S.C.No.165/2019 1/17
APKR030041072019
IN THE COURT OF V ADDITIONAL METROPOLITAN SESSIONS JUDGE,
VIJAYAWADA.
METROPOLITAN SESSIONS DIVISION, VIJAYAWADA
PRESENT: SRI D. YEDUKONDALU
V ADDITIONAL METROPOLITAN SESSIONS JUDGE,
VIJAYAWADA.
Wednesday, this the 18th day of March, 2020.
SESSIONS CASE NO.165 OF 2019
P.R.C.No.48/2019 on the file of Chief Metropolitan Magistrate, Vijayawada (Cr.No.448/2017 of Bhavanipuram Police Station)
Complainant:State: Inspector of Police, Bhavanipuram Police Station, Vijayawada. Accused:Chinthakindi Srinivas, S/o. Surya Chandra Rao, aged about 26 years, caste by Padmasali, native of Yerrabalem village, Mangalagiri Mandal, Guntur District, Presently residing at Vidhadharapuram near the Ramu Quarry, Pedda Sai Baba temple, Saradhi’s house, Vijayawada. P.R.C. Number:P.R.C.No.48/2019 on the file of Chief Metropolitan
Magistrate, Vijayawada.
Prosecution :Public Prosecutor, V Additional Metropolitan Sessions Court, conducted byVijayawada. Advocate for :Shaik Baji, Advocate for Accused accused Charge:Under Secs.328 and 380 of IPC Plea of the :Pleaded not guilty accused Finding of the :Found guilty court Sentence or :The accused is found guilty for the offences punishable Orderunder Ss.328 and 380 of I.P.C., and he is convicted under Sec.235 (2) of Cr.P.C., and he is sentenced to undergo Rigorous Imprisonment for a period of five (5) years for the offence under Sec.328 of I.P.C., and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for a period of three months; and further sentenced to undergo Rigorous Imprisonment for a period of three (3) years for the offence under Sec.380 of I.P.C., and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for a period of three months. The sentences of Rigorous Imprisonment for both the offences shall run concurrently. The fine amount of Rs.10,000/- paid by the accused or recovered from the accused shall be paid towards compensation to P.W.3- Ravula Ramana Kumari after expiry of appeal time or subject to result of the appeal. The judicial custody undergone by the accused during the period of investigation, inquiry and trial from 06.07.2019 to till date
S.C.No.165/2019 2/17 shall be set off against the sentence passed, under Sec.428 of Cr.P.C. Order of :The case property marked as Mos 1 to 3 were returned to Propertythe interim custody of P.W.1-Sudha Rani as per the orders of the Committal Court in Crl.M.P.No.4235/2019 dated 19.12.2019 and it shall become absolute after expiry of appeal time or subject to result of the appeal.
This case is coming on 11.03.2020 for final hearing before me in the presence of Public Prosecutor for State and of Sri Shaik Baji, Advocate for accused and after hearing arguments of both sides, the matter having stood over till this day for consideration, this court delivered the following:
:: J U D G M E N T ::
The State: Inspector of Police, Bhavanipuram Police Station, Vijayawada filed this Police Report against the accused in Crime No.448/2019 for the offences punishable under Ss.328 and 380 of Indian Penal Code, 1860 (in short IPC) before the Chief Metropolitan Magistrate’s Court, Vijayawada.
FACTS OF THE CASE:
2)According to the case of the prosecution, the victim-L.W.6-Ramana Kumari being resident of Rajulavari Street, Cheruvu Center, Vidyadharpuram was doing interest business. On 06.07.2009, at about 1.00 A.M., L.W.1-Sudha Rani resident of
Lakshmi Apartment, Autonagar, Patamata, Vijayawada received phone call from her sister-in-law viz., Vijaya Kumari (L.W.4), who informed that the victim fell in unconscious state. On information, L.W.1-Sudha Rani and L.W.2-Rami Reddy reached the house of the victim and found that the doors were kept opened. They found the victim in kitchen room sitting on chair in unconscious state and then, they also noticed that the iron almyrah was kept opened. On enquiry, they learnt that on 05.07.2019 at about 11.30 PM or 12.00 midnight, the accused viz., Chinthakindi
Srinivas who was visiting frequently came and confusingly left away from the house of victim. When they verified the iron almyrah, they found missing of (1) Gold bangles-6 (2) Chandraharam-1 and (3) Gold Chain-1 weighing about 109 grams. Then, she reported the same to the Police for necessary action.
2.2) On her report on 06.07.2019 at about 3.00 Hrs, L.W.10-Krishna Babu, Sub
Inspector of Police, Bhavanipuram Police Station registered a case in crime
No.448/2019 under Ss.328 and 380 of IPC and submitted the First Information Report to all concerned including L.W.11-DKN Mohan Reddy, Inspector of Police who took up investigation. During the investigation, he visited the scene of offence, examined the same, prepared rough sketch and also observation report. He examined the witnesses and recorded their statements under Sec.161 of Criminal Procedure Code, 1973 (in short Cr.P.C.). On reliable information, the accused was taken into custody on 06.07.2019 at Door No.1-3-180/7, beside the house of Varla Ramaiah Building, at
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Ramu Quary, Pedda Sai Baba Temple, Bhavanipuram limits. On questioning, he voluntarily confessed the offence and produced the stolen property. The stolen property was seized in the presence of mediators under the cover of mediators report.
