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IN THE COURT OF THE VIADDITIONAL SESSIONS JUDGE::KRISHNA
AT MACHILIPATNAM.
Present: T. Mallikarjuna Rao,
VI Addl. Sessions Judge, Krishna, Machilipatnam.
Wednesday, this the 27th day of March, 2019.
SESSIONS CASE NO.218/2016
BETWEEN: The State, represented by the Inspector of Police, Challapalli Circle (Ghantasala Police Station). … Complainant. A N D
1) Kolusu Venkateswararao, S/o. late Daivadeenam, 59 years, Yadava, Mallampalli Village, Ghantasala Mandal.
2) Kolusu Kishore, S/o.Venkateswararao, 34 years, Yadava, Mallampalli Village, Ghantasala Mandal. … Accused 1 & 2.
This case came upon 18.03.2019 for final hearing before me in the presence of Sri G. Nireekshana Rao, Addl.Public Prosecutor on behalf of the Prosecution and of Sri G.Srinivasa Rao, Advocate for A1 and A2 and upon considering the material available on record and having stood over till this day for consideration, this Court delivered the following:
J U D G M E N T
Both the accused persons are prosecuted for the offences punishable u/Sec.302, 342, 201, R/w.Sec.34 of Indian Penal Code in Cr.No.51/2005 of Ghantasala Police
Station.
2. The case of the Prosecution, in brief, is as follows:
(a) A2 is the elder son of A1. A1 is working as Head Master in Z.P. High School,
Mandavalli and retired from the service in the month of June 2013. The deceased is the younger son of A1 and he was having arrogant nature, studied up to X Class, discontinued his studies and working as Tractor Driver at the time of his death.
(b) The marriages of A1’s daughter and elder son were performed and he is having Ac:09:00 of wet land with cattle shed and the deceased went to Vijayawada and working in a private company for 8 years and returned before 4 years prior to 2 the occurrence and at Vijayawada, the deceased addicted to vices like consume liquor and womanizing and after his return from Vijayawada, he used to harass his father
A1 and mother (P.W.2Valli Naga Subrahmanyam). A1 purchased a tractor by taking a loan and gave it to the deceased, but the deceased used to spend all his earnings of the tractor without giving single rupee in the house and as his earnings were not sufficient for his vices, he did petty offences and teased women which creates embrassing situation to A1. The villagers left him without reporting to Police, as his father was in a respectable job. Whenever A1 reprimanded the deceased, he used to behave arrogantly and manhandled him and his wife and due to that they vexed with the acts of the deceased. The deceased used to stay at their cattle shed in Mallampalli and A1 and A2 used to carry food to the deceased twice daily. On 07.05.2015 morning A1 and A2 went to their sugar cane field and attend work there and at 11:30 hours, both went to their cattle cattle shed for having lunch. At that time, the deceased was in a drunken state and P.W.8Dokku Rama Krishna was also present with them. A1 reprimanded P.W.8 for turtle of their tractor and warned the deceased not to allow him. At that, the deceased got angry and went upon A1, stating that “Yentra meeru neethulu cheppedi, na ishtam vachinattu nanu chesthanu, naa ishtam vachina vaallanu saavidiloki teesukuvasthanu, meeru em peekutharu”. Then A2 picked up a stick and beat the deceased on his head and leg, as a result, the deceased sustained bleeding injuries. Then they got the deceased duly tied to the cattle shed pole with a rope including his legs. On witnessing the dispute, P.W.8 left from there.
Then the deceased threatened A1 and A2 that he would kill them. They feared that if they release him, he will not allow them to live. Then they left from there without releasing the deceased and later the deceased untied knots, left from there.
(c) When A2 visited the cattle shed, he did not find the deceased and he informed the same to A1 and then they searched for the deceased at Kosuru, P.W.9
Kolusu Ramu informed them at Kosuru center that the deceased was getting treatment at Private Doctor, P.W.7Kondaraju Janaki Raju, stating that he fell down from the motor cycle and took them to the deceased. When A1 asked the deceased to come with him, so that he can take the deceased to expert doctor, then the deceased threatened the A1 and A2 “Meerevaru, nannu aasupathriki teesukuvellataniki, ee rathri gadavaneeyandi, repu mee sangathi chusthanu”. Later the deceased with
P.W.9Kolusu Ramu went to the cattle shed and P.W.9Kolusu Ramu dropped the 3 deceased at the cattle shed at 22:30 hours and went away and L.W.9Pamarthi
Adiseshu also went away. Then A1 and A2 went to the deceased. On seeing them, the deceased abused them by stating that “ee rathri gadavaneeyandi, mee iddarini brathakanivvanu, nannu kotti gayaparchi, gunjaku thadutho kattesthara, mee anthu chusthanu, mimmalni brathakanivvanu”. On hearing such words, both accused afraid that the deceased will not allow them to live, though they waited years together, there was no change in the attitude and they decided to kill him on the day itself.
(d) On the same day, on 07.05.2015, at 22:30 hours, they went to the deceased with an intention to kill him. Both caught him tightly and A1 took up a rope from nearby place and strangulated him with the rope. When A2Kishore got him tightly by pressing him to the floor by restricting his movements till his death. After confirming his death, A1 and A2 placed the body on the Bullock cart, wooden stout stick, where he used to sleep and place the rope and stick used for the commission of offence in the eaves of cattle shed and returned him.
