Allowed

Kamsali Sarojamma, and Another, v. the State of Ap Rep Pp Hyd.

Andhra Pradesh HC14 Dec 2020CRLA/779/2013

Case brief

AI extract

What is this about?

Criminal Appeal against a conviction for murder under Section 302 IPC. The High Court held that the prosecution failed to establish a chain of circumstances connecting the accused to the offence beyond reasonable doubt due to contradictions in witness testimony and lack of corroboration for the extra-judicial confession.

What did the court decide?

Conviction and sentence set aside. Accused Nos. 1 and 2 acquitted and set at liberty. Fine, if any, refunded.

Kamsali Sarojamma, and Another, Vs the… — Murder and Culpable Homicide | Andhra Pradesh HC (2020)

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THE HON'BLE SRI JUSTICE A.V.SESHA SAI AND

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THE HON’BLE SRI JUSTICE K.SURESH REDDY

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CRIMINAL APPEAL No. 779 OF 2013

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JUDGMENT: ( Per Hon’ble Sri Justice A.V.Sesha Sai )

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Accused Nos.1 and 2 in Sessions Case No.406 of 2012 on the file of the Court of the Additional Sessions Judge, Ananthapuramu at Hindupur, are the appellants in the present Criminal Appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to, as ‘CrPC’). This Criminal Appeal is directed against the judgment dated 12.07.2013 rendered by the said Court, convicting the accused/appellants herein for the offence punishable under Section 302 read with 34 I.P.C. and sentencing them to undergo rigorous imprisonment for life and to pay fine of Rs.1,000/- each and in default, to suffer simple imprisonment for three months.

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The case of the prosecution is as follows:

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Accused No.1 is the wife of the deceased, one Sri Kamsali Govindachari. Accused No.2 is a Mason by profession and A1 was working as a coolie under A2. They developed illegal intimacy and in that connection, the deceased was quarrelling with A1. A1 and the deceased had another son, apart from P.W.1, who died and was buried in the burial ground of Somandepalli village. A1 and A2 hatched a plan to eliminate the deceased, who was obstructing their illegal intimacy, and in furtherance of their common intention, A2 came to the house of the deceased and A1, and both the accused induced the

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deceased to follow them to the tomb of the second son of the deceased, in order to put a lamp at his tomb. Believing their words, the deceased followed A1 and A2 blindly. The same was witnessed by P.W.9. After going to the burial ground, A2 assaulted the deceased with hands and fisted on his chest, causing injuries and A1 squeezed the testicles of the deceased and with the result, the deceased died on the spot. P.W.8, who happened to come there to attend the calls of nature near the scene of offence, witnessed the said incident and identified both the accused in the light of torchlight. P.W.6, who went in search of his lost sheep, witnessed the incident when they were returning at 8.00 p.m. in the light of torchlight in burial ground. L.W.10 and L.W.11 saw the accused after the return of accused without the deceased in their company. During the intervening night of 20/21.03.2012, A1 slept in the house of P.W.4 as she was afraid of sleeping in her own house. On 21.03.2012 at about 6.00 a.m., P.W.3 saw the dead body of the deceased in burial ground when he went to attend the calls of nature and he informed the same to P.W.5 and others. P.W.1son of the deceased and others came to the burial ground and saw the dead body of Sri Govindachari on 21.03.2012. P.W.1 went to Somandepalli Police Station and lodged a complaint and P.W.14 registered the same as Crime No.13 of 2012 for the offence punishable under Section 302 I.P.C. After investigation, P.W.15 laid charge sheet for the offence under Section 302 read with 34 I.P.C.

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After committal of the case, the learned Sessions Judge framed the following charge:

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"That A.1 and A.2 of you on 20^th day of March, 2012, at about A.M., in the burial ground of Gondlapallikunta tank of Somandepalli, A.1 and A.2 of you having common intention to murder the deceased Govindachari, and in furtherance of your common intention, A.2 assaulted him with hands and fisted on his chest and caused injuries, and A.1 of you squeezed his testicles, and committed an offence punishable under Section 302 read with 34 of the Indian Penal Code, and within my cognizance."

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In order to substantiate its case, the prosecution examined P.Ws.1 to 15 and exhibited Exs.P.1 to P.14 and M.O.1 and on defence side, no oral evidence was adduced, but Ex.D.1-report of P.W.12 was marked.

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Learned Sessions Judge framed the following point for consideration:

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"Whether the prosecution could bring home the guilt of both the accused for the offence u/s.302, r/w 34 of I.P.C. beyond reasonable doubt? "

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Eventually, the learned Sