w.28) and reported that the Prosecution evidence is closed.
9. After completion of the prosecution evidence, Accused was examined under section 313 Cr.P.C. by putting the incriminating material made out against them, for which, the accused denied the prosecution evidence and when the accused are asked to enter upon into defence, the accused reported no evidence on their behalf, but no documents are marked on behalf of the accused.
10. The arguments of the learned Additional Public Prosecutor and learned defence counsel were heard on facts and points of Law U/Sec. 234
Cr.P.C.
11. Now, the point that arises for consideration is, whether the prosecution could able to bring home the guilt of all the accused for the offences U/Sec. 302,201,354,364 read with 34, IPC beyond all reasonable doubt?
12. Point:
Both the parties have filed their written arguments. They have discussed the evidence thread bear which is in their favour. They have dealt with various contentions in minute detail. The learned Additional Public
Prosecutor vehemently argued that the death of the deceased is a homicidal death but not accidental death which fact is established from the evidence of
P.ws. 2 to 4, 6, 8, 11, 13 to 17; he, further, argued that the prosecution has established the motive for the accused to kill the deceased and the relevant portion of confessional statement of accuse marked as Exs.P.12 and P.13; he, further, argued that the motive of the accused to kill the deceased was well established from the evidence of P.w.2 and further argued that the oral evidence of P.w.2 is well corroborated by the evidenced of P.ws.3 to 6; he, further, argued that all the witnesses have found ligature mark on the neck of the deceased which, by itself, shows that the deceased was killed by strangulation and when the motive of the accused as established from the evidence of P.ws. 2 to 6 is linked up, it can be safely concluded that the accused killed the deceased and thrown the dead body in the tank to screen
III ASJ cum Family Court, VZM Sessions Case 29/20169 the evidence; he, further, argued that the evidence of P.w.13, VRO, clearly and categorically shows about the confession of the accused regarding the commission of offence. He, further, argued that since the present case depends upon the circumstantial evidence, motive of the accused plays prominent role; he, further argued that the evidence of hostile witness should not be totally rejected and the dependable part of it can be relied upon and further argued that the statement before the police may be treated as extra judicial confession and can be taken into consideration, he, further, argued that the inquest report also states about the injuries on the neck of the deceased and hence the prosecution proved the guilt of the accused beyond all reasonable doubt and urged to convict the accused. In support of his
contentions, he relied upon a decision reported in Bhagwan Dass v.
State (NCT) of Delhi1 wherein it was held that:
“In cases of circumstantial evidence motive is very important, unlike cases of direct evidence where it is not so important”
It is also held that:
“In a crime committed within the privacy of house independent witnesses cannot be expected and lack of independent witness would not be fatal if prosecution case is supported by other cogent and reliable evidence."
It is also held that:
“ Evidence of Hostile witness should not be totally rejected. The dependable part of it can be relied upon. The maxim falsus in uno falsus in omnibus having no application in India, the Court is duty bound to separate the grain from the chaff.”
It is also further held that:
“Disclosure leading to recovery of relevant articles is admissible in evidence.”
13. Contradicting the above, the learned defence counsel strenuously argued that the death of the deceased is purely accidental but in view of the disputes between the families of P.w.2 and A.1, taking advantage of the death of the deceased, a false case is foisted against the accused to wreck vengeance against the accused; he, further, argued that the delay in 1 2011 0 AIR (SC) 1863
III ASJ cum Family Court, VZM Sessions Case 29/201610 lodging a report by P.w.2 after one month, itself, proves the foisting of false case against the accused; he further argued, that mere discovery is not sufficient to connect the accused in the absence for any direct witness; he, further, argued that there are several amazing aspects forthcoming in the prosecuting which are unbelievable and unnatural; he, further, argued that it is quite unbelievable that if really the accused committed the offence, he would not have dare to go straight away to the wife of the deceased and confess that he committed the offence; he, further, argued that there is no evidence coming from the prosecution to show that from where the actual offence took place i.e. where the deceased was killed and what was the distance between that place to the tank, where the dead body was alleged to have been thrown and where M.O.1 was picked up; he, further, argued that the case of prosecution fails mainly for the reasons (a) the deceased was not seen lastly with the accused; (b) no evidence of homicide of the deceased;
(c) no alcohol is found in the stomach of the deceased; (d) evidence of the
Doctor is clear that it was an accidental death and the water in the stomach and the water of the tank is one and the same; (e) the extra judicial confession to P.w.9 is not proved; (f) the motive is not established; (g) the investigation is not properly conducted and in support of his contentions, he relied upon the following decisions:
(1)Mani v. State of Tamil Nadu2 wherein it was held that:
“The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case” (2) Lam Prabhudas and another v. State of A.P3wherein it was held that:
“The Prosecution has in fact not even established where exactly the offence has taken place; as per the inquest report, Ex.P.4, the dead body was found lying on the railway track with stab injuries and also with the severance of the head. It is not clear from the evidence on record as to whether the deceased was stabbed to death before his body was brought and laid on the railway track or whether the deceased died only on account of being run over by the train.
2 2008 0 AIR (SC) 1021 3 2009(1) ALD 411
III ASJ cum Family Court, VZM Sessions Case 29/201611 The exact scene of offence and the time of offence are also shrouded in mystery as there is no evidence to establish the same” (3) Ishwar Singh v. The State of U.P.4wherein it was held that:
“It is the duty of the prosecution to show the weapon of offence if available with the prosecution to the doctor to elicit the opinion whether the injuries on the person of the deceased could be caused with the weapon”
Thus, both the parties have submitted their arguments by submitting various case laws. The applicability or otherwise of the above decisions will be discussed in later part of this judgment.
14. The prosecution, in order to prove its case examined as many as 17 witnesses. Among them, P.w.1 is Kasireddy Naga Venkata Tulasi, who had first seen the dead body and informed the same to the brother of the wife of the deceased. P.w.1 deposed that he knows A.1 but he does not know A.2.