(e) On the next day, i.e., on 08.05.2015, at 05:00 A.M., A1 went to their cattle shed and created the death of the deceased, as if due to injuries sustained to him when fell down from motor cycle in a drunken state and reported the matter to the
Police. P.W.12B.Srinivasa Rao, S.I. of Police, registered the report of A1 as a case in
Crime No.51/2015, under Sec.174 Cr.P.C., of Ghantasala Police Station at 11:00 hours on 08.05.2015 and investigated into. During the course of investigation,
P.W.12 visited the scene of offence and investigated the same before the mediators and prepared mediators report and got photographed the scene of offence and prepared rough sketch and seized M.Os from the scene of offence and held inquest over the dead body of the deceased.
(f) P.W.11Dr. Hemanth Chakradhar conducted autopsy on the dead body of the deceased and issued short opinion, opining that the cause of death may be due to
Cardio Respiratory Failure, due to Asphyxia due to strangulation and on the strength of the short opinion, the Section of Law is altered to Sec.302 IPC and P.W.13Y.V.
Ramana, C.I. of Police, Challapalli verified the investigation done by P.W.12 and
P.W.13, arrested A1 and A2 on 20.05.2015 in pursuance of extra judicial confession and in pursuance of the confession, the Police seized wooden stout stick, plastic wire used for crime under cover of mediator’s report and on completion of investigation, the Charge Sheet is filed against A1 and A2 for the offences punishable under 4
Secs.302, 342, 201 r/w 34 of IPC.
3. The cognizance of offence was taken on file against the accused u/Sec.302, 342, 201 r/w 34 of IPC against the A1 and A2 by learned Addl. Judl. Magistrate of I
Class, Avanigadda. Copies of documents were supplied to the accused u/Sec.207 of
Cr.P.C.
4. This case was committed to the Court of Sessions Judge, Krishna,
Machilipatnam u/Sec.209(a) of Cr.P.C as the offence alleged u/Sec.302 of IPC, is exclusively triable by the Court of Sessions. This case was made over to this court for
Trial.
5. The learned Addl. Public Prosecutor opened the case u/Sec.226 of Cr.PC by describing the probable charges and by what evidence he proposed to prove the guilt of the accused.
6. Charges u/Sec.302, 342, 201 r/w.34 of IPC framed against A1 and A2 u/Sec.228 of Cr.PC, read over and explained to them in Telugu and they did not plead guilty and they claimed for trial.
7. The Prosecution examined P.W.1 to P.W.13 and Ex.P1 to Ex.P19 and M.O.1 to M.O.7 were marked on behalf of the Prosecution.
8. After closure of Prosecution side evidence, the accused were examined u/Sec.313 of Cr.P.C by putting incriminating evidence and they denied the same, they reported no defence. The plea taken by the accused is total denial of the
Prosecution version.
9. Heard the Addl. Public Prosecutor and the Counsel for the accused.
10. Now, the points for determination are:
(1) Whether the prosecution is able to establish beyond all reasonable doubt that A1 and A2 on 07.05.2015 at 20:30 hours, committed murder of the deceased as A1 picked up a rope and strangulated with it and A2 caught the deceased tightly by pressing him to the floor by restricting his movements till his death? (2) Whether the prosecution is able to establish beyond all reasonable doubt that both the accused in furtherance of their common intention screen out the occurrence by placing the dead body of the deceased on the bullock cart wooden platform and created as if the death of the deceased caused due to the injuries sustained in a drunken state by falling down from motor cycle?
11. As the evidence to be discussed is common, both points are taken up together for determination to avoid repeated mentioning of the facts.
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12.The following facts are not in dispute:
A1 and A2 are residents of Mallampalli village, Ghantasala. A2 is the elder son of A1. Both are agriculturists. A1 Kolusu Venkateswara Rao worked as
Head Master in Z.P. High School, Mandavalli and retired from service in the month of June, 2013. The deceased was also a resident of Mallampalli village and he is the younger son of A1 Kolusu Venkateswararao. P.W.3 Kolusu Satyanarayana, is brother of A1 by courtesy. P.W.4 – K.Nagamalleswari is the wife of A1 and the mother of A2.
It is not in dispute that the deceased died without marriage. P.W.5 Kolusu Renuka
Devi is the wife of A2. P.W.6 is no other than the brother of the deceased. From the reading of the entire material on record, it can be seen that there is no eye witness.
It is a case based upon circumstantial evidence.
13. In Rukia Begum Vs. State of Karnataka, AIR 2011 SC 1585, the Apex Court held as under; “When a case is based on circumstantial evidence, the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. Circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence”.
14.In Jagroop Singh Vs. State of Punjab, AIR 2012 SC 2600, the Apex Court held as under; “When the case of Prosecution is based on circumstantial evidence, conviction is permissible only when all links in chain of events are established beyond reasonable doubt and established circumstances are consistent only with hypothesis of guilt of accused and totally inconsistent with his innocence”.
15. From the judgments of the apex Court, referred to above, it is clear that a duty is cast upon the prosecution to prove the circumstances relied upon and the circumstances relied upon by the Prosecution should form chain of events connecting the accused with the crime.
16. Since the case on hand is based on circumstantial evidence, I shall now consider the evidence to find out as to whether the circumstances relied upon by the
Prosecution form a chain so as to connect the accused with the crime.
17. Before considering the case of the prosecution as well as defence, this
Court is inclined to consider as to whether the prosecution has proved death of deceased is homicidal or the deceased died due to injuries sustained by him in the accident as claimed by the accused persons. The prosecution examined P.W.12 – 6
B.Srinivasa Rao, who worked as S.I. of Police, Ghantasala to establish that the case is registered U/s.174 Cr.P.C. basing on the report said to be given by A1 herein.
