CC No. 42 of 2017Dated 04.10.2019Page No.1 of 14
IN THE COURT OF PRINCIPAL JUDICIAL MAGISTRATE OF FIRST CLASS
AT ASIFABAD
Present: Sri Suresh Kamishetti,
Additional Judicial Magistrate of First Class, Asifabad
FAC: Prl. Judl. Magistarte of First Class, Asifabad.
Friday, this the 04th day of October, 2019
CC.No. 42 of 2017
Between:
State through Sub Inspector of Police, Police Station, Asifabad (Cr. No.38/2010) … Complainant
And
A1. Gouthre Keshavrao s/o.Kistaiah, age: 27 years, caste: Bare, occ: Agriculture, r/o. Tejguda village of Wankidi mandal.
A2. Vadai Santosh s/o. Doddimera, age: 25 years, caste: Bare, occ: Coolie, r/o. Kondapally village of Rebbeana mandal. … Accused
This case is coming on before me for final hearing on 01102019 in the presence of learned APP for the prosecution and Sri G. Jagan Mohan Rao Counsel for the Accused No.1 and 2 and after hearing both sides and having considered the record till date, this court delivered the following:
J U D G M E N T
1.The Sub Inspector of Police, Asifabad PS has filed a charge sheet against the accused No.1 and 2 for the offences under Secs. 304A, 201 r/w. 34 of IPC in Cr. No.
38/2010 of PS Asifabad, with a prayer to punish the accused No.1 and 2 for the said offences.
2. The brief facts of the charge in nutshell are as follows:
That on 12.03.2010 at 1900 hours the complainant/Manikonda Santhosh lodged report that one unknown dead body was found on the bunk near rivulet bridge at the outskirts of Mothuguda village under suspicious circumstances. The face of dead body became black color and unable to identify him and bad smell was coming from the dead body and it is under putrefying state and prayed to take necessary action.
3. Basing on the complaint lodged by PW2, PW16/ A. Narender, SubInspector of
CC No. 42 of 2017Dated 04.10.2019Page No.2 of 14
police registered a case in Cr.No. 38 of 2010 and investigated into the case. During the course of investigation PW16 visited the scene of offence at the outskirts of Mothuguda village and found purse of the deceased. Further he got photographed the dead body of the deceased, scene of offence and drew rough sketch. Further he secured the presence of PW11, 12 and conducted scene of offence panchanama and seized the purse of deceased and noted the phone numbers of 18 persons from a diary which was kept in that purse. PW16 made phone calls to them and informed about the death of deceased.
On that Sarpanch of Kondapalli arrived to the scene of offence and identified the deceased as Mohrle Thirupathi, S/o. Somaiah and he further informed the same to his relatives. Upon the information given by Sarpanch, Kondapalli, LW2 to 9 visited the scene of offence and also identified the dead body as Mohrle Thirupathi, S/o. Somaiah.
Later Pw.16 held inquest over the dead body of deceased in the presence of PW9, 10.
PW16 made requisition before the doctor and doctor visited the scene of offence and conducted autopsy over the dead body of deceased and preserved viscera for chemical analysis report. During the course of investigation after examining the witnesses, they suspected the 1. Gouthre Keshava Rao and 2. Nikode Mallaiah as accused persons. That on 23.03.2010 at 8 hours PW6 stated that he is resident of Usmania Masjid area of
Asifabad and further stated that one Gouthre Keshav rao and Vadai Santhosh came to him and confessed that on 10.03.2010 at 4 pm they along with one Mohrle Thirupathi of
Maddikunta village consumed liquor at Kondapalli bus stage, thereafter while they proceeding towards Asifabad through Kinetic motorcycle bearing No. AP01K 8675 of
Keshava Rao. On the way the rider i.e. Keshava Rao drove the motorcycle in rash and negligent manner, due to which the motorcycle was turned turtle beside the road, due to which Keshava Rao/A1 and Santhosh/A2 sustained injuries and they are in a position to walk but Thirupathi unable to talk with them. On seeing this incident the ladies who were proceeding towards the cotton field have advised them to provide water to him, immediately they lift the motorcycle and returned to proceed towards Kondapalli village by taking Thirupathi on the said motorcycle, on the way at the rivulet of Mothuguda
CC No. 42 of 2017Dated 04.10.2019Page No.3 of 14
village they stopped the motorcycle and tried to give water to Thirupathi, but he was unconscious, on that they presumed that Thirupathi might have in the influence of alcohol. Thereafter they left rivulet by leaving said Thirupathi at rivulet, visited Asifabad and purchased a Dish and night at 8 pm both reached to same rivulet on motorcycle and found Thirupathi was died. On that both A1 and A2 shifted the dead body of Thirupathi besides the trees in a small stream with intent to conceal it. Thereafter A1 and A2 left from the place of offence to return to their respective houses. Both the accused voluntarily confessed their guilt before him and requested him to took them to police station. Basing on the evidence of PWs6 and 7, he altered the section of law from 174
Cr.P.C. to Sec.304A, 201 r/w 34 IPC.
