IN THE COURT OF THE JUDGE, FAMILY COURT –CUM
VII ADDITIONAL DISTRICT AND SESSIONS JUDGE ::
WEST GODAVARI AT ELURU.
Present: Sri.P.Prabhakar II Additional District & Sessions Judge, FAC:Judge, Family Court –cum VII Addl. District & Sessions Judge, West Godavari, Eluru.
Thursday, this the 30th day of July, 2020
SESSIONS CASE NUMBER.117 of 2019
Name of the Accused:Bakeel S/o. Bachilal, 25 years, Hardayi village, Madhya Pradesh.
CHARGE:MURDER Punishable under Section 302 of IPC
Plea of the accused:Pleaded not guilty
Finding of the Judge:Not Guilty
Sentence or order:In the result, the accused is found not guilty for the charge under Section 302 IPC levelled against him and accordingly he is acquitted in terms of Section 235 (1) Cr.P.C.. TheSuperintendent, District Jail, Eluru, is hereby directed to release the accused forthwith if his presence is not required in any other case/s. M.Os.1 to 11 and unmarked nonvaluable properties if any are ordered to be destroyed after expiry of appeal time.
The prosecution is conducted by Sri Achanta Venkateswara Rao, learned Additional Public Prosecutor, West Godavari, Eluru.
The accused is defended by Sri Katta Satyanarayana, Legal Aid counsel for accused.
The Case is committed by the court of II Additional Judicial Magis trate of First Class, Eluru, in P.R.C.No.9/2019 on its file, connected with crime number 20/2019 of Eluru I Town Police Police Station.
This case coming on 20.07.2020 for final hearing before me in the presence of Sri Achanta Venkateswara Rao, learned Additional Public 2
Prosecutor for the State and of Sri Katta Satyanarayana, learned Legal
Aid counsel for the Accused and the matter having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
1. The Inspector of Police, I Town P.S., Eluru, chargesheeted the accused under Section 302 of IPC.
2. Case of prosecution is on 24012019 at 5.30 p.m., defacto complainant viz., Kistavarau Venkateswara RaoVRO4, Eluru, PW1 having rushed to scene of crime on intimation gave report having enquired the details from neighbours and husband of deceased namely Atmaram
Dohare/PW2 stating that Suman Dohare deceased in the case along with her husband hailing from Madhya Pradesh state migrated to Eluru and staying at Subrahmanyam colony in the house bearing No.21186/A in
Eluru. Accused viz., Bakeel is cousin of the husband of the deceased being his maternal uncle’s son. He had illicit intimacy with deceased earlier to their migration to Eluru. On 24012019 morning accused made a phone call to PW2 seeking his help stating that he was held up at
Vijayawada Railway Station without money even for food and requested him to arrange money. Believing him PW2 had been to Hanuman
Junction, picked up his relative viz., Hukum Singh PW3 and proceeded to
Vijayawada to hand over the money to accused. At about 1 p.m., accused telephoned and informed him that he had been to the house of deceased demanded her to follow him to Madhya Pradesh but she rejected. Then in a fit of anger having determined to kill her tied the saree tag around the neck of deceased and strangulated her to death by him.
3. Basing on the above complaint case is registered in Cr.No.20/2019 under
Section 302 of IPC and issued express FIR by PW10 being SHO., I Town P.S.,
Eluru and took up investigation of the case by PW11. During the course of investigation, he visited the scene of crime and conducted panchanama 3 proceedings of scene of offence and inquest over the dead body in the presence of PW1 and one Pamu Samuel –LW17 at scene of offence. He also seized the incriminating material i.e., saree found tied around the neck of deceased and then recorded the statement of PW2. During inquest he also examined and recorded the statements of P.Ws. 3 to 6Hukum Singh,
Syed Baji, Syed Nasreen and Eluri Sesharatnam and two others namely
LWs. 4 and 8/Sunayi Maya and Vadali Venkateswara Raju. On completion of formalities dead body was sent for Post Mortem examination with escort. The Medical officer, Head Quarters Hospital, Eluru, Dr.Azhar
RafieqLW13 having conducted autopsy over the dead body to know the exact cause of death gave report opining that the deceased would appear to have died of asphyxia due to stoppage of air way.
4. During course of further investigation, accused is apprehended at new bus station, Eluru on 30012019 at about 3.00 p.m., in the presence of Shaik Imtiaz Basha and Pamu Samuel P.W.9 and LW17. On completion of formalities accused is interrogated and during interrogation accused voluntarily made confession admitting his guilt and handed over his mobile phone with SIM No. 9574507879 through which he called the husband of deceased before and after the occurrence. Recording the confession under a cover of panchanama in the presence of same mediators and on completion of formalities, the accused was arrested and sent him for judicial remand.
5.Later on 01022019, 02022019 and 03022019 securing the presence of P.Ws. 7,8 and LW10/Ravi Dohare, Pasupuleti Nooka Raju and
Mohammed Habibul Rehman @ Showkat Ali examined and recorded their statements. On 10032020 and 15032020 securing the presence of
L.Ws. 12 and 13 Marapogu Usha and Dr.Azhar Rafieq, Civil Assistant
Surgeon, District Head Quarters Hospital, Eluru, examined and recorded their statements.