P.w.1 deposed that after the marriage, deceased and his wife shifted their residence to Vizianagaram and used to reside in Chandu Residency in Jammu
Narayanapuram since the deceased was working in Mylan Company in
Chemical Department. P.w.1, further, deposed that on 15.11.2014 at about 08:00 a.m., he received phone call from Siva Sankar (L.w.3) that the dead body of deceased (who is the brother-in-law of P.w.1) was floating in a tank with his bike. After received information, he (P.w.1) rushed to Neelathi tank and confirmed that the dead body was that of his brother-in-law. P.w.1, further, deposed that he found ligature mark around the neck of the deceased. But, when his statement is recorded by the police U/s. 161, Cr.P.C.,
P.w.1 did not state about the ligature mark which fact is admitted by him in his cross-examination. For the first time, in his evidence, he deposed the said fact. P.w.1, further, deposed that he informed the same to Satti Babu (P.w.8) who is the brother of the deceased. P.w.1 gave a report to the police under Ex.P.1. Thus, P.w.1 is the person who set the criminal law into motion.
P.w.1. further, deposed that he was present at the time of handing over the dead body to the wife of the deceased after the autopsy was conducted. In his cross examination, he affirmed that he visited Chandu Residency for two or three times where the deceased and his sister were living. Thus the 4 AIR 1976 SC 2423
III ASJ cum Family Court, VZM Sessions Case 29/201612 evidence of P.w.1 is to the extent of his witnessing the dead body in the tank along with bike and informing the same to Satti Babu (P.w8). Even assuming for a moment that the witnessed the ligature mark on the neck of the deceased, no suspicion was raised by him. Hence, from the evidence of
P.w.1, nothing is found to connect the accused with the alleged offence.
15. The prosecution examined the wife of the deceased, Bhimini
Mahalaxmi, as P.w.2. The evidence of P.w.2 is utmost important in this case since basing on her report, section in law is altered from Section 174, Cr.P.C., to 302, 201 read with 34 IPC. P.w.2 deposed that originally her marriage was fixed with A.1 but later the same was cancelled since A.1 had love affair with another lady who filed a criminal case against A.1. According to p.w.2, after cancellation of her marriage with A.1, her marriage was performed with the deceased Ramu who used to work as Chemist in Mylan Company and thereby they have shifted their residence to Chandu Residency in Jammu
Narayanapuram. P.w.2, further, deposed that A.1 developed friendship with the deceased whenever he attended the functions by saying that he is the relative of P.w.2 and deceased and with that acquaintance, he used to come to their house for two or three times i.e. on Saturdays and Sundays. P.w.2.
further, deposed that A.1 used to harass her in the absence of her husband by demanding her to fulfill his lust and used to behave with her indecently and on that she admonished him by saying that she and her husband are leading conjugal life happily and not to disturb her happy life by making any such efforts and used to send by abusing him.
P.w.2, further, deposed that when she conceived pregnancy, on 10.11.2014 her parents, took her to their house and after dropping her there, her husband (deceased) came down to Vizianagaram because of his avocation. She, further, deposed that on 14.11.2014, Friday, her deceased husband made a phone call to her and enquired about her health and other things, and, on the next day when she called her husband over phone, she received message as “switched off”, P.w.2, further, deposed that her brother-in-law byname Satti Babu (P.w.8) informed her that her husband died by falling in a tank, and then, she and her relatives came
III ASJ cum Family Court, VZM Sessions Case 29/201613 down to Vizianagaram and rushed to Government Hospital, where, she found the dead body of the deceased. P.w.2, also deposed that she noticed ligature mark on the neck of the deceased. She stated that she on seeing the ligature mark, she expressed a doubt regarding the death of the deceased.
But, when was examined by the police, at the first instance, she did not disclose these facts.
P.w.2, further, deposed that after postmortem examination was conducted, the dead body was handed over to them for obsequies. After the formalities are completed, she was taken to her parents’ house, where, A.1 came to her and asked her as to “how her husband died” for which when she replied that “her husband died due to drowning in a tank”, he told to her that “since P.w.2 did not fulfill his lust and as such he and A.2 killed her husband because if he is alive, she would not fulfill his lust”. According to P.w.2, after hearing the information, she was shocked and fell on the ground unconscious. P.w.2, further, deposed that in the meantime, Lova Raju (L.w.8) came from fields and poured water on her face and after she regained conscious asked her as to what happened, for which, she narrated the entire story as told by A.1 to him. Then, Lova Raju, in, turn, informed the same to
Tummalapudi Ramu (L.w.7) and they went to II town P.S, Vizianagaram, and lodged a report with police under Ex.P.2. P.w.2, further, deposed that after two days after Ex.P.2. she was called by the police and they took her to the stadium where she identified the towel (M.O.1) belongs to us. Even though
P.w.2 stated that she identified M.O.1, the prosecution could not establish the fact that how M.O.1 came into picture.
16. The learned counsel for accused vehemently contended that if really A.1 committed the offence, he would not have gone to P.w.2 who is none other than the wife of the deceased and confessed that he and A.2 killed her husband. In the cross-examination, P.w.2 stated that one has to cross Rolugunta to Kotta Kota from Narsipatnam to reach their village. She admitted that there are two police stations in Kotta Kota and Narsipatnam.
Here, the amazing aspect that is forthcoming from her evidence that on knowing the killing of her husband from the mouth of A.1, she and others
III ASJ cum Family Court, VZM Sessions Case 29/201614 went to the II town Police Station, Vizianagaram. The prosecution did not offer any explanation as to what made P.w.2 to bi-pass the nearest police stations and rushed to the II town P.S., Vizianagaram. It is quite natural for the human beings to report the incident or accident to the nearest police station at the first instance, who, in turn, would forward the same on the point of jurisdiction which is lacking in this case. P.w.2 though admitted that there is President and Secretary to her village, she did not chose to inform them about the factum of A.1 came to her when she was sleeping and informed her that he killed her husband with the help of A.2 P.w.2 did not state as to what made her to rush to II town Police Station, Vizinagaram, which at a far of place, even without informing the fact of alleged homicidal death of her husband to President and Secretary of her village though they are readily available in the village.