The investigation revealed that the accused was in financial crises, and he came to know that the victim women was doing interest business, he had knowledge that there was money transaction between his house owner’s wife Shivani and the victim and the said Shivani used to send him for paying auto finance to the victim and then, the accused got an evil idea and committed theft of the gold ornaments to clear his financial problems. The investigation further revealed that during the theft, he mixed sleeping pills into Biryani and offered the same to the victim. Later, she fell into unconscious state after eating Biryani, and the accused committed theft of the said gold ornaments. The accused was arrested on 06.07.2019 at 4.45 hours, and he was forwarded to judicial custody. The Medical Officer who treated the victim issued wound certificate opining that the injury was simple in nature. Thus, the accused is liable for punishment under Ss.328 and 380 of I.P.C. Hence, the charge.
COGNIZANCE AND COMMITTAL:
3) The learned Chief Metropolitan Magistrate, Vijayawada took cognizance for the offences punishable under Ss.328 and 380 of IPC. On production of accused, copies of documents were furnished to him as required under Sec.207 of Cr.P.C. The learned Chief Metropolitan Magistrate, Vijayawada committed the case to the Court of
Sessions, Metropolitan Sessions Division, Vijayawada. The learned Metropolitan
Sessions Judge, Vijayawada took the case on file under Ss.328 and 380 of I.P.C.,
vide S.C.No.165/2019 and made over the same to this Court for disposal according to law.
CHARGES:
4) On production of accused and on hearing the learned Additional Public
Prosecutor and the learned counsel for accused, charges under Ss.328 and 380 of
I.P.C., were framed, read over and explained to him in Telugu, for which, he pleaded not guilty and claimed to be tried.
EVIDENCE:
5) During the trial, to substantiate the case of prosecution, the prosecution examined L.W.1-Alla Sudha Rani as P.W.1; L.W.4-Ravula Vijaya Kumari as P.W.2;
L.W.6-Ravula Ramana Kumari as P.W.3; L.W.7-Ganji Sirivennala, Village Revenue
Officer as P.W.4; L.W.9-Dr. Anil Kumar as P.W.5; L.W.3-Puti Ramanamma as P.W.6;
L.W.10-Krishna Babu, Sub Inspector of Police as P.W.7; L.W.11-D.K.N. Mohan
Reddy, Inspector of Police, Bhavanipuram P.S., as P.W.8. Exs.P1 to P8 were marked on behalf of the prosecution. The evidence of L.W.2-Alla Rami Reddy; L.W.5-Ravula
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Shiva Reddy and L.W.8-Md.Yasin was given up by the learned Additional Public
Prosecutor.
EXAMINATION UNDER SEC.313 OF CR.P.C.
6) After evidence of prosecution was closed, the accused was examined under
Sec.313 of Cr.P.C. by explaining the incriminating evidence available against him. He denied the same and reported that he had no defence evidence. Hence, the defence evidence was closed.
ARGUMENTS:
7) During the arguments, I heard the learned Additional Public Prosecutor and the learned counsel for the accused.
POINT
8) Now, the point for determination is: Whether the prosecution proved its
case beyond reasonable doubt that accused committed the offences
punishable under Ss.328 and 380 of I.P.C., as alleged by the prosecution?
CHARGE UNDER SEC.328 OF I.P.C:
9) In order to bring home the guilt of the accused beyond reasonable doubt for the offence punishable under Sec.328 of I.P.C., the prosecution shall prove that the accused administered or caused to be taken by the victim any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, to the victim, and he, thereby, committed the offence punishable under Sec.328 of IPC. In order to prove the charge under Sec.328 of IPC, the prosecution relied upon the evidence of P.W.1-Sudha
Rani, P.W.2-Vijaya Kumari, P.W.3-Ramana Kumari, P.W.4-Sirivennala, P.W.5-Dr.Anil
Kumar, P.W.6-Ramanamma and P.W.8-D.K.N, Mohan Reddy, Inspector of Police coupled with Exs.P1 to P3, P5 to P8, and Mos.1 to 3. On the other hand, the accused did not lead any positive evidence.