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6.Evidence collected during investigation established accused being cousin or husband of deceased developed illicit intimacy with deceased during her stay in Madhya Pradesh State i.e., native state of her husband in his temporary absence. Investigation further disclosed on shifting of deceased along with her husband to Eluru, accused having traced the address of deceased used to visit her house and continued his illicit intimacy with her on his migration to Vizag for livelihood. It further disclosed in order to continue his illicit intimacy with deceased, openly accused time and again forced the deceased to desert her husband and children and to shift along with him to Madhya Pradesh for which, she bluntly refused expressing her inability to desert her husband and three children. Keeping the same in mind in a preplanned design on the date of occurrence he rushed to Eluru to the house of deceased diverting her husband to Vijaywada by concocting a false story as if he was held up there and once again demanded her to shift along with him and on her refusal having determined to do away her he strangulated her to death and fled away. Thus, the accused has committed the offence under
Section 302 of IPC.
7. Learned II Additional Judicial Magistrate of First Class, Eluru, has taken the case on file for the offence under Section 302 IPC against the accused and on his appearance following the due procedure as contemplated under sections 207 and 209 of Code of Criminal Procedure committed the matter to the Court of Sessions under P.R.C.No.9/2019 as the offence under Section 302 of IPC is exclusively triable by the Court of
Sessions and same is numbered as S.C.No.117/2019 and made over to
this Court for disposal according to law.
8. This Court on receipt of record, on appearance of the accused and upon hearing both the parties under Section framed the charge under Sec 5 302 of IPC., read over and explained the same to accused in Telugu, to which as the accused pleaded not guilty and claimed to be tried, commenced trial.
9.During the course of trial, the prosecution has examined PWs 1 to 11 and marked Exs.P1 to P9 and M.Os. 1 to 11.
10.PW1 is VRO, Eluru and defactocomplainant. PW2 is husband of deceased. PW3 is relative of deceased and PW2, PW4 is neighbor of deceased who firstly seen the dead body of deceased. P.Ws. 5 to 8 are the circumstantial witnesses. PW9 is one of the mediators for confession.
P.Ws. 10 and 11 are the investigating officers.
10. Ex.P1 is Report given by defactocomplainant, Ex.P2 is Scene observation report, Ex.P3 is Inquest report, Ex.P4 is Mediators report,
Ex.P5 is FIR in Cr.No.20/2019 of Eluru I Town P.S., Ex.P6 rough sketch,
Ex.P7 photos, Ex.P8 Call Details Report and Ex.P9 Post Mortem Report.
11. MO1 is Cell phone, MO2 is Sunff colour blouse, MO3 is Red Colour polyster petty coat, MO4 is White Saree with rose flower and black spade design, MO5 is Roldgold bangles four in number, MO6 is Blue coloured glass bangles 11 in number, MO7 is Roldgold ear rings two in number,
MO8 is Roldgold nose stud, MO9 is Pair of stainless steel anklets, MO10
Black bead chain with roldgold locket and MO11 is stainless steel toe rings four in number.
12.After closure of prosecution evidence, accused is examined under section 313 Cr.P.C., during which he denied the incriminating material placed before him, pleaded innocence and claimed that he has not committed any offence and reported no defence evidence on his behalf
13. Heard the learned Additional Public Prosecutor and the Legal Aid counsel for the accused.
14. Points for determination are:
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1. Whether the death of deceased is homicidal and accused has nexus with the death of deceased?
2. Whether the prosecution has made out the case against the accused for the offence under Section 302 of IPC?
15.POINT NO.1: It is the case of prosecution that the accused none other than cousin of husband of the deceased being maternal uncle’s son developed illicit intimacy with deceased during their stay at their native place in MP State and once the deceased was also eloped by him to Surat of Gujarat State leaving the children of deceased with her inlaws and it was during the migration of the husband of deceased to Srikakulam. It is the further case of prosecution that on information about the elopement of deceased with accused and their stay in Surat, husband of deceased and his other relatives had been to Surat and brought her back to lead marital life with her husband and it was few months prior to the death of deceased taken place in the month of January, 2019. It is the further case of prosecution even after the deceased was brought back from the clutches of accused, he continued illicit intimacy with deceased migrated to Eluru along with her husband and children for livelihood and in furtherance of the same, he used to visit the house of deceased now and then in the temporary absence of her husband at home.