17. P.w.2 made it clear that Chandu Residency where she and deceased used to reside is consisting of three floors and each floor consisting of four flats. If that is so, nearly there are other families residing in the apartment since it is not the case of prosecution that except the deceased and P.w.2, there were none else in the apartment. It is the evidence of P.w.2 that A.1 developed friendship with her deceased husband and he used to come to their house even during the absence of her husband and demand her to fulfill his lust for which she admonished him and send him by abusing him. If the above statement of P.w.2 is true, visiting the house of P.w.2 by
A.1 would have been seen by any of the inhabitants of the Apartment. But, the prosecution did not examine anybody to prove that they have seen when
A.1 was visiting the house of deceased and P.w.2. Even assuming for a moment that what all stated by P.w.2 regarding the alleged demand by A.1 to fulfill his lust, at least, she would have been intimated the same either to her husband or to her brother or parents. In her cross-examination, she, categorically admitted that she did not give any report against A.1 on the pretext that A.1 was harassing her in the absence of her husband to fulfill his lust so also she did not inform the same to any inhabitants of her
Apartments. Moreover, when the statement of P.w.2 given at the earliest
III ASJ cum Family Court, VZM Sessions Case 29/201615 point of time is perused, it is clear that “A.1 used to visit her house on
Saturdays and Sundays and whenever her husband went for night duties, A.1 who is in their house, used to misbehave with her”. So, her earlier version shows that A.1 was in their house even by the time when deceased had left for his night duty which is not stated to by P.w.2 in her evidence. The statement given by P.w.2 at the earliest point of time varies with her evidence given before the Court. P.w.2 stated that on 14.11.2014, her husband made phone call to her and enquired about her health and on the next day i.e. on 15.11.2014 when she called her husband over phone, she received message as “switched off”, though she stated these facts in her evidence she did not mention the same in her 161, Cr.P.C., Statement.
Hence, the evidence of P.w.2 differs with her earlier statement on material points. The improvements made in her evidence which do not find place in her earlier statement leads to doubt the veracity in the evidence of P.w.2.
18.One Bolla Siva Sankar, employee of Reddy Labs, Pydi
Bheemavaram and residing in the opposite flat of P.w.2 and deceased has been examined as P.w.3. His evidence is only to the extent of saying that he came to know about the death of the deceased by floating in a tank. He further, deposed that having received the said information, he communicated the same to the brother of P.W.2 and rushed to tank situated near Singapore City where he found the dead body of deceased. P.W.3, further, deposed that he also found the motor cycle of the deceased.
Though P.W.3 stated that relatives of the deceased used to visit the house of
P.W.2 and deceased, he did not specifically state that A.1 visited the house of the deceased. Moreover, he stated that he does not know accused 1 and 2.
Here, it is pertinent to note that P.W.2 stated in her 161, Cr.P.C. statement
before the Police that “ after her husband went to night duty, Rayi Ramesh
(A.1) who is in their house, harass her to demand his lust”. Admittedly, P.W.2 and deceased took the flat on rent which means deceased and P.W.2 alone to reside in the house. If that is so, how the presence of A.1 could be expected even by the time deceased left to night duties is not explained by the prosecution. The ignorance of P.W.3, with regard to existence of A.1 in the
III ASJ cum Family Court, VZM Sessions Case 29/201616 house of deceased, being the opposite resident is quite unbelievable, because in his earlier statement, he, clearly, stated that : the parents and brother of the deceased used to visit his house. Thereafter, one person used to come to the house of deceased who also used to stay in the house of deceased even though when Ramu (deceased) went to night duties”. Thus, the evidence of P.W.3 totally differs from his earlier statement. The variance in the evidence and earlier statement of P.W.3 creates a doubt in the mind of the Court about the reality in the evidence of P.W.3.
19. One Bavisetty Vinay Kumar, Jim Coach, has been examined as
P.W.4. He stated that he used to run Jim Center in Narispatnam up to
February, 2016. According to him he does not know P.Ws. 1 to 3 and A.1 but he knows A.2 who is resident of his village. P.W.4 stated that A.2 used to come to his Jim for exercises and that on 15.11.2014, he received phone call from A.2 and asked him about the time and then P.W.4 asked him as to whether he came to Jim and informed him that Jim is not opened since it is 04:10 a.m., P.W.4 further deposed that after two weeks, A.2 came to Jim and asked as to whether police verified the phone calls and numbers and then he informed that if there is any seriousness. But, in the cross-examination, he stated that he cannot say the exact date on which A.2 came to his Jim. P.W.4 further stated that he cannot say the phone numbers and the persons from whom he received phone calls. But, in his 161, Cr.P.C. statement, he stated that A.2 made phone call to him through the phone Number 7306629680.
The prosecution has marked Ex.P.10 call data in respect of Cell No.
7306629680 which SIM number is issued to one Singampalli Pothu Raju. The prosecution did not explain as to how A.2 got the custody of phone with SIM
Number 7306629680. Even assuming for a moment that what all stated by
P.W.4 regarding the making call by A.2 is true, but the alleged call at relevant time on 15.11.2014 at 04:10 a.m. does not find place in the call data which is marked as Ex.P.10. In the Cross-examination, P.W.4 stated that he used to maintain a register the regarding the members of the Jim. But, the prosecution failed to seize and produce such register before the Court. The
III ASJ cum Family Court, VZM Sessions Case 29/201617 non-seizure and non-production of the Jim register by the prosecution leads to draw an inference that if the said register is produced into the court, it would not show the name of A.2. In view of the serious discrepancies in the evidence of P.W.4 no reliance can be placed in the evidence of P.W.4.
20. One Penugonda Venkata Raju has been examined as P.W.5. But, he did not support the case of prosecution and hence the learned Additional
Public Prosecutor declared the witness hostile and Cross-examined him. But, except marking Ex.P.3, nothing worthwhile could be elicited from his cross- examination. When P.W.5 was cross-examined by the defence counsel, he stated that A.1 was not working in his shop at present and that A.1 stopped to work in his shop from the moment when he was taken by the police in the 2nd week of December, 2014. Thus, the evidence of P.W.5 is no way helpful to the case of prosecution.
21. The brother-in-law of P.W.2 by name Tummalakoti Ramu has been examined as P.W.6. He reiterated the facts regarding the fixing of marriage of P.W.2 with A.1 at the 1st instance and subsequent cancellation of the same and performing the marriage of P.W.2 with the deceased. P.W.6 further, deposed that the deceased used to work in Mylan Company and they used to put up their family in Chandu Residency in Jammu Narayanapuram.
