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In the court of the IX Additional Sessions Judge,
Chittoor
Present:- Sri K.V.Vijaya Kumar, B.Com.,LL.M., I Additional Sessions Judge, FAC.IX Addl., Sessions Judge, Chittoor.
Thursday, the 11th day of July, 2013
S.C. No.470/2009
PRC No.10/2009 of JFCM Court, Pakala Cr.No.102/2009 of Pakala PS
Complainant The State represented by the Inspector of Police , Pakala.
Accused A1.Nadigadda Nagaraja A2.Nadigadda Lakshmidevamma A3.Nadigadda Subbarayappa @ Subbarayulu
The prosecution is Sri B.V.Prabhu conducted byAdditional Public Prosecutor.
The accused is Sri B.Nagaraj defended byAdvocate for accused
OFFENCEUnder Sec. 302 and 201 r/w 34 IPC .
Against A1 to A3 in furtherance of common intention slapped the deceased
Suseela and gagged her moth and nostrils Charges. forcibly without raising hue and cry and simultaneously with a view to stop the functioning of the breath of her and forcibly caught hold of her hands and legs to prevent the deceased from resistance and that she stopped her breath and thereby committed an offence punishable U/sec. 302 r/w 34 IPC 2
Against A1 to A3 knowing or having reason to believe that certain offence to wit murder punishable with death or imprisonment for life and fine has been committed , did cause certain evidence of the said offence to disappear, to wit poured petrol on the dead body of the deceased N.Suseela and lit fire to the dead body and hidden the plastic can in nearby bushes with an intention to screen from legal punishment and thereby committed an offence punishable U/Sec.201 r/w 34 IPC.
Plea of the accused Not guilty
Sentence or order In the result, A1 to A3 are found not guilty of the charges under sections 302 and 201 r/w 34 IPC and they are acquitted of the said charges under Section 235(1) Cr.P.C. The bail bonds of the accused shall stand cancelled after six months from the date of Judgment.
M.Os.3 to 6 shall be returned to P.W.1, the other material objects No.1, 2 and 7 to 13 shall be destroyed after appeal time is over. A1.Nadigadda Nagaraja, aged 45 years , S/o Description of the Late N.Munaswamy accused A2.Nadigadda Lakshmidevamma,aged 48 years, S/o N.Subbarayappa
A3.Nadigadda Subbarayappa @ Subbarayulu, aged 50 years, S/o Late N.Munaswamy
This case coming before me for final hearing on 20-6-2013, upon perusing the charge sheet and other material papers on record and upon hearing the arguments of Sri B.V.Prabhu, the learned 3
Additional Public Prosecutor for the State, and Sri B.Nagaraj the
learned counsel for accused and having stood over for consideration till this day, this court delivered the following :
J U D G M E N T
This is a case relating to the murder of Smt. N.Suseela alleged to have been killed by A1 to A3 for which after investigation the
Inspector of Police, Pakala has laid a charge sheet against the accused for the offence punishable U/SS. 302 and 201 r/w 34 IPC.
2. The brief facts of the prosecution case as per the charge sheet are as noted here under:
Smt. N.Suseela is the daughter of P.W.1 and she was the wife of
A1. She filed M.C.1/07 on the file of Judl., Magistrate of I Class,
Pakala, for grant of maintenance. On 26.6.09 Suseela appeared in the court but did not return home thereby P.Ws.1 , 2 and other family members had searched for her, but could not trace her thereby P.W.1 presented a report under Ex.P1 before the police about the missing of his daughter on 11.7.09. The said complaint is registered as a case in
Cr.No.102/09 under Woman Missing Caption. On 24.7.09 P.W.11
N.Ravindranath the then Sub Inspector of Police, Pakala P.S. had recorded the confessional statement of A2 N.Lakshmidevamma and basing on the confessional statement the Section of Law was altered from Woman Missing to Section 302 and 201 r/w 34 IPC. A1
N.Nagaraju married Suseela about 22 years ago and they were blessed with two male children namely, N.Suneel Kumar aged about 19 years 4 and N.Naveen Kumar, aged about 15 years. She became a diabetic patient and physically week. At that juncture A1 developed illicit intimacy with A2, the wife of A3 and started harassing Suseela.
Thereafter she went to her parents house . Later she filed M.C.1/07 and Rs.1200/- p.m. was ordered towards her maintenance. But A1 did not pay the maintenance to her but had continued his illegal intimacy with A2. On 26.6.09 Suseela appeared in the
Judl.,Magistrate of I Class Court, Pakala in connection with M.C.1/07 in Crl.M.P.No.212/09 . A1 also was present in the court and paid costs of Rs.500/- to the deceased Suseela. Thereafter the deceased had left the court. A1, A2 and A3 had followed the movements of
Suseela. A1 convinced and managed Suseela by telling deceitful words and took her in an auto from Pakala to Damalcheruvu and from there to Kommireddipallie cross on Kalu ghat road in another auto.
The deceased was found in the company of A1 by P.W.5 Babi and
L.W.9 P.Venkataiah. As per the instructions of A1, A2 and A3 also had followed them and after reaching the schedule place A1 slapped her thereby she fell down on the ground. A1 gagged her mouth and nostrils of the deceased without allowing to raise cries and at that time A2 caught hold of both the shoulders of Suseela and A3 caught hold of both her legs after presuming that she had died . A2 and A3 had poured petrol which was already kept in the white plastic can on the body of Suseela and lit fire on the dead body. The accused had hidden the plastic can in nearby bushes and thereby A1 to A3 5 had absconded from the scene. P.W.6 R.Krishnaiah had seen A1 to
A3 hurriedly going away on that night.
3. Basing on the confessional statement of A2 she lead P.W.12 to the scene of offence where the material objects were also seized during the inquest conducted over the dead body. On examination of the bones P.W.7 observed that the bones belonging to human being and it is pertaining to a female. On 29.8.09 A1 and A3 were also arrested. Basing on their confessional statements the police were lead to the scene of offence where M.O.13 can was seized . All the accused admitted to have committed the offence and all the circumstances had established the killing of Suseela by the accused.
Hence the charge.
4. The learned Judl.,Magistrate of I Class, Pakala has committed this case to the Hon’ble Sessions Judge, Chittoor, from there the same is made over to this court for disposal according to
Law.
5. On appearance of A1 to A3 , they were examined U/Sec. 228
Cr.P.C., charges U/SS.302 and 201 r/w 34 IPC were framed. All the accused had denied the charges and claimed to be tried.
6. The prosecution in its endevour to establish the guilt of the accused, has examined P.Ws.1 to 12 and marked Exs.P1 to P13.
Exs.D1 and D2 are marked on behalf of the defence in the evidence of P.Ws.2 and 3.
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7. On conclusion of trial the accused were examined U/Sec. 313
Cr.P.C. by putting the incriminating part of evidence found against them. The accused had again denied the incriminating part of the evidence against them. The accused did not choose to adduce any evidence by way of defence.
8. Now the point for determination is “whether the
prosecution could establish the complicity and guilt of the
accused beyond all reasonable doubt for the charges leveled
against them U/sec. 302 and 201 r/w 34 IPC in regard to the
killing of N.Suseela ?”
9. Point: The learned Additional Public Prosecutor during the course of his arguments has sternly contended that the relationship between A1 and the deceased is admitted. The complicity of the accused in attending the court in M.C. 1/07 on that date was also established . He further argued that the confession of A2 leading to the discovery of the scene of offence is also established. He further argued that even the recovery of M.O.13 petrol can had also established the acts done by accused. The evidence of P.W.5 had also established that she had seen the accused in the company of the deceased on the last occasion , therefore, the prosecution could clearly establish the guilt of the accused.
10.The learned counsel for the accused has argued that the prosecution utterly failed to prove the participation of the accused in killing Suseela. He had specifically argued that the prosecution has 7 introduced P.W.5 and also L.W.9 P.Venkataiah as the persons who had seen the deceased in the company of A1 on the date of adjournment, but their evidence is not believable and acceptable for the reason that there is no mention about this information either inEx.P1 or in the statements of P.ws.1and 2. He had argued that even the evidence of PW.6 is introduced by the prosecution three months after the incident only to implicate the accused and to strengthen the false case of the prosecution. Therefore, the evidence of P.Ws.5 and 6 is not acceptable and believable and if that evidence is discarded there is no link between the accused and the deceased at any point of time.
11. He had vociferously argued that P.W.2 is working as Home
Guard in the Police Department and at his instance only the entire case is developed. He had further argued that as per the evidence of
P.W.2 he had gone along with the police to the scene of offence basing on the alleged confession. Therefore, the case of the prosecution cannot be accepted and believed at all. Because before
A2 making any confession the police had already visited the scene of offence . Therefore, there is no discovery made basing on the alleged confession of A2. He further argued that there is no independent witnesses to speak about the deceased in the company of accused at any point of time. Therefore, the accused are certainly entitled for acquittal.
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12.The case of theprosecution was put on motion on the report presented by P.W.1 under Ex.P1. As per the report under Ex.P1 it was only informed by P.W.1 to the police that his daughter Suseela was found missing. P.W.1 has categorically deposed that his daughter
Suseela went to attend the court in Pakala on 26.6.09 , but thereafter she did not return home. As per the version of P.Ws.1 and 2 nobody accompanied the deceased Suseela to the court on that day.
13. The factum of the deceased Suseela going to attend the court in Pakala is not very much disputed by the accused. More over the proceedings in Pakala under Ex.P2 in Crl.M.P.No. 212/09 are also revealing the factum of the deceased Suseela attending the court on 26.6.09. It was also mentioned there in that the respondent was also present and costs of Rs.500/- imposed against the respondent/accused
No.1, were also paid. Therefore, it is clear even from the evidence of P.Ws.1 and 2 Suseela went to attend Pakala court on 26.6.09.