16.It is further case of prosecution that on the date of occurrence accused made a phone call to the husband of deceased and asked him to come down to Vijayawada as if he was held up there and suffering with starvation even without a penny, requesting him for financial help in the morning hours. As accused is none other than the cousin of the husband of the deceased without suspecting his bonafides he along with his relative staying at Hanuman junction had been to Vijayawada but to their surprise they could not find the accused there. Then the husband of deceased 7 contacted him on phone and on such phone call accused having responded intimated about the death of deceased in his hands on account of her refusal to accompany him in order to continue her illicit intimacy with him he strangulated her to death by visiting his house. It is the further case of prosecution on such message, husband of deceased alerted his neighbor/PW4 at Eluru and requested him to go to his house portion to talk with her on phone through his phone and on such visit by wife of
PW4 testified as PW5 and other neighbours noticed the deceased dead and lying on mattress laid on the floor in the kitchen. Later on, he along with his relative PW3 rushed to Eluru. Meanwhile on information given by neighbours local VRO, who lodged the complaint on enquiring the details from the neighbours and husband of deceased who also rushed to Eluru, while he was at the house of deceased.
17.Admittedly, no eyewitnesses to the occurrence and case of prosecution is totally rested on circumstantial evidence such as extra judicial confession allegedly made by the accused admitting his guilty over phone to the husband of the deceased, noticing the entry and exit of accused into and from the house of deceased at relevant point of time and confession made by accused on his apprehension one week after the occurrence coupled with seizure of his cell phone through which he contacted the husband of the deceased.
18.Death of the deceased is not in dispute. In order to prove the homicidal death of deceased, prosecution examined one of the mediators for the scene of offence and inquest proceedings as PW1 and relied on the inquest proceedings and Post Mortem report given by the medical officer, who conducted autopsy over the dead body of deceased on the next day i.e, on 25012019 after 3.30 p.m. PW1 also happened to be the defacto complainant, being local VRO reported about the offence to the Police 8
Officers. He stood as punchayatdar along with another during the scene of offence and inquest panchanama proceedings taken place at the house of deceased and then got prepared the panchanama of scene of offence and inquest making note of the external injuries that are found over the dead body of deceased and also around the neck of the deceased there is a cloth i.e., saree was duly tied and scene of offence and inquest request were prepared and exhibited as Exs.P2 and P3.
19.PW1 during his evidence reiterated the contents of Exs.P2 and P3.
Though he is crossexamined at length nothing is elicited to doubt his credence as to the correctness of contents of inquest proceedings prepared to know the apparent cause of death and the external injuries over the neck of deceased which are also duly reflected in the Post Mortem
Examination report given by the Medical officer on conducting autopsy over the dead body of deceased which is also marked as Ex.P9 through
PW11 Investigating Officer.
20.As per Post Mortem Examination report the following antemortem external injuries are noted. (1)Abrasions over left arm, (2) Blood clotting behind cabella right ear, (3) Nail marks below the right neck mandible, (4)
A Ligature mark extending from right ear to left ear over the neck.
Medical officer who conducted Post Mortem examination gave report opining that the death of deceased is on account of asphyxia due to strangulation. Genuineness of Exs.P3 and P9 inquest report and Post
Mortem report are not questioned. PW11 Investigating Officer also came and categorically stated about the receipt of Ex.P9 report by him from the
Medical Officer, Head Quarters Hospital, who conducted autopsy over the dead body. Thus the oral and documentary evidence let in by the prosecution duly substantiated the homicidal death of deceased.
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21.Husband of the deceased i.e., PW2 is testified to prove the illicit intimacy of deceased and accused, their earlier elopement, extra judicial confession of accused and phone calls said to have made by accused on the date of occurrence. Close relative of PW2 who accompanied him to
Vijayawada from Hanuman Junction is testified as P.W.3 and he is corroborating witness to PW2.
22.PW2 deposed on the date of occurrence at about 12 noon, accused telephoned and on informing him that he is not having money and as such he is badly need of money asked him to come down to Vijayawada
Railway Station. Immediately, he rushed along with his relative PW3 by picking up him at Hanuman Junction to Vijayawada railway station. On reaching the railway station, he telephoned to accused to inform about his arrival and on such information he was told by accused that he killed the deceased by strangulating her with her own saree since she did not oblige him on his demand to elope with him. He further deposed that in order to confirm the said intimation immediately he telephoned to his neighbor testified as PW4 and asked him to send his wife testified as PW5 running a Kirana store nearby his house to go to his house and to see his wife. He further deposed on following his instructions they visited his house and informed about noticing the dead body of deceased in his house.
Immediately himself and his cousin testified as PW7 rushed to Eluru and reached house and noticed gathering. He was also enquired by a person present there and prepared records presented to the police. Later police enquired him. During that enquiry also he stated the above facts.
23.PW3 deposed that on the date of occurrence i..e, on 24012019
PW2 telephoned and asked him to accompany him to Vijayawada Railway station to handover money to accused as he is in dire need of money.
Accordingly, he accompanied him to Vijayawada Railway station but they 10 did not trace the accused there, then they rushed to Vijayawada bus stand and boarded a bus to return to Eluru. While they were in the bus
PW4 telephoned and informed that something had happened to his wife i.e., the deceased and asked him to come back to Eluru immediately. By the time they reached the house of PW2 they noticed a big gathering and police there. On enquiry by the police, he stated the above facts. He further stated on the instructions of police, PW2 telephoned to accused, then also he was told by accused that he killed the deceased by strangulating her with her own saree. The accused and deceased had illicit intimacy while they were in Madhya Pradesh State and once the deceased was also eloped by accused and after some mediations deceased returned and joined PW2 to lead marital life. In spite of it now and then accused used to demand the deceased to elope with him deserting PW2 and deceased might have been killed by accused on her refusal to follow him.
