Page 1 of 37 SC No. 157 of 2016
IN THE COURT OF II ADDL. SESSIONS JUDGE (FTC) ADILABAD AT
MANCHERIAL
PRESENT: SRI D. VENKATESH II Addl. Sessions Judge (FTC), Mancherial
Tuesday, this the 24th day of May, 2022
S.C No. 157 of 2016
(On committal by the I Addl. Judicial Magistrate of First Class, Mancherial in PRC.18/2015 in Cr.No.93/2015 of P.S. CCC Naspur)
NAME OF THE State of Telangana through COMPLAINANT The Inspector of Police, PS Mancherial Rural
1. Enagandula Ramulu, S/o.Raghavulu,
NAME OF ACCUSED
Age : 37 years, Caste : Madiga (SC), Occ : Business, R/o. 2 incline basti, Bellampalli.
2. MD. Aleem, S/o.MD. Shareef, Age : 25 years, Caste : Muslim, Occ : Lorry Driver, R/o.H.No.16335/1,OldBazaar, Ramagundam of Karimnagar District.
OFFENCES UNDER SECTION302 r/w 34 of IPC
PLEA OF THE ACCUSED Not guilty
FINDING OF THE COURTNot guilty
IN THE RESULT, accused No.1 and 2 are SENTENCE /ORDER found not guilty for the charge U/Sec. 302 r/w 34 of IPC and consequently they are acquitted U/Sec.235(1) Cr.P.C. The Bail bonds of accused persons shall stand cancelled after expiry of appeal time and subject to Section 437A Cr.P.C. MOs.2 to 8 shall be destroyed
Page 2 of 37 SC No. 157 of 2016 after expiry of appeal time and MO.1 motorcycle of the deceased shall be returned to the (PW3)K. Sandhya after expiry of appeal time. Unmarked case property shall be destroyed after expiry of appeal time.
COUNSEL FOR Sri P. Rayamallu, Addl. Public Prosecutor
PROSECUTION
COUNSEL FOR DEFENCESri N. Rajeshwar Rao, Advocate
This case is coming before me for final hearing on 24.05.2022 in the presence of Sri P. Rayamallu, Addl. Public Prosecutor for the State and Sri N. Rajeshwar Rao, Advocate for accused No.1 and 2 and after hearing both sides and after perusing the material on record to till this day this Court delivered the following:
:: J U D G M E N T ::
Accused No.1 and 2 stands charged for the offence under Sections 302 r/w 34 of Indian Penal Code for committing murder of Koparthi
Surender.
2.The brief facts of the prosecution case:
(i)On 30.06.2015 at about 12.30 a.m, (midnight) LW1/Kopparthi
Thirupathi @ Srinivas filed police report alleging that deceased by name Kopparthi Surender was his brother. In view of the disputes between his sisterinlaw by name Enagandula
Sandhya and her husband Enagandula Ramulu (A1),
Enagandula Sandhya and her mother used to live in a rented
Page 3 of 37 SC No. 157 of 2016 premises at Subhashnagar of CCC Naspur. He further complained that his brother Surender used to visit the house of
Mulkalla Susheela and Enagandula Sandhya to help them now and then. About 20 days back uncle of first informant by name
Kopparthi Chandraiah informed him that husband of
Enagandula Sandhya (A1) told him that the deceased was maintaining illicit intimacy with his wife (Enagandula Sandhya) and he would see his end. Basing on the information the family members warned the deceased not to visit the house of
Sandhya.
(ii)On 29.06.2015, at about 9.00 p.m., the deceased went to the house of Mulkalla Susheela and Enagandula Sandhya. At about 10.45 p.m., while he was returning home and reached
Prashanthnagar of CCC Naspur, he was stopped by two persons. They forcibly dragged the deceased to the fish market of Prashanthnagar and caused his death by stabbing on both sides of chest and back with a knife. The person who has seen the incident informed the informant over telephone.
Immediately, he rushed to the spot and found his brother died in front of Chiluka Sadaiah house by the side of the road. Since the first informant suspected that the husband of Enagandula
Sandhya by name Enagandula Ramulu might have killed his brother on the suspicion of illicit intimacy between
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Enanagandula Sandhya and Koparthi Surender. Hence, the report.
(iii) Basing on the police report, a case in Crime No.93/2015 under
Section 302 r/w 34 of IPC was registered. During investigation
LW28/M. Rajendra Prasad, Additional S.I of Police examined and recorded the statements of witnesses, visited the scene of offence No.1 and 2 and conducted scene of offence panchanama and seized the material objects found at scene of offence. Later the investigation was taken up by LW29/T. Praveen Kumar,
Inspector of Police, Mancherial Rural. He arrested the accused
No.1 and 2 on 03.07.2015. On interrogation they voluntarily confessed the commission of offence. In pursuance of their confession, he seized one knife and blood stained shirt from accused No.2 under the cover of panchanama. After conducting the formal panchanama, the dead body was subjected to
Postmortem Examination and after collecting FSL report, PME report and completion of investigation, charge sheet was laid for the offence under Section 302 r/w 34 of IPC.
3.Upon filing of final report U/Sec.173 of Cr.P.C. by the Inspector of
Police, PS Mancherial Rural, the learned I Addl. Judicial Magistrate of First
Class, Mancherial has taken cognizance of offence under Section 302 r/w 34 of IPC against the accused No.1 and 2. After observing the procedural formalities, he committed the case to the Hon’ble Court of Sessions,
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Adilabad as the offence punishable U/Sec.302 of Indian Penal Code is exclusively triable by the Hon’ble Court of Sessions, where it was numbered and made over to this court for disposal according to law.