P.W.6, further, deposed that after seven months, P.W.2 got pregnancy and then the deceased dropped P.W.2 at her parents’ house and returned to
Vizianagaram due to his avocation. On 15.11.2014, P.W.2 received information P.W.8 who is the brother of the deceased informed them about the death of the deceased and thereby he and P.W.2 and other relatives went to Vizianagaram and visited the Government Hospital, where, they found the dead body of the deceased. According to P.W.6 he was present at the time of inquest along with other blood relatives of the deceased and in his presence
Ex.P.4, inquest report was drafted. P.W.6, further, deposed that after autopsy, the dead body was handed over to P.W.2 and others and they took the dead body to Veeravaram village and performed obsequies. After
III ASJ cum Family Court, VZM Sessions Case 29/201618 completion of obsequies, the parents of P.W.2 took her to their house on 07.12.2014 as per the prevailing custom.
22. The evidence of P.W.6 further goes to show that on 08.12.2014 at about 03:00 p.m., when P.W.2 was sleeping alone at her parents’ house, A.1 went there and asked P.W.2 as to how her husband died and told her that he killed the deceased with the assistance of A.2 since P.W.2 did not fulfill his lust. After hearing the words from the mouth of A.1, P.W.2 fell unconscious and thereby her parents sprinkled water on her face and on information furnished by P.W.2, he (P.W.6) along with P.W.2 and other relatives came to
Vizianagaram and lodged Ex.P.2, report to II town police Station,
Vizianagaram. There astonished aspect that is forthcoming is that he narrated the events regarding the fact that A.1 informed to P.w.2 about killing the deceased as if he witnessed the same. P.w.6 stated that when P.w.2 fell unconscious, her parents came and sprinkled water on her face. But, when
P.w.2 was examined, she gave a different version that when she fell unconscious Lova raju (L.w.8) came from fields and poured water on her face.
However, in the cross-examination, P.w.6 admitted that he worked as a
Sarpanch of the village and used to resolve the problem occur among the villagers and whenever there is no chance to resolve the dispute, he used to advice the parties to approach the police. But, quite astonishingly he stated that after knowing the information from P.w.2, he did not advice her to approach the police, for which, he did not offer any explanation as to why he did not do so.
23. Further evidence of P.w.6 goes to show that he did not try to lodge report through P.w.2 to nearest police. P.w.6 being the Ex Sarpanch of village is expected to be conversant with regard to the procedure to be followed whenever such major issues occurred in the village, wherein, he has to inform the same to the police which was not done by him in this case and he also did not offer any explanation for not doing so. The prosecution alleged that at the first instance the marriage of P.w.2 was fixed with A.1 and subsequently when they came to know that A.1 had already love affair with a
III ASJ cum Family Court, VZM Sessions Case 29/201619 girl and she filed a criminal case against A.1 alleging that he cheated her, they have cancelled the marriage of P.w.2 with A.1. But, when P.w.6 who is the senior member and villager elder was cross-examined, he made it clear that they did not verify as to whether any case is filed by the person against the person whom A.1 cheated on the pretext of the marriage. As could be seen from Ex.P.4, P.w.6 is shown as blood relative and his name is shown in serial number 5. In the further cross-examination, P.w.6 clearly stated that the opinion formed by the inquest panchayatdars in the inquest report is correct. Inquest report is marked as Ex.P.4. The opinion of the inquest panchayatdars is recorded in column No.15, wherein, it is clearly mentioned that on 14.11.2014 when the deceased was returning to his house from his duty at about 09:30 p.m., when he reached near Neelathi tank as there was no bund the tank, the deceased, accidentally fell into the tank and died. The inquest over the dead body was held on the same day or on the next day of death of the deceased, wherein, the elders unanimously opined that the death of the deceased is an accidental death due to falling into Neelathi tank. Even though the discrepancies and variations in the evidence of P.w.6 are ignored from consideration, the categorical admission of P.w.6 with regard to the opinion of inquest panchayatdars in column No. 15 clearly establishes that the death of the deceased is accidental but not homicidal.
Hence, the evidence of P.w.6 does not come to the rescue of prosecution case.
24. One S.Rajesh Kumar, Manager of Aurobindo Pharma Limited and the owner of flat No.202 which is let out to the deceased and P.w.2, has been examined as P.w.7. He deposed that he let out his flat bearing No.202 to the deceased on a monthly rent of `.3,000/-. Since, P.w.7 did not support the evidence of prosecution, the learned Additional Public Prosecutor declared him as hostile and cross-examined him. But, except marking his 161, Cr.P.C., statement as Ex.P.5, nothing worthwhile could be elicited from his cross- examination.
25.One Bhimini Satti Babu who is the brother of the deceased has been examined as P.w.8. He stated with regard to the marriage of deceased
III ASJ cum Family Court, VZM Sessions Case 29/201620 with P.w.2. P.w.8 deposed that while he was present at Veeravaram village, he received a phone call from P.w.1 that the motor cycle of his deceased brother bearing registration No. AP 05 CS 1997 was found in a tank along with the dead body of his deceased brother and P.w.1 asked him to come down to Vizianagaram along with relatives and accordingly he and his father
Devullu (L.w.10) and other relative came down to Vizianagaram and visited the Government Hospital, Vizianagaram, where he found the dead body of the deceased in the mortuary and on seeing the dead body he noticed a ligature mark on the right side of the neck, he also stated the same fact in his 161, Cr.P.C., statement. But, quite ridiculously, he did not raise any doubt with regard to the death of the deceased though he found ligature mark on the dead body of the deceased except saying that he and P.w.1 enquired with the police about the said mark. P.w.8 though denied the suggestion that he and the inquest panchayatdars along with P.w.1 did not express any suspicion about the death of the deceased at the time of inquest, the alleged suspicion said to have been raised by P.w.1,8 and other inquest panchayatdars does not find place in Ex.P.4, inquest report.