24.Evidence spoken by P.Ws. 2 and 3 with regard to the extra judicial confession made by accused is not consistent. As per the evidence of PW2 having failed to trace accused at Vijayawada Railway Station, he telephoned to accused and in response he was told by him about killing deceased. No whisper in the evidence of PW3 about the phone call made by PW2 to accused. As per the evidence spoken by him while they were returning to Eluru in bus, PW4 telephoned and informed about death of deceased and the request made by him to come back to Eluru immediately. PW3 further stated that on the instructions of police present at the house of PW2 phone call was made to accused and in turn having responded to that phone call he made extra judicial confession admitting his guilt and he also over heard it as PW2 put on the loud speaker of the phone in on mode. Such statement is conspicuously absent in the 11 evidence of PW2 and in his statement given before police. Admittedly, response allegedly given by the accused to the phone call of PW2 is not recorded. If at all the evidence spoken by PW3 is true every likelihood of its recording by PW2 at the behest of police on whose direction he made such phone call to the accused. Thus, in the aforesaid circumstances, it can be safely said that the prosecution has failed to substantiate the so called extra judicial confession made by the accused.
25.P.Ws. 4 and 5 are the neighbours and husband and wife. PW4 is the person to whom husband of deceased i.e., PW2 telephoned to rush to the house of the deceased to cross check the veracity of information passed on by the accused as to death of his wife i.e., deceased.
26.PW4 deposed in between 2 and 3 p.m, while he was in his Kirana shop PW2 telephoned and asked him to give his phone to his wife i.e., deceased and to ask her to talk with him since she was not having a telephone and as the house portion of the deceased is also in their colony.
He further deposed that on following the instructions of PW2, he handed over his phone to his wife testified as PW5 and sent her to the house of deceased with his phone. Then, she visited the house of the deceased and returned stating that the dead body of deceased was found lying on the floor and her neck was tied with saree tag. He further deposed that he called the neighbours and on information given by the neighbours PW1 rushed to the house of deceased. Simultaneously, he also informed the same to PW2 and requested him to come back immediately. On enquiry made by PW1 he informed as to what had happened and during that enquiry PW2 also came and gave the details. Later police reached. He further deposed that PW2 on making phone call to the accused on the instructions of police put on the loud speaker of his cell phone and 12 accused having responded to that call confessed his guilt and it was also heard by him, police and other persons.
27.PW5 none other than the wife of PW4 who rushed to the house of deceased and noticed her dead body in the kitchen deposed on 2401 2019 at about 2.00 p.m., or 3.00 p.m., on the instructions of her husband
PW4, she visited the house of PW2 and called the deceased as she did not respond, she pushed the doors which were closed without bolting from inside and then noticed dead body of deceased strangulated with her own saree. On seeing the same she perturbed and rushed to her house and informed the same to her husband, then they also alerted the neighbours.
She further deposed that her neighbor testified as PW6 informed about her witnessing the accused visiting the Pw2’s house at about 12 noon.
Thereafter, police came and enquired her.
28. PW6 and PW8 neighbours are testified as circumstantial witnesses in order to prove the entry and exit of accused and from the house of deceased at relevant point of time.
29.PW6 a woman aged 75 years deposed at about 12 noon while the deceased was washing clothes accused visited to her house, then the accused and deceased went inside and closed the doors. Later she left.
She further deposed at about 3.00 p.m., PW5 came to the house of deceased and noticed her dead in the house. Then, she also entered into the house of deceased and seen the dead body of deceased strangulated with her saree.
30.PW8 working as driver deposed P.W2 and deceased are his co tenants. On the date of occurrence as he was not doing well, he remained at home. Accused used to visit the house of deceased and PW2 now and then in the absence of PW2 and it is on back side of his house portion. To reach the house portion of PW2 one has to pass through the lane situated 13 beside his house portion. On that day at about 12 noon while he was sitting in the lane situated beside his house he noticed accused going to the house of deceased but he did not pay much attention as he used to visit that house now and then in the absence of PW2. He further deposed that one and half hour thereafter again he witnessed the accused coming out from house of deceased. At that time also he did not pay much attention for the same reason. At about 3.00 p.m., he over heard the voice of PW5 and others made on noticing the dead body of deceased in her house portion. His neighbours also seen the accused coming out from the house of PW2. On hearing the same he also rushed and seen the dead body of deceased and her neck is tied with her own saree and thereby he suspected the accused for death of deceased and gave statement to the police during his examination.