4.On appearance of Accused No.1 and 2 before this court and on considering the entire material available on record, a charge for the offence under Section 302 r/w 34 of IPC was framed against the Accused No.1 and
2. It was read over and explained to the accused in Telugu for which the accused pleaded not guilty and claimed to be tried for the charge.
5.To prove its case, the prosecution examined as many as 21 witnesses and got marked Ex.P1 to P19 and M.O1 to M.O.8. The list of witnesses examined as PWs.1 to 21 is as under:
(i) (LW1) Koparthi Thirupathi(PW1) He is the complainant and brother of the deceased;
(ii) (LW2) Koparthi Rajam (PW2)He is the father of the deceased;
(iii) (LW4) Koparthi Sandhya (PW3) She is the wife of the deceased;
(iv) (LW8) Gare Murali (PW4) He is the photographer and he took the photographs over the dead body of the deceased and the scene of offence place ;
(v) (LW6) Budde Sathish(PW5) and (LW15) M. Vishnu (PW10) They are the eye witnesses to the incident according to the prosecution;
(vi) (LW9) K. Ravinder (PW6) He is the brother of the deceased;
(vii) (LW10) Chandraiah (PW7)He is the uncle of the deceased;
(viii)(LW12) K. Surender(PW8) He is the cousin of the deceased;
(ix)(LW14) P. Satish (PW9) and (LW16) Ch. Ravi (PW11)They are the circumstantial witnesses;
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(x)(LW20) A. Raj Kumar (PW12) He is the panch witness for scene of offence and seizure panchanama;
(xi) (LW23) B. Raju(PW13) He is the panch witness for scene of offence, inquest and seizure of material objects from the scene and the deceased dress material and a rope;
(xii)(LW24) V. Rajaiah (PW14) and (LW25) Somishetti Bapanna (PW15) They are the panch witnesses for confession of accused No.1 & 2 and seizure panchanama;
(xiii)(LW5) E. Sandhya @ Sandhya Rani (PW16) She is the wife of the accused No.1;
(xiv)(LW13) M. Susheela (PW17) She is the aunt of the deceased;
(xv)(LW7) Angadi Gopal (PW18) He is the eye witness to the incident according to the prosecution;
(xvi) (LW26) Dr. S. Laxman(PW19)He is the Medical Officer who conducted autopsy over the dead body of the deceased and issued final opinion;
(xvii) (LW28) M. Rajender Prasad, Addl. S.I of Police (PW20) He is the Investigating Officer, he issued FIR and conducted inquest over the dead body of the deceased;
(xviii) (LW29) T. Praveen Kumar, C.I of Police (PW21) He is the Investigating Officer he filed charge sheet in this case;
6.After completion of the examination of the witnesses, accused No.1 and 2 were called upon to explain the incriminating circumstances that are appearing in the evidence of prosecution witnesses as required U/Sec.313 (1) (b) of Cr.P.C. Accused No.1 and 2 have denied the evidence. They did not choose to produce any defence witness on their behalf, but Accused No.1 filed the certified copy of judgment, charge sheet and FIR in C.C.No.1522 of 2014 in his defence.
7.Heard arguments on both sides. Learned counsel for the accused filed written arguments.
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WRITTEN ARGUMENTS:
i.The learned counsel for the accused No.1 and argued that prosecution miserably failed to establish the motive of offence and it is sufficient to discard the prosecution case. He submitted that the prosecution relied upon the evidence of PW7 for establishing the motive but PW7 admitted that he has not informed PW1 anything and as such the contention of prosecution regarding the motive remained not proved.
ii.He further argued that the prosecution alleged that PW16 and 17 used to reside at Subhashnagar locality of CCC Naspur, but prosecution failed to establish their residence at Subhashnagar locality by examining the landlord of PW16 and 17 and in the absence of the same the prosecution case cannot be accepted.
iii.He further submitted that though PW16 and accused No.1 are wife and husband, they are separated long back and living separately. Though PW16 filed a case under the provisions of 498A of IPC, it ended in acquittal and no other case has been filed by the PW16 against accused No.1 and in such circumstances when there is no relationship existing between
PW16 and accused No.1, question of accused No.1 causing the death of the deceased does not arise. He submitted that
Accused No.1 during the course of examination under Section 313 Cr.P.C. filed the certified copy of FIR in Crime No.15/2014 of PS Bellampally II Town. He filed certified copy of charge
Page 8 of 37 SC No. 157 of 2016 sheet as well as certified copy of judgment in CC No.1522 of 2014. This is the case filed by PW16 against accused No.1 under section 498A of IPC. The judgment was passed in
October, 2018. Perusal of the copy of the judgment shows that the victim/first informant was not even examined and by examining some circumstantial witnesses who did not support the case of prosecution, the judgment was passed. Further only three witnesses were examined out of 10 list of witnesses in the said case.
iv.Perusal of the charge sheet in Crime No.15/2014 discloses that the accused and PW16/Enagandula Sandhya married on 16.06.2007 out of love and even blessed with two female children. They lived happily for about 2 years and thereafter from 2009 her husband started subjecting her to cruelty and used to beat her. Though she continued her marital life with a hope, he did not change his attitude and on the other hand, abandoned her for a period of two years. She along with her children stayed at her parent’s house and when her father died in the year 2011, who was the Singareni Employee, accused started harassing her by demanding the gratuity amounts received on the death of her father.
v.The first informant of Crime No.15/2014 was Enagandula
Sandhya Rani wife of accused Enangandula Ramulu. LW2 in the case ws the mother o the victim and LW3 was their
Page 9 of 37 SC No. 157 of 2016 neighbor. However, these 3 persons were not examined by the trial court in CC No.1522/2014 and by examining the circumstantial witnesses, the judgment of acquittal was passed.