26.One Kasireddy Venkata Ramana who is the father of P.w.1 and acted as photographer has been examined as P.w.9. He deposed that he is acting as an elder of the village. He also stated about the marriage of P.w.2 with the deceased. P.w.9 deposed that A.1 is the nephew by courtesy. But, quite ridiculously he stated that he cannot say the name of A.1. This part of his evidence throws a doubt about the veracity of his evidence. P.w.9 also stated about the cancellation of marriage between A.1 and P.w.2. P.w.9 further stated that he came to know that the deceased was killed and his dead body was thrown away into a tank. P.w.9 clearly stated that accused never came to him and did not confess anything with him. But, P.w.9 stated that he lodged a report with the police under Ex.P.6. When nobody came to him and did not state anything, what made him to draft Ex.P.6 report is not explained by P.w.9. Further, P.w.9 clearly stated that he did not take anybody to the police station along with Ex.P.6 report and did not handover anybody to the police. Since P.w.9 had shown some hostility to the prosecution case,
III ASJ cum Family Court, VZM Sessions Case 29/201621 the learned Additional Public Prosecutor declared the witness hostile and cross-examined him. Except marking Ex.P.7, nothing worthwhile could be elicited from his cross-examination. However, in the cross-examination made by the defence counsel, P.w.9 clearly stated that he drafted Ex.P.6 report outside the II town Police Station at the instructions of the police.
Thus the evidence of P.w.9 is no way helpful to the prosecution case to tag the accused with this grave offence.
27.One Andiripalli Appa Rao has been examined as P.w.10. He stated that on 15.11.2014 when he went to Dasannapeta to collect waste papers and waste plastic materials, he noticed a mob near Neelathi Tank then, he also went there to know as to what happened, there, he noticed a dead body was floating in the tank, and that the S.I., who was present there asked him to pick up the dead body from the tank and accordingly, he brought out the dead body from the tank. He found the dead body of the deceased in the depth of five feet and brought the dead body to the bund with the assistance of Gedela Bangari (L.w.12). P.w.10, further, deposed that he along with Bangari brought out the bike from the tank by tying ropes to the bike and kept it on the bund. The tying of rope to the bike for picking it out from the tank is not stated to by P.w.10 in his earlier statement before the police. But, when he entered into the witness box, he stated that he and
Bangari (L.w.12) tied rope to the bike and picked it out. From a combined reading of 161, Cr.P.C. Statement and evidence of P.w.10, leads to draw an inference that he conveniently suppressed the fact of tying rope to the dead body also. However, in his cross-examination, he stated that he noticed a mark on the left side of the neck but he did not state the same to the police.
In this context, a presumption can be drawn that since P.w.10 clearly stated that he and Bangari (L.w.12) tied rope to the bike to pick it out from the tank and in the same way, since the dead body was in the water at the depth of five feet, they might have tied rope to it to pull it out and thereby the said scratch mark might have been appeared. Moreover as could be seen from
Ex.P.20, photographs, a rupture mark appears on the neck of the deceased.
Even if the prosecution story that the accused strangulated the neck of the
III ASJ cum Family Court, VZM Sessions Case 29/201622 deceased with M.O.1 towel is assumed to be true for the sake of argument, there is no possibility for such deep rupture mark on the neck since the towel is made up of with cloth. So, from the evidence of P.w.10. the case of prosecution became more fragile since P.w.10 gave a clue for such ligature mark on the neck of the deceased.
28.The prosecution has also examined one Mamidi Adinarayana as
P.w.11 who is a resident of Chandu Residency and he used to work as an
Executive in the very same Company where the deceased used to work during his life time. P.w.11 stated that on 15.11.2014 and some others went to Neelathi tank and found the dead body of the deceased floating in the tank. He also stated that P.w.10 and Bangari (L.w.12) brought out the dead body from the tank. P.w.11 signed in the scene observation report, Ex.P.8, which is prepared by the police. P.w.11 stated that along with him their
Security Supervision Sapati Appa Rao (L.w.15) also subscribed in Ex.P.8.
P.w.11 further deposed that he accompanied the dead body to the
Government Hospital, Vizianagaram. He stated that he was present at the time of inquest and his name is also shown in Ex.P.4, inquest report. But, quite surprisingly, he stated that he does not know as to what opinion of the inquest panchayatdars. When he was cross-examined by the learned defence counsel, he stated that the depth of the tank where the dead body was floating is 6’2”. P.w.11 also clearly stated that the opinion formed by the inquest panchayatdars in Ex.P.4 is true and correct. If that is so, it can be said that the deceased died due to accidental fall into the tank but was not killed by anybody.
29. One Gottimukkala Ravi Kumar, Police Constable, has been examined as P.w.12 who stated that he received requisition from the Station
House Officer, II town P.S., Vizianagaram requesting him to prepared letter in the name of Additional Superintendent of Police being the Nodal Officer addressed to concerned Net works. Accordingly, upon the directions of the
Additional S.P., he prepared letters addressed to the Net works as requested
by the Station House Officer, II town P.S., and on sending of letters to the concerned Net works, the investigating Officer obtained the call data
III ASJ cum Family Court, VZM Sessions Case 29/201623 directing from them. Ex.P.9 is the acknowledgment given by Reliance communication in token of receipt of their letter. Ex.P.10 is the call data with regard to the mobile number 7306629680 belongs to One Singampalli Pothu
Raju Naidu. Ex.P.11 is the customer application of said Pothu Raju Naidu.
He, further, deposed that they received requisition from Additional S.P., who is the Nodal Officer requesting him to provide call data certified copies in respect of mobile numbers 9885073516, 9676629012, 7306629680, 9177610818, 9059136372, 7659941713 and 7674945584 during the period from 01.06.2014 to 31.12.2014. In his cross-examination by the learned defence counsel he stated that the S.I. concerned addressed letter them to us on 16.03.2015 asking to get the call date from the various service providers of mobile connections. At this juncture, the learned counsel for the accused objected for marking the call data by drawing the attention of this court to Section 65-B of Indian Evidence Act. Admittedly the call data and other electronic record though marked by the prosecution did not append with certificate.