4.On perusal of the material, cognizance was taken for the offence U/Sec. 304A, 201 r/w. 34 of IPC against A1 and A2. On appearance of A1 and A2 copies of documents furnished to them u/s 207 Cr.P.C. and they were examined u/s 251 Cr.P.C., the substance of accusation for the offence U/Sec. 304A, 201 r/w. 34 of IPC against A1 and A2 is read over and explained to them in their vernacular language, for which they pleaded not guilty and claimed to be tried.
5. To bring home the guilt of accused the prosecution has examined PWs. 1 to 16 and got exhibited Ex.P1 to Ex.P17. The prosecution failed to adduce the evidence of
LW20 and LW21 even though sufficient time was given i.e., from 09.04.2019 to 07.08.2019. Therefore this Court is constrained to close the evidence of LWs20 & 21.
6.After closure of prosecution evidence, the incriminating circumstances appearing against the accused No.1 and 2 were brought to the notice of the accused under Sec.313
Cr.P.C, for which the A1 and A2 denied the same and reported no defence evidence either oral or documentary on their behalf.
7. Heard both sides and perused record.
CC No. 42 of 2017Dated 04.10.2019Page No.4 of 14
8.Now the point that arises for determination is:
“Whether the prosecution could able to prove the guilt of A1 and 2 for the offence under Sec. 304A, 201 r/w. 34 of I.P.C. beyond all reasonable doubt?”.
POINT :
9.PW1/Moharle Sammaiah, is father of the deceased deposed that prior to the accident the deceased went to coolie work. A1, A2 and Mallesh came to his house and took the deceased along with them to Adilabad and accused phone was switched off for a period of three days. Later they came to know through Thukaramm SI that dead body of his son was found in the bushes of Mothuguda village near bridge. Immediately he rushed to the scene and found the dead body of his son which is in decomposed state.
They are suspecting A1 and one Mallesh. PW1 in the crossexamination stated that in his absence accused came to his house. He did not file any complaint for missing of his son and searched for him. The dead body can be seen from the road. He has not given any report. Police did not obtain any report from him. He denied that accused are no way concerned with the offence.
10.PW2/Manikonda Santhosh, is the complainant deposed that on 12.03.2010 one
Kamati by name Rajamallu informed about the dead body of somebody near rivulet. At that time he was Sarpanch. Later he visited the scene and observed the dead body in the
Orre. Then he went to police station and lodged report. In the crossexamination he stated that the dead body was putrefied and visible to passer by road. Police visited the scene on the same day.
11. PW3/Mohrle Chinnubai, is the wife of deceased deposed that at about 8 to 9 years back on one day both the accused visited their house and asked her husband/deceased to come along with them, accordingly her husband went along with them onLuna moped. Her husband did not come back on the evening but she did not lodge any complaint before the police. After 3 days from that day police informed about
CC No. 42 of 2017Dated 04.10.2019Page No.5 of 14
the dead body of her husband near Orre at Mothugudem. In the crossexamination PW3 deposed that A1 and A2 are belongs to their caste. They have no relatives in the village of accused. They did not search for her husband as the accused stated that they will sent him to their house. They have no relatives in the village of Tejguda. A1 and A2 visited their house and stayed for about half an hour and stated that they will sent her husband in the evening on that day only. PW3 denied that A1 and A2 never visited her house and never took her husband along with them and she did not state before the police that
A1 and A2 came to her house and took her husband along with them and due to caste disputes between them and accused, she is deposing false.
12.PW4/Mohrle Nanaiah, deposed that he came to know about the incident through
PW3 and corroborated the version of PW3. PW5 is the sister of deceased deposed that at bout 8 years back, A1came to their house and took his brother along with him but her brother did not return back and they came to know about the dead body of her brother after 3 days. PW5 in the crossexamination stated that she did not state before the police that A1came to her house and took her brother along with him.
13.PW6 to 8 (Ade Baburao, Nikopde Mallesh @ Mohd.Masood and Gaddalapally
Padmanabham) deposed that they do not know the accused and do not know anything about this case. They were not examined by the police.
14.PW9 and 10 (Bende Sanjiv Goud and Karnatham Pentaiah) are the mediators to the inquest panchanama, PW9 did not support the prosecution version, but PW10 supported the prosecution version in respect of inquest panchanama.
15.Like wise PW11 and 12 (Boda Rajesh and Kundarapu Jagan) are the mediators to the CDF Panchnama, one of the mediators i.e. PW11 did not support the prosecution version, but PW12 supported the prosecution version in respect of conducting of CDF
Panchanama and recovery of one purse/MO.1 from the scene of offence.
CC No. 42 of 2017Dated 04.10.2019Page No.6 of 14
16.PW13/Shaik Saleem, is the photographer, photographed the scene of offence and handed over the photographs to police along with negatives.
17.PW14/Thaksande Pentu, is one of the mediators for confession cum seizure panchanama of A1 and A2 deposed that in the year 2010 police called him to the police station. One Santhosh and another person were in the custody of police and on their enquiry they stated that they along with one Thirupathi came from Jammikunta on a bike to Asifabad, on the way they consumed alcohol and again started to Asifabad. When they reached Buruguda outskirts they fell down from bike, due to which said Thirupathi sustained injuries, on that remaining two persons took him to near by Orre to administer water and they went to Asifabad by leaving said Thirupathi at Orre. After purchasing groceries at about 8 pm went to Orre again and observed the injured/Thirupathi as died.
On that A1 and A2 hide the dead body of deceased in the bushes and went away. After some days A1 and A2 revealed about the incident to Pw.6 and in turn Pw.6 handed over
A1 and A2 to police. Basing on the confession of A1 and A2 police took him to the scene of offence, where the vehicle of accused was fell down and police seized one broken indicator of the bike and recovered one purse from the scene of offence and police took them to Tejiguda where the vehicle was kept and said broken indicator matched with that vehicle. Thereafter, they went to police station and police scribed confession cum recovery panchanama of A1 and A2.
18.PW14 stated in the crossexamination that all the panchanamas were drafted at police station. He did not obtain any written permission from MRO to cooperate with police. He went to police station at about 12 noon when police called him. Ex.P10 was not drafted at Buruguda village. Police found one indicator and purse near the scene of offence towards Asifabad to Rebbena at right side of the road. From the scene of offence they went to Tejiguda and reached 400 pm. He cannot say the number of motorcycle alleged to be used by the accused.
CC No. 42 of 2017Dated 04.10.2019Page No.7 of 14
19.PW15/Gedam Prakash, is another mediator to the confession cum recovery panchanama of accused deposed that on 23.03.2010 SI of police made phone call to
MRO and asked to send two Village Revenue Officers to police station. On that MRO directed him and Pw.14 to assist police officials. They visited the police station, where
A1 and A2 were present in the custody of police and when they enquired with them, they confessed that one accident was occurred while three persons i.e. A1, A2 and the deceased coming on motorbike from Asifabad to Kondapalli and when they reached
Buruguda their motorbike got slipped and the deceased received injuries as such they served water to him near by valley but the deceased has no conscious and other nearby farmers also came to there to rescue him. Further they stated that when they reached
Buruguda from Asifabad said injured was died. Later they along with accused and police went to Buruguda near road they found one indicator of motorbike and accused stated that the indicator pertaining to their vehicle and at some distance one wallet/purse was found pertaining to accused then police seized the same. They went to Tejapur from
Buruguda to the house of A1 and found motorbike bearing no. AP01 K 8675 and said piece of indicator matched with said bike. Police also seized the shirt of A1. Thereafter they came to Kondpalli from Tejapur to the house of A2, where police seized the shirt of
A2. Thereafter they reached police station at about 6 to 7 pm on the same day i.e. on 23.03.2010. After preparing panchanama at police station they signed on it.
