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IN THE COURT OF XIII ADDITIONAL DISTRICT & SESSIONS JUDGE :
(FTC) VIJAYAWADA
Present: Smt. S. Sarada Devi XIII Additional District Judge, (FTC) Vijayawada
Thursday, this the 10th day of May, 2018
SESSIONS CASE No.96/2018
P.R.C.No.6/2011 of I Metropolitan Magistrate, Vijayawada Cr.No.234/2016 of Kankipadu Police Station
Complainant: State represented by Inspector of Police, Kankipadu P.S., Vijayawada. Names & Description of:1. Raju Ravath, S/o.suresh, aged about 28 the Accusedyears, caste by Reddy, R/o. Ward No.15, Telitola, Mohajari village, Balgath district and now residing at D.No.6242, Gosala Katta, Gosala vilalge, Penamaluru mandal.
2. Rekha Kevath, W/o. Rambheeranjan, Aged about 24 years, caste by Hindu, Kumbar Society, Manaidarsa, Industrial estate, 7 villa, Chandrapur, Maharastra and now residing at D.No.6242, Gosala Katta, Gosala Village, Penamaluru Mandal. Charges framed::Under Sections 302, 201 r/w 34 IPC. Prosecution conducted by :Sri D. Srinivasa Rao, Addl. Public Prosecutor, Vijayawada.
Accused defended by :Smt Rajia Sultana, Advocate (State brief). Plea of the accused :Pleaded not guilty. Finding of the Court:Accused found guilty. Sentence or order: In the result, both the accused A1 and A2 are sentenced to undergo imprisonment for life and shall pay fine of Rs.1,000/ each and in default of fine amount, they shall undergo rigorous imprisonment for six months each for the offence punishable under Secs.302 r/w 34 IPC. Both the accused A1 and A2 are further sentenced to undergo rigorous imprisonment for one year and shall pay fine amount of Rs.500/ each and in default of said fine amount they shall undergo rigorous imprisonment for three months each for the offence punishable under Sec.201 of IPC. The substantive sentence imposed under Secs.302 and 201 of IPC shall run concurrently. The unmarked non valuable property if any shall be destroyed after expiry of appeal time. The remand period of both the accused A1 and A2 from 18102016 to 1052018 each shall be setoff under Sec 428 of Cr PC. The accused are appraised regarding their right of appeal. This Sessions Case coming for hearing before me on 452018 in the presence of Sri D. Srinivasa Rao, Addl. Public Prosecutor for State, and Smt Rajia Sultana, Advocate (State brief) for accused, and upon perusing the charge sheet and other material papers on record and upon hearing the arguments of both sides and having stood over for consideration till this day, the court delivered the following:
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J U D G M E N T
1. The Inspector of Police, Kankipadu Circle, Vijayawada City, filed charge sheet in crime No.234/2016 of Kankipadu PS, Vijayawada City against the above named accused A1 and A2 U/Ss.302 and 201 r/w.34 of IPC accusing that they committed murder of minor deceased in furtherance of their common intention and concealed the evidence to escape from legal punishment and as such they are liable for punishment under above Sections of law.
2. The case of prosecution in brief that culled out from the Charge sheet is as follows:
a)The minor deceased Kunal, aged about 2 ½ years is the son of one
Rambheeranjan and his wife Rekha Kevath i.e., the accused A2 who belongs to Chandrapur, Maharastra State. Due to family disputes and also as said
Rambheeranjan is offender, having committed thefts for his bad vices the accused A2 abandoned him and living with her children. The deceased is their second son. Since her husband is in jail, A2 is doing coolie works for her livelihood in the fields. In that connection A1 moved closely with A2 who is also working in the same fields. In 2016 A1 and A2 along with the deceased came to Gosala village of Penamuluru Mandal, Krishna District and are residing in a rented house at D.No 6242 and A1 is doing Mason works. On 17102016 in the early hours at 3.00 am, both A1 and A2 beat the minor deceased and pushed him from the steps with an intention to kill him to eliminate him from their lives. The deceased fell down and died. After confirmation of his death the accused thrown the dead body of the deceased in the bushes at Bandar Canal bund, returned to home and kept silent. On the next day the neighbours who heard the cryings of the deceased in the early hours asked the accused about his whereabouts, for which the accused did not give any reply. Then the neighbours suspected them and questioned the accused on which they revealed as to what happened. On the same day i.e., on 17102016 while Pw1/VRO of Godavarru village who was proceeding from Gosala Katta to discharge his duties as usual, saw some persons gathered at the house of the accused and learnt the above facts and immediately gave police report at about 1000 am before Kankipadu P.S. In turn Pw10 the SI of police registered the said FIR in Cr.No.234/2016 under
Secs 302, 201 r/w34 IPC and Sec 75 of Juvenile Justice Care and Protection
Act and Pw12 the Inspector of Police took up investigation.