The evidence of P.ws.1 and 2 is also revealing that Suseela did not return home till the date of giving report under Ex.P1.
14. Last Scene Theory : - It is the case of the prosecution that the deceased was found in the company of A1 on the date of the incident while they were taking snacks at a hotel . Both P.Ws.1 and 2 had vociferously contended that they were informed by P.W.5
Baby about this particular aspect. PW.1 has deposed as follows : “
Suseela told to L.W.8 Baby that she was told by A1 that her elder
son Sunil was not doing well. At that time A1 and my daughter
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were taking cool drink in the bus stand. Suseela offered cool
drink to L.W.8 Baby which she declined to take and then she
offered Baby to take snacks. Then the same fact was told to
L.W.9 D.Venkataiah by Suseela and Suseela and A1 left in an
auto. The above fact of A1 and Suseela were going in an auto told
to me by L.W.8 Baby and L.W.9 Venkataiah. Thereafter my
deceased daughter Suseela did not return home for 15 days”. In the cross examination also P.W.1 had deposed that he stated to the police about the information passed to him by P.W.5 Babi and L.W.9
Venkataiah .P.W.2 Chandrasekar the son of P.W.1 had also deposed as follows: “ Likewise she attended the court on 26.6.09 also. Then she did not return home from the court. Then we were informed by L.W.8 Babi and L.W.9 Venkataiah that A1 took late
Suseela with him in order to show her two sons of her. On the following day we telephoned to the children of Suseela and we were informed by them that Late Suseela did not come to their house.”
Therefore, this evidence of P.Ws.1 and 2 is revealing that both P.Ws.5 and L.W.9 Venkataiah had informed P.Ws.1 and 2 about their finding the deceased in the company of A1.
15. It is now to be seen whether P.W.5 had in fact given that information to P.Ws.1 and 2 immediately after Suseela was found missing from 26.6.09. As per the version of P.ws.1 and 2 , P.W.5
Baby had in fact informed them on the very next day. P.W.5 Baby had also deposed as follows: “ While I was in the bus stand I was 1 0
called by deceased Suseela. She offered me cool drink. When I
denied to take cool drinks she provided me snacks. She told me to
inform her parents that she will return on the next day by getting
examined in the hospital at Piler by going along with A1.. A1 was
present at that time.” She further deposed as follows: “ Then I
went to my village and informed to the parents of Suseela what
she told me. After two days the deceased Suseela’s elder brother
P.W.2 enquired me why she did not return to the village. I told
him what the deceased Suseela told me.” Therefore, the evidence of P.W.5 clearly reveals that she had informed P.Ws.1 and 2 about the deceased going along with A1. It also reveals that the deceased was found in the company of A1 on 26.6.09. As per the evidence of
P.Ws.1 and 2 coupled with the evidence of P.W.5 it appears as if the deceased was found in the company of A1 on 26.6..09 and the entire incident described by P.W.5 is also appearing to be true. As Galileo
Galileo said : “All truths are easy to understand once that were discovered, point is to discover them” .
16. Now it is to be seen what is the truth:
Ex.P1 report given by P.W.1 does not reveal the factum of
P.W.5 Baby informing P.Ws.1 and 2 about finding the deceased in the company of A1. If that is a fact both P.Ws.1 and 2 could have directly gone to the house of A1 and enquired with him as to the where abouts of Suseela. Further P.W.1 could have mentioned the said information in Ex.P1 and could have given a report immediately 1 1 after the deceased was found missing. At this juncture it is important to note that the report under Ex.P1 was presented by P.W.1 only on 11.7.09, that means all most all 15 days from the date of missing of
Suseela. It will be reasonable for anybody to give a report after searching for the missing girl. But here is a case where both P.Ws.1 and 2 are very enthusiastically contending that they were already informed by P.W.5 about the finding the deceased in the company of
A1. When these facts are not found in Ex.P1, the very contention of
P.Ws.1 and 2 is now appearing to be doubtful.
17. To cover up all these latches P.W.2 had tried to say that he had gone to the house of the accused and questioned him about
Suseela. However in the cross examination he had denied to have gone to A1. As per Ex.D1 P.W.1 stated that when the accused did not properly explain to him he had suspicion against A1 to A3. But in the entire evidence of P.Ws.1 and 2 it was never revealed that they had gone to the house of A1 and enquired with him.
18. Further P.Ws.1 and 2 have even deposed that they were informed by P.W.6 Krishnaiah that he found A1 to A3 going away hurriedly on the night of the incident . In this regard P.W.6 deposed as follows: “ On 26.6.09 at 9.45 or 10.00 P.M. I came from Piler to
Kalur for the sake of chaff for the purpose of preparing bricks . We stopped our vehicle at Kallur cross road for taking tea. Then I observed A1 to A3 getting down from an auto at Kallur cross road.