30.The V.R.O., K.L. Puram by name Eedubilli Suryanarayana has been examined as P.w.13. He stated that their Tahasildar received phone call asking to send two V.R.Os., to support the police people in proceeding recoveries. He and Koteswara Rao (L.w.19) were deputed and both of them went to II town P.S., and the Inspector of Police, S.I., and other police people produced accused 1 and 2 before them. Then the accused 1 and 2 have confessed the offence in their presence and they recorded the confessional statement of A.1 in the first instance, and, thereafter, they recorded the confessional statement of A.2. P.w.13 further deposed that the accused stated before them that they killed the deceased by throttling his neck with
M.O.1 towel and thrown away the towel into the bushes and cell phone of A.2 into bushes. Accordingly, as per the statement of accused, P.w.13,
Koteswara rao, C.I. of Police and other police personnel went to Kummari
Street, Vizianagaram, where they found M.O.1 but the cell phone of A.2 was not found. The relevant portion in the confessional statements of Accused 1 and 2 are marked as Exs.P.12 and P.13 respectively and Ex.P.14 is the seizure
III ASJ cum Family Court, VZM Sessions Case 29/201624 report. According to P.w.13, police seized M.O.1 on the confession made by the accused and identification parade was conducted at Rajiv Gandhi Sports
Complex, Vizianagaram, wherein, P.w.2 identified M.O.1 on 14.12.2014 under
Ex.P.15 identification proceedings. Though P.w.13 stated that their Tahasildar received phone call to depute V.R.O., in his cross-examination, he admitted that the name of the person who instructed them to go to police station was left blank in 2nd para of Ex.P.12. He also admitted that he and Koteswara Rao did not receive any written instructions from their Tahasildar. P.w.13 clearly admitted that they have no duty and necessity to assist the police in the investigation. If that is so, in the absence of any written instructions, how
P.w.13 and another could participate in search and seizure and recording the confession statement of accused is not explained by him. In the further cross-examination, P.w.13, clearly admitted that the exact place from where
M.O.1 is picked up is not mentioned in the seizure report. In a criminal case where the seizure of material objects more particularly weapon of offence is seized, the prosecution is supposed to be very cautious and to record each and everything very minutely, but missing some crucial points during the course of seizure of material objects leads to draw an adverse inference to the prosecution case. Moreover, P.W.13 clearly stated that the police did not affix the identification slips on M.O.1. The non-affixture of identification slips by the police on M.O.1 throws a doubt regarding the seizure of M.O.1 and to infer that M.O.1 might have been planted to suit the convenience of the prosecution case. As has been held earlier, even if the object like M.O.1 is used, there is no possibility for causing such a wound which gives an appearance of cut injury. The another important point elicited from the cross-examination of P.w.13 is that the name of the company and the measurements of M.O.1 are also not mentioned in Ex.P.14, seizure report. All these violations by the prosecution at the time of seizure of M.O.1 which is said to be the weapon of offence infers that the prosecution only with over- anxiety and to substantiate its case somehow or other might have been given a go-bye to the very basic things which have to be observed at the time of seizure of Material Objects. According to the prosecution through the
III ASJ cum Family Court, VZM Sessions Case 29/201625 evidence of P.w.13, an identification parade was conducted wherein P.w.2 identified M.O.1 as that of their towel. But, unfortunately, the prosecution failed to obtain the signature of P.w.2 on Ex.P.15, identification proceedings, in token of her participation and genuinity of identification proceedings as admitted by P.w.13 in his cross-examination. Thus, the evidence of P.w.13, itself, cuts the very root of the prosecution regarding the seizure of M.O.1 so also recording of confessional statement of Accused 1 and 2. Hence, the evidence of P.w.13 is also now way helpful to the prosecution.
31.Dr. P.V.K. Sharma, who conducted the postmortem examination over the dead body of the deceased, has been examined as P.w.14. He stated that on 15.11.2014 he received a requisition to conduct the postmortem examination over the dead body of the deceased and accordingly, he conducted autopsy and found the external injuries: 1. Sero sanguineous foami discharge was seen coming through both nostrils; 2.
Rigor mortis was present all the limbs; 3. A curvilinear contusion of 12 x 7.5 cm. brownish black in colour was seen encircling right side of neck; starting from the nape of the neck on to the front of the neck in mid line was present; on examination of head and neck, he found that tharyx contains frothy sero sanguineous discharge; subcutaneous tissue and musculature underneath the contusion was showing transversely; upon examination of chest, he found trachea and bronchi contain sero sanguineous foam discharge; and upon examination of abdomen he found stomach containing brown turbid liquid of approximately 30 ml. He preserved the viscera and sent for chemical analysis which shows that no poisonous substance was found in the viscera. He opined that the death of the deceased is due to asphyxia resulting from ante mortem drowning. He issued Ex.P.16 preliminary postmortem certificate and Ex.P.17 final opinion. Ex.P.18 is the RFSL report.
Thus from the evidence of P.w.14, it is clear that the deceased died due to asphyxia resulting from ante mortem drowning. Taking into consideration the evidence of P.w.14 clearly shows that the death of the deceased is due to drowning. This medical opinion totally uproots the case of prosecution. If really, the accused was killed by the accused and thrown the dead body into
III ASJ cum Family Court, VZM Sessions Case 29/201626 the tank, the question of death by drowning does not occur. Another important point emerges from the evidence of P.w.14 that during the postmortem examination, no alcohol substance was found in the abdomen of the deceased. The theory set forth by the prosecution that accused on knowing the fact that the deceased was alone in the house, invited him to have liquor and made him to drink liquor and when the deceased was in intoxicated state, the accused killed him by throttling his neck. If the said story is correct, definitely, P.w.14 would have found some liquor/alcohol beer content in the stomach of the deceased. It is commonly known even to a rustic layman that there is no chance for a dead body to drink water when it was thrown into a tank. Ex.P.17 clearly shows that item No.s.1 and 2 i.e.
water in the stomach of the deceased and sample water lifted from the tank are one and the same. So, from the medical evidence of P.w.14 coupled with
Exs.P.17 and P.18 it can be said that the death of the deceased is only due to drowning in the water but not a homicidal one.
32.Y.K. Kishore Kumar, presently inspector of Police but at the time of offence worked as Sub Inspector of Police has been examined as P.w.15.