31.Though the name of PW6 is cited as witness in inquest proceedings
dated 25012019 the name of PW8 is not referred. If at all PW8 was
present in the house on the date of occurrence and had he seen the dead body of deceased on hue and cry made by PW5 and others on noticing the dead body of deceased as spoken by him during his evidence every likelihood of reflecting his name also at least in the inquest proceedings prepared on the next day of occurrence and also recording his 161
Cr.P.C.statement by the Investigation Officer i.e., PW11 on 25012019 itself. It is patent that the investigation officer had recorded the statement of PW8 on 01022019 two days after the apprehension of accused. PW11 had not offered any explanation for abnormal delay in recording his statement. It is one of the strong circumstances to doubt the presence of
PW8 in the house on the date of occurrence allegedly on account of his sickness. As submitted by the counsel for accused likelihood of planting
PW8 as witness to the occurrence as there are no eyewitnesses to the 14 occurrence taken place within four walls of a dwelling house cannot be ruled out.
32.PW7 relative of deceased and staying at Srikakulam deposed that about two months prior to the occurrence PW2, deceased and their three children came to their house in Srikakulam and on one day deceased telephoned to PW2 and informed about accused eloping her to Surat and her cheating by him requesting to save her from his hands. Then himself,
PW2 and PW3 rushed to Surat and on tracing the deceased in the company of accused, got her back. Thereafter PW2, along with deceased and children reached Eluru and he left to Srikakulam. On the date of occurrence he was informed by PW2 about the death of deceased in the hands of accused. On the next day he rushed to Eluru and on enquiry made by police, he gave statement. Accused is nephew of PW2.
33.PW9 testified as mediator for confession and seizure of cell phone to prove the confession made by accused on his apprehension one week after the occurrence and seizure of cell phone through which he allegedly made phone calls to PW2 on the date of occurrence deposed that on 30 012019 at about 3.00 p.m., he accompanied police to Eluru New Bus stand and there on seeing the police accused found there tried to skulk away, then he was detained and questioned. During that questioning accused disclosing his identity made confession admitting his guilt in death of deceased and also handed over his cell phone through which he made phone calls to PW2 on that day. The relevant portion of the confession reflecting the seizure of cell phone in the confession panchanama is marked as Ex.P4 and cell phone is exhibited as MO1.
34.P.Ws. 10 and 11 are SI of Police and Inspector of Police, who registered and investigated the case respectively deposed as to registration of FIR, their visit to scene of crime, panchanama proceedings at scene of 15 offence and inquest and about the examination of witnesses in course of investigation and filing of charge sheet on receipt of Post Mortem examination report from the Medical officer, who conducted Post Mortem over the dead body of deceased opining that the deceased died due to
Asphyxia on account of strangulation. PW11 further deposed about collection of call details particulars from the service provider of the cell phone handled over by the accused from service provider. Attested copy of
CDR particulars of the cell phone with SIM number 9574507879 said to have used by accused and seized on his apprehension is marked as Ex.P8.
35.It is manifest from the above referred evidence let in by the prosecution in order to prove the nexus of accused with death of deceased that it mainly relied on the evidence of PW2 none other than husband of deceased and P.Ws. 6 and 8 neighbours allegedly noticed the accused visiting the house of the deceased at relevant point of time on the date of occurrence in the absence of deceased and Ex.P8 CDR particulars of SIM number of the cell phone said to have been handled by the accused.
It is patent from the evidence of PW2 and statement made by him before the investigating Officer during investigation and also the information furnished by him to the defactocomplainant, local VRO who presented
Ex.P1 report after examining into matter as to the details of the occurrence that there is no whisper about the cell phone SIM numbers of either himself or accused.
36.PW11 Investigation Officer while recording the statement of PW2 during investigation had not tried to elicit the SIM numbers of accused,
PW2 or deceased. No explanation from him for not eliciting the above information, though the same is a very crucial.
37.Admittedly no eyewitnesses to the occurrence taken place within four walls of a dwelling house in which deceased was staying along with 16 her husband and children. PW11 Investigating Officer having collected the call details of SIM number of the cell phone said to have been seized from the possession of accused marked as Ex.P8 through SP for the reasons best known to him did not even choose to collect the Customer Application
Form from the service provider from whom CDR particulars are obtained to establish the nexus of accused with the cell phone and its handling by him either before or after occurrence or on the date of occurrence in order to contact PW2 and for compelling him to go to Vijayawada leaving the deceased alone in the house. It is patent from the extract of CDR particulars which is a computer print out that it does not even certified as authenticated under Section 65(B) of Indian Evidence Act, which is mandatory to look into the said document. At the same time PW11 even did not collect the call detail particulars of the SIM number of the cell phone of the husband of the deceased or its Customer Application Form in order to show that the said SIM No.8160511310 is handled by PW2 and he is in custody of it at relevant time.
38.PW11, Investigating Officer simply by collecting Ex.P8 computer printout of call details of SIM Number 9574507879 and the outgoing calls particulars from that SIM number to the SIM number 6305210225 allegedly handled by PW2 at 12.37hours, and 13.46 hours at Sl.No.1659 and 1660 and three more incoming calls to the SIM Number 9574507879 from 6305210225 at 14.13, 14.43 and 14.44 hours respectively fixed the accused as the perpetrator of the crime recording the statement of PW2 though in that statement no whisper about the cell phone numbers simply basing on the confession of accused allegedly made disclosing the SIM numbers of the cell phones of himself and PW2.