Thereafter the accused hurriedly by crossed the road towards Sodam 1 2 side and boarded the bus. In spite of my calling the accused did not respond me and proceeded towards Sodam side. Thereafter P.W.1 and others came to Piler in search of deceased Suseela. I told them about A1 to A3 getting down from an auto at Kalur cross and proceeding towards Sodam side.” This particular evidence of P.W.6 also is revealing that he informed P.Ws. 1 and 2 about his finding A1 to A3 before giving the report under Ex.P1. However this fact also was not mentioned in Ex.P1 report. It is however to be noted that
F.I.R. is not an encyclopedia of all the facts and incidents. Though it is not necessary to mention these facts in Ex.P1 report at least their statements to the police must certainly reveal this particular fact. If
P.W.6 had in fact informed them, the same thing could have been stated by P.ws.1 and 2 and the same thing could have been mentioned in Ex.P1 report. The Investigating officer who was examined as
P.W.12 in the present case has categorically deposed as follows: “ It
is true that P.W.1 did not mention about the deceased being seen
in company of A1 either by P.W.5 Baby or P.W.6 Krishnaiah or
by L.W.9 Venkataiah.” This fact was not even found in the statement of P.W.2 given to the police . By these circumstances it can be understood that the evidence of P.Ws.5 and 6 must have been subsequently gathered. At this juncture it is important to note that
P.W.12 the Investigating Officer has categorically deposed as follows: “ on 31.10.09 P.Ws.5,6 and L.W.9 came to police station and gave statement”. Therefore, till that particular date it was not 1 3 even known to the police that the deceased was found in the company of A1 in the evening of 26.6.09 . It is also not clearly brought on record that P.W.6 had seen A1 to A3 going hurriedly to the bus stand in the night at 10.00 P.M.
19. In view of these circumstances the very evidence of P.Ws.5 and 6 is clearly appearing to have been brought on record by the police at the instance of P.W.2, only to connect the accused with this offence. Because P.W.12 in the mean time had arrested the accused and had visited the scene of offence and had collected report from postmortem and the Forensic Science Medicine. In this regard
P.W.12 has categorically deposed as follows : “30.10.09 I received a
Forensic Science Medicines, S.V.Medical college , Tirupati. ON
31.10.09 I examined P.Ws.5,6 and L.W.9 and after completion of
investigation I filed charge sheet.” It is clear from the evidence of
P.W.12 that till the receipt of the report from the Forensic Science
Laboratory, the Investigating Officer did not find any clue to connect the accused with the deceased, but suddenly it is appearing that
P.Ws.5 and 6 were brought to the scene by recording their statements.
I sincerely believe that this is an effort made by the prosecution only to develop the case and to some how implicate the accused.
Therefore, the last scene theory as contended by the prosecution is not properly established by the prosecution, I strongly believe that the evidence of P.Ws.5 and 6 is only created for the purpose of this case and their evidence is found to be not convincing and believable.
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20. Confession of the accused No.2 leading to discovery: As per the prosecution version subsequent to the giving of the report
P.W.2 gave a statement to police basing on which they have arrested
A2. In this regard P.W.11 N.Ravindranath the then Sub Inspector of
Police has deposed as follows: “ On 12.7.09 I took up further
investigation in this case and verified the investigation done by
P.W.10. I reexamined P.w.1 and L.W.2. On 24.7.09 while I was
in police station P.W.2 came to police station and gave statement.
Basing on statement of P.W.2 I along with my staff and mediators
went to the house of accused and arrested A2 and interrogated
and her confessional statement was recorded. During the course
of confession A2 reveals that she , A1 and A3 planned to kill
deceased Suseela and accordingly they killed Suseela on 26.6.09.
In the confession A2 stated that if we fallow her she will show the
place where Suseela was killed and burnt her. Thereafter we
returned to police station along with A2 and mediators and
altered Section of Law from woman missing to Sec.302 and 201
r/w 34 IPC.” As per the version of P.W.11 basing on the statement of P.W.2 he proceeded to the house of A2 and there he arrested her and recorded her confession statement. P.W.9 the alleged mahazar witness has deposed as follows: “ Lakshmidevamma confessed that
they killed Susheela W/o Nagaraja. She told us that she will
show the scene of offence where they killed her. Then there itself
a mahazar was prepared mentioning the above facts. Ex.P8 is the
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relevant portion in the said mahzar to the effect that about
Lakshmidevamma informing us to show the scene of offence”.
21. The learned Additional Public Prosecutor has tried to argue that the relevant portion of the confession statement of A2, leading to the discovery of the scene of offence can certainly be accepted and can be admittted in evidence therefore, Ex.P8 will establish the said fact. Here there are certain important aspects that are to be noted. P.W.2 has deposed as follows: “ there after myself
and the children of Suseela have searched for the where abouts of
the dceased Suseela and on the information given by L.W.8 Baby
and L.W.9 Venkataiah we suspected foul play from the accused
and I instructed my father to lodge a complaint against the
accused”. He further deposed as follows : “ police examined
LW.8 Baby and L.w.9 Venkataiah in respect of taking Suseela by
A1 in an auto. Police told us that it will take time to enquire into
the complaint. Out of suspicion I went to the village of
M.Voddepalli of the accused and enquired about whereabouts of
Suseela from the villagers. I was told by the villagers that late
Suseela was long back murdered and burnt at Kallur Ghat forest.