According to the evidence of P.W.12, on 08.05.2015 at about 11:00 A.M., Ex.P13 written report was presented by A.1 stating that the unnatural death was occurred to his deceased son by name Brahmaiah. The evidence of P.W.12 shows that basing on
Ex.P13 report, he registered a case in Cr.No.51/2015 U/s.174 Cr.P.C. and his evidence further shows that he submitted Ex.P14 FIR to the Court.
18. It is suggested to P.W.12 in crossexamination that Ex.P13 Report is created by obtaining the signature of A1 on white paper. It is relevant to note that
A.1 is a retired Headmaster. He has not explained the circumstances under which he signed on Ex.P13 report. No explanation is forthcoming. I have carefully gone through the contents of Ex.P13 report, wherein there is a mention about the unnatural death of deceased Brahmaiah by A1. The Investigating Officer –
Y.V.Ramana, C.I. of Police is also examined as P.W.13. It is suggested to P.W.13 during the crossexamination that the accused persons were detained in the police station one week prior to the alleged confession statement and the case is fabricated against them and the accused persons were unnecessarily involved in this case, though they were no way concerned with the death of the deceased and deceased died due to the injuries sustained in the accident.
19. A reading of Ex.P13 report also shows the death of the deceased due to injuries. In such a case, it is not understandable as to what was the necessity to the
I.O. to create such report by obtaining the signature of the A1 on blank paper. The case as projected by the defence in Ex.P13 report, is the same as projected during the course of the trial. In the said facts of the case, this Court is not inclined to accept the version of the accused persons that Ex.P13 report is a created one by the police.
The material on record establishes that A1 lodged a report with the police stating about the death of his son Brahmaiah. The evidence of P.W.12 shows that basing on the said report, he conducted investigation, after registration of the crime. His evidence shows that he examined A1 and A2 and recorded their statements and he proceeded to the scene of offence, along with mediators and he prepared rough sketch of the scene i.e. Ex.P15.
20. To prove visit of scene of offence, the prosecution examined P.W.1 – V.R.O.
of Mallampalli Village. His evidence shows that on 08.05.2015 at about 10:30 A.M.
7 or 11:00 A.M., the S.I. of Police called him, when he was present at Ghantasala and he and P.W.2 – P.Nagasubrahmanyam, V.R.A. and S.I. of Police also went to the house of the A.1 and S.I. of Police requested him to prepare Panchanama regarding the death of the deceased and V.R.A. scribed scene observation report at cattle shed and they noticed the dead body of the Brahmaiah at the scene of offence and he was wearing black jeans and half hand TShirt, and the S.I. of Police photographed the scene of offence through police constable and the police seized the clothes worn by the deceased and the dead body of the deceased was kept in ice box and Ex.P1 is the scene observation report. The said evidence of P.W.1 finds support from the evidence of P.W.2 – V.R.A. who deposed that the deceased died on 07.05.2015 and on being called by V.R.A., himself and V.R.O went to the house of the deceased and they prepared the scene observation report and he is the scribe of the scene observation report.
21. The evidence of P.W.1 further shows that on 08.05.2015, he and V.R.A.
Venugopala Rao, and S.I. of Police conducted inquest over the dead body of the decesed at Mallampalli village and he prepared inquest report Ex.P2, and he, V.R.A.
and S.I. of Police and villager Ch.Ramachandra Rao signed on the inquest report and the inquestdars came to the opinion that the deceased died due to injuries sustained in the road accident.
22. Coming to the evidence of P.W.13 – Y.V.Ramana, he stated that S.I of
Police also seized red flower design cotton lungi i.e. M.O.5 and four rows waist thread i.e. M.O.6 and red colour underwear of the deceased i.e. M.O.7. From reading of the crossexamination of P.Ws.1, 2, 12 and 13, this Court is of view that their evidence with regard to going of P.Ws.1, 2, 12 and 13 to the house of deceased and finding the dead body is not seriously disputed and their evidence further establishes that an inquest was conducted over the dead body of the deceased at the house of the deceased and seizure of M.Os.1 and 2, M.Os.5 to 7 and the said M.Os.
were seized from the dead body of the deceased.
23. From the reading of the crossexamination of P.W.12, it appears that there is a discrepancy regarding the clothes worn by the deceased. In the cross examination, P.W.12 stated that first they had taken photographs of the deceased at the scene of offence and later they prepared the scene observation report and held inquest and in the observation report, they mentioned that the deceased was wearing 8 a pant. The evidence of P.W.12 shows that they got taken the photographs of the dead body of the deceased at the scene of offence and Ex.P.16 is the photographs (8 numbers) along with C.D., Basing on one of the photographs, the learned defence counsel crossexamined P.W.12. P.W.12 stated in the crossexamination that they mentioned in the scene observation report that the deceased was wearing pant and the photo shows that the deceased was wearing lungi. Though, the P.W.12 admitted the said fact but he has not explained the same. It is not much relevant to decide as to whether the deceased was wearing a lungi or pant. It is most relevant that the accused persons have also not disputed the death of the deceased. Now it is to be seen, whether it is because of the injuries sustained in the road accident. The evidence of P.W.12 shows that they sent the dead body for post mortem examination to the Area Hospital, Avanigadda through P.C.1488 and after completion of post mortem, the dead body was handed over to the parents of the deceased. The said evidence of P.W.12 is not disputed in crossexamination. His evidence further shows that he sent vicera to the R.F.S.L. and obtained short opinion from the doctor on 08.05.2015.