39.P.Ws. 6 and 8 are utter strangers to accused who hails from
Madhya Pradesh State. It is patent from the evidence spoken by them that 17 they do not have any prior acquaintance with the accused. Statements of
P.Ws.6 and 8 are recorded by PW11/Investigation Officer on 25012019 and 01022019 respectively. They identified accused for the first time during trial in public court. Evidence spoken by PW6 who is an old lady aged about 75 years with poor eye sight that she witnessed the accused on the date of occurrence visiting the house of deceased at 12 noon while she was washing clothes and then accused and deceased entering into their house closed the doors is not convincing. Evidence of PW8 who is a taxi driver that he remained at home as he was not well on the date of occurrence and noticed the accused visiting the house of deceased by sitting in the lane passing in front of his house the way leading to the house of deceased situated behind his house portion throughout and thus his entry into the house of deceased and exit from the house of deceased was noticed by him is also not convincing. His statement was recorded with abnormal delay of one week after occurrence that too two days after alleged apprehension of accused. No explanation for delay. No whisper about his presence in any of the statements recorded either on 2401 2019 or 25012019
40.Though P.Ws. 6 and 8 are utter strangers to accused PW11 being
Investigation Officer had not taken any steps to conduct test identification parade of the accused to fix the identity of the person who visited the house of deceased at relevant point of time and to show that the accused is the same person. No explanation at all from PW11 for not taking steps to conduct identification parade of the accused on his apprehension though PW6 and PW8 are the material witnesses in the case and admittedly case is rested on circumstance evidence.
41.It is manifest from the evidence of PW2, husband of deceased that the relationship between him and accused is strained though he is close 18 relative being cousin allegedly on account of his illicit intimacy with deceased and elopement of deceased by him few months prior to the occurrence. As submitted by the counsel for accused in view of the strained relationship in between PW2 and accused, visit of PW2 to
Vijayawada in response to the phone calls allegedly made by accused to give money by picking up PW3 who is his another relative on the way at
Hanuman Junction is throwing doubt on the very genesis of the case of prosecution and the evidence of PW2.
42.CDR particulars exhibited by the prosecution marked as Ex.P8 is no way helpful to the prosecution to establish the presence of accused in the house of deceased at relevant point of time. It is manifest from the evidence of PW2 that now the then accused used to tease and demand the deceased on phone forcing her come along with him deserting her husband. IN such a case, every likelihood of deceased also possessing cell phone by the time of occurrence, PW11 who investigated the case and filed charge sheet even did not seize the cell phone of deceased to find out her connection with accused. From Ex.P8 computer print out of the CDR particulars exhibited by the prosecution, it is patent that two days prior to the occurrence i.e., on 22012019 and 23012019 there are several outgoing calls from the SIM number 9574507879 allegedly handled by accused to 9581899087. For one reason or other, PW1 did not choose to find out the details of above referred SIM and in whose name it was registered. Even on the date of occurrence also several outgoing calls are made from that cell number to the above cell number. Failure to collect the required material from the service provider which throw light on the nexus of accused with the occurrence in which the deceased was killed is the another reason for doubting the genesis of the case of prosecution.
Thus, in the circumstances, merely basing on Ex.P8 computer 19 printout/CDR particulars of the SIM number 9574507879 which has no evidential value, it is difficult to conclude that the accused handled the
SIM number 9574507879 and he made phone calls to PW2 from Eluru as if he was at Vijayawada and on the date of occurrence at relevant point of time.
43.No convincing explanation from PW11 Investigating Officer for not collecting the FIR/report about the occurrence directly from PW2 though he returned to Eluru during the presence of PW1 at the house of deceased and before preparation of report by PW1 presented to the police, basing on which FIR was registered. FIR is registered on 24012019 at 6.30 p.m., more than 5 hours after the occurrence allegedly taken place in between 11.00 a.m., and 1.00 p.m. As per FIR husband of deceased came to know about the occurrence shortly after 1.00 p.m., allegedly on phone call of accused and within no time he alerted PW4 to find out the veracity of information given by accused. Within no time PW5 wife of PW4 having visited the house of PW2 confirmed the occurrence and same was intimated to PW2. In such case every likelihood of PW2 reaching Eluru from Vijayawada by 4.00 p.m. PW1 having rushed to the scene of crime on information passed on by the neighbours prepared report making spot enquiries from the neighbours and PW2 who also returned from
Vijayawada during the enquiry presented the report at 5.30 p.m. Presence of PW2 at the spot for more than 3 hours till the arrival of PW2 from
Vijayawada for preparation of Ex.P1 report is also throwing doubt.
Distance in between scene of offence and place of occurrence is hardly 1
K.M. FIR registered on 24012019 at 5.30 p.m. was dispatched at 2.20 a.m., with more than 8 hours delay. No explanation for the delay in reporting the matter to police. Unexplained delay of more than 3 hours in 20 lodging FIR prepared mostly on information furnished by PW2 husband of deceased is also throwing doubt on the genesis of case of prosecution.
44.It is well settled principle that in a case based on circumstantial evidence the circumstances from which an inference of guilt is said to be drawn must be cogently and firmly established that those circumstances must be conclusive in nature unerroneously point towards the guilty of the accused. More over all the circumstances are taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be constrained only with the hypothesis of the guilty of the accused and totally inconsistent with his innocence.
45.In the facts and circumstances, from the evidence referred above, it is manifest that the evidence let in by the prosecution in order to establish the nexus of accused more particularly his presence in the house of deceased at relevant point of time is not consistent and cogent. Merely because the accused allegedly had illicit intimacy with deceased, it cannot be presumed that he is the perpetrator of the crime. It is also well settled principle that suspicion however strong, it may be is not a substitute to the legal evidence. Likelihood of PW2 strangulating the deceased to death in view of alleged illicit intimacy with accused and his misleading the police to screen himself from the offence committed by him also cannot be ruled out as contended by the counsel for accused.
PW11 during his crossexamination categorically stated that he did not probe as to complicity of PW2 husband of deceased nor he was interrogated to cross checkthe statement made by him.
46. Except the confession of accused allegedly made voluntarily on his apprehension one week after the occurrence which has no evidentiary value and inadmissible and hit by Section 25 of Evidence Act as 21 admittedly the confession made in the presence of police officials during investigation is not admissible, there is no cogent independent evidence to substantiate the nexus of accused with the death of deceased and to prove that he is the perpetrator of the crime. PW11 simply recording the confession on seizure of a cell phone from accused and by recording statement of PW8 in support of the confession filed charge sheet against accused. He did not make any serious efforts to collect proper evidence in order to prove that the accused is the perpetrator of the crime. His failure to collect and seize cell phones of PW2 and deceased and further CDR’s and CAF of their cell phones apart from CAF and authenticated CDR’s of the cell phone allegedly handled by accused and collection of unauthorized CDR particulars of the cell phone of accused only for two days though the accused was allegedly at large for about one week after the occurrence. No explanation at all for the above latches, though the case is built on circumstantial evidence. Had he collected the above particulars every likelihood of coming out the truth and no necessity to doubt the complicity of accused in death of deceased. As submitted by the counsel for accused very arrest of accused at Eluru one week after the occurrence though he is not resident of Eluru and confession made by him admitting his guilt is also to be doubted. At least to get corroboration to the confession as to the movements of accused from the date of occurrence till his apprehension, PW11 did not choose to collect the authenticated CDR particulars of accused cell phone till 30012019. The above circumstance gives very much strength to the contention of the accused as to his implication in the case basing on the statement of PW2 husband of deceased whose bonafides are also to be doubted.
47.Thus, in the circumstances, it can be safely said that the prosecution failed to discharge the burden lies on it by placing cogent and 22 consistent evidence in order to establish the nexus of accused with the death of deceased. Evidence let in by the prosecution to establish the nexus of accused is with several infirmities, anomalies and missing links.
It is a fit case to extend the benefit of doubt to the accused. Hence, this point is answered in favour of the accused and against the prosecution though the death of deceased is proved to be homicidal.
48.Point No.2: The accused is charged under Section 302 of IPC. In order to invoke Section 302 of IPC., the prosecution has to prove that the accused intentionally killed the accused by causing injuries which are likely to cause death in all probability with knowledge and responsible for the ultimate death of deceased.
49.In the facts and circumstances, it is manifest from the evidence let in by the prosecution that though the case is rested on circumstantial evidence, there is no cogent and consistent evidence in order to substantiate the circumstances on which it relied to bring home the guilt of accused. In fact the circumstances relied such as Extra judicial confession of accused, last seen theory and cell phone calls allegedly made by the accused to the husband of deceased before and after the occurrence are very weak and not enough to conclude that the accused is perpetrator of the crime and responsible for death of deceased. Except the uncorroborated and inconsistent testimonies of P.Ws. 2 and 3 none other than the husband of deceased and her relative and the evidence of P.Ws. 6 and 8 chance witnesses allegedly noticed the presence of accused and his visit to the house of deceased at relevant point of time is not at all inspiring confidence their very presence at relevant time is throwing doubt. Inadmissible confession of the accused allegedly made on his apprehension at Eluru 6 days after occurrence though he is not resident of Eluru is also throwing doubt on his arrest and confession. No 23 independence cogent evidence to bring home the guilt of accused beyond reasonable doubt other than inadmissible confession and inconsistent testimony of P.Ws. 6 and 8.