Then again I informed the said information to the police of Pakala
and then I told to the S.I. of police of Pakala police station that I
suspect the accused were responsible for the death of my sister
and requested him to visit to M.Voddepalli along with police staff
members.” I have reproduced the major portion of the evidence of 1 6 P.W.2 only to know that P.W.2 some how trying to develop the case.
There is in fact no truth in the evidence of P.W.2 particularly in regard to the presence of P.Ws.5 and 6 and about the police recording their statements before they visited the scene of offence. There is no doubt P.W.2 stated even after recording the statement of P.Ws.5 and 6 police told them that it takes time for them to enquire into the complaint. But the fact remains that on 30.10.09 the Forensic report was received and the statements of P.Ws.5 and 6 were recorded by the police. Therefore, the question of P.Ws.5 and 6 giving statement to the police and the police telling P.W.2 that it takes time for them to investigate, will not arise. Therefore, it is only a development made by P.W.2 to some how strengthen the case of the prosecution. As William Shakespeare said that “Truth is truth to the end of reckoning”. Here it is important to note whether A2 made any confession statement and whether it can be accepted or not.
P.W.2 has categorically deposed that he had enquired with the villagers and came to know that his sister was murdered. But the prosecution did not choose to examine any single witness from that village to at least express suspicion about the accused killing Suseela.
22. What is the basis for police to proceed on the statement of P.W.2 is to be seen:
P.W.2 has categorically deposed that on suspicion he visited the scene of offence and he has taken the police also and he had shown the place of offence there. Thereafter A2 was arrested and the 1 7 alleged confession statement was recorded. As per Sec.27 of
Evidence Act the confession made before a police officer is not admissible in evidence, but that portion of statement is admissible which is leading to the discovery of a fact. But in the present case the scene of offence was already visited by the police and as well as
P.W.2 . Therefore, this particular alleged confession under Ex.P8 is not admissible in evidence and it is appearing to be created for the purpose of this case. My view is very much fortified by a decision reported in : 2012 AIAR (Criminal) 147 , in that their Lordships had observed as follows: “ Sec. 27 of the evidence Act provides a
confession statement made to a police officer or while an accused
is in police custody, can be proved against him if the same leads to
the discovery of an unknown new fact”. There is no new fact that was actually discovered by the police. Further A2 was not arrested by the police and recorded this particular statement. A2 was arrested after she was brought to the police station. Further it is also already mentioned in the above paras that P.W.2 has already visited the scene of offence and P.W.2 had taken the police to the scene of offence and PW2 had shown the scene of offence to the police even
before A2 allegedly leading them to the scene of offence. Therefore,
the alleged confession statement of A2 under Ex.P8 is not admissible in evidence and it is appearing to be created one.
23. Scene of offence: As per the prosecution version after taking A2 into custody she had led the police to the scene of offence, 1 8 in the forest area between Kallur and Damalcheruvu village near
Kothapeta cross road. P.Ws.4,8 and 11 are the important witnesses in regard to their visit to the scene of offence. First of all it is to be seen whether A2 had made any confession leading the police to the scene of offence. Ex.P8 is the alleged confession statement particularly the relevant portion regarding discovery. Ex.P9 is the arrest mahazar.
As per the version of P.W.9 he had followed the police to the house of
A2 and there the alleged confession statement of A2 was recorded.
The same was spoken by P.W.9 who was present even at the time of the arrest of A2 in the police station on the same day. Ex.P9 arrest mahazar clearly reveals that they have not clearly mentioned the statement of the accused. In fact it is mentioned in Ex.P9 the suspect
N.Suseela was produced before the C.I., of Police and the elders, thereby after recording her statement she was arrested . The name of
A2 is not found in Ex.P9, but the name of the deceased Suseela is mentioned as if she had made a confession statement. That itself shows the manner in which the police have prepared these reports under Exs.P8 and P9.
24. P.W.1 as well as P.W.10 have categorically deposed that A2 had informed them that she was prepared to take them to the scene of offence and shown it to them. But A2 was did not lead them to the scene of offence from her house. In fact she was taken to the police station. In this regard P.W.9 in his cross examination has categorically deposed as follows: “ It is true that form Nanjampeta 1 9
to go to Pakala Police station one must cover the distance via
Kallur Ghat road which adjoins the scene of offence.” Therefore, while A2 was being taken to the police station though A2 was informing to the police that she would show the scene of offence, they did not visit the scene of offence even though the scene of offence is on the way to the police station. This situation reveals that the possibility of A2 taking them to the scene of offence basing on her confession is not correct.