24. The evidence of P.W.13 is not seriously disputed before the Court that he received P.M. Report from Area Hospital Avanigadda and prepared a letter of Advice to R.F.S.L., Vijayawada through S.D.P.O., Avanigadda and on 23.09.2015 he received
R.F.S.L. Report from Vijayawada and subsequently, he obtained the final opinion from the Medical Officer, Avanigadda.
25. At this stage, it is relevant to refer the evidence of P.W.11 basing on whose opinion the case was registered against the accused for the offence U/s.302 IPC. The evidence of P.W.11 – Dr.K.Hemanth Chandra, C.A.S shows that he worked as C.A.S.,
Area Hospital, Nuzvid and he acted as Incharge C.A.S. in the Area Hospital,
Avanigadda for one day i.e. on 08.05.2015. His evidence shows that he received requisition on 08.05.2015 from S.I. of Police, Ghantasala to conduct Post Mortem over the dead body of the deceased and he observed following external injuries :
1) A lacerated injury of 3 cm x 1.5 x 1 cm depth over the right side of occipital head.
2) Contusion 2 in number around the neck, red to black in colour of about 1.5 cm in width with in and around surrounding petechial hemorrhages.
3) An abrasion over the front of neck with exposing subcutaneous tissue of about 5 cm x 1 cm with petechial hemorrhages in and around.
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4) A lacerated wound over the left lower limb foot region which lies 4 cm below the left great toe, measuring 3 cm x 1 cm x 1 cm depth with blood stains around the wound.
5) An abrasiocontusion injury over left cheek measuring 1.5 cm x 1 cm.
6) Contusions of 2 in number over the chest between the left nipple and left shoulder measuring each about 1 cm x 1 cm, red to black in colour.
7) There is a mild swelling just below the left knee joint region measuring about 1 cm x 1 cm.
8) External examination near mouth, mouth slightly opened, tongue slightly protruded out.
On Internal examination, he noticed the following injuries: On examination of Hyoid bone. There is a fracture of hyoid bone, left horn region with petechial hemorrhages seen around it.
26. In the crossexamination he deposed that on the same day of post mortem examination he had given his opinion. The final opinion is supposed to be given after receipt of R.F.S.L. Report. He is of opinion that the cause of the death is due to cardiac respiratory failure due to asphysia due to strangulation.
27. Basing on the injuries found on the dead body and also considering the evidence of P.W.11, this Court is of view that the prosecution is able to establish that the death of the deceased occurred due to asphysia due to strangulation. After careful perusal of the wound certificate, this Court is of view that the prosecution is able to establish the death of the deceased is a homicidal one.
28. As there is no direct witness to the occurrence now it is to be seen whether the prosecution is able to establish the circumstantial evidence and evidence, which adduced by the prosecution is sufficient to record the conviction against the accused in the light of the principles laid down by the Hon’ble Apex Court, which were referred in the preceeding paras of the Judgment. The first and foremost of the circumstance relied on by the prosecution is that the deceased was having arrogant nature and discontinued his studies, and he used to spend all his earnings of the tractor and as his earnings were not sufficient for his vices, he did petty offences and used to tease women, which created embarrassing situation to A.1, his father.
29. A reading of the material on record shows that the prosecution examined
P.Ws.3 to 6 to speak about the arrogant nature of the deceased. They also examined
P.W.8 to speak about the disputes between the accused and the deceased, and examined P.W.9 to speak about taking of the deceased to P.W.7 Kondaraju 10
Janakiraju. P.W.3 brother of A.1 by courtesy stated in his evidence that the deceased used to consume alcohol and used to visit the house at his choice and used to roam on his bike. The said version of P.W.3 is not disputed by the defence but he was crossexamined by learned Addl. P.P. but nothing is elicited in crossexamination in support of the prosecution. The evidence of P.W.3 supports the case of the prosecution to the extent that the accused used to consume alcohol and he used to roam on his bike.
30. The evidence of P.W.4 mother of the deceased shows that the deceased was in the habit of consuming alcohol and used to roam on the bike and he fell down from the bike and sustained injuries. Her version is not disputed by the defence counsel but he was crossexamined by the learned Addl. P.P. but nothing is elicited in support of the case of the prosecution.
31. Coming to the evidence of P.W.5 – sister in law of the deceased, she has not supported the case of the prosecution but she stated that the deceased died due to injuries sustained in the accident in a drunken state. P.W.6 brother of deceased have also not supported the case of the prosecution by deposing that the deceased died due to injuries sustained in the accident in a drunken state. Thus, the evidence of P.Ws.3 to 6 shows that they have not supported the case of prosecution and they have denied the suggestion in the crossexamination held by the Addl. P.P. that they stated before the police as in Ex.P5 to P8 in Sec.161 Cr.P.C. Statement. However, the evidence of witnesses as referred to above shows that the deceased used to consume alcohol and used to roam on the bike. The prosecution examined P.W.8 – D.Rama
Krishna. According to the case of the prosecution on 7.05.2015 morning A1 and A2 went to the sugar cane filed and at about 11:30 hours, both went to the cattle shed for having lunch and at that time Dokku Rama Krishna (P.W.8) was also present and
A1 reprimanded P.W.8 for turtle of their tractor and warned the deceased not to allow P.W.8.