50.Prosecution having relied on the phone calls as one of the important circumstances to establish the nexus of accused with the occurrence has miserably failed to establish the same by exhibiting authenticated CDRs and Customer Application Form of the cell phone allegedly seized from the possession of accused on his apprehension. Prosecution evidence did not produce the authenticated copy of CDRs of the cell phone seized. Thus, in the circumstances, it can be safely said that the prosecution failed to make out the case against the accused for the offence Under Section 302 of IPC., beyond reasonable doubt and it is a fit case to extend the benefit of doubt to accused
51. In the result, the accused is found not guilty for the charge under
Section 302 IPC levelled against him and accordingly he is acquitted in terms of Section 235 (1) Cr.P.C..
The Superintendent, District Jail, Eluru, is hereby directed to release the accused forthwith if his presence is not required in any other case/s.
M.Os.1 to 11 and unmarked nonvaluable properties if any are ordered to be destroyed after expiry of appeal time.
Dictated to the Stenographer, transcribed by her, corrected and pronounced by me
in the open court, this the 30 th day of July, 2020. Sd/P.Prabhakar II Additional District Judge, FAC:Judge, Family Court –cum VII Addl. District & Sessions Judge, West Godavari District.
APPENDIX OF EVIDENCE
24
WITNESSES EXAMINED
FOR PROSECUTION: FOR THE ACCUSED:
P.W.1Kistavarapu Venkateswara Rao P.W.2Atmaram Dohare P.W.3Hukum Singh P.W.4Syed Baji P.W.5Syed Nasreen P.W.6Eluri Sesharatnam P.W.7Ravi Dohare P.W.8Pasupuleti Nuka Raju P.W.9Shaik Imtiaz Basha P.W.10Ch.Vekateswara Rao, SI of Police P.W.11G.Satyanarayana, Inspector of Police
EXHIBITS MARKED
FOR PROSECUTION
Ex.P.124.01.2019Report of PW1 Ex.P.224.01.2019Scene observation report Ex.P.325.01.2019Inquest report Ex.P.430.01.2019Mediators report Ex.P.524.01.2019FIR in Cr.No.20/2019 Ex.P.6–Rough sketch Ex.P.7–Photographs(7) along with CD Ex.P.8Call data report Ex.P.925.01.2019Post Mortem certificate
FOR THE ACCUSED: N I L
MATERIAL OBJECTS MARKED
MO1:Cell phone
MO2:Sunff colour blouse M O3: Red colour polyster petty coat
MO4:White saree with rose flower and black spade design MO5:Rolled gold bangles 4 in number MO6: Blue coloured glass bangles 11 in number MO7:Rolled Gold ear rings MO8: Rolled gold nose stud MO9:Pair of stainless steel anklets MO10:Black bead chain with rolled gold locket MO11:Stainless steel toe rings 4 in number
Sd/P.Prabhakar 25
Judge, Family Court –cum
VII Addl. District & Sessions Judge,
West Godavari, Eluru.
Copy Submitted to : The Registrar (Judicial), High Court of A.P., Nelapadu, Guntur District – 522 237
Copy to :
1.The II Additional Judicial Magistrate of I Class, Eluru
2.The Superintendent of Police, W.G., Eluru.
3.The Additional Public Prosecutor, W.G., Eluru
4.The Legal Aid counsel for accused
5. The Superintendent, District Jail, West Godavari, Eluru.
CALENDAR
Tabular form annexed to the Judgment in Sessions Case 117 of 2019 on the file of the IN THE COURT OF THE JUDGE, FAMILY COURT –CUM VII
ADDITIONAL DISTRICT AND SESSIONS JUDGE, WEST GODAVARI, ELURU
under Rule 318 of the Criminal Rules of Practice.
Sessions Case Number and P.R.C.:S.C.No.117/2019 and P.R.C.No.9/2019
Number with the Name of the Committalon the file of II Additional Judicial court:Magistrate of First Class, Eluru 26
Name of the Police Station and Crime Cr.No.20/2019 of Eluru I Town Police Number:Station ` Name of the Accused: Father’s name: Age, Religion: Occupation: Addresses:
Bakeel S/o. Bachilal, 25 years, R/o. Hardayi Village, Madhya Pradesh
Date of occurrence24.01.2019 Date of complaint24.01.2019 Date of apprehension or 31.01.2019 Date of appearance. Date of release on bail.In jail Date of commencement of Trial.09.12.2019 Date of closure of trial.31.12.2019 Date of sentence of order.30.07.2020
In the result, the accused is found not guilty for the charge under
Section 302 IPC levelled against him and accordingly he is acquitted in terms of Section 235 (1) Cr.P.C..
The Superintendent, District Jail, Eluru, is hereby directed to release the accused forthwith if his presence is not required in any other case/s.
M.Os.1 to 11 and unmarked nonvaluable properties if any are ordered to be destroyed after expiry of appeal time.
Explanation for the delay :: No avoidable delay Appeals as prescribed under rule 319 of criminal Rules of practice with regard to the diary extract submitted:: by the committing court.
Sessions Court: West Godavari, Eluru.Sd/ P.Prabhakar
II Additional District Judge, FAC: Judge, Family Court –cum VII Addl. District & Sessions Judge, West Godavari,Eluru