The endorsement of Asst. Public Prosecutor can be seen on the copy of charge sheet filed wherein it discloses that whereabouts of LWs 1 and 2 were not known and as such their evidence was closed.
vi.The contention of the learned counsel for the accused in the present case is that as accused and PW16 are separated long back and as such there is no connection between them and he committed the death of the deceased does not arise. When the contention of the learned counsel is considered under the back drop of the case in Crime No.15/2014 on the file of Bellampally
II Town is considered, his contention appears to be not appreciable. When the FIR filed by wife of accused along with charge sheet and judgment are considered, it clearly speaks about the case filed and the harassment meted out by PW16.
PW16 filed FIR against the accused in January, 2014. The complaint was the result of the dispute that took place on 03.01.2014 on the occasion of annual death ceremony of father of Enangandula Sandhya. After filing of said case in January, 2014, PW16 and 17 left Bellampally, came to Mancherial and started residing in CCC Naspur locality. The FIR in the present case which is filed in June, 2015 categorically speaks that after
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PW16 filed police report against her husband before Bellampally
Police Station, they came to CCC Naspur and started residing with her children. The report Ex.P1 also says that deceased used to visit their house to help them. When the report itself speaks after the disputes and filing of the case by PW16 against her husband, they came to Mancherial, the contention of learned counsel for accused is not sustainable.
vii.Furthermore non filing of maintenance case or divorce case is not a ground to believe that PW16 and accused No.1 are completely separated but in other ways it can be understood that PW16 was not interested to waste her time by filing any maintenance case against her husband who abandoned for a period of 2 years having the knowledge that PW16 was blessed with 2 female children through him. Therefore, his contention is not acceptable.
viii.The learned counsel further argued that there is a delay in sending of FIR to Court by the Investigating Officer and it certainly proves fatal to prosecution case. This contention of learned counsel is not appreciable. Ex.P14 is the FIR registered by S.I of Police PS CCC Naspur. The FIR was registered on 30.06.2015 at 12.30 a.m. Whereas the incident took place at about 10.45 p.m., on 29.06.2015. Within almost 2 hours of the incident, the police report filed by the brother of the deceased.
The period of 2 hours in filing of the police report cannot be
Page 11 of 37 SC No. 157 of 2016 found fault with because having received the information and visited scene of offence, he might have proceeded to scene of offence and later filed police report. Therefore, it cannot be found fault with.
ix.As per Ex.P14, Column No.15 it shows that the FIR was dispatched to the court at 1.00 a.m.., on 30.06.2015. Whereas the endorsement of the Judicial Officer on FIR shows that it was received by him at 2.00 pm., on 30.06.2015. Almost after 12 hours of its dispatch by S.I of Police it was received in Court.
The learned counsel argued that by the time the Judicial Officer received the FIR almost all the investigation regarding the offence has been completed by seizing the material objects from the scene of offence and it clearly shows that the FIR was registered just before the receipt of it by the Judicial Officer after due deliberations by falsely implicating the accused in view of the disputes between PW16 and accused No.1. He further submitted that as family of deceased are close relatives of PW16 they supported PW16 in filing of this case by taking advantage of death of the deceased. He vehemently requested to discard the entire investigation conducted prior to 2.00 p.m., on 30.06.2015. This contention of learned counsel appears to be not considerable and without any basis. When the FIR Ex.P14 categorically speaks about its issuance at 12.30 p.m., on 30.06.2015, his argument to consider that it was registered just
Page 12 of 37 SC No. 157 of 2016
before it was received by the Judicial Officer is not considerable.
Whenever FIR is registered, it will be not only sent to Judicial
Officer but also will be sent to higher authorities like Inspector of Police, SDPO, Superintendent of Police etc. Further a constable will be deputed for dispatching to all the above offices.
In the present case by perusal of FIR there appears no lapse on the part of S.I of Police in registration and dispatch. There can be some fault on the part of the Police Constable to whom the
FIR has been handed over by the S.I of Police to go and serve or submit before the concerned Judicial Magistrate because of the
Judicial Officer received the FIR at 2.00 p.m. on 30.06.2015 it cannot be said that it was issued at 12.00 or 1.00 p.m on 30.06.2015 therefore his contention is not acceptable and holds no water.
9.The learned counsel for the accused No.1 and 2 relied upon the decision of Hon’ble High Court of Judicature for Telangana and Andhra
Pradesh at Hyderabad in the case of Batchu Ranga Rao and Others Vs.
State of Andhra Pradesh Crl.A.No.607 of 2011 dated 16.02.2018, 2019 (1)
ALD (Crl.) 385 wherein their lordships held that :
“When there are serious defects and deficiency in the case of prosecution, when there is delay in registration of FIR and the case of prosecution as ring of artificiality it is highly unsafe to convict the accused.”
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10.I have gone through the decision of Hon’ble High Court and with most respect the facts and circumstances of said case are different from the present set of facts. In the above case there was the evidence of eye witness whose evidence was believed by the trial court but their lordships rejected the contention stating that they were planted. Further there was a delay in filing of FIR. Whereas in the present case, there is no delay in filing of FIR and mere sending of FIR to the Court has been already answered.
Therefore, the decision is not applicable in the present set of facts.
11.Now the points that arise for determination is:
1. Whether the death of the deceased Koparthi Surender was homicidal?
2. Whether, the Accused No.1 and 2 caused the homicidal death of the deceased in furtherance of their common intention? If so,
Whether Prosecution proved the same beyond all reasonable doubt for the offence u/s 302 r/w 34 of IPC?
POINT NO.1:
12.Admittedly death of the deceased is not in dispute. However,
Prosecution alleged that Accused No1 and 2 have caused the homicidal death of the deceased in furtherance of their common intention by stabbing with a knife. To prove the said allegation, prosecution examined the first informant as PW1. PW1 Kopparthi Tirupathi in his evidence deposed that on 29062015 at about 10:30 PM his brother was killed at Prashanth Nagar
Fish market, CCC Naspur. When they visited the scene of offence after the
Page 14 of 37 SC No. 157 of 2016 said information, they found the deceased in a pool of blood with stab injuries.