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b) During the course of investigation, Pw12 the Inspector of Police examined the witnesses, recorded their statements, observed the scene of offence in the presence of mediators namely Pw1/Rachakonda
Subrahmanyam and Lw9/Kalapala Yesu Das, drafted rough sketch of the scene of offence and held inquest over the dead body in the presence of panchayatdars namely Lw10/ Goli Srinivasa Rao, Pw8/G. Someswara Rao and Lw11/B. Rambabu under the cover of inquest report. The medical officer
Pw11 conducted autopsy over the dead body of the deceased and opined that the death was due to ‘Polytrauma’. On 17102016 at about 1215 hours
Pw12 the Inspector of Police arrested the accused basing on their confessional statement which was reduced into a report which lead to recovery of the dead body of the minor deceased from the bushes, at Canal bund under the cover of mediators report. After completion of investigation, Pw12 the CI of police laid chargesheet against the Accused.
3. The learned 1st Metropolitan Magistrate, Vijayawada took cognizance of the offence in PRC no 6/2017 under Secs. 302, 201 r/w 34 of IPC and Sec 75 of Juvenile Justice Care and Protection Act against both the accused and on their production from Central Jail, Rajahmundry, supplied the copies of case documents to them in compliance of Sec. 207 Cr.P.C and committed the case in terms of Sec. 209 Cr.P.C vide committal order dtd 13022017 to the Court of Sessions since the offence is exclusively triable by the Court of Sessions.
4.On receipt of said record in PRC 6/2016 the Learned Metropolitan
Sessions judge, Vijayawada returned the same to the file of the Learned
Special Judge for SPE and ACB Cases, Vijayawada cum III Additional District
and Sessions Judge, Vijayawada on point of jurisdiction being designated as “Special Court under the Protection of children from Sexual Offences Act 2012” who in turn received the record in PRC 6/2016 and numbered the same as SC 67/2017. After production of the accused from Central Jail,
Rajahmundry, the learned Special Judge remanded them to District Jail,
Vijayawada and as per the docket order dtd 522018 after hearing both the parties, the learned Special Judge again returned the case to Sessions Court (Metropolitan Sessions Judge’s Court) on point of jurisdiction since as per
Section 2 Clause (20) of Juvenile Justice (Care and Protection of Children)
Amendment Act 2015 (Act 2 of 2016) a child in need of care and protection does not include a child who was killed and as such the Special Court can not be treated as ”Children’s Court” for the purpose of trial of offenders who 4 committed murder of a child. On receipt of record, the learned Metropolitan
Sessions Judge renumbered the same as SC 96/2018 and made over to this
Court for disposal according to Law.
5. On receipt of record in SC 96/2018, this court issued summons to the accused/A1 and A2 and on their appearance questioned them about their sufficient means to engage an advocate to defend their case to which both the accused submitted that they got no sufficient means. Then this Court addressed a letter to MLSA for appointment of State brief and in turn MLSA appointed Smt Rajia Sultana, the learned advocate, as State brief to defend the case of Accused and that she has also acted as translator for A2 who does not know Telugu.
6.After hearing both the parties this Court framed the charges U/Ss.302, 201 r/w 34 IPC, read over and explained the same to the accused A1 and A2 in Telugu and the same is translated by the State brief to the accused A2, to which as they pleaded not guilty and claimed to be tried posted the matter for trail.
7.During the course of trial, Pws 1 to 12 are examined and Exs. P1 to P10 are got marked for the prosecution. After closure of prosecution evidence, A1 and A2 are examined U/s.313 Cr.P.C during which they denied the incriminating material available in evidence which is put forth before them, filed common written statement and reported no evidence for them. Thus, defense evidence is closed.
8. Heard. Besides submitting their oral arguments, both prosecution and defense filed their respective written arguments.
9. Point for determination are:
“Whether the prosecution has proved that the accused in furtherance of
their common intention killed the minor deceased and thrown his dead
body in the bushes to conceal the evidence and thereby committed the
offence punishable U/Secs.302 and 201 r/w 34 IPC the charges leveled
against them beyond all reasonable doubt?”
10. POINT: The case of prosecution in nutshell is that the minor deceased
Kunal aged about 2½ years is the son of one Rambheeranjan A2 of
Chandrapur, Maharashtra State, but A2 abandoned her husband as he is the offender of theft cases for his bad vices and was in jail and A1 moved with her closely and ultimately in 2016 they both came to Gosala village, Penamaluru 5
Mandal, Krishna District along with the deceased for their livelihood and residing in the house of Pw6 as tenants; that both the accused A1 and A2 beat the minor deceased and pushed him from the steps in the early hours at 300 am on 17102016 with an intention to kill him to eliminate him from their lives and accordingly killed him and thereafter the accused thrown his dead body in thorn bushes at Canal bund to conceal the evidence and thereby committed the offence punishable under Secs.302 and 201 of IPC.