25. At this juncture it is important to note that P.W.2 has deposed as follows: “ Out of suspicion I went to the village of
M.Voddepalli of the accused and enquired about whereabouts of
Suseela from the villagers. I was told by the villagers that Late
Suseela was long back murdered and burnt at Kallur Ghat
Forest. Then again I informed the said information to the police
of Pakala and then I told to the Sub Inspector of Police of Pakala
police station that I suspect the accused were responsible for the
death of my sister and requested him to visit to M.Voddepalli
along with police staff members. Then the Sub Inspector of
Police along with staff members , myself , village talari, Village
Revenue Officer and Revenue Inspector have gone to M
.Voddepalli village”. Therefore, it is clear from the evidence of
P.W.2 that he had known the scene of offence and visited the scene of offence before the police visited the scene of offence along with
A2. That is the reason why P.W.9 the alleged mahazar witness has 2 0 deposed as follows: “ It is true in the scene of offence mahazar
there is nothing to show that the scene of offence was detected by
us on the information or on the showing by A2 Lakshmidevamma
to be the scene of offence”. Therefore, the contention of the prosecution that basing on the confession of A2 they went to the scene of offence or the scene of offence was shown by A2 cannot be accepted. The investigating officer also has deposed that on 24.7.09
A2 lead him, P.W.9 to the place where the Suseela was killed and burnt. He also took photographer along with him and a
Videographer. They found the skeleton of the body there. As per the evidence of P.Ws.9 and 12 inquest was conducted over the dead body at that time and rough sketch plan was also prepared at that place. P.W.2 has categorically deposed that he was informed by one Dhanamma and Ramachandra of Voddipalli that his sister was killed. Surprisingly those people were not examined by the police and their statements were also not recorded. P.W.2 deposed that the police thereafter examined him and questioned him as to whose dead body it was, when the dead body of my sister was shown.
Therefore, this evidence of P.W.2 reveals that he had shown the dead body at the scene offence to the police even prior to the visit made by the police at the instance of A2. That is the reason why P.W.9 also deposed that in the mahazar at the scene of offence it was not even shown as to it was detected at the instance of A2. Under these circumstances there is every probability that P.W.2 has already visited 2 1 the scene of offence and had taken the police and had shown them the scene of offence. Therefore , a doubt is created in regard to the visit made by the police to the scene of offence at the instance of A2.
Under these circumstances the evidence of P.W.9 is not appearing to be acceptable and reliable and consequently the evidence of
Investigating officer also cannot be accepted in regard to the visit made to the scene of offence.
26. It is the specific contention of the prosecution that the dead body found at the scene of offence is that of the deceased Suseela. As per the version of evidence of P.W.2, P.W.9, P.W.12 and P.W.3 the
M.Os. 1 to 12 material objects were seized at the scene of offence.
As per the version of P.W.2 he along with the police had visited the scene of offence and there he had shown the dead body at the scene of offence to the police. Therefore, before the visit made by the police itself officially at the instance of A2 it is already brought on record that they have made a visit to the scene of offence but at that time no mahazarnama was prepared there and the scene of offence was also not noted. Subsequently P.W.12 had deposed that inquest was conducted over the dead body and postmortem examination was also conducted by P.W.8 Dr.V.Vinayak. As per the evidence of P.W.8 he had noted the skeleton at the scene of offence. The photographs filed by the prosecution under Ex.P3 are showing the condition of the skeleton at the scene of offence. The entire skin was peeled off. There is very little muscle found attached to the skeleton. But here the 2 2 doctor who conducted postmortem examination has noted that there is nose ring and toe ring present. But a doubt arises in regard to the availability of all other material objects at the scene of offence, because as per the evidence of P.W.2 and P.W.12 a burnt photograph of A1 was found at the scene of offence . This is some what appearing to be surprising. Why the deceased carried the photograph of A1 and how a photograph of A1 was found partly burnt at the scene of offence. The scene of offence was visited almost all after one month from the date of offence. It is surprise to note that a piece of photograph was also found at the scene of offence. This particular situation creates a doubt about availability of the material object at the scene of offence. As P.W.2 had already visited the scene of offence to make it appear that A1 had involved in this case M.O.9 photograph must have been placed there. There is every possibility f implanting the material object at the scene of offence, because P.W.2 had already visited the scene of offence prior to conducting of the inquest by the police . Because of the evidence of P.W.9 the entire process of the police in visiting the scene of offence and conducting panchanama at the scene of offence are all appearing to be not believable.
27. Now the important question is whether the skeleton found at the scene of offence is that of the deceased Suseela. P.Ws.1 and 2 have deposed that basing on the articles noted as M.Os.1 to 9 they could identify the dead body as that of Suseela. At the same time it 2 3 is also important to note that P.W.8 in his postmortem report had clearly mentioned the name of the deceased as N.Suseela. Therefore, this situation clearly shows the skeleton was identified as the body of
Suseela the deceased in this case.