20.PW15 in his cross examination deposed that he reached the police station at about 10.45 am on 23.03.2010. No panchanama was conducted at Buruguda, Tejapur and Kondapalli. They found indicator and Wallet/purse on the right side of road at
Buruguda towards Asifabad to Kondapalli road. The wallet belongs to accused but he cannot say exactly i.e., belongs to either A1 or A2. They recovered indicator which is pertaining to right side of said motorbike. He cannot say the color of shirts which were seized from the house of A1 and house of A2. He cannot say the house numbers of A1 and A2. After reaching the police station they signed on two or three papers.
CC No. 42 of 2017Dated 04.10.2019Page No.8 of 14
21.Finally PW16/A.Narendar, SubInspector of Police, PS Asifabad, is the
Investigation Officer deposed as per charge sheet. In the crossexamination he deposed that he did not examine the Sarpanch of Kondapalli village. He did not recover any mobile phone of deceased or witnesses. PW3 did not state before him that A1 came along with A2 to her house to took her husband with them. PW5 did not state before him that A1 visited their house and took the deceased with A1. He denied that PW6 not produced A1 and A2 before them. Basing on the confession of A1 and A2 they went to scene of offence i.e. Buruguda at about 0945 hours and conducted scene of offence panchanama and recovery panchanama in the presence of PW14 and 15. Thereafter they went to house of A1 and reached at 11 a.m. The house of A1 is bangalore tiled house. From the house of A1 they went to the house of A2 at Kondapalli. He did not examine the owner of Kinetic bike.
22.To prove the offence U/sec. 304A IPC the following conditions must exist.
1. There must be death of the person in question.
2. The accused must have caused such death; and
3. That such act of the accused was rash or negligent and that it did not amount to culpable homicide.
23. It is observed by this court that as per the evidence of PWs1 to 5, PW10, PW13,
PW16, coupled with Ex.P1, Ex.P6, Ex.P8, Ex.P13, the prosecution has established the death of deceased.
24. Initially the report was lodged by PW2 against unknown offender. The offence was altered as 304A, 201 r/w. 34 IPC basing on the evidence of PW6 and 7 by the investigation officer. The prosecution alleged that the A1 and A2 made extra judicial confession before PW6 and inturn PW6 brought them to police station at their request.
But surprisingly PW6 did not support the prosecution version and was declared as hostile witness and the statement of PW6 is the basis for accusation against accused No.
CC No. 42 of 2017Dated 04.10.2019Page No.9 of 14
1 and 2 but was not proved beyond reasonable doubt.
25.PW1 is the father of deceased stated that A1, A2 and Mallesh came to their house and took the deceased to Adilabad. PW3 is the wife of deceased stated that A1 and A2 visited their house and asked her husband to come along with them on Luna Moped.
PW5 is the sister of deceased stated that A1 came to their house and took her brother along with him. PWs1, 3 and 5 deposed in different versions about the visit of accused to their house. PW3, who is the wife of deceased stated that A1 and A2 will sent her husband in the evening on the same day. PW4 is the brother of deceased also made phone calls to A1 but it was switched off. According to them the deceased was not reached to their house, but why they did not approach the police to give report, which creates a doubt whether accused visited their house or not. PW1 stated that one
Mallesh/PW7 also visited their house along with A1 and A2, but PW7 did not support either his version or prosecution’s version and was not examined by the police. PW8 is the circumstantial witnesses to prove the fact that A1 and A2 visited their shop on 10.03.2010 and purchased Airtel dish T.V. by paying Rs.1,700/, but PW8 did not support the prosecution case and was not examined by the police.