11. The case of the accused is entire denial having no specific case except contending that a false case is foisted against them as per the suggestions put forth to prosecution witnesses in their respective cross examinations. But, as per the common written statement filed by the accused A1 and A2 during Sec 313 Cr.P.C. examination, their specific case is that they both are husband and wife; that the minor deceased is their son; that on that day as A1 has to attend his work, A2 got up in the early hours and cleaning utensils; that the deceased also followed her with sleepy eyes; that A1 was sleeping in the room at that time and in the meanwhile the minor deceased slipped down from the steps on which A2 asked A1 to look into the matter. Then A1 came out and observed the deceased fell down from the steps and received injuries and immediately A1 took him to the hospital for treatment, but on the way the deceased died and as such he returned to the house, but they being new to the village did not know what to do and as such they sought for help of the neighbours to bury the dead body, but no one cared for them and as such they both A1 and A2 took the dead body and buried on Canal bund and returned to home. In the meanwhile police reached there and arrested both the accused, but the accused did not understand what the police are doing.
The police took them to police station, kept in a room and prepared some reports, but they do not know its’ contents. In fact what they are stating is truth that the death of deceased is accidental death but not murder and Why they kill their own son, but a false case is foisted against them due to their innocence and communication gap due to ignorance of Telugu language.
12. The entire case of prosecution relied upon circumstantial evidence having no direct witness. It is well settled law that in the case of circumstantial evidence burden heavily lies on the prosecution to prove each and every link in the chain of circumstances pointing out the guilt of accused ruling out the possibility of committing the alleged offence by any other person other than the accused to complete the chain of circumstances in 6 order to come to an irresistible conclusion that the accused and accused alone committed the offence and if any material link break in the chain of circumstances automatically the benefit of doubt goes to the accused. With the above backdrop the case on hand is to be scrutinized.
13. In order to prove their case as alleged, the prosecution has examined as many as 12 witness as Pws 1 to 12 from out of 15 listed witnesses. Pw1 is the defactocomplainant and mediator. PWs 2 to 7 are independent material witnesses. Pws 8 is inquestdar. Pw9 is the translator. Pw10 and Pw12 are police officials. Pw11 is the medical officer.
a)PW1 is VRO Godavarru village, Kankipadu Mandal. He is the defacto complainant and mediator to observation report and confessional statement leading to recovery and seizure report. Ex.P1 is the police report given by him;
Ex.P2 is confessional statement of accused A1 and A2 leading to recovery of the dead body of the minor deceased; Ex.P3 is mediator report showing the recovery of dead body of the minor deceased from the bushes; and Ex.P4 is scene observation report. Exs.P1 to P4 are got marked through PW4.
b)Pw2 is immediate neighbour to the accused. To prove their case particularly the motive attributed against the accused the prosecution has mainly relied upon her evidence. But she has partly supported the prosecution case and turned hostile to the extent of Ex.P5 part of her 161
Cr.P.C. statement.
c) PWs 3 to 7 have supported the prosecution case as alleged. PW3 is resident of Kankipadu village but she used to visit the house of her mother whose house is situated on the back side of the accused house. PW4 is the brother of PW3. PW5 is the son of PW2. PW6 is the landlord of the accused
A1 and A2 being her tenants. PW7 is also resident of Kankipadu lakulu. He lifted out the dead body of the minor deceased from the bushes situated on
Bandar Canal.
d) PW8 is one of the Panchayatdars in the inquest conducted by police over the dead body of the minor deceased. Ex.P6 inquest report got marked through PW8.
e)PW9 is Head Constable 736 of Kankipadu police Station. He translated the confession statement of A2 who does not know Telugu.
d)PW10 is SI of police Kankipadu village. He registered the FIR basing on 7
Ex.P1 report submitted by PW1. Ex.P7 is registered FIR got marked through
PW10.
f)PW11 is Asst. Professor, Forensic Medicine GGH, Vijayawada. He conducted Postmortem examination over the dead body of minor deceased and issued Ex. P8 PM report.
g)PW12 is Inspector of Police, Kankipadu Circle. He is the investigation officer of the present case. Ex.P9 is bunch of 2 positive photos with corresponding CD (subject to display) showing the dead body of the deceased at the scene of offence i.e., thorn bushes and Ex.P10 is the rough sketch of the 1st scene of offence. Ex.P9 and P10 are got marked through PW12.
14. The learned Addl. Public Prosecutor has argued that the prosecution has proved the case as alleged beyond all reasonable doubt through Pws 1 to 12 while pointing out the relevant circumstantial evidence and medical evidence and as such the onus of proof is shifted to the accused to give an explanation as to how the minor deceased received beaten injuries and bleeding injuries as proved by the medical evidence and as to how the dead body of the minor deceased is found in the bushes, since the said facts are exclusively within their personal knowledge particularly when the minor deceased was in their custody who was aged about only 2 ½ years and particularly when it is also their case that the minor deceased slipped down from the steps accidentally and died and that they themselves buried the dead body on the Canal bund in which they failed. Arguing so, he prayed to convict and sentence the accused for the charges levelled against them.
15. The learned counsel for defense has raised the following points for consideration:
1. There are no eye witnesses who have witnessed the alleged beating of the deceased.
2. The prosecution has miserably failed to establish the alleged motive attributed against the accused. According to prosecution only PW2 heard the cries of the minor deceased and informed the same to the remaining witnesses. But PW2 turned hostile and as such no reliance will be placed on the remaining material witnesses being hearsay and as such their evidence shall be deleted from out of consideration and once their evidence is deleted from out of consideration no evidence is available on record to prove the alleged motive.
3. Ex.P1 report is not at all helpful to prove the case of prosecution being 8 based on the information collected from others.
4. The entire case of prosecution relied upon sole testimony of PW2. But she turned hostile and not supported the prosecution case.
5. The alleged confession of Accused A1 and A2 is hit by Sec.26 (sic.25) of
Indian Evidence Act.
16. With the above back ground the learned defense counsel has argued that the prosecution has miserably failed to establish their case as alleged and prayed to acquit the accused for the charges levelled against them on benefit of doubt.
17.The prosecution shall prove the following links in the chain of circumstances to complete the chain without any material link break ruling out the defense case that the death of deceased is an accidental death:
1) The minor deceased is the son of A2 through her 1st husband of
Chandrapur of Maharashtra State and A2 abandoned him and came along with A1 and minor deceased to Gosala village and residing as tenants: and
2) The accused killed the deceased ruling out his accidental death and concealed his dead body.
18.The 1 st link in the chain of circumstance: The minor deceased is
the son of A2 through her 1 st husband of Chandrapur of Maharashtra
State and A2 abandoned him and came along with A1 and minor
deceased to Gosala village and residing as tenants: To prove this link in the chain of circumstances, prosecution has mainly relied upon the oral evidence of Pws 1 to 6. According to prosecution only Pw2 being immediate neighbour had personal knowledge about the family affairs of the accused A1 and A2. But PW2 partly supported the prosecution case to the extent that the accused A1 and A2 are her neighbours and residing in her neighbouring house along with the minor deceased, aged 2 ½ years, but not supported the remaining case of prosecution and turned hostile. Thus, the evidence of PW2 though is not helpful to prove the relationship between the accused A1 and
A2 and the minor deceased but established that they are her neighbours as they are residing in her neighbouring house on Gosala Katta of Gosala
Village.
19.Evidence of PW3 shows that she is resident of Kankipadu village and used to visit her mother’s house which is situated on the backside of the accused house. Her evidence further shows that when she asked A2, she 9 informed her that A1 is her 2nd husband and that the minor deceased is her son through her 1st husband which remained unchallenged, since nothing is suggested her by defense discrediting her evidence to that extent. PW4 is no other than the brother of PW3. But, he did not whisper in his evidence about the relationship in between A1 and A2 and the minor deceased. Even in his cross examination, Pw4 has clearly admitted that he does not know from which place A1 and A2 migrated to their village. Thus, even the evidence of
Pw4 is not helpful to prove the relationship between the accused A1 and A2 and the minor deceased.
20.PW5 is the son of PW2. His evidence clearly shows that about 2 years back he got acquaintance with A1 Raju as comason and one day he requested him for a rented house stating that he is having wife and one minor son. Then he introduced the accused A1 to PW6 Prameela the land lady, who in turn consented to give her another house for rent which is situated by the side of his house intervened by 2 or 3 houses. But in his chief examination, he did not whisper as to what is the relationship between A1 and A2 and the minor deceased and what is their native place. But surprisingly, in the cross examination the defense themselves elicited the fact from his mouth of PW5 that A1 informed him that he is the 2nd husband of A2 and minor son is her son through her 1st husband. His evidence to that extent is in natural manner since there is no possibility for him to give a false evidence as the said fact is elicited in his cross examination by defense themselves. Thus, I find no reasons to disbelieve his evidence to that extent unless the same is rebutted by A1 through cogent and consistent evidence.
21. PW6 is the land lady of the accused. Her evidence is also in the same lines as stated by PW5. Her evidence also shows that PW5 introduced the accused A1 to her stating that PW5 knows A1 being Comason and requested to let out her house to him on which she informed the rent as Rs.1800/ and at that time A1 informed her that he is having family i.e., wife i.e., A2 and one minor son i.e., the deceased and accordingly she let out her house as A1 consented for the rent of Rs.1800/ and that the accused lived in the said house only for one month and thereafter the incident took place. Her evidence further shows that she went to the rented house of the accused and collected one month rent and at that time she came to know that A1 is the 2nd husband of A2 and that the minor was the son of A2 through her 1st husband. In her cross examination, Pw6 has clearly admitted that she does not have any 10 personal knowledge about the family affairs of A1 and A2 except coming to know the said facts only through PW2. But PW2 turned hostile by stating that she does not have any personal knowledge about the family affairs of A1 and A2. Thus the evidence of PW6 is not at all helpful to the prosecution to prove the relationship in between A1 and A2 and what is their native place and as such her evidence can safely be deleted from out of consideration to the extent that A1 is 2nd husband of A2 and that minor deceased is the son of
A2 through her 1st husband being hearsay evidence.
22. PW1 is the defactocomplainant and mediator. Admittedly he does not have any personal knowledge about the family affairs of A1 and A2 and the relationship in between them and the minor deceased. But in his cross examination PW1 has clearly stated that in the confession statement, the accused A1 and A2 have clearly stated that their native place is Chandrapur of Maharastra State and that they came to Gosala village and that A1 is the 2nd husband of A2 and that the minor deceased is the son of A2 through her 1st husband. In his cross examination, PW12 the investigation officer has also stated that his investigation revealed that the minor deceased is the son of A2 through her 1st husband of Chandrapur of Maharastra State; that she abandoned him and came along with A1 and the deceased to Gosala village and that the 1st husband of A2 is in Jail, while admitting that he did not examine the 1st husband of A2 or any other persons of Chandrapur of
Maharastra State.
23. The evidence of PWs 1 to 6 coupled with the evidence of PW12 referred to above if read together, it can be said that prosecution has established that
Pws 1 to 6 got no personal knowledge about the relationship in between the accused A1 and A2 and the minor deceased and also as to what is their native village, but they came to know said information only through the accused themselves particularly through A1 that the deceased is the son of A2 through her 1st husband of Chanrapur of Maharastra, but A2 abandoned her 1st husband and came along with the deceased and A1, who is also native of
Chadrapur village to Gosala Village. In fact, the accused never suggested to any of the prosecution witnesses that A1 and A2 are the wife and husband and that the minor deceased is their own son except alleging said fact at the fag end of the case in their written statement filed by them during 313Cr.P.C, examination indicating that they have developed their case to that extent subsequently after completion of prosecution evidence as a sudden surprise.
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Thus, the onus of proof is shifted to the accused to prove their case that they are husband and wife and that the minor deceased is their own son as alleged.
24.But, the accused did not adduce any evidence on their behalf to prove the said facts. In the absence of such evidence without any hesitation I hold that the prosecution has established that the minor deceased is the son of A2 through her 1st husband of Chandrapur of Maharastra State; that she abandoned her 1st husband and came along with A1 who is also resident of
Chandrapur, Maharastra State along with the deceased and residing in the house of PW6 as tenants in Gosala village. Accordingly the prosecution has satisfied the 1st link in the chain of circumstances.
25.The 2 nd link in the chain of circumstance: The accused killed
deceased ruling out his accidental death and concealed his dead body:
To prove this link in the chain of circumstances the prosecution has mainly relied upon the oral evidence of Pws 2 to 6 and medical evidence. As stated earlier the evidence of PW2 is not at all helpful to prove the case of prosecution particularly to the extent of the motive attributed against the accused as she turned hostile and not supported the prosecution case as in
Ex.P5 161 Cr.P.C. statement.
26.PW3 has stated in her evidence that when she came to her mother’s house, she observed the accused A1 and A2 used to beat the deceased severely since three days prior to the incident and thereafter she did not observe the presence of the minor deceased in the house of A1 and A2 on which when she asked the accused A1 and A2, they informed that they killed the minor deceased to eliminate from their life and thrown his dead body in the bushes and at that time even PW2 questioned the accused along with her about the whereabouts of the minor deceased to whom also the accused had stated the same facts as stated to her. Her evidence further shows that when they questioned A1 and A2, they tried to run away on which herself and PW2 caught hold them. But in her cross examination PW3 has stated that she along with others came to know that the minor deceased died when she went to the house of her mother and further admitted that she has stated before
Police that PW2 informed her that the minor son of A1 and A2 died and as such she came to know the said fact. This part of the evidence of Pw3 clearly falsifies her own evidence in her chief examination that she witnessed A1 and
A2 beating the deceased severely since 3 days prior to the incident and when 12 she and Pw2 questioned them about the deceased, the accused confessed their guilt before them and tried to run away. Thus, even the evidence of PW3 is not at all helpful to prove the motive attributed against the accused.