28. Surprisingly it is contended by the prosecution that certain bones were sent to Forensic Science Laboratory for identifying the body. In fact P.W.7 has deposed that the court has forwarded five bones for analysis . She deposed as follows: “ The properties sent
from the said court for analyzing were the bones of the human
being.” P.W.7 in her evidence deposed as follows: “ Ex.P6 is the
analysis report sent to Judl.,Magistrate of I Class, Pakala . I
opined under Ex.P6 to the effect that basing on the above
features the bones may belong to a single individual female and
age could be between 35 to 45 years.” If the dead body was already identified as that of the deceased Suseela, the possibility of identifying the dead body as a female dead body is not appearing to be correct. P.W.7 had categorically admitted the word “Female” was written with pen and whereas other contents of the report are computer typed. By this situation it can be understood that subsequently P.W.7 was asked to mention about the nature of bones as the female bones. Under such circumstances there is no correlation between the evidence of P.W.7 and P.W.8.
29. As observed above there is possibility of planting the material objects at the scene of offence thereby P.Ws.1 and 2 are 2 4 trying to identify the dead body. There are no marks of identification by which PWs.1 and 2 could identify the dead body as that of
Suseela. P.W.12 has already admitted that he did not send the material object for D.N.A. test. In this regard P.W.12 has deposed as follows: “ It is true the D.N.A. profile is proof method of knowing
the parentage of the individual to connect the skeleton with
P.W.1.” Admittedly the skeleton was not sent for D.N.A. test.
By this situation it s not clearly established that the skeleton is belonged to the deceased Suseela.
30. Connecting the accused to the offence and motive: As per version of P.Ws.1 and 2 there were disputes between the deceased Suseela and A1. The deceased had filed a criminal case
U/Sec.498-A IPC against A1 on the ground that he was harassing her.
That case ended in acquittal. P.W.2 has deposed as follows: “ The
said Section .498-A IPC ended in acquittal in favour of the
accused herein. Thereafter my sister Suseela filed maintenance
case against A1 and she was given interim maintenance at the rate
of Rs.1200/- per month.” The order under Ex.P2 reveals the factum of filing of M.C.case and passing of order of maintenance.
Therefore, the disputes between the accused No.1 and the deceased are clearly brought on record. But it is brought on record that the deceased and A1 are having two children. One is aged about 19 years and other one is aged about 15 years by the date of incident.
2 5 The prosecution has not examined these witnesses at any point of time, though these two children were residing with the accused.
31. The learned Additional Public Prosecutor had tried to argue that because of the pendency of the cases between the deceased and A1 all the accused had colluded together and had planned to kill the said Suseela. As the present case is completely based on circumstantial evidence motive of the accused for committing this offence will play a crucial role in the present case. Now it is to be seen whether the prosecution could show and prove the collusion between A1 to A 3 and their connivance to commit this offence. It is contended by the prosecution through P.Ws.1 and 2 that there was illicit contact between A1 and A2. Except through the alleged confession statement of A2 no where it could be brought on record that there was any illicit contact between A1 andA2. P.w.1 in his cross examination also has categorically deposed as follows: “ We got a case filed under Sec.498-A IPC alleging that my daughter was being harassed by all the accused, by A1 having illicit intimacy with
A2. It is true that in the said “ u/s 498-A IPC case” the accused herein were acquitted by the Pakala court. It is true that myself, my wife, my brother and the deceased Suseela deposed against the accused in that case. Suneel and Naveen did not depose as witness in support of the cause of their mother in Sec. 498-A IPC case.” Sunil and Naveen are the sons of deceased and A1. Therefore, the allegation made against the accused that there was illicit contact 2 6 between A1 and A2 was noted to be false. Now on the same premise the present case also is proceeded alleging that there was some illicit contact between A1 and A2. The question comes as to whether all the accused intended to kill Suseela what the benefit that will accrue to A1 to A3 in killing Suseela. Particularly it is alleged that A1 and A2 had illicit contacts. Then how A3 being husband of
A2 will join A1 and A2 to end the life of Suseela. Therefore, the participation of A3 along with A1 and A2 or about his motive to kill
Susheela has to be completely ruled out. Coming to the involvement of A1 and A2 also absolutely there is iota of evidence to show their complicity in the present case. There is only one aspect that is brought on record in the present case, that is the presence of A1 and the deceased on 26.6.09. Simply because A1 had attended the court on that day it does not mean that the case against A1 is already established. No where it is mentioned that A2 had gone to the court and A2 was seen by anybody on that day near and around at the court at Pakala. In the absence of such evidence it cannot be said that A2 could participate in the commission of offence.
32. Now the whole case is to be pointed out against A1. As per the evidence of P.ws.1 and 2 A1 had taken Suseela along with him on the pretext of showing her children to her . Admittedly P.Ws.1 and 2 did not go to the court along with deceased on that day. They did not have any information as to what had happened in the court between P.W.1 and A1. Therefore it is not fair to come to the 2 7 conclusion that A1 had taken Suseela with him. All the while the deceased had filed a criminal case against A1 and prosecuted him.