9.2) The learned additional Public Prosecutor argued that the prosecution proved the charge under Sec.328 of I.P.C., against the accused with the evidence of victim as well as the evidence of supporting witnesses and also the evidence of the medical officer coupled with wound certificate. He further argued that the prosecution also proved that the accused committed the said offence with an intent to commit the theft of gold ornaments of the victim in order to overcome his financial crisis. On the other hand, the learned counsel for the accused argued that the prosecution failed to prove that the Biryani contained any intoxicant by seizing the left over Biryani and sending the same to the Forensic Lab. Moreover, P.W.3-Ramana Kumari omitted to state that the accused also offered cool drink to her. Moreover, the victim was taken
S.C.No.165/2019 5/17 to Government General Hospital, Vijayawada. But, the Medical Officer failed to preserve the gastric lavage and the Investigating Officer failed to send the gastric lavage to the Forensic Lab along with left over Biryani. He further argued that the
Medical Officer/P.W.5-Dr.Anil Kumar gave only superficial treatment and as such, there was no strong medical evidence suggesting that the accused mixed any intoxicant in the Biryani, and he offered the same to the victim woman. He further argued that as the victim was doing finance business by offering money on interest at the rate of Rs.10/- p.m., and due to financial disputes between the accused and victim, he was falsely implicated in this case. He further argued that when there was no evidence that the accused offered Biryani to the victim by mixing intoxicant, the conviction shall not be sustained. In this regard, he relied upon a decision of Hon’ble
High Court of Patna in Birju Mahto vs. State of Bihar 1 , delivered on 19.12.2014 in
Crl.A.(SJ)No.486/2002 wherein at Para No.13, it was held as hereunder:
“Now coming to other part, causing hurt, prima facie, the material should have been
before the court that a victim was administered any of the substance so identified
under Section 328 IPC. Unconsciousness may be caused on account of so many kinds of ailments. So far applicability of Section 328 of the IPC is concerned, that will attract only after having administration of the drugs, poisonous substance, sedative or other items so identified therein and for that, positive evidence should have been on the record to justify administration of any one of the aforesaid items. Due to non examination of doctor, the prosecution is found lacking thereof.”
He further relied upon another decision of Hon’ble High Court of Patna in Md.
Mangala @ Mangla, Son of Late Roshan Ali vs. State of Bihar 2 , wherein at para
No.10, it was held as hereunder:
“Learned counsel for the appellant has assailed the judgment on the ground firstly that conviction of the appellant under Section 22 of NDPS Act is not proper as only 8 tablets of Alprazolam were found from the possession of the appellant that being daily used tablet can be found to any person, and secondly there is no finding on the record to show that victim has become unconscious due to consuming intoxicant tea supplied to him and there is no report of the Doctor, who has examined the victim has only proved Bed Head Ticket. Further submission is that offence under Section 328 IPC is not made out as there is no finding of the Doctor or report was available on the record as he became unconscious due to intoxicant which was consumed by him along with tea and on the oral evidence of victim that he was supplied tea and after consuming it he became unconscious, is not sufficient for conviction under Section 328 IPC.”
From the above said two decisions of Hon’ble High Court of Patna, it is clear that the prosecution shall prove by medical evidence that the victim became unconscious due to administer of drugs or poisonous substance or any other item mentioned under
Sec.328 of I.P.C., and thereby the accused committed the offence.
1https://indiankanoon.org/doc/44302115/ 22017 LawSuit (Pat) 1208
S.C.No.165/2019 6/17 9.3) Coming to the evidence on record, P.W.1-Sudha Rani was the defacto complainant and daughter of the victim. She was not the eye witness to the incident.
But, according to her evidence, she was resident of Patamata, Vijayawada whereas her mother/victim was resident of Rajulavari Street, Cheruvu Center, Vijayawada. She deposed that P.W.6-Ramanamma was her neighbour. The learned counsel for the accused argued that once P.W.6-Ramanamma was projected as tenant in the house of the victim, she cannot be the neighbour of P.W.1-Sudha Rani. Obviously, P.W.1-
Sudha Rani is none other than the daughter of the victim/P.W.3-Ramana Kumari. So,
P.W.1-Sudha Rani might have felt that the house of her mother was her home, and she might have deposed that P.W.6-Ramanamma was her neighbour. But, her evidence was so clear that she was resident of Patamata, Vijayawada whereas her mother/Ramana Kumari (P.W.3) was resident of Rajulavari Street, Cheruvu Center,
Vijayawada. So, the said descrepancy is not fatal to the prosecution case. But, according to her evidence, on 06.07.2019 at about 1.00 A.M., she received phone call from P.W.2-Vijaya Kumari stating that her mother was in unconscious state of mind and somebody gave stupefying drug to her and took away her gold ornaments and on coming to know the same, she along with her husband rushed to her mother, they found that her mother was found in unconscious state of mind in the kitchen room, the doors of the house were opened, the doors of the iron almyrah were also opened and on verification, she found missing of MO-1 six gold bangles, MO-2 Chadraharam and
MO-3 one gold necklace. She further deposed that they shifted her mother to
Government General Hospital, Vijayawada and again, they shifted her to Time
Hospital, Patamata, Vijayawada and subsequently, she lodged Ex.P1 report. So, according to her evidence, she only received information especially from P.W.2-
Vijaya Kumari about the unconsciousness of her mother. But, during her cross- examination, she deposed that she came to know about incident through her relative
Nagamani on the same night. Witness voluntarily deposed the said fact when a suggestion was made to her about her knowledge as to the incident after two days from her mother. The said aspect was relating to the total incident whereas her statement in the chief-examination was relating to the phone call received from
P.W.2-Vijaya Kumari about the primary information. There was no inconsistency between the two statements as argued by the learned counsel for the accused.
9.4) Coming to the evidence of P.W.2-Vijaya Kumari, she deposed that on 05.07.2019, she along with other tenants namely Ramanamma (P.W.6), Santhamma and others were sleeping on the terrace and about 12.30 AM or 1.00 AM, P.W.6-
Ramanamma woke up to attend calls of nature and she observed lights in the portion of her mother-in-law Ramana Kumari (P.W.3) and she also found that the accused was opening the iron almyrah and then, she reported the matter to Ramanamma
S.C.No.165/2019 7/17 stating that the accused was committing theft in the house of her mother in law. She further deposed that they came down from the terrace and found that the accused was escaping and she also deposed about the identity of the accused as the accused used to go to her mother-in-law as she lent money to one Sivani in whose house the accused was residing and he used to come to repay the amount to her mother-in-law.
She further deposed that her mother-in-law was found in unconscious state of mind in a chair in the kitchen and then, they informed the same to P.W.1-Sudha Rani by making the phone call. She also deposed that the iron alymrah was found opened and gold ornaments were committed theft. She further deposed that they found
Biryani in plate and also one Thums Up Bottle. According to her evidence, she saw the accused, when he committed theft and was escaping and she also saw the victim woman in the unconscious state of mind along with left over Biryani in a plate and also a cool drink bottle. Her evidence in chief established that the victim woman was found in the state of unconscious in a chair in kitchen apart from Biryani and cool drink bottle. During the cross-examination, except the facts that the victim was alone staying in her house, and she did not know the details of the gold ornaments and cash possessed by the victim, nothing was elicited to disprove her evidence.
9.5) Coming to the evidence of P.W.3-Ravula Ramana Kumari-victim, she deposed that she lent a sum of Rs.20,000/- to one Shivani and when she demanded the said Shivani to repay the said amount, she sent a sum of Rs.5,000/- on one occasion and a sum of Rs.2,000/- on another occasion through the accused. But, on 05.07.2019, the accused came to her house by 10.00 PM with Biryani in a pot and he asked her to eat the Biryani, initially she refused to eat Biryani and accused insisted her to eat Biryani and she self served a small quantity in a plate and ate it. She also deposed that she found that the Biryani was bitter in taste and when she told the same to the accused, the accused told her that it was bitter as it was cooked in a pot and then, she added Sambar and ate it as she did not intend to disappoint the accused. She further categorically deposed that the accused also brought cool drink and she also consumed the cool drink, and she fell in unconscious. So, there was no substance in the arguments advanced by the learned counsel for the accused that the victim omitted to state about the cool drink. But, she deposed in the cross- examination that she did not state before Police that the accused also brought the cool drink along with Biryani and she also consumed the cool drink. P.W.8-D.K.N.
Mohan Reddy, Inspector of Police also deposed that P.W.3-Ramana Kumari did not state before him that the accused also supplied cool drink to her. It may not be out of place to mention that according to the evidence of P.W.8-D.K.N. Mohan Reddy, after he had visited the scene of offence, he prepared a rough sketch marked as Ex.P7, and he also took the photographs of the scene of offence marked as Ex.P8. Upon going through the photographs marked as Ex.P8, the investigating officer had taken
S.C.No.165/2019 8/17 the same from outside and inside the house and also by placing some evidence marks such as 1, 2, 3 and 4. He marked the cool drink bottle as second evidence.
But, in spite of it, he failed to examine the victim on the said aspect. So, it was lapse on the part of the Investigating Officer for which the victim cannot be found fault.
However, there was no allegation against the accused that the accused mixed any stupefying drug in the cool drink bottle and it was given to the victim to consume. As such, the presence or absence of cool drink bottle is not fatal to the prosecution case.
But, her evidence established that after eating the Biryani which was found to be bitter, she went into unconscious state of mind.
9.6) P.W.6-Ramanamma also supported the version of the prosecution stating that when she went to attend calls of nature, she did not find the victim and then, she went to the window portion of the said Ramana Kumari and found that the accused was taking cash and gold from iron almyrah. She also saw the presence of the accused. Moreover, she categorically deposed that on 05.07.2019 at about 9.30 PM,
P.W.3-Ramanamma asked her to eat Biryani stating that the accused was bringing
Biryani, but she told her that she had already taken her dinner and she went to terrace for sleeping. According to her evidence, the victim woman was informed by the accused that he was bringing Biryani and she also disclosed the same to P.W.6-
Ramanamma. During the course of cross-examination, the learned counsel for the accused tried to dispute the identity of P.W.6-Ramanamma and she denied the same.
Moreover, she categorically deposed that she raised cries when she saw the accused and alerted others. She may not be the person to state the articles which were committed theft.
9.7) As argued by the learned Additional Public Prosecutor, P.W.5-Dr.Anil
Kumar, Medical Officer supported the version of the victim. He deposed that he was informed about 6.00 AM on 06.07.2019 by the in-charge Causality Medical Officer regarding the condition of the patient viz., Ramana Kumari (P.W.3) after initial assessment done by him and the attenders alleged that she was given over dose of some drugs mixing in cool drink and they did not have information about the drugs mixed in the cool drink. It may not be out of place to mention that the attenders such as P.W.1-Sudha Rani or her husband were not the eye witnesses to the incident. The victim woman alone was the eye witness to the incident as she tasted the Biryani and the cool drink. So, the attenders of the victim might have felt that the stupefying drug was mixed in the cool drink and they could have given such information to the
Medical Officer. But, according to his evidence, he visited the patient and gave specific instructions to the treatment and the patient slowly regained the consciousness and she was treated symptomatic and once she was stable and her condition was out of danger, she was discharged on 08.07.2019. So, he issued
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Ex.P5-Wound certificate. According to the Ex.P5-wound certificate, the victim was admitted by the said Rami Reddy due to intake of unknown medicines and she was found drowsy, and so the wound certificate was issued with an opinion that the injury was simple in nature. As argued by the learned Additional Public Prosecutor unless the accused mixed some intoxicant in Biryani, the Biryani could not have been bitter and the victim could not have fallen unconscious. According to the evidence of
Medical Officer, the victim was in hospital as inpatient for two days and she was given symptomatic treatment. But, as deposed by P.W.1-Sudha Rani and P.W.5-Dr.Anil
Kumar, the patient was shifted to Government Hospital, Vijayawada and after completion of gastric lavage in the Government General hospital, she was shifted to
Times Hospital, Vijayawada where she was treated and Ex.P5 wound certificate was issued by P.W.5-Dr.Anil Kumar. He deposed that as the gastric lavage was done in the Government General Hospital, Vijayawada, he did the further symptomatic treatment. He further deposed that the drug panels were not available in Vijayawada to send the samples and as the patient was slowly recovering, they did not send the samples to Hyderabad or Bangalore where the Drug panels were available. P.W.8-
D.K.N. Mohan Reddy failed to collect any Medical Certificate or samples from the
Government General Hospital, Vijayawada, as argued by the learned counsel for the accused. But the evidence on record, especially, the evidence of P.W.3-Ramanamma and P.W.5-Dr. Anil Kumar along with circumstantial evidence proved that the victim fell in unconscious state of mind and she was treated for the drowsiness only. So, it cannot be said that there was no Medical evidence on record, but, it can be said that there was no opinion from the Forensic Lab to the effect that the Gastric lavage contained any stupefying drug. The learned Additional Public Prosecutor argued that the minor discrepancies on trivial matters which did not effect the core of the case need not be taken into consideration apart from the lapses of the investigating officer while conducting the investigation. In this regard, he relied upon a decision of Hon’ble
Supreme Court of India in Madhu alias Madhuranatha and another vs. Sate of
Karnataka 3 , wherein at Para No.9 it was held as hereunder:
“In Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181, this Court considered the issue of discrepancies in the depositions. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution must not prompt the court to reject the evidence in its entirety. Therefore, irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence, more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is 3AIR 2014 Supreme Court 394
S.C.No.165/2019 10/17 against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, so as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness.”
While appreciating the evidence, the Court need not taken into consideration of the minor discrepancies and evidence of the witnesses shall be read conjointly and Court has to form a opinion. The opinion may be in favour of the prosecution or in favour of the accused. The Hon’ble Apex Court of India at Para No.14, it was further held as hereunder:
“So far as the provisions of Section 176 Cr.P.C. are concerned, the said provisions are attracted when a person dies in police custody and there is suspicion that death had been caused by the police itself. In other eventualities also, as provided in Section 176 Cr.P.C., the Magistrate may hold the enquiry. Even if the submission of the appellants is considered to have some substance it will not tilt the balance in their favour. It is a settled legal proposition that evidence collected even by improper or illegal means is admissible if it is relevant and its genuineness stands proved. However, the court may be cautious while scrutinizing such evidence. In such a fact- situation, it may be considered a case of procedural lapse on the part of the Investigating Officer and it should not be discarded unless the appellant satisfies the court that any prejudice has been caused to him.”
In the present case, the evidence of the victim was so clear that he offered Biryani to the victim. She found it bitter taste and by adding Sambar/Pappucharu, she ate it. The evidence of P.W.1-Sudha Rani, was so clear that the information regarding unconsciousness of victim was furnished to her by phone and she rushed to the spot along with her husband. The evidence of P.W.2-Vijaya Kumari was so clear that she found the accused in the house of victim at the time of opening iron almyrah and she reported the matter to others. The evidence of P.W.6-Ramanamma was so clear that the victim was asked her to eat Biryani and she replied that she had finished her dinner and the evidence of P.W.5-Dr. Anil Kumar was clear that he treated P.W.3-
Ramana Kumari symptomatically and she was found drowsy. So, there may be lapses in the investigation regarding the examination of victim with reference to cool drink bottle, or regarding the seizure of the samples from the Government General
Hospital and sending the same to the Forensic Laboratory and also the collection of wound certificate from the Government General Hospital, Vijayawada. Such lapses in the investigation cannot be taken into consideration for the reason that no prejudice was caused to the accused.
9.8) The learned counsel for the accused argued that the investigating officer failed to conduct any Test Identification Parade. In the present case, the accused was a known person to the victim as well as other eye witnesses to the incident as he
S.C.No.165/2019 11/17 used to come to the house of victim to repay the amount on behalf of the said Sivani.
So, the identification parade is not mandatory and it is not fatal to the case of the prosecution. The identification parade is a procedural issue and it is required when the accused is completely unknown person. Once, the accused is a known person, the identification parade is not required. In this regard, I relied upon a decision of
Heera & Anr vs State Of Rajasthan 4 , wherein at Para No.7 it was held as hereunder:
It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. [See Kanta Prashad v. Delhi Administration (AIR 1958 SC 350), Vaikuntam Chandrappa and others v. State of Andhra Pradesh (AIR 1960 SC 1340), Budhsen and another v. State of U.P. (AIR 1970 SC 1321) and Rameshwar Singh v. State of Jammu and Kashmir (AIR 1972 SC 102)].” The Hon’ble Apex Court of India at Para No.8, it was further held as hereunder:
“A person who is well- known by sight as the brother of Manak Chand, even before the commission of the occurrence, need not be put before an identification parade in order to be marked out. We do not think that there is any justification for the contention that the absence of the identification parade or a mistake made as to his name, would be necessarily fatal to the prosecution case in the circumstances.” In the present case, the prosecution was able to establish the identity of accused as well as supplying of Biryani to the victim by mixing some unknown intoxicant. The prosecution also established that the victim fell unconsciousness after eating the 4AIR 2007 SC 2425
S.C.No.165/2019 12/17
Biryani and the accused did the same in order to commit theft of gold ornaments. It may be or may not be to overcome his financial crises. So, the prosecution was able to bring home the guilt of the accused beyond reasonable doubt for the offence punishable under Sec.328 of IPC and the accused is convicted under Sec.235 (2) of
Cr.P.C for the said offence.
CHARGE UNDER SEC.380 OF I.P.C:
10) In order to bring home the guilt of the accused beyond reasonable doubt, it is for the prosecution to prove that the accused committed theft in dwelling house and he is liable for punishment under Sec.380 of IPC. To prove the said offence, the prosecution again relied upon the evidence of P.Ws.1 to 8 coupled with Exs.P1 to P8 and Mos 1 to 3. Coming to the evidence of P.W.1-Sudha Rani, she deposed that after she had come to the house of her mother/victim, she noticed the missing of six gold bangles, one gold Chandraharam and one gold necklace marked as Mos 1 to 3. The learned counsel for the accused argued that the Investigating Officer failed to mention the name of owner in the charge sheet. It may not be out of place to mention that the learned counsel for accused elicited from the cross-examination of P.W.8-DKN
Mohan Reddy deposed that the ornaments were not committed theft from the possession of P.W.1-Sudha Rani. He had drawn my attention to the order of the committal Court in Crl.M.P.No.4235/2018 dated 19.12.2019 according to which,
P.W.1-Sudha Rani filed a petition seeking interim custody of gold ornaments marked as Mos 1 to 3 and those were ordered to her interim custody. It is pertinent to note that P.W.1-Sudha Rani produced Mos 1 to 3 before this Court and those were marked in her evidence. But, as argued by the learned Additional Public Prosecutor,
P.W.1-Sudha Rani is none other than daughter of P.W.3-Ramana Kumari, the victim.
Moreover, P.W.1-Sudha Rani lodged Ex.P1 report to Police. So, she could have filed petition before the committal Court and obtained interim custody. When there was no dispute between P.W.1-Sudha Rani and P.W.3-Ramana Kumari in respect of the ownership of gold ornaments and when the accused or other person did not claim any ownership over the gold ornaments, the failure of the investigating officer to investigate into the ownership of a person over Mos 1 to 3 is not fatal to the prosecution case. The requirement of Sec.380 of I.P.C is the commission of theft in a dwelling house or the place meant for custody of the property. The ownership is secondary and it assumes importance when there is dispute over the ownership. So, the same is not fatal to the prosecution case.
10.2) The learned counsel for the accused argued that P.W.6-Ramanamma did not state in her statement under Sec.161 Cr.P.C. about the commission of theft.
The statement recorded under Sec.161 Cr.P.C. can be used for corroboration as required under Sec.157 of Indian Evidence Act, 1872 and it is not substantive piece of
S.C.No.165/2019 13/17 evidence. While giving evidence before this Court, she categorically deposed that when she came down from terrace to attend the calls of nature, she found the accused was taking cash and gold from iron almyrah and he was packing the same.
She also deposed that she informed the same to P.W.2-Vijaya Kumari and one
Durga. P.W.2-Vijaya Kumari categorically deposed that P.W.6-Ramanamma found the accused when he was opening iron almyrah and committed theft. She further deposed that they came down from terrace and found that the accused was escaping.
So, the evidence of P.W.2-Vijaya Kumari and P.W.6-Ramanamma who are the eye witnesses to the incident is consistent with each other in respect of commission of theft by the accused after the victim went into unconscious state of mind.