26.PW14 is one of the mediators to the confession panchanama of A1 and A2 stated that both the accused along with one Thirupathi came from Jammikunta on a bike to
Asifabad and on the way they consumed alcohol and again started to Asifabad and when reached Buruguda outskirts they fell down from bike. Whereas PW15 who is another mediator to the same confession panchanama of A1 and A2 stated that A1, A2 and deceased coming on motorbike from Asifabad to Kondapalli, which is against the version of PW14. Basing on the confession of A1 and A2, police took them to scene of offence i.e. where the vehicle of accused was fell down and police seized one broken indicator of the bike and one purse and from there to Tejiguda, where the vehicle was kept and said broken indicator was matched with that vehicle. Thereafter they went to police station.
CC No. 42 of 2017Dated 04.10.2019Page No.10 of 14
27.PW14 did not whisper about the seizure of shirt of A1 and as well as visit to
Kondapalli from Tejiguda to the house of A2, where police seized the shirt of A2. PW14 and 15 categorically stated that no panchanama was conducted at Buruguda, Tejiguda and Kondapalli and all the recovery panchanamas scribed at police station. According to recovery panchanama at the house of A1, police seized one silver color shirt and one cement colour pant from the house of A1 and seized one sky color T shirt and one cream colour shirt from the house of A2. In this aspect PW14 did not whisper about the seizure of shirts or pants from the houses of A1 and A2 and PW15 also did whisper about the pant and T shirt from the houses of A1 and A2, which creates a serious doubt whether PW14 and 15 went to Tajiguda and Kondapalli along with police or not and they categorically deposed that no panchanama was conducted at Buruguda, Tejiguda and Konapalli to the extent of recovery of alleged case property. It established that PW 14 and 15 did not visit the places where the police alleged to have seized the case property. Hence the evidence of PW14 and 15 is not reliable and trustworthy.
28.In this case PW3 stated that accused visited their house and took her husband on
Luna moped, but the vehicle involved in this case is Kinetic King motorcycle. Owner of said motorcycle was also not examined and how that vehicle got into hands of accused
No.1 is not explained by the prosecution.
29.The learned counsel for accused submitted one Judicial Precedent of the Hon’ble
Apex Court decided in between State (Delhi Adiministration), v. Gulzarilal Tandon, 1979
CRI. L.J. 1057 = AIR 1979 Supreme Court 1382 wherein it was held “There can be no doubt that the circumstances raise a serious suspicion against the respondent but suspicion against the respondent cannot take the place of proof.”
In the case on hand PW6 did not support the case of prosecution, which is basis for suspicion against A1 and A2. Further confession of A1 and A2 and subsequent
CC No. 42 of 2017Dated 04.10.2019Page No.11 of 14
recovery panchanama held at various places not proved against A1 and A2. Hence from the evidence of prosecution witnesses and the circumstances not establishing any suspicion against the accused in respect of alleged offences.
30.Further the learned counsel for accused submitted another judicial precedent decided in between Mani v. State of Tamil Nadu, 2008 CRI. L. J. 1046 wherein it was held “The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case.”
In the case on hand creates a suspicion of discovery of relevant articles have been made from the open ground beside the road, that too after 13 days of the incident, such discovery also not proved beyond reasonable doubts.
31. There are no eyewitnesses to the crime and the entire case of the prosecution is rests on the circumstantial evidence. In this as I have come across one Judicial Precedent of Hon’ble Supreme Court of India held in Ganpat Singh vs The State Of Madhya Pradesh on 19 September, 2017 as under:
“9. There are no eyewitnesses to the crime. In a case which rests on circumstantial evidence, the law postulates a twofold requirement. First, every link in the chain of circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt. Second, all the circumstances must be consistent only with the guilt of the accused. The principle has been consistently formulated thus :
“The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken
CC No. 42 of 2017Dated 04.10.2019Page No.12 of 14
cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence”.