27. PW4 is the brother of PW3. His evidence shows that he knows A1 and A2 since they are tenants of the house of PW6 whose house is situated near their house; that on 17102016 PW2, himself and PW3 questioned A1 and A2 about the whereabouts of the deceased as he was not seen since three days, but they are reluctant to answer him initially, but however confessed their guilt before them, on which they got suspicion against them and caught hold them along with his sister PW3 and others and handed over to the police who came to the house of accused before whom they have confessed their guilt.
His evidence to the above extent remained unshaken even after due cross examination. Thus, I do not find any reasons to disbelieve his evidence.
However, it is significant to note that Pw4 did not whisper in his evidence about the motive attributed against the accused and as such his evidence is also not helpful to prove the motive attributed against the accused. But, through his evidence prosecution has proved that the accused confessed their guilt before him and when they tried to run away, PW4 and others caught hold them and handed over to the police who came to the house of the accused before whom the accused again confessed their guilt leading to recovery of the dead body of the deceased from the bushes.
28. PW5 is the son of Pw2. His evidence shows that his mother Pw2 informed him that she observed A1 beating his minor son continuously since three days and thereafter the minor deceased is not seen on which when she asked A1 and A2 they confessed their guilt on which, on 17102016 when they went to the house of A1 and A2 to question them, they observed the accused are trying to run away, on which himself and PW4 caught hold them.
But as stated earlier PW2 turned hostile and not supported the prosecution case to the extent of motive attributed against the accused. Even in his cross examination PW5 has admitted that he does not have any personal knowledge about the family affairs of A1 and A2 and he came to know the above facts through PW2. Thus, even evidence of PW5 is not helpful to prove the alleged motive attributed against the accused. But, even his evidence clearly established that on 17102016 when he and Pw4 questioned A1 and A2 about the whereabouts of the minor deceased, they tried to run away on which himself and PW4 caught hold them.
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29. PW6 is land lady of the accused being her tenants. But, even her evidence is also not helpful to prove the case of prosecution to the extent of the motive attributed against the accused, since she has also clearly stated that she does not have any personal knowledge about the family affairs of A1 and A2 but she came to know about the same through PW2.
30. The evidence of PWs 2 to 6 referred to above if read together without any hesitation I hold that the prosecution has failed to establish the motive attributed against the accused through their oral evidence, but clearly established that on 17102016 when PWs 4 and 5 questioned about the whereabouts of the deceased, the accused tried to run away and as such suspected their conduct and caught hold them and handed over to the police who came to the house of the accused on receipt of Ex.P1 police report submitted by PW1 before whom again they have confessed their guilt leading to recovery of the dead body of the deceased from the bushes situated on
Canal bund.
31.It is well settled law that motive can not be established through direct evidence because it is in the exclusive within personal knowledge of the offender unless the same is revealed, but such intention could be drawn from the circumstantial evidence. In this regard the prosecution has mainly relied upon medical evidence and confession statement of the accused leading to recovery of the dead body of the deceased from the bushes on the Canal bund.
32. Coming to the medical evidence, PW11 is working as Asst. Professor,
Forensic Medicine, Sidhhartha Medical College, Vijayawada. His evidence shows that on 18102016 he received a written requisition from SHO
Kankipadu PS requesting to conduct autopsy over the dead body of the minor male child namely Kunal aged 2 ½ years and accordingly he conducted postmortem and found 10 antipostmortem injuries. He opined that the cause of death to the best of his knowledge and belief is due to ‘polytrauma’ which means ‘multiple injuries’ and approximate time of death is 36 to 48 hours prior to PM examination and accordingly he issued Ex.P8 PM report. He has clearly stated that there is every possibility of receipt of said multiple injuries by the minor deceased if he is beaten and pushed from the steps. His evidence to that is remained unshaken even after due cross examination and supported by Ex P8 PM report. That apart in his cross examination the defence themselves suggested him that there is every possibility of occurrence 14 of death if the deceased fallen from height and that no injuries are found on the dead body of the deceased caused due to thorns and that he did not notice any mud stains over the dead body which is admitted by him.
33. Even it is their own case of the accused, as per the common written statement filed by them during their Sec. 313 Cr.P.C. examination referred to above, that the deceased himself accidentally slipped down from the steps and receive injuries. Thus, even the accused have admitted that deceased fell from the steps and received injuries. The same is established by medical evidence. But now the question falls for consideration is whether the deceased fell from the steps accidentally or as he was pushed by the accused. Had he fallen from the steps accidentally, why he received even beaten injuries as stated by PW11 the medical officer which is supported by Ex.P8 postmortem report is a million dollar question. Thus, as per Sec 106 of Indian Evidence
Act the onus of proof is shifted to the accused to give an explanation as to why the deceased had beaten injuries also since the said fact is exclusively within their personal knowledge. But no explanation is given by them as to why and how the deceased received even beaten injuries besides the injuries received by him due to fall from the steps which created any amount of doubt about the case of the accused that the deceased himself fallen from the steps accidentally and received injuries. In the absence of such explanation without any hesitation I hold that prosecution has established that the accused killed the deceased ruling out the possibility of accidental death of the deceased as alleged by the accused.