13.PW13B. Raju is the mediator for recording Inquest Panchanama over the dead body of the deceased. He deposed that about five or six years back police visited Prashanth Nagar locality of CCC Naspur and conducted inquest Panchanama over the dead body of the deceased by noting the details of the injuries present over the dead body. He admitted the
Panchanama proceedings vide Ex P6. As per the inquest Panchanama which was conducted at the scene of offence deceased died of the stab injuries. The inquest was conducted on 30062015 at 8:30 AM.
14.PW4/Gare Murali is the photographer who have taken the photographs of the deceased at scene of offence while conducting the
Panchanama. PW13 is also the mediator for recording the scene of offence
Panchanama. When the photographs are perused, it shows the photograph of presence of the PW13 at scene of offence while conducting the
Panchanama. PW13 also deposed that inquest was conducted after conducting the scene of offence Panchanama. Dead body of the deceased with stab injuries and lying in a pool of blood can be seen in the photographs. The photographs shows that the death of the deceased appears to be under unnatural circumstances.
15.PW19 is the Medical Officer who conducted PME over the dead body of the deceased. PW19 Dr. S. Laxman in his evidence deposed that on 3006
Page 15 of 37 SC No. 157 of 2016 2015 he received requisition from SHO PS Mancherial to conduct the PME over the dead body of the deceased by name Kopparthi Surender. He deposed that while conducting the PME he found the following antemortem injuries over the dead body.
1. A Punctured wound of 2 X 2 X 4 cm on right side of the chest from lateral to right nipple
2. A Punctured wound of 2 X 3 X 4 cm on left side of the chest from lateral to left nipple
3. Four Punctured wounds of 1 X 3 X 5 cm on back side of left side of chest.
4. A Punctured wound of 2 X 3 X 4 cm on right Lung
5. A Stab wound of 2 X 3 X 4 cm over left fore arm.
6. An Abrasion of 3 X 2 cm over right knee
16.He further deposed that Injury No.1 to 5 are caused with sharp object and Injury No.6 was caused with blunt object. He opined the death of the deceased due to Haemorrhagic shock. Ex P10 is the PME report. PW19 further deposed that he has preserved the viscera of the deceased which was sent to FSL and after analysis the expert opined that there was no poisonous substance found in the samples. PW19 exhibited the FSL report and final opinion as Ex P11 to P13. During cross examination PW19 admitted receiving the Inquest report along with the requisition from the police before the PME. However, he denied the suggestion of issuance of
PME basing on the inquest report at the request of police. This contention of learned counsel is not considerable because Inquest report only speaks about the opinion as to cause of death where as PME report speaks about each injury present over the dead body and also speaks about the situation of internal organs. Without opening the dead body, one cannot give any
Page 16 of 37 SC No. 157 of 2016 report about the presence of blood in the cavities and the opinion as to cause of death. Though the Inquest speaks about the unnatural death, but
PME report speaks about the opinion as to cause of death. Therefore, the contention of defence counsel about issuance of PME report basing on the inquest report is not acceptable.
17.When the oral evidence of PW1 which speaks about the seeing of the deceased in a pool of blood is considered under the evidence of mediator for inquest and medical officer who conducted PME over the dead body and above all considering the photographs, it clearly appears that the death of the deceased Surender was not a natural death but was unnatural. PW19 evidence clearly speaks that the deceased died of the antemortem injuries suffered by the deceased. All the injuries mentioned in the PME report as spoken by the PW19 clearly shows that the injuries were caused over chest.
The chest is the part of the body which is situated between neck and abdomen. It includes the ribs and breastbone. Inside the chest several important organs like the heart and lungs are present. Injury No.1 says about the punctured wound. A puncture wound is a forceful injury caused by a sharp, pointed object that penetrates the skin. The puncture wound would be narrower and deeper than a cut. Said fact has been spoken by
PW19 that perforating injury was larger in entry and smaller in exit.
18.According to prosecution case the nature of object used in the alleged incident is a knife. A knife is admittedly a sharpedged weapon. MO8 is a knife. When the nature of object is considered under the evidence of PW19
Page 17 of 37 SC No. 157 of 2016 who deposed about the presence of punctured injuries which are more obviously possible with an object like knife, the case of prosecution can be believed. Ex P13 says that the death of the deceased was due to
Haemorrhagic shock. It is a form of shock in which severe blood loss leads to inadequate oxygen delivery at the cellular level and loss of both circulating blood volume and oxygencarrying capacity would certainly leads to death. Similarly in the present case as can be seen in the photographs and the MO4 to 6 which were completely drowned in blood, there was heavy blood loss due to causing of almost five injuries on vital parts. Collection of blood in lungs and heart can be seen. In such circumstances it is clearly the result of the forceful stabbing. Therefore, the death of the deceased as stated by PW19 and as supported by the PW13, the death of the deceased was not natural but homicidal. Further except suggesting the issuance of report basing on the Inquest report, defence counsel failed to elicit any material to doubt or disbelieve the version of PW19. Having considering the discussion held above, this court is of the opinion that the death of the deceased was homicidal. Accordingly, the point answered in the affirmative.
POINT NO.2:
19.According to prosecution case, accused No.1 and 2 who are friends caused the death of deceased in furtherance of their common intention by stabbing with a knife. The alleged incident took place at Prashanthnagar locality of CCC Naspur. Though the incident took place in open place, public place, for the reason of its time at about 10.30 a.m., Prosecution says
Page 18 of 37 SC No. 157 of 2016 that no eye witnesses were available to the incident. In view of non availability of eye witnesses to the incident, prosecution necessarily depended on circumstantial evidence, it has to see that the circumstances are completely connected, established and stands proved beyond doubts.