In the instant case the basis of accusation against the accused is extra judicial confession of A1 and A2 before PW6 but PW6 did not corroborate the prosecution’s version. The alleged confession of accused A1 and A2 was recorded while the accused are in the custody of police would be hit by section 26 of Indian Evidence Act (confession by accused while in custody of police not to be proved against him) and only that part of the statement which led to the discovery of various materials would be permissible. The alleged recovery panchanama at Buruguda, Tejiguda and Kondpalli are not proved.
However, a strong suspicion in itself is not sufficient to lead to the conclusion that the guilt of the accused stands established beyond reasonable doubt. There are material contradictions in the case of the prosecution. The prosecution failed to establish a complete chain of circumstances and to exclude every hypothesis other than the guilt of the Accused.
32.To prove the offence U/sec. 304A IPC, the prosecution has to prove the rash or negligent act of accused in driving the crime vehicle. There is no evidence brought on record to show that A1 was the driver of said crime vehicle as on the day and time of alleged accident and he drove it in rash and negligent manner. Further according to prosecution version the deceased fell down from crime vehicle by receiving internal bodily injuries and fell unconscious whereas as per Ex.P13/PME Report, it is categorically mentioned in column no. 11 as “No external and internal injuries”, which is against the prosecution version. If any person fell down from a running vehicle, he shall receive some external injuries, but there are no injuries either external or internal.
Therefore, it can be held that the deceased was not died in a road accident.
CC No. 42 of 2017Dated 04.10.2019Page No.13 of 14
33. Hence the prosecution failed to prove the guilt of accused beyond reasonable doubt. Hence the benefit of doubt shall be given to accused, which leads to acquittal.
34.In the result, the accused No.1 and 2 are found not guilty for the offence U/Sec.
304A, 201 r/w. 34 of IPC and accordingly, they are acquitted U/s 255(1) Cr.PC. The bail bonds of the accused No.1 and 2 shall be in force for six months, from today. No property.
Typed to dictation by steno, after correction pronounced by me in the open Court on 04 th day of October 2019.
Addl. Judicial Magistrate of First Class, FAC: Prl. Judl. Magistarte of First Class, Asifabad.
Appendix of evidence
Witnesses examined
For prosecution: PW1 : Mohrle Somaiah PW2 : Manikonda Santhosh PW3 : Mohrle Chinnubai PW4 : Mohrle Nanaiah PW5: Mohrle Yenkubai PW6: Ade Babu Rao PW7: Nikopde Mallesh @ Mohd. Masood PW8: Gaddalapally Padmanabham PW9: Bende Sanjiv Goud PW10: Karnatham Pentaiah PW11: Boda Rajesh PW12: Kundarapu Jagan PW13: Shaik Saleem PW14: Thaksande Pentu PW15: Gedam Prakash PW16: A. Narender
For Defense : NIL
Exhibits marked
For Prosecution:
Ex.P1: Report given by PW2 Ex.P2: 161 CrPC statement of PW6 Ex.P3: 161 CrPC statement of PW7 Ex.P4: 161 CrPC statement of PW8 Ex.P5: Signature of PW9 on Inquest panchanama Ex.P6: Inquest panchanama Ex.P7: CDF panchanama Ex.P8: (8) photographs along with negatives
CC No. 42 of 2017Dated 04.10.2019Page No.14 of 14
Ex.P9: Confession panchanama of A1 and A2 at Police Station on 23.03.2010 at 8.30 am Ex.P10: Seizure panchanama at scene of offence on 23.03.2010 at 9.45 a.m. Ex.P11: Seizure panchanama at Tejiguda in front of house of A1, dt. 23.03.2010 at 11.00 hours. Ex.P12: FIR Ex.P13: PME Report Ex.P14: Alteration memo Ex.P15: Chemical analysis reported Ex.P16: Expert opinion, dt.16.05.2010 Ex.P17: MVI report
For Defense: NIL
Material Objects Marked: MO1: Purse
Addl. Judicial Magistrate of First Class, FAC: Prl. Judl. Magistarte of First Class, Asifabad.