34. Even coming to other suspicious circumstance with regard to recovery of the dead body of the deceased, evidence of Pws 4 and 5 clearly established that when the accused tried to run away from their house they caught hold them and handed over to the police before whom they confessed their guilt leading to recovery of the dead body of the deceased from the bushes.
35.PW1 the defactocomplainant and mediator has clearly stated that after coming to know about the incident from the people who gathered at the house of accused, he submitted Ex.P1 report and in turn PW10 the SI of Police registered the FIR and thereafter himself, the other mediator and the police reached the scene of offence i.e., the house of accused and observed the people who gathered there caught hold the accused A1 and A2 and handed over them to CI of police who in turn interrogated them during which both the accused confessed their guilt leading to recovery of the dead body of the 15 deceased. He has clearly stated that A2 does not know Telugu and as such her confessional statement was translated by the constable who was very much present there and that the confessional statement of Accused A1 and
A2 reduced into report. But he does not know the name of the scribe of said statement which is not at all material to be considered. Thus, Ex.P2 is the confessional statement leading to recovery of the dead body which is admissible under Sec.27 of Indian Evidence Act but not hit by Sec.25 of
Indian Evidence Act. Nothing is elicited by defense discrediting the evidence of PW1 and Ex.P2 confessional statement leading to recovery.
36. Even PW10 the SI of police Kankipadu has clearly stated that on 1710 2016 at about 10 am PW1 submitted Ex.P1 report which was registered by him and registered the case in Crime No.234 of 2016 and issued Ex P7 FIR and on intimation PW12 the CI of police took up investigation. Even PW12 the CI of police has clearly stated that on receipt of intimation he perused
Ex.P1 police report and Ex.P7 FIR and securing the mediators i.e., PW1 and another reached the scene of offence where the people who gathered there handed over to him the accused A1 and A2 and in turn he interrogated them during which both the accused A1 and A2 confessed their guilts under confessional statement leading to recovery of the dead body of the deceased.
He has also clearly stated that he deputed PW9 the Head constable to translate the confessional statement of A2 as she does not know Telugu, while admitting that he did not issue any summons in writing on PW9 for translation as he was very much present besides him at that time and further stated that the name of PW9 as translator was referred in the said confession statement. Evidence of PW12 is supported by PW9 who has also stated in the same lines as stated by PW12.
37. Evidence of PW9 also shows that he was working as constable in
Kankipadu police station at that time and following the instructions of PW12 he translated the confession statement of A2 as she does not know Telugu.
Even he has admitted that no written summons were issued on him to translate the confessional statement of A2 as he was present besides PW12 at that time and he did not scribe his signature on the said confessional statement as there are no such instructions by PW12, but his name was referred in the confession statement as translator. When the name of PW9 is referred as translator in the confession statement of the accused non issuance of written summons on him to act as translator and nonobtaining 16 his signature on the said confession statement as translator are nothing but lapses on the part of the investigation officer i.e., PW12. But the said lapses are not at all fatal since no prejudice is caused to the accused particularly A2 since PW9 has translated the interrogation in between her and PW12. Thus, I ignored said lapses being lost its significance.
38. Evidence of PW1 further shows that basing on Ex.P2 confession statement of the accused, himself other mediator, the CI of police and his staff reached the 2nd scene of offence i.e., the bushes situated on the canal bund as they were lead by the accused A1 and A2 where they shown the bushes where they thrown the dead body of the deceased on which the dead body of the deceased was lifted out from the bushes. PW1 has further stated that all the above proceedings are reduced into Ex.P3 mediators report. Even PW12 the
Investigating Officer has stated the same facts as stated by PW1 and supported by Ex.P3 mediators report and also supported by the oral evidence of PW7.
39.PW7 the fisher man by profession has clearly stated that following the instructions of the police he lifted out the dead body of the deceased from the bushes situated on the canal bund, which is situated by the side of
Boddapadu road which remained unchallenged.
40. PWs 1 and 7 are independent witnesses having no animosity against the accused. Even no motive is attributed by the accused against them. Thus,
I find no reasons to disbelieve the evidence of PWs 1, 7 and 12 which shows that both the accused A1 and A2 confessed their guilt which led to recovery of dead body under Ex.P2 confession statement and following the said confession statement the dead body of the deceased was recovered from the thorn bushes situated on the canal bund.
41.But, according to accused they buried the dead body of the deceased on the Canal bund. Had the dead body of the deceased was buried on the Canal bund as alleged by the accused, definitely his dead body is to be exhumed and there would be mud stains over his dead body. But, in the cross examination itself the defense has elicited from the mouth of PW11 the medical officer that he did not notice any mud stains over the dead body.