20.Before going to see whether the prosecution proved the chain of circumstances, it is necessary to know the law laid down by Hon’ble
Supreme Court for proving an offence under the circumstantial evidence.
Their Lordships in the case of Sarath Birdhichand Sarda Vs State of
Maharastra AIR 1984 Sc 1522 held that :
“[152] A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in (Shivaji Sahebrao Bobade v. State of Maharashtra)19, (1973) 2 S.C.C. 793 where the following observation were made; "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long an divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
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After understanding the principles now it has to be seen whether the chain of circumstances has been connected and established by prosecution.
Prosecution examined the family members initially who witnessed the dead body and filed police report.
21.PW1Kopparthi Tirupathi is the first informant. He filed police report vide Ex P1. The oral evidence of PW1 says that on 29062015 at about 10:30 PM, his brother Ravinder received information regarding death of the deceased at Fish Market Prashanth Nagar and immediately on receiving the information his mother informed him. On such information he along with mother and family members rushed to scene of offence and found the dead body of the deceased in a pool of blood. He also deposed that he came to know about causing death by two persons and as one week prior to the incident, Accused No.1 informed his uncle [LW10]Chandraiah about threatening to kill the deceased on the suspicion of deceased moving closely with his wife; the first informant filed report vide Ex P1. During cross examination he admitted not filing any report against the Accused after he threatened over telephone. He also admitted disputes between Accused and his wife who is residing separately.
22.PW2Kopparthi Rajam is the father of the deceased. PW3K. Sandhya is the wife of the deceased. PW6Ravinder is the brother of the deceased.
PW8 Surender is the cousin of the deceased. All of them in their evidence deposed that they received information regarding the death of the deceased near Prashanth Nagar Fish Market and when they went there, they found
Page 20 of 37 SC No. 157 of 2016 the deceased in a pool of blood. When the evidence of above witnesses is perused, it clearly shows that they are not the eye witness to the alleged incident and they were informed by some others about the incident and thereafter they went to scene of offence. In view of the nature of their evidence, it is hit by the rule of hearsay and may not help the case of prosecution.
23.When the evidence of PW1 to 3, 6 and 8 is considered, it clearly shows that they are not eye witness. Besides they say that it was the accused who caused the offence. They alleged motive against accused No.1 stating that accused No.1 suspected that his wife was moving freely with deceased.
Since the offence is resting on circumstantial evidence element of motive assumes importance. Now it is to be seen whether the prosecution could able to establish the motive of offence.
MOTIVE:
24.Prosecution alleged that accused No.1 and 2 caused the death of deceased in furtherance of their common intention. Accused No.1 is the husband of PW16Sandhya. Deceased was the relative of PW16. Motive behind the offence as stated by prosecution is suspicion of accused No.1 against his wife PW16E. Sandhya. He suspected that there might be relation between deceased and PW16. Prosecution relied upon the version of PW7Chandraiah particularly to prove the motive. According to prosecution about one week prior to this incident accused No.1 approached
Page 21 of 37 SC No. 157 of 2016
PW7Chandraiah and stated that he would see the end of deceased because of his(deceased) close association with his (accused) wife.
25.This version of prosecution is stated by all the family members of deceased. Surprisingly, PW7 resiled from this statement. He admitted that accused never approached and informed that he was going to see the end of deceased. When prosecution seriously relied on the version of PW7 and when PW7 failed to support the said version, no credence can be given to the version of other family members. Unless the motive is established with the help of PW7, prosecution case cannot be accepted.
26.The contention of prosecution is further not supported by any means.
There is no evidence regarding the strained relationship between accused
No.1 and PW16. No evidence as to the suspicion of accused No.1 against his wife PW16. Not even a single untoward incident after the case filed under
Section 498A of IPC by PW16 against accused No.1. When prosecution failed to establish that accused No.1 was suspecting the PW16, the mental element of motive has to be doubted. No doubt proof of motive is not a sine qua non in all the circumstances, but whenever, prosecution rely on the circumstances, it has to establish that there was reason for the accused to cause the death or commit the offence. It would corroborate and strengthen the other circumstances which help the prosecution to complete the chain of circumstances.
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27.Hon’ble Supreme Court in the case of State of UP Vs. Hari Prasad (1974) 3 SCC 673 wherein their lordships while explaining the importance of motive held that :
"This is not to say that even if the witnesses are truthful, the prosecution must fail for the reason that the motive of the crime is difficult to find. For the matter of fact, it is never incumbent on the prosecution to prove the motive for the crime. And often times, a motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive. But, if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in with the alleged motive."
28.Further in the case of Tomaso Bruno and another Vs. State of UP 2015(2) Supreme 278 their lordship held that :
“Where the case is based on circumstantial evidence, proof of motive will be an important corroborative piece of evidence. If motive is indicated and proved, it strengthens the probability of the commission of the offence. In the case at hand, evidence adduced by the prosecution suggesting motive is only by way of improvement at the stage of trial which, in our view, does not inspire confidence of the court.”
29.In view of the principles and ratio laid down by the Hon’ble Supreme
Court in the above decision and when the said ratio is applied to present set of facts, this court is of the opinion that the prosecution failed to prove the motive explained by them. When material witness PW7 could not able to prove the motive and supported the prosecution, what is the value of the evidence of PW1 to 3 and 6 who relied on the version of PW7? Further there are no corroborative circumstances to believe the motive. Accordingly, the mental element of motive remained not proved.
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EYE WITNESS EVIDENCE:
30.It is the case of prosecution that accused No.1 and 2 caught the deceased after he came out from the house of PW16 and dragged him up to
Prashanthnagar Fish Market where he was killed by stabbing with a knife.