32. Coming to the evidence of P.W.8 in this regard, he stated that the deceased died due to injuries sustained in the accident. He did not support the case of prosecution. In the crossexamination held by Addl. P.P., he denied the suggestion that he stated before police as in Ex.P.9. P.W.8 has not supported the case of the prosecution with regard to his presence in the cattle shed of accused persons and A1 reprimanded him. The other circumstance relied on by the prosecution is that, the 11 deceased got angry and went upon A1 and then A2 picked up stick from the nearby place and on witnessing the incident, P.W.8 left from there. The said case of the prosecution is also not supported by the evidence of P.W.8.
33. It is the case of the prosecution that the accused persons noticed that the deceased was not found in the cattle shed and they were searching at Kosuru and
P.W.9 – Kolusu Ramu informed them the deceased was getting treatment at kosuru centre. The said case of the prosecution is also not supported by the evidence of
P.W.9. According to his version, the deceased died due to injuries sustained in the accident and he was habituated to consuming alcohol. He denied the suggestion inthe crossexamination held by the Addl. P.P. that he stated before police as in
Ex.P.10. However, the prosecution examined P.W.7 to prove the treatment undergone by the deceased. According to the evidence of P.W.7, he was looking after the hospital work and one Brahmaiah was brought to their hospital and he sustained fracture to his right leg knee and he referred him to hospital at
Machilipatnam as the said Brahmaiah was in drunken state. According to the case of the prosecution, the said injuries were caused to the deceased by the accused persons. There is nothing on record to suggest that the deceased informed P.W.7 that he sustained injuries in the hands of accused persons.
34. It appears that P.W.7 was informed that the deceased sustained injuries in the accident. If the accused persons caused injuries, the deceased would have informed the said fact to P.W.7 when he went to the hospital. There is nothing on record to suggest that the deceased informed anybody that he was beaten by the accused persons. The material on record shows that the deceased person was noticed with injuries by P.W.7. It is also not the case of the prosecution that the deceased died due to the said injuries. Though the prosecution is able to establish that the deceased used to consume alcohol and roam in the village on bike but there is nothing on record to suggest that the accused used to tease the women and used to commit petty offences.
35. In a decision reported in AIR 2015 SUPREME COURT 3686 in between
Vijay Shankar Vs. State of Haryana, our Hon’ble Apex Court held that as follows :
“in each and every case, it is not incumbent on the prosecution to prove the motive for the crime., Often, motive is indicated to heighten the probability of the offence that the accused was impelled by that motive to commit the offence. Proof of motive only 12 adds to the weight and value of evidence adduced by the prosecution. If the prosecution is able to prove its case on motive, it will be corroborative piece of evidence. But even if the prosecution has not been able to prove its case on motive that will not be a ground to throw the prosecution case nor does it corrode the credibility of prosecution case. Absence of proof of motive only demands careful scrutiny of evidence adduced by the prosecution. In the present case, absence of convincing evidence as to motive makes the court to circumspect in the matter of assessment of evidence and this aspect was not kept in view by the High Court and the trial court.”
36. However, though the prosecution is not able to establish the motive on the part of the accused persons to kill the deceased, this court is of view that the absence of motive in a case depends on circumstantial evidence is a fact that weighs in favour of the accused (In this regard, a reference can be made through a decision reported in 2010 SAR (Criminal) 723 Babu Vs. State of Kerala)
37. In view of the foregoing discussion, this Court is of view that the prosecution is not able to prove the motive on the part of the accused persons to kill the deceased. The prosecution has mainly relied on extra judicial confession said to have been made by the accused persons. Now I consider whether the evidence in this regard can be accepted.
38. As per the case of the prosecution, P.Ws.1 and 2 along with I.O. visited the scene of offence and they prepared scene observation report and they held inquest over the dead body of the deceased and they came to a conclusion that the deceased died due to injuries sustained in the accident. It is born out from the record that
P.W.11 – Dr.Rama Krishna in the meanwhile has given short opinion basing on the injuries found on the dead body of the deceased that the cause of the death is due to cardiac respirator failure due to asyphysia due to strangulation and basing on the said opinion, the police had registered the case against the accused persons U/s.302
IPC. It is the case of the prosecution that subsequent to the registration of the crime
U/s.302 IPC by altering the offence, the accused persons have made confession statement. To prove the same, the prosecution examined P.W.1. He stated in his evidence that on 20.05.2015 at about 08:00 A.M., while he was present in his office, both the accused persons came to their office and he recorded the statement of A1.
The evidence of P.W.1 shows that A1 said to have stated before him that the deceased was addicted to vices and spending the amounts lavishly and there is no change in his behaviour, despite scolding and beating him. The deceased threatened 13 to kill A1 and his son and then A1 beat the deceased with a stick and the deceased fell down and after that A1 went to attend his works and later the deceased went to
Kosuru Village and met with an road accident while proceeding on the motor cycle in a drunken state and he received injuries and after that he went to a doctor for treatment. Then he and his son searched for the deceased to know his whereabouts.
Some villagers informed him that his son was in the hospital for treatment. The doctors advised the deceased to get treatment at Bandar as he sustained leg fracture to his leg and he (A1) asked deceased to come to Bandar to get treatment, but the deceased revolted against them and on that both the accused went to their house.