10.3) The learned counsel for the accused argued that the prosecution produced Mos 1 to 3 which were gold ornaments and the description or the design of the gold ornaments was not mentioned. P.W.1-Sudha Rani being the daughter of the victim categorically deposed that she found missing of six gold bangles, one gold
Chandraharam and one Gold Necklace. Obviously, she did not state the design of the gold ornaments. P.W.4-Sirivennela, Village Revenue Officer was said to be present along with the Investigating Officer at the time of scene observation under Ex.P2, arrest of accused and seizure of property under Ex.P3 and she also conducted test identification parade under Ex.P4. According to her evidence, on 11.07.2019, she was called to Pensioners Building, Bhavanipuram, Vijayawada and she was asked to conduct identification parade of gold ornaments in the presence of P.W.3-Ramana
Kumari. She did not state that she mixed Mos 1 to 3 with similar type of ornaments and conducted the test identification parade of the property as confessed under Rule 35 of A.P. Criminal Rules of Practice and Circular Orders, 1990. Apart from it, as argued by the learned counsel for the accused, P.W.3-Ramana Kumari deposed in her re-examination that she saw the gold ornaments when those were returned to her interim custody by the Court. She did not state that she participated in any test identification parade of property as alleged by the prosecution. So, the evidence lead by the prosecution to the extent of test identification parade of property is not proved and it is found unreliable. The Hon’ble Supreme Court in the case of Shakila Abdul
Gafar Khan Vs. Vasant Raghunath Dhoble 5, it was held as under:
''25. It is the duty of the court to separate the grain from the chaff. Falsity of a particular material witness or a material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves 5 (2003) 7 SCC 749
S.C.No.165/2019 14/17 the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Ali v. State of U.P. [AIR 1957 SC 366 ])” So, when the Court found that a part of the evidence is reliable and a part of the evidence is unreliable, the Court can separate the evidence which is found reliable and it can rely upon the same by discarding the unreliable portion of the evidence. In the present case, the portion of the evidence relating to test identification parade of property is found unreliable and the same is discarded.
10.4) The learned counsel for the accused argued that the services of P.W.4-
Sirivennela, Village Revenue Officer were utilized by the investigating agency without her presence during the investigation. He had drawn my attention to her cross- examination with reference to a particular question that he did not file the movement register before the Court. In a criminal case, the Investigating Officer has to collect the evidence and place before the Court. The witness has no role to place any evidence before the Court nor P.W.4-Sirivennela Village Revenue Officer was asked to produce any document before the Court. So, she was not competent to produce any such document. But, she categorically deposed that it was her duty to assist the
Police and as per her duty chart she attended a request of the Police. But, she mentioned in Ex.P4 property identification report that she got identified the property with the defacto complainant. P.W.3-Ramana Kumari was not defacto complainant and P.W.1-Sudha Rani was the defacto complainant. As I earlier mentioned, the evidence lead by the prosecution regarding the test identification parade is totally discarded. But, her evidence is found reliable to the extent that she was present at the time of scene observation under Ex.P2 and arrest of accused under Ex.P3.
10.5) But, as argued by the learned counsel for the accused, according to the evidence of P.W.4-Sirivennela, she followed the Investigating Officer to the house bearing Dr.No.1-3-180/7, situated opposite to Sai Baba Temple, Ramu Quary,
Vijayawada where the accused was found, he disclosed his identity particulars, he also disclosed the fact that he kept the stolen articles with one Shivani and he brought the same and later, those were seized under Ex.P3 mediators report. The learned counsel for the accused argued that the said Shivani was not served with a search warrant as required under Sec.94 of Cr.P.C. It was not the case of the prosecution that the Investigating Officer obtained a search warrant from the District Magistrate or the Sub Divisional Magistrate or the Judicial First Class Magistrate and searched the house. After leaving the scene of offence, according to the evidence of P.W.8-DKN
Mohan Reddy, during investigation, he visited the house of accused as required under Sec.165 of Cr.P.C., he questioned the accused in the presence of mediators and the accused himself brought the gold ornaments kept in the custody of said
S.C.No.165/2019 15/17
Shivani. But, as argued by the learned counsel for the accused, P.W.8-DKN Mohan
Reddy categorically deposed that he did not examine the said Shivani. It is pertinent to mention that the accused used to go to the victim woman to pay the money on behalf of the said Shivani and the stolen property was also produced by the accused from the custody of said Shivani as mentioned in Ex.P3 as shown by her. In such a case, the said Shivani is also material witness to the prosecution, but, for the reasons best known to P.W.8-DKN Mohan Reddy, he failed to examine her and record her statement. However, her evidence established the recovery of the gold ornaments in a better way. But, the gold ornaments were already recovered and were also produced before the Committal Court. So, the failure of the Investigating Officer to examine the said Shivani is not fatal to the prosecution case.
10.6) The prosecution is able to prove its case, for the charge under Sec.380 of IPC by examining the defacto complainant as P.W.1 who lodged Ex.P1 report with
P.W.7-V. Krishna Babu, Sub Inspector of Police who registered the same as a case in
Crime No.448/2019 and submitted the First Information Report to all concerned including the Court, marked as Ex.P6. The Investigating Officer took up the investigation after registration of the case and then, he secured the mediators and visited the scene of offence situated at Rajulavari Street, Cheruvu Center,
Bhavanipuram, Vijayawada. The learned counsel for the accused argued that there is some distance between Sitara Center spoken by P.W.6-Ramanamma and Cheruvu
Center. The Investigating Officer admitted in his cross-examination that the resident was about 100 Mts. In such a case, a person may call the center as Sitara Center and another may call it as Cheruvu Center which does not make any difference. But, according to the evidence of the Investigating Officer, immediately after visiting the scene of offence, he prepared Ex.P7 rough sketch, he obtained photographs marked as Ex.P8 and later, he examined the witnesses. He also deposed that he prepared
Ex.P2 observation report. It may not be out of place to mention that the photographs clearly show the leftover Biryani, cool drink and Evidence No.3 show the iron Almyrah was opened. According to his evidence, on information at about 4.00 AM on the same day, he arrested the accused at his house under Ex.P3 mediators report and seized
Mos 1 to 3. As I earlier mentioned, if the said Shivani was cited as witness and the identification parade was conduced properly, the prosecution could have placed some more better evidence. But, the evidence on record clearly established that the accused after giving stupefying drug to the victim, he committed theft of Mos 1 to 3.