To establish and prove the story, prosecution relied upon the version of
PW5, 10 and 18. PW5 was Satish. Initially, deceased fell down from the motorcycle in front of his house. Thereafter, both accused caught hold of the shirt of deceased and dragged towards Prashanth Nagar. PW10 and 18 are the persons who witnessed while accused No.1 and 2 dragged the deceased. The evidence of PW5 is not trust worthy. This evidence starts with material discrepancy in the time of offence. Further accused could able to disprove his version. Therefore, his evidence is not believable.
31.After excluding the evidence of above witnesses, the prosecution depended on the evidence of PW5Budde Satish, PW10M. Vishnu and
PW18Angadi Gopal. They have last seen the deceased with Accused No.1 and 2 just prior to the death of the deceased. PW5 deposed that five years back at about 5:30 PM, while he was present at his house he has seen two people beating one person and said person was trying to escape from death and also approached him to save him. When he tried to intervene, they threatened him on the point of knife. He further deposed that though he tried to stop the vehicles, nobody stopped and meanwhile the deceased fell down with bleeding injuries. As such he went to police station and informed them.
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32.PW18Gopal in his evidence deposed that in June 2015 at about 10:00 PM, while he was present at his kirana shop, he heard some sounds and a motor cycle fell down in front of the house of Satish. He also deposed that he observed two people dragging the third person (deceased). When he questioned the two people stated that it was their family matter and they are going to police station and he should not interfere. He also deposed that deceased came to him stating that he do not know them, the two persons dragged and took the deceased with them and meanwhile the locality people gathered. He further deposed that he identified the deceased with the motor cycle remembering that he used to visit the house of PW16 and 17. As such he went to the house of PW16 and informed about the same. Within 30 minutes he came to know about the death of the deceased.
33.When the evidence of PW5 is considered it is filled with omission and contradictions. As per the prosecution case the incident took place at about 10:30 PM, whereas, PW5 says that he has seen the deceased and Accused persons at 5:30 PM. There is a variation in the time of incident. He admitted that he was present at his gate at the time of the incident. He also admitted giving 164 CrPC statements before JFCM Luxettipet, but two police constables were present with him. He admitted not giving the descriptive particulars of the assailants and the weapon of offence. He also admitted that he has not stated in his Sec 164 CrPC statement that on 29062015 at 10:30 PM, when he woke up for urination, he witnessed the incident as in
Ex D1. When the evidence of this witness is scanned, it appears that his
Page 25 of 37 SC No. 157 of 2016 evidence is not credible. There is a variation in the evidence of the witness from his sec 161 CrPC statements, chief examination and cross examination.
34.The evidence given by him is not reliable. He being a post graduate in
Journalism, he would have the knowledge of crime and its consequences. No doubt the incident took place at late night where the possibility of public on roads would be remote, but he who witnessed the incident shall speak truth and shall withstand on his version. When the offence took place at 10:30
PM, PW5 stating that he witnessed them at 5:30 PM creates doubt. On the other hand he admitted not disclosing the date and time of the incident in his Sec 164 CrPC statement which was given before JFCM Luxettipet.
Though his version speaks about the two persons dragged the deceased and he tried to stop them, he failed to identify the two persons before this court.
Since the PW5 and Accused persons are not known to each other, the
Investigating Officer would have taken steps for conducting the Test
Identification Parade proceedings. It proves fatal to prosecution case.
35.Hon’ Apex Court in the case of Suresh Chandra Bahri vs. State of
Bihar 1995 Supp (1) SCC 80 held that “it is well settled that substantive evidence of the witness is his evidence in the court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it
Page 26 of 37 SC No. 157 of 2016 furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigating agency and
for the accused and a fortiori for the proper administration of justice
that such identification is held without avoidable and unreasonable delay after the arrest of the accused. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution.”
36.As held by Hon’ble Supreme court, when there is no acquaintance between the accused persons and the witnesses, taking steps for getting the accused identified assumes importance and further it would certainly help the Investigating officer to proceed with further investigation on proper lines.
It appears that he has relied on the statement of PW16 and the enmity which have less evidentiary value. Therefore, nonconducting TIP is fatal in the given circumstances.
37.After excluding PW5, the evidence of PW10 and 18 remains for scrutiny. They deposed that they have seen two persons dragging a third person whom they have identified as deceased. This explanation for identifying the deceased is that they have seen him while he used to visit the house of PW16. This explanation appears to be plausible and believable, but the identification of accused No.1 and 2 by PW10 appears to be doubtful.
Page 27 of 37 SC No. 157 of 2016
38.PW18 is silent about the identification of accused No.1 and 2, but
PW10 identified before this court this identification in my opinion is a weak piece of evidence. His evidence is recorded after about 5 years of occurrence of incident. Inspite of lapse of 5 years, he could identify the culprits without the aid of any identification parade earlier. It appears to be highly improbable on a human memory. PW10 and 18 though deposed that they have questioned the accused person for dragging the deceased and on that they have told not to interfere into the family issue. Further PW18 has made some improvement to his version. However, on close scrutiny, their evidence appears to be not believable. His evidence can be given credence to the extent of the identifying the deceased and informing the PW16 because deceased used to come to the locality and they have seen him
before. Though he deposed that locality people restrained him from
obstructing the two assailants from interference goes to show that some other people were present at the time of the incident. However, neither
PW18 disclosed about them nor investigating officer did not choose to examine any of them.
39.The alleged incident was caused at about 10:30 PM. It was committed in a residential locality. The deceased was dragged almost for 500 meters to 1 k.m. Throughout the place of dragging there were residential houses.