He deposed that on 10.12.2014 at about 08:00 a.m., he received information about the unknown dead body floating in Neelathi tank. Then, he left the police station along with his staff and reached the scene of offence and found the dead body was floating. P.w.15 being the investigating Officer who commenced the investigation is supposed to depose the exact things. But, at the very beginning, he quoted the wrong date. The offence alleged to have been taken place on 14.11.2014, but he stated that he received information regarding the floating of dead body in the tank on 10.12.2014 which shows his irresponsibility in discharging his official duties. According to P.w.15, basing on the report given by P.w.1 he registered a case in
Cr.No.285/2014 U/s. 174, Cr.P.C., and conducted inquest over the dead body of the deceased in the presence of inquest panchayatdars and drafted Ex.P.4, inquest report. He, further, deposed that he got photographed the scene of offence under Ex.P.20 photos, and also examined the witnesses and recorded their statements and then forwarded the dead body to the Government
III ASJ cum Family Court, VZM Sessions Case 29/201627 Hospital for postmortem examination. He deposed that he prepared Ex.P.19 rough sketch and also got prepared the scene observation report under
Ex.P.21. Though he stated the series of events, still, his evidence leads to doubt the veracity in his evidence, since his evidence shows that after inquest, scene observation, preparation of rough sketch etc., facts the dead body was shown to have been sent to the Government Hospital for autopsy.
But, in fact, the actual happened things are different since the inquest was conducted at the mortuary of the Government Hospital but not so as stated by P.w.15.
33.P.w.15, further, stated that on 10.12.2014 at about 08:00 p.m.,
P.w.2 came to the police station and submitted Ex.P.2 report, basing on which he altered the Section of Law from Section 174, Cr.P.C., to Sections 302, 201 read with 34, IPC and issued Ex.P.22 altered FIR. He, further, deposed that since the offence U/s.302, IPC is grave in nature; he handed over the further investigation to the Inspector of Police. It is the evidence of P.w.1 that he found ligature mark on the neck of the deceased. But, when P.w.15 was cross-examined on this aspect, he, admitted that P.w.1 did not state or mention in Ex.P.1 that he found a ligature mark around the neck of the deceased. Another interesting aspect forthcoming from the evidence of
P.w.15 is that P.w.2 did not state either in her 161, Cr.P.C. statement or in
Ex.P.2 that A.1 developed friendship with the deceased and after their marriage, A.1 used to visit their house on Saturdays and Sundays. P.w.15 also admitted that P.w.2 did not state before him in her 161, Cr.P.C.
statement that when accused went to her house and narrated about the incident, she lost her conscious and fell on the ground and on that Lova raju (L.w.8) sprinkled water on her face and she informed everything to him.
When the evidence of P.w.15 is taken into consideration, the so called narration of A.1 about the killing of deceased to P.w.2 can be easily brushed aside. The very important and crucial point that is stated to by P.w.15 is that in column No.15 of Ex.P.4, inquest report, it is mentioned that the death of the deceased is accidental by falling into the tank since there is no tank to the bund. When P.w.15 admitted that the opinion formed by the inquest
III ASJ cum Family Court, VZM Sessions Case 29/201628 panchayatdars in Ex.P.4 is correct, though P.w.2 presented Ex.P.2. he would have exercised his brain before altering the Section of Law from 174, Cr.P.C., to 302, 201 read with 34, IPC., So, from the evidence of P.w.15 itself, it can be said that the death of the deceased is only accidental but not homicidal.
Even from the admission made by P.w.15, it is clear that there is no bund to the tank in which the dead body of the deceased was found floating. Taking into consideration the evidence of P.w.14, medical officer, the death of the deceased due to drowning, it can be said that the deceased might have fallen in the tank while proceeding on his motor cycle.
34.Again, on 03.04.2017, P.w.15 was recalled on a petition filed by the prosecution. The prosecution got marked Ex.P.25 original printed FIR which was registered basing on the report given by P.w.1. Though the prosecution took pains to recall P.w.1 and got marked Original printed FIR, it is only to the extent of registering the case under Section 174, Cr.P.C., at the inception.
35. K. Rama Rao, Inspector of Police, has been examined as P.w.16.
He deposed that on 10.12.2014 when he was in the office, P.w.15 informed him about the alteration of the Section law in Crime No. 285/2014 from 174,
Cr.P.C., to 302, 201 read with 34, IPC and then he rushed to II town P.S., and obtained the copies of Exs.P.1 and P.2 and P.22 and examined Lova Raju (L.w.18) and P.w.6 and recorded their statements. He, further, deposed that on 12.12.2014, P.w.15 informed him that P.w.9 came to the police station and lodged Ex.P.6 report. But, P.w.9 did not support the case and he was declared as hostile. P.w.16 further deposed that he instructed the S.I. to send requisition to the Commissioner, Vizianagaram Municipality to send two mediators and accordingly the Commissioner sent two mediators Koteswara
Rao and P.w.13. But, as could be seen from the evidence of P.w.13, he stated that their Tahasildar received requisition from S.H.O., II town P.S., and thereby they were deputed to go to the police station. The prosecution did not remove the dilemma on this aspect as to whether P.w.13 and another mediator were sent either by the Commissioner, Vizianagaram Municipality or Tahasildar. P.w.16 categorically stated that he arrested both the accused in
III ASJ cum Family Court, VZM Sessions Case 29/201629 the presence of the mediators. The evidence of P.w.16 in this regard totally differs from the evidence of P.w.13, since P.w.13 stated that when he and
Koteswara Rao went to the police station, police produced the accused
before them, from which, it could be understood that the arrest of the
accused as stated by P.w.16 is not correct. P.w.16, further, stated that as per the confession of accused, M.O.1 was seized, but the mobile phone of A.2, though stated by the accused, the same was not traced. P.w.16, further, deposed that on 14.12.2014, he conducted the identification parade in respect of M.O.1 through P.w.2 wherein she identified the M.O.1. In the preceding paragraphs, it is observed that there are procedural irregularities noticed in the process of Test Identification Parade as evident from the evidence of P.w.13 and hence it can be safely concluded that no reliance can be placed on the identification parade said to have been conducted by
P.W.16 through P.w.2.
36.According to the prosecution, the accused made extra judicial confession before P.w.9. Ex.P.6 is the report drafted by P.w.9. Of course,
P.w.9 turned hostile and did not support the case of prosecution. Even assuming for a moment that the accused made confession before P.w.9, definitely he would have obtained the signatures of the accused on the statement so recorded by him. But, P.w.16 clearly admitted that the signatures of the accused 1 and 2 are not obtained in the Ex.P.6. report, so, from this admission of P.w.16, a suspicion can be laid on the genuinity of
Ex.P.6,. report. P.w.16 admitted that independent person can act as mediator, but in this case the two mediators i.e. P.w.13 and Koteswara Rao are not the independent persons. Though he denied the suggestion that he did not conduct the identification parade of M.O.1 by mixing similar type of towels, he did not state the manner and method in which he conducted the identification parade.