Subsequent there after she had filed a maintenance case and obtained an order of maintenance. As the maintenance amount was not paid she field a petition for recovery of the amount under Ex.P2. When the disputes between the deceased and A1 were pending it is highly improbable to say that A1 had talked to Suseela and had taken along with him. Therefore , absolutely the prosecution has failed to prove the motive of the accused in the commission of offence. At the same time the prosecution has also failed to prove the complicity of the accused in any way in killing the deceased .
33.The learned Additional Public Prosecutor has tried to argue that M.O.1—patrol can was seized basing on the confession of
A1 and A3 near and around the scene of offence in the bushes. As per the prosecution version the accused had poured petrol on the deceased and had set her on fire. If the incident had occurred as contended by the prosecution and if the dead body of Suseela was burnt by pouring petrol , the petrol can could not even be left out there and it could have been burnt there. Further whenA2 was arrested and her confession statement was recorded she did not depose about this petrol can or about the place it was kept. It is appearing that prosecution has preserved this material object for A1 and A3. The entire case of the prosecution is based on the imagination. It is the case of the prosecution that A1 has slapped the deceased and 2 8 thereafter when she fell down they thought she had died as they gagged her mouth and alter A1 had gone out to bring petrol and there after he brought petrol and poured it on the deceased and set her on fire. Absolutely there is no material available on record to show that the accused had committed all these acts. In the absence of any clear evidence or any circumstantial evidence to show that the accused had gone to the scene of offence along with the deceased it cannot be said that the accused had participated in the commission of offence . This is a case where the accused are certainly entitled for benefit of doubt because the prosecution had tried to build up their case through the evidence of P.Ws. 5 and 6 , but this court has already observed and that they are only planted witnesses. In fact the statement of P.ws.5 and 6 were recorded after almost all after the entire investigation was completed and at the time of receiving report from Forensic Science
Laboratory.
34. In view of these circumstances I have no hesitation to say that the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt. Therefore, I found the accused not guilty for the offences U/Sec. 302 and 201 r/w 34 IPC. Accordingly, point is answered.
35. In the result, A1 to A3 are acquitted U/s 235(1) of
Cr.P.C. The offences charged under sections 302 and 201 r/w 34
IPC. The bail bonds of the accused shall stand cancelled after six months from the date of Judgment. M.Os.3 to 6 shall returned to 2 9 P.W.1, the other material objects No.1, 2 and 7 to 13 shall be destroyed after appeal time is over.
Dictated to the Personal Assistant, after her transcription, corrected
by me and pronounced in Open Court, this the 11 th day of July, 2013.
I ADDITIONAL SESSIONS JUDGE,
CHITTOOR
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution:For Defence: None
P.W.1. Avula Chinabba P.W.2. Avula Chandrasekhar P.W.3. C.K.Hemanth Kumar P.W.4 Jayachandra P.W.5 Bandi Baby P.W.6 R. Krishanaiah P.W.7 Dr.K.Mamatha P.W.8 Dr.V.Vinayak P.W.9 Mahmmad Iqubal P.W.10 N.Ramachandran P.W.11 N.Ravindranath P.W.12 K.Kesappa
EXHIBITS MARKED:
For Prosecution:
Ex.P.1. Complaint given by P.W.1
Ex.P.2. Certified copy of Crl.M.P.No.212/2009 in M.C.No.1/07 of J.M.F.C., Pakala.
Ex.P.3. Two photos
Ex.P.4. Compact Disc (video)
Ex.P.5 Compact Disc (photo)
Ex.P.6 F.S.L.Report
Ex.P.7 Postmortem certificate
Ex.P.8 Admissible portion in confession statement of A2
Ex.P.9 Admissible portion in arrest mahazar dt.24.7.09 at 3.00 P.M. of A2
Ex.P.10 Observation Mahazar dt.24.7.09 at 4.00 P.M.
Ex.P.11 Inquest Report
Ex.P.12 Admissible portion (two) in Arrest Mahazar of A1 and A3 3 0 Ex.P.13 Seizure mahazar dt.29.8.09
Ex.P.14 F.I.R. of women missing
Ex.P.15 Rough sketch of scene of offence
Ex.P.16 Altered F.I.R. U/Sec.302 of IPC
For Defence:
Ex.D1 Relevant entry in page No.2 of the statement of L.W.3 dt. 24.7.09
Ex.D2 Relevant entry 2nd line in statement of L.W.6 dt.24.7.09
MATERIAL OBJECTS MARKED:
M.O.1 Sari with petty coat
M.O.2 Slippers
M.O.3 Gold Nose screw
M.O.4 Small burnt beads with Thalibottu
M.O.5 Ear studs
M.O.6 Silver Toe rings
M.O.7 Burnt beads
M.O.8 Six pieces of Matti Gajulu
M.O.9 Burnt photograph of A1
M.O.10 Burnt Raw mangoes number in 3
M.O.11 Two burnt strip pit tablets
M.O.12 Small tube of burnt fair and lovely
M.O.13 can
I ADDL. S.J.
CTR.
Fair Judgment in
S.C.No.470/09 dt.11.7.13.
3 1
SC 105/2012
3 3