However, there are no eyewitnesses to the incident. Nobody including the
PW10 and 18 could stop the culprits. Not chosen to call the police at least by dialing 100. The time of incident cannot be said to be too odd where there
Page 28 of 37 SC No. 157 of 2016 was no possibility of availability of people on the road. There can be people on roads now and then. Further, according to PW10 and 18, the deceased was dragged and taken with them. No person would keep quite or proceed with the Accused when taken forcibly. Certainly he would resist, raise alarm or make sounds or cry at least where the possibility of people gathering would be high, but in the present case no such instance appears. The conduct of PW10 and 18 in keeping quite even after taking the deceased forcibly appears to be not natural. Though they may not interfere, but at least they would inform the police over telephone. No doubt they deposed that they tried to interfere, but was threatened. When they were threatened, the duty of individual increases. They would have informed the police over telephone. Absolutely there is no evidence on record to believe that PW10 and 18 has made any attempt. They would have taken steps to restrain the accused. Further, though the people gathered as per the version of PW10 and 18, no body followed the Accused to the fish market. In the given circumstances, this court is of the opinion that the evidence of PW18 is to be corroborated because he has never spoken about the identification.
40.The evidence of PW16 and 17 completely support the prosecution case, but they are not the eyewitness to the incident. They are the circumstantial witness. PW16 expressed her suspicion against the accused
No.1 who is her husband in view of his nature and disputes with him. Her version can be accepted to the extent of deceased coming to their house on the date of incident just prior to his death and left home about 10:30 PM.
Page 29 of 37 SC No. 157 of 2016
Though she deposed that PW18 Gopal came to her within 10 minutes and informed about the taking of deceased by two unknown persons, for the reason of non identification by PW18, it may not help the prosecution case.
41. COMMON INTENTION:
Section 34 of IPC states that: When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
The section can be explained as when two or more persons commit any criminal act and with the intention of committing that criminal act, then each of them will be liable for that act as if the act is done by them individually.
The essential elements of section 34 of IPC are:
1. There must be some act which is criminal in nature.
2. The act must be done by two or more persons.
3. The act done by persons must be with the common intention of all.
4. Every person who is involved in that act is liable for such act.
5. Every person shall be liable as if he has done that act alone.
42.According to prosecution case, accused No.1 and 2 being the friends have shared the common intention and in furtherance of their common intention caused the death of deceased. Prosecution says that it has even recovered the material object knife from the possession of accused No.1 which was used to kill the deceased. Investigating Agency also recovered the shirts of accused No.1 and 2 for the reason of falling of deceased blood
Page 30 of 37 SC No. 157 of 2016 on them. However, the seizure of material objects at the instance of accused No.1 and 2 remained not proved. As can be seen from the record, except this incriminating circumstance of deceased blood over the shirt of accused No.2, there is no other evidence available of record. Though prosecution examined PW14 and 15 mediators for proving the seizure of
Material Objects that remained not proved. Both the mediators failed to support the prosecution case.
43.Prosecution intended to prove the above circumstance to connect the accused No.2. It has exhibited the FSL report vide Ex.P12. As per the FSL report both the shirts of accused persons under item No.11 and 12 have been sent to FSL for analyzation. Though human blood was found on item
No.11 and 12, the serologist could not determine its group to believe that the blood found on item No.11 and 12 belongs to accused. In the absence of the above circumstance, the role of accused No.2 can be ruled out.
44.Hon’ble Supreme Court in the case of Maqsoodan Vs. state of UP (1983) 1SCC 218 wherein their lordships held that :
“The prosecution must lead evidence from which the common intention of the accused can be safely gathered. In most cases it has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit an offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law”.
Page 31 of 37 SC No. 157 of 2016
45.Prosecution says about the involvement of two persons who are accused No.1 and 2. Prosecution relied upon the evidence of eyewitness
PW5, 10 and 18 who have witnessed the deceased in the association of accused No.1 and 2. However, their evidence is not convincing. PW5 completely failed to identify the accused No.1 and 2. PW18 is silent regarding the identification. Whereas, PW10 spoken and identified the accused No.1 and 2 before this court. No Test Identification Parade proceedings appear to have been conducted. Admittedly, PW10 and accused No.1, 2 are strangers to each other. When both parties are not known to each other and the case rests on circumstantial evidence, identification of accused No.1 and 2 by PW10 appears to be doubtful.
46.No doubt identification test do not constitute substantive piece of evidence. But they are meant for helping the Investigating Officer. It would give confidence to the officer that his investigation progress in correct and proper lines. It would help the investigating agency that the witnesses who claimed to have been the culprits during the commission of offence are able to identify the culprits. In the present case, no such exercise appears to have been done by the Investigating Officer. Though he got recorded the
Section 164 Cr.P.C. statements of witnesses, he did not choose to take steps of identification parade. In the absence of such corroborative piece of evidence, it is unsafe to rely upon the testimony of PW10 alone for believing the sharing of common intention.
Page 32 of 37 SC No. 157 of 2016
47.When the ratio laid down by Hon’ble Apex Court is applied to present set of facts, it can be said that the prosecution failed to establish the sharing of common intention as required under Section 34 of IPC.
48.As per the police report and FIR, the alleged offence took place at
Prashanth Nagar of CCC Naspur. First scene of offence is shown at the place where the motorcycle of deceased fell down. The Second scene of offence is shown where the dead body of deceased is found. Both are at different places. As per the version of eyewitness, the distance is almost 500 meters to 1 k.m. However, the eyewitnesses say that he was dragged and taken away. Here the eyewitnesses are not for the commission of offence i.e., killing of the deceased, but they have last seen the deceased with accused No1 and 2, PW10 and 18 categorically deposed that they have not seen after the death of the deceased. As per the evidence of PW18, within half an hour police came to him when he came to know about the death of the deceased.