The Investigating Officer denied his knowledge about the financial disputes between the accused the victim. I cannot come to a just conclusion that in view of some small financial disputes between the accused and victim, the prosecution created this much of evidence and lodged First Information Report for serious offences against the accused. Hence, from any angle it is viewed, the prosecution proved its case for the
S.C.No.165/2019 16/17 offence under Sec.380 of I.P.C., and the accused is liable for conviction under
Sec.235 (2) of Cr.P.C.
QUANTUM OF SENTENCE :
11) When the accused is questioned about the quantum of sentence, he stated that he stated that recently his father died, and the Police falsely implicated him in this case. He also stated that he did not commit this offence. Once the accused is found guilty for the two offences charged under Ss.328 and 380 of I.P.C., the question of inquiry into innocence at the time of hearing on quantum of sentence does not arise.
The offence under Sec.328 of I.P.C., is punishable with imprisonment of either description which may extend to 10 years and fine. The offence under Sec.380 of IPC is punishable with imprisonment of either description which may extend to 7 years and fine. Considering the fact that the father of the accused died and the offence took place due to small financial disputes between the accused and victim as suggested to the Investigating Officer in the cross-examination, I am inclined to impose half of the sentence of Rigorous Imprisonment prescribed under Sec.328 of I.P.C., with fine of
Rs.5,000/- and Rigorous Imprisonment of three years for the offence under Sec.380 of I.P.C., and fine of Rs.5,000/- by ordering the total fine amount of Rs.10,000/- to the victim towards compensation under Sec.357 (1) (b) of Cr.P.C. in view of loss sustained by her due to intoxication and hospitalisation for two days and as per the decision of Hon’ble Supreme Court of India in Ankush Shivaji Gaikwad vs State Of
Maharashtra 6wherein the Hon’ble Apex Court of India emphasized the need of payment of compensation to the victim. Hence, the accused is liable for punishment accordingly for the said offences and he is entitled for set off under Sec.428 of
Cr.P.C.
12) In the result, the accused is found guilty for the offences punishable under
Ss.328 and 380 of I.P.C., and he is convicted under Sec.235 (2) of Cr.P.C., and he is sentenced to undergo Rigorous Imprisonment for a period of five (5) years for the offence under Sec.328 of I.P.C., and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for a period of three months; and further sentenced to undergo
Rigorous Imprisonment for a period of three (3) years for the offence under Sec.380 of I.P.C., and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for a period of three months. The sentences of Rigorous Imprisonment for both the offences shall run concurrently. The fine amount of Rs.10,000/- paid by the accused or recovered from the accused shall be paid towards compensation to P.W.3- Ravula
Ramana Kumari after expiry of appeal time or subject to result of the appeal. The judicial custody undergone by the accused during the period of investigation, inquiry 6(2013) 6 SCC 770
S.C.No.165/2019 17/17 and trial from 06.07.2019 to till date shall be set off against the sentence passed, under Sec.428 of Cr.P.C.
13) The case property marked as Mos 1 to 3 were returned to the interim custody of P.W.1-Sudha Rani as per the orders of the Committal Court in
Crl.M.P.No.4235/2019 dated 19.12.2019 and it shall become absolute after expiry of
appeal time or subject to result of the appeal.
14) The accused is supplied with free copy of judgment and he is appraised that he has right to appeal against the judgment passed by this Court.
Dictated to the Stenographer Grade-II, transcribed by him, corrected and pronounced
by me in open court, this the 18th day of March, 2020.
V Additional Metropolitan Sessions Judge, Vijayawada.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
PROSECUTION: DEFENCE:
P.W.1Alla Sudha Rani … None... P.W.2Ravula Vijaya Kumari P.W.3 Ravula Ramana Kumari P.W.4Ganji Sirivennala, Village Revenue Officer P.W.5Dr. Anil Kumar, Chief Consultant P.W.6Puti Ramanamma P.W.7V. Krishna Babu, Sub Inspector of Police, P.W.8D.K.N. Mohan Reddy, Inspector of Police.
DOCUMENTS MARKED FOR PROSECUTION
S.No.ExhibitDate ofDescription of documentRemarks.
No.Document
1.Ex.P106.07.2019 Report of P.W.1
2.Ex.P206.07.2019Scene of observation report.
3.Ex.P306.07.2019Mediators report.
4.Ex.P411.07.2019Property identification report.
5.Ex.P506.07.2019Wound certificate
6.Ex.P606.07.2019First Information report.
7.Ex.P706.07.2019Rough sketch
8.Ex.P8---Six photographs.
DOCUMENTS MARKED ON BEHALF OF DEFENCE
--Nil--
MATERIAL OBJECTS
MO-1 Gold Bangles (six in number) MO-2 Gold Chandraharam of two rows MO-3 One gold necklace.
V AMSJ, VJA.