Even in Ex.P9 photographs 2 in number no mud stains are depicted over the dead body of the minor deceased. On the other hand as per the discussion held supra the prosecution has clearly established that the dead body of the deceased was recovered from the thorn bushes situated on the Canal bund 17 falsifying the case of the accused that they buried the dead body of the deceased on the canal bund.
42.It is true as per medical evidence, no injuries are caused to the deceased due to thorns. But the said fact does not falsify the entire case of prosecution since as could be seen from the 2 photographs covered under Ex.P9 the deceased was wearing clothes due to which case there is no possibility of receipt of injuries due to thorns. Thus, I ignored the fact of nonreceipt of injuries due to thorns by the deceased as it is no way helpful to the accused.
43.Thus as per the discussion held supra, prosecution has clearly established that the accused themselves beat the deceased and pushed him from the steps and accordingly killed him with an intention to eliminate him from their life and thrown the dead body in the bushes situated on the canal bund and accordingly concealed the evidence to screen them from legal punishment. Accordingly, the prosecution has satisfied the 2nd link in the chain of circumstances.
44. In the result, the accused A1 and A2 are found guilty and convicted under Sec.235(2) Cr.P.C for the offence punishable under Secs. 302, 201 r/w34 of IPC the charges levelled against them.
Typed to dictation to the Personal Assistant, corrected and pronounced by me in the open court in this the 10th day May, 2018.
XIII ADDL. DISTRICT and SESSIONS JUDGE,
(FAST TRACK COURT),
VI1AYAWADA
45.Both the accused A1 and A2 are questioned with regard to the quantum of sentence to be imposed on them after appraising the punishment as provided under Sections 302 and 201 IPC.
46.A1 has stated that they did not commit any offence but a false case is fisted against them which cannot be countenanced at this stage. He has further stated that he got old aged mother who is dependent on him and so saying prayed to show mercy on him while imposing sentence.
47.A2 has also stated that she did not commit any offence since the deceased was her own son which also cannot be countenanced at this stage.
She has further stated that she lead her life as an orphan and there are no one to look after her welfare and so saying prayed to show mercy on her while imposing sentence.
18
48.The totality of the circumstances of the case as per the discussion held supra established that the the accused killed the minor deceased in furtherance of their common intention to eliminate him from their life and concealed his dead body in the bushes to avoid from legal punishment to solve their personal problem. Thus, they cannot be labelled as menace to the society and that this case does not fall under the category of rarest of rare cases. Thus, taking in consideration all these facts and also the facts stated by the accused when they questioned with regard to quantum of sentence referred to above, a lenient view can be taken while imposing sentence.
49.In the result, both the accused A1 and A2 are sentenced to undergo imprisonment for life and shall pay fine of Rs.1,000/ each and in default of fine amount, they shall undergo rigorous imprisonment for six months each for the offence punishable under Secs.302 r/w 34 IPC. Both the accused A1 and A2 are further sentenced to undergo rigorous imprisonment for one year and shall pay fine amount of Rs.500/ each and in default of said fine amount they shall undergo rigorous imprisonment for three months each for the offence punishable under Sec.201 of IPC. The substantive sentence imposed under Secs.302 and 201 of IPC shall run concurrently. The unmarked non valuable property if any shall be destroyed after expiry of appeal time. The remand period of both the accused A1 and A2 from 18102016 to 1052018 each shall be setoff under Sec 428 of Cr PC. The accused are appraised regarding their right of appeal.
Typed to my dictation to the Stenographer, corrected and pronounced by me in the open court in this the 10th day May, 2018.
XIII ADDL. DISTRICT & SESSIONS JUDGE,
(FAST TRACK COURT),
VI1AYAWADA
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution: For Defence:
Pw1 :R. Subrahmanyam None Pw2 :E. Venu Kumari @ Veera Kumari Pw3 :V. Kotewaramma Pw4 :K. Naresh Pw5 :E. Shiva Kumar 19
Pw6 :P. Prameela Pw7 :K. Srinu Pw8 :B. Someswara Rao Pw9 :Syed Khadar Hussain Pw10:J.R.K. Harish Babu Pw11: Dr D. Durga Prasad Pw12: K. Sridhar Kumar
DOCUMENTS EXHIBITED
For Prosecution:
Ex.P1Report of PW1. Ex.P2Confession statement part leading to recovery. Ex.P3Mediators report. Ex.P4Scene observation report. Ex.P5161 CrPC statement of LW2/Pw2. Ex.P6Inquest report Ex.P7First Information report Ex.P8Postmortem Report Ex.P9Two photos with CD. Ex.P10Rough sketch
For Defence:
Nil
Material Objects Nil XIII Addl. District & Sessions Judge, (FTC), Vijayawada.