37.R. Srinivasa Rao, Inspector of Police, has been examined as
P.w.17. He stated that he took up further investigation from P.w.16 on 30.12.2014. On that day, he examined P.w.3 and 7 and recorded their statements in his part-I CD and he instructed P.w.15 to address a letter to the
III ASJ cum Family Court, VZM Sessions Case 29/201630 Superintendent of Police, Vizianagaram, to obtain call data of P.w.2 and accused with regard to their mobile phone numbers. Ex.P.24 is the call data received by him with regard to five mobile numbers. The learned defence counsel raised objection for marking Ex.P.24 on the score that the said document is not produced before the Magistrate’s Court. This Court does not find any force in the said contention since Section 65-B of Indian Evidence
Act clearly says that computer output can be received in evidence. However, in the earlier paragraphs, it is observed that the phone call from A.2 through a particular mobile phone at 04:10 a.m. does not find place in the statement.
However, in view of the clear admission by P.w.17 that no certificate was made on Ex.P.24 with regard to five mobile phones from the Nodal Officers and Net work agencies. Hence, this court is of firm view that though Ex.P.24 is marked, no useful purpose is served for the prosecution.
38.In the further cross-examination, P.w.17 admitted that the water found in the dead body of the deceased and the water sample picked up from the tank are found to be one and the same. In this context, already a detailed discussion is held. If really, the accused killed the deceased and thrown away the dead body into the tank, there would not be any possibility for a dead person to consume water of the tank while drowning into the tank.
So, naturally, it can be said that deceased while proceeding on his bike, accidentally fallen into the tank and lost his breath but he was not killed by the accused as alleged by the prosecution.
39.Admittedly, this is a case purely based on the circumstantial evidence. The prosecution though alleged that the accused killed the deceased and thrown the dead body into the tank is not proved by the prosecution by adducing cogent and satisfactory evidence. The important witness for the prosecution is P.w.9 before whom the accused said to have been confessed their guilt. Of course, the extra judicial confession is a weaker piece of evidence and even if it is accepted, the author of Ex.P.6 i.e.
P.w.9 turned hostile and did not support the case of prosecution. Moreover, if there is any suspicion against A1, P.w.2 would have expressed her doubt against A1, P.w.2 would have expressed her doubt against A.1 at the time of
III ASJ cum Family Court, VZM Sessions Case 29/201631 inquest and that there is abnormal delay in lodging Ex.P.2, to police, on the other hand, no person who committed the offence went to the victim and disclose that he killed the deceased. Hence, the case of prosecution suffers from several infirmities and discrepancies which creates a doubt in mind of the court which goes in favour of the accused.
40.The accused are charged with the offences U/s. 302, 201, 354 and 364 read with 34, IPC. But, the prosecution has utterly failed to prove any of the charges against the accused. Therefore, the accused are entitled for acquittal.
In the result, the accused 1 and 2 are found not guilty for the charges U/s. 302, 201, 354 and 364 read with 34, IPC and they are, accordingly, acquitted U/s. 235(1), Cr.P.C., for the said charges. The accused are directed to execute bond for their due appearance in the event of appeal.
M.O.1 and other unmarked property, if any, shall be destroyed after appeal time is over. Bail bonds of the accused and that of their sureties, if any, shall stands cancelled.
Dictated to the Steno, transcribed by him, corrected and pronounced by me in
open Court, this the 12th day of April, 2017
Sd/- B. Srinivasa Rao
Judge, Family Court cum
III Additional Sessions Judge, Vizianagaram
APPENDIX EVIDENCE
Witnesses Examined
For Prosecution:For Defence: P.W.1: Kasireddy Naga Venkata Tulasi P.w.2: Bhimini Mahalaxmi P.w.3: Bolla Siva Sankar P.w.4: Bavisetty Vinay Kumar P.w.5: Penugonda Venkata Raju P.w.6: Tummalakoti Ramu P.w.7: S. Rajesh KumarNone P.w.8: Bhimini Satti Babu P.w.9: Kasireddi Venkata Ramana P.w.10: Andiripalli Appa Rao P.w.11: Mamidi Adinarayana P.w.12: Guntamukkala Ravi Kumar P.w.13: Eedubilli Suryanarayana P.w.14: Dr.P.V.K. Sharma, CAS P.w.15: Y.K. Kishore Kumar P.w.16: K.Rama Rao, Inpsector of Police P.w.17: R. Srinivasa Rao, Inspector of Police
III ASJ cum Family Court, VZM Sessions Case 29/201632
Exhibits Marked
For Prosecution:
Ex.P.1: Report given by P.w.1 to the police Ex.P.2: Report given by P.w.2 to the police Ex.P.3: 161, Cr.P.C. Statement of P.w.5 Ex.P.4: Inquest Report Ex.P.5: 161, Cr.P.C. statement of P.w.7 Ex.P.6: Report drafted by P.w.9 Ex.P.7: 161, Cr.P.C. statement of P.w.9 Ex.P.8: Scene Observation report Ex.P.9: Acknowledgment given by Reliance Communications Ex.P.10: Cell phone data with regard to mobile no. 7306629680 Ex.P.11: Customer application of Singampalli Pothu Raju Ex.P.12: Relevant Portion confessional statement of A.1 Ex.P.13: Relevant portion of confessional statement of A.2 Ex.P.14: Seizure report Ex.P.15: Identification parade report Ex.P.16: Postmortem preliminary report Ex.P.17: Final Report Ex.P.18: R.F.S.L. Report Ex.P.19: Rough sketch Ex.P.20: 14 photos Ex.P.21: Scene observation report Ex.P.22: Altered FIR Ex.P.23: Letter addressed by P.w.15 to the Superintendent of Police Ex.P.24: Call data with regard to five mobile numbers Ex.P.25: Printed FIR registered (U/s.174, Cr.P.C.)
For Defence: NIL
Material Objects Marked
M.O.1: Towel
Sd/- B. Srinivasa Rao
Judge, Family Court cum
III Additional Sessions Judge, Vizianagaram
III ASJ cum Family Court, VZM Sessions Case 29/201633