49.Except the evidence of PW5, 10 and 18, no other evidence connecting the accused persons to the crime. In my opinion; when PW10 and 18 have not visited the scene of offence where dead body of the deceased was found and have not witnessed the accused persons at the place where dead body was found after his death, it is unsafe to draw the presumption under
Section 106 of Indian Evidence Act.
Page 33 of 37 SC No. 157 of 2016
50.Hon’ble Apex Court in the case of Sahadevan Alias Sagadeven v.
State represented by Inspector of Police, Chennai, (2003) 1 SCC 534
wherein their Lordships held that:
“It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. The conduct of the accused and the fact of last seen together plus other circumstances have to be looked into. Normally, last seen theory comes into play when the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being t he perpetrator of the crime becomes impossible. It will be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. However, if the prosecution, on the basis of reliable evidence, establishes that the missing person was seen in the company of the accused and was never seen thereafter, it is obligatory on the part o f the accused to explain the circumstances in which the missing person and the accused parted company.”
51.The fact of last seen theory has to be weighed by considering the other evidence available on record. It cannot be read in isolation. As it is a settled proposition of law that the prosecution has to necessarily prove the
Page 34 of 37 SC No. 157 of 2016 association of deceased and Accused soon before the death and the proximity of time was less, then sec 106 of Indian Evidence Act burdens the accused to explain the circumstances for the death of the deceased. It is a presumption which is rebuttable and if the accused succeed in explaining the situation, then the onus again bank upon the prosecution. In the present case, though the prosecution relied upon the Last Seen, failed to establish the association of Accused and Deceased soon before the death. In the absence of the same and as guided by Hon’ble Apex court, it is not believable.
52.In view of the above principles of Hon’ble Apex court in a case resting on circumstantial evidence, this court is of the considered opinion that prosecution failed to establish the guilt of Accused No.1 and 2 beyond reasonable doubt. The chain of circumstances is incomplete. They do not conclusively establish the guilt of Accused. Presence of Accused persons at the place where dead body was found remained not proved. Motive of offence remained not proved. Seizure of material objects remained not proved. It appears that basing on the version of family members of the deceased, the investigating officer proceeded with investigation without connecting the
Accused with the chain of circumstances. In view of the above circumstances, prosecution case cannot be accepted. Accordingly the point is answered in the negative.
53.IN THE RESULT, accused No.1 and 2 are found not guilty for the charge U/Sec. 302 r/w 34 of IPC and consequently they are acquitted
Page 35 of 37 SC No. 157 of 2016
U/Sec.235(1) Cr.P.C. The Bail bonds of accused persons shall stand cancelled after expiry of appeal time and subject to Section 437A Cr.P.C.
MOs.2 to 8 shall be destroyed after expiry of appeal time and MO.1 motorcycle of the deceased shall be returned to the (PW3)K. Sandhya after expiry of appeal time. Unmarked case property shall be destroyed after expiry of appeal time.
Typed to my dictation by the Stenographer, corrected and pronounced by me in open court on this 24 th day of May, 2022.
II Addl. Sessions Judge (FTC), At Mancherial
Appendix of Evidence
Witnesses Examined
For prosecution: For Defence
PW1 : Koparthi Thirupathi NONE
PW2 : Koparthi Rajam
PW3 : Koparthi Sandhya
PW4 : Gare Murali
PW5 : Budde Sathish
PW6 : K. Ravinder
PW7 : Chandraiah
PW8 : K. Surender
PW9 : P. Satish
PW10 : M. Vishnu
PW11 : Ch. Ravi
PW12 : A. Raj Kumar
PW13 : B. Raju
PW14 : V. Rajaiah
PW15 : Somishetti Bapanna
PW16 : E. Sandhya @ Sandhya Rani
PW17 : M. Susheela
PW18 : Angadi Gopal
Page 36 of 37 SC No. 157 of 2016
PW19 : Dr. S. Laxman
PW20 : M. Rajender Prasad
PW21 : T. Praveen Kumar
EXHBITS MARKED
For prosecution:
Ex.P1 : Police report (Complaint) by PW1
Ex.P2 : Photographs (30 in Nos.)
Ex.P3 : CD
Ex.P4 : Scene of offence panchanama
Ex.P5 : Scene of offence and seizure panchanama
Ex.P6 : Inquest Panchanama
Ex.P7 : Signature of PW14 on confession cum seizure panchanama
Ex.P8 : Signature of PW15 on confession cum seizure panchanama
Ex.P9 : Photograph
Ex.P10 : Postmortem Examination report
Ex.P11 : FSL report
Ex.P12 : FSL report
Ex.P13 : Final opinion
Ex.P14 : First Information Report
Ex.P15 : Section 164 Cr.P.C. statement of LW5/E.Sandhya @ Sandhya Rani
Ex.P16 : Section 164 Cr.P.C. statements of LW6/ Budde Satish
Ex.P17 : Section 164 Cr.P.C. statements of LW7/ A. Gopal
Ex.P18 : Section 164 Cr.P.C. statements of LW13/M. Susheela
Ex.P19 : Section 164 Cr.P.C. statements of LW15/ M. Vishnu
For Defence
Ex.D1 : Marked portion of Section 164 Cr.P.C statement of PW5
MATERIAL OBJECTS MARKED
For prosecution: For Defence:
Page 37 of 37 SC No. 157 of 2016
M.O.1 : Motor cycleNil
M.O.2 : Pieces of Beer Bottle
M.O.3 : Blue colored full Shirt
M.O.4 : Blood stained cotton banian
M.O.5 : Blood stained maroon color drawer
M.O.6 : Blood stained black colored pant
M.O.7 : Blood stained navar patti
M.O.8 : Knife
II Addl. Sessions Judge (FTC), At Mancherial