39. It is further stated that some villagers brought the deceased to cattle shed.
Then A1 and his son informed the deceased that his behaviour was not proper and despite their request, he did not come forward to get treatment and then the deceased revolted against his father/A1 and pushed him aside and also threatened to kill A1 and his son in the next day morning. On such threat, both the accused persons got confused and tied with a rope over the neck of the deceased and killed him. The said statement was given by A1 and A2 and it was recorded by VRA/Naga
Subrahmanyam and it was signed by A1 and it runs to 6 pages and it took one and half hour time. The witness identified his signature as well as the signatures of VRA and SI of Police. Ex.P3 is the statement recorded by VRA. With a fear that the Police may assault them, they gave said statement before him. He handed over the said statement along with accused to the Police. He also had given report to the SI of
Police. Ex.P4 is the report given by him to the Police. It contains his signature, as well as VRA.
40. In support of the said evidence of P.W.1, the prosecution has also examined P.W.2 – V.R.A. He stated in his evidence that he prepared Ex.P3 on 20.05.2015 at 08:00 A.M., on being asked by V.R.O. and C.I. and he is the scribe of
Ex.P3. As already observed Ex.P3 is the confession statement said to be made by A1 and A2. In this regard, the I.O. – P.W.13 stated in his evidence that on 20.05.2015, while he was in Ghantasala P.S. at 10:55 A.M., P.W.1 and 2 brought A1 and A2 to their station and handedover the accused and Ex.P3 and P4 and he examined P.Ws.1 and 2 and recorded their statements and on the same day, he gave requisition to the
M.R.O. of Ghantasala seeking permission of M.R.O. to depute V.R.A. and V.R.O. for preparing mediators report and scene observation report. The M.R.O. deputed 14
P.W.10, and P.W.10 stated in his evidence that on 20.05.2015 at about 11:00 A.M., on being asked by Ghantasala Police, he went to the police station and police asked him to draft the mediators report i.e. confessional statements of A1 and A2. Since the said confession statement is said to be recorded in the presence of police officer, this Court finds that much importance cannot be attached to the said confession statement. Now it is to be seen whether the evidence of P.Ws.1 and 2 can be accepted. According to the evidence of P.W.1, P.W.2 was also present at the time of making extra judicial confession statement by A1 and A2. In the crossexamination,
P.W.1 stated that the reading of Ex.P3 statement shows that the said statement was given by A1 only and it does not show the said statement was given by both the accused and he did not ask A2 to subscribe his signature on Ex.P3 document. P.W.1 also failed to explain the reason when both the accused persons have given statement why he obtained the signature of A1 only. It is the suggestion given by P.W.1 during the crossexamination that the contents of Ex.P3 and P4 were created at the police station and at the instance of the police he subscribed his signature on those documents.
41. It is also contended by the defence counsel that the evidence of P.W.1 in crossexamination clearly shows that he had no personal acquaintance with the accused persons prior to the offence and in such a case, it is highly difficult to accept the case of the prosecution with regard to alleged extra judicial confession said to be made by the accused persons. In this regard, P.W.1 stated that he joined as V.R.O. of
Mallampalli in the month of September, 2014 and he is also acting as V.R.O. of two other panchayats and he did not stay in the said three villages but he used to stay at
Ghantasala village and the villagers are not in the habit of approaching him to lodge reports before the police and he is not in the habit of resolving the disputes in police station on behalf of the villagers. He further stated that to deal with such situations, village Sarpanch and elders are there, and the community of the accused persons is the dominant community in the village. In such a case, it is for the prosecution to explain as to why the accused persons approached P.W.1, who was not residing in their village and more particularly when they belonged to a dominant community in the village and also further reason that P.W.1 was not in the habit of dealing such matters in the village being non resident of the said village.
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42. The following evidence of PW.1 in crossexamination shows that he was not having much acquaintance with A1. His evidence shows that he does not know at which places A1 worked as teacher and he cannot say the particulars of the property owned by A1 including survey numbers and prior to the incident A1 never approached him with regard to his affairs and he never approached him with regard to land disputes and with the assistance of V.R.A., he used to collect the land revenue from the villages and prior to September, 2014, he did not collect the land revenue personally from A.1 and he does not know whether A1 shifted to Ghantasala from
Mallampalli village after his retirement. The said evidence of P.W.1 clearly establishes that there was no possibility to A1 to approach PW.1. In such a case, it is highly difficult to come to a conclusion that A1 and A2 approached P.W.1 to make extra judicial confession.
43. In a decision reported in AIR 2015 Supreme Court 3686 in between Vijay
Sankar Vs. State of Haryana, wherein it is observed that “principles in respect of evidentiary value and reliability of extra judicial confession have ben summarized by this Court in Sahadevan & Anr. V. State of Tamil Nadu (2012) 6 SCC 403 : (AIR 20112 SC 2435), which reads as under: i. The extrajudicial confession is a weak evidence by itself. It has to be examined by the Court with greater care and caution; ii. It should be made voluntarily and should be truthful; iii. It should inspire confidence. iv. An extrajudicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence; v. For an extrajudicial confession to be the oasis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; vi. Such statement essentially has to be proved like any other fact and in accordance with law. For an extrajudicial confession to form the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities”
44. By following the principles laid down in the said decision now I consider whether the evidence of P.Ws.1 and 2 can be accepted in this regard. As P.W.1 and 2 are not known persons to the accused persons and they were not having acquaintance with them it is highly difficult to accept that there is possibility of both the accused persons making extra judicial confession. On the other hand, the evidence of P.W.2 shows that the said extra judicial confession was made by the accused persons in the presence of police. P.W.2 categorically stated in his evidence 16 that he prepared Ex.P3 on 20.05.2015 at 08:00 A.M., when V.R.O. and C.I. asked him to scribe and he does not know the contents of Ex.P3. When P.W.2 clearly stated in his chief examination that the said statement was prepared in the presence of C.I.
of Police and V.R.O., the prosecution is supposed to have crossexamined the witness, as he resiled from the version given during the course of investigation. No steps have been taken to crossexamine the witness by getting permission from the Court.
45. The evidence given by P.W.2 in chief examination appears unchallenged by the prosecution. The said evidence of P.W.2 clearly disproves that the evidence given by P.W.1 that the accused persons came to their office and gave Ex.P3 statement. In view of the said evidence of P.W.2 this court is of view that there is clinching material before the Court to show that the said alleged extra judicial confession was made in the presence of C.I. of Police in the police station itself. It is settled law that confession statement made before the I.O. is in admissible in evidence simply because the said confession statement made to V.R.O. in the presence of C.I. of
Police. The said statement cannot be considered as admissible evidence. The evidence of P.W.1 is not inspiring confidence as the said evidence is not corroborated by P.W.2 who scribed the report and P.W.2’s evidence clearly shows that the said extra judicial confession said to have been made by the accused persons in the presence of Police. In view of the same, this Court finds no difficulty to come to a conclusion that the prosecution miserably failed to establish that both the accused persons made extra judicial confession before P.W.1 and 2. The other circumstance relied on by the prosecution is recovery of M.Os.3 and 4 on the confession statement made by the accused. In this regard, P.W.1 has stated in his evidence that himself,
V.R.A., C.I. of Police went to the house of A.1 along with both accused persons and both accused persons produced Vasikarra and Nylon rope and those items were seized and witness identified M.O.3 and M.O.4. The same version was given by the
I.O. The said version of P.Ws.10 and 13 was stoutly disputed by the accused persons and P.Ws.10 and 13 were subjected to lengthy crossexamination in this regard.
46. In a decision reported in 2014 AIAR (Crl.) 874 Sangili @ Sanganathan Vs .State of Tamil Nadu, our Hon’ble Supreme Court relied on a decision reported in
Mani Vs. State of Tamil Nadu (2009) 17 SCC 273, the court made the following observation “the discovery is a weak kind of evidence and cannot be wholly relied upon 17 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”.
47. The Hon’ble Supreme Court is pleased to refer to a decision reported in
Mustkean @ Sirajuddin Vs. State of Rajasthan (2011) 11 SCC 724, it is observed as follows; “With regard to the section 27 of the Act, what is important is discovery of material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, therefore burden lies no the Prosecution to establish a close link between the discovery of the material object and its use in the commission of offence”.
48. In a decision reported in Wakkar and another Vs. State of U.P reported in 2011 Law Suit (SC) 136. It is observed that it is true that recovery of certain articles at the instance of accused u/Sec.27 of the Evidence Act, by itself cannot form the basis of conviction. The recovery of incriminating articles and its evidentiary value has to be considered in the light of other circumstances as well as and the chain of events suggesting the involvement of the accused.
49. In a decision reported in 2009(2) ALT (Crl) 64 (A.P) Munavath Redia Vs.
State of A.P, our Hon’ble High Court is pleased to observe that even if the testimony of the Investigating Officer is believed with regard to recovery of weapon of offence in pursuance of the disclosure statement made by the appellant and the reason being the recovery of evidence is only a subsidiary evidence and a conviction cannot be rested solely on such evidence in the absence of any other incriminating evidence indicating involvement of the accused in commission of offence.
50. There is nothing on the record to suggest that M.Os. which were said to be seized at the instance of accused contain the blood group of the deceased. It is settled law that suspicion however strong cannot be substituted for proof. There is nothing on record to show that M.Os.3 and 4 were connected to the case in any way.
51. In view of the principles laid down in the above discussion, a fact is discovered in pursuance of the confession leading to discovery is only relevant piece of evidence but it is not a substantial piece of evidence. Thus, I am of opinion that there is no link between the recovery of weapons and commission of offence and the said objects were used in the commission of offence and it cannot be a circumstance 18 from which inference of the guilt of the accused can be drawn. Considering the totality of the facts and evidence, this court is of view that the circumstances relied upon by the prosecution are not established by convincing evidence and they do not form a complete chain of circumstances pointing to the guilt of the accused.
Therefore, this court finds that the prosecution failed to prove the entire chain of circumstantial evidence to establish the charges against the accused for the offence
U/s.302, 201, 342 R/w 34 IPC. Accordingly, these points are answered.
52. In the result, A1 and A2 are found not guilty for the offences punishable
U/s.302, 342, 201 R/w 34 of IPC and they are acquitted U/s.235(1) of IPC. The Bail
Bonds of the accused and their sureties shall remain in force for a period of six months. It is hereby ordered to return M.Os.1 to 7 to the committal Court for destruction, after expiry of appeal time. The unmarked, nonvaluable case property, if any, shall be sent to the committal Court for destruction, after expiry of appeal time.
Dictated to the Steno (on contract basis), transcribed and typed by him,
corrected and pronounced by me in the Open Court, this the 27th day of March, 2019.
Sd/ (T.MALLIKARJUNA RAO) VI Addl. Sessions Judge, Krishna, Machilipatnam.
APPENDIX OF EVIDENCE
ORAL & DOCUMENTARY EVIDENCE
PROSECUTION ACCUSED
P.W.1: R.Srikrishna Mallikharjuna Rao Nil P.W.2: Palli Naga Subrahmanyam P.W.3: Kolusu Satyanarayana P.W.4: Kolusu Nagamalleswari P.W.5: Kolusu Renuka Devi P.W.6: Putti Nagamani. P.W.7: K.Janakiraju. P.W.8: Dokku Ramakrishna P.W.9: Kolusu Ramu P.W.10: M.Lava Mohanarao, Mediator. P.W.11: Dr. K. Hemanth Chakradhar, C.A.S. P.W.12: B.Srinivasa Rao, S.I.of Police. P.W.13: Y.V.Ramana, C.I. of Police.
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DOCUMENTARY EVIDENCE
PROSECUTION
Ex.P1: Scene observation report. Ex.P2: Inquest Report. Ex.P3: Statement recorded by V.R.O. Ex.P4: Report by V.R.O. Ex.P5: Sec.161 Statement of P.W.3 Ex.P6: Sec.161 Statement of P.W.4 Ex.P7: Sec.161 Statement of P.W.5 Ex.P8: Sec.161 Statement of P.W.6 Ex.P9: Sec.161 Statement of P.W.8 Ex.P10: Sec.161 Statement of P.W.9 Ex.P11: Relevant portion in Mediators report Ex.P12: Post Mortem Report. Ex.P13: Report given by A1 Ex.P14: F.I.R Ex.P15: Rough Sketch. Ex.P16: Photographs (8 Nos.) Ex.P17: Short opinion by P.W.12. Ex.P18: Altered F.I.R. Ex.P19: Section altered Memo forwarded by P.W.13
ACCUSED
Nil
MATERIAL OBJECTS
PROSECUTION
M.O.1: Blood stained black colour jeans pant M.O.2: white, blue, black coloured strives half hand TShirt. M.O.3: Vasikarra. M.O.4: Nylon rope M.O.5: Red flower design cotton lungi. M.O.6: Four rows waist thread M.O.7: Red colour underwear.
ACCUSED
NIL
Sd/ (T.M.R.) VIA.S.J.
//True Copy//
VIAddl. District & Sessions Judge, Krishna, Machilipatnam.
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TABULAR FORM TO BE APPEENDED TO THE FAIR COPY OF THE JUDGMENT IN ACCORDANCE WITH RULE 71 OF CRIMINAL RULES OF PRACTICE IN
SESSIONS CASE NO.218/2016 ON THE FILE OF VIADDL. SESSIONS COURT,
KRISHNA, MACHILIPATNAM.
1.Sessions Case No.::S.C.No.218/2016 (P.R.C.No.8/2016 on the file of Addl. Judl. Magistrate of I Class, Avanigadda. Crime No.51/2015 of Ghantasala Police Station).
2.Complainant::The State represented by the Inspector of Police, Challapalli Circle, Krishna District, Andhra Pradesh.
3.Description of the accused::1) Kolusu Venkateswararao, S/o. late Daivadeenam, 59 years, Yadava, MallampalliVillage,Ghantasala Mandal.
2) Kolusu Kishore, S/o.Venkateswararao, 34 years, Yadava, Mallampalli Village, Ghantasala Mandal.
4.Date of occurrence::08.05.2015
5.Date of complaint::08.05.2015
6.Date of apprehension of::21.05.2015 accused
7.Date of Committal Order::30.08.2016
8.Date of Commencement of::08.01.2019 Trial
9.Date of closure of Trial::18.03.2019 10Date of Sentence or Order::27.03.2019 11Charges::u/Sec.302, 342, 201 R/w 34 of IPC.
RESULT:
In the result, A1 and A2 are found not guilty for the offences punishable
U/s.302, 342, 201 R/w 34 of IPC and they are acquitted U/s.235(1) of IPC. The Bail
Bonds of the accused and their sureties shall remain in force for a period of six months. It is hereby ordered to return M.Os.1 to 7 to the committal Court for destruction, after expiry of appeal time. The unmarked, nonvaluable case property, if any, shall be sent to the committal Court for destruction, after expiry of appeal time.
EXPLANATION FOR DELAY:
On 26.10.2016 the Hon'ble District & Sessions Court, Krishna, Machilipatnam had made over this case to VIAddl. Sessions Judge, Machilipatnam and the said record was received on the same day i.e. 26.10.2016. On 13.07.2017, Charges 21 u/Sec.302, 342, 201 R/w 34 of IPC were framed and issued trial schedule on the same day. During the course of trial, P.Ws.1 to 13 were examined and EXs.P1 to P19, M.O.1 to M.O.7 were marked. On 12.03.2019, the accused were examined u/Sec.313 of Cr.P.C and they reported no defence evidence. On 18.03.2019, the arguments were heard. On 27.03.2019 the Judgment was pronounced. Hence, no delay in conducting trial of this case.
VI Addl. Sessions Judge,
Krishna, Machilipatnam.
Copies submitted to:
1) The Hon'ble Registrar (Judl.) High Court of Andhra Pradesh at Amaravathi, Nelapadu, Guntur District through the
Hon'ble Sessions Judge, Krishna, Machilipatnam.
2) The Prl. District & Sessions Judge, Krishna, Machilipatnam.
3) The District Collector, Krishna, Machilipatnam.
4) The Superintendent of Police, Krishna, Machilipatnam.
5) The Addl. Judl. Magistrate of I Class, Avanigadda.
6) The learned Addl. Public Prosecutor, VIAddl. Sessions Court, Krishna, Machilipatnam.
7) The Station House Officer, Ghantasala P.S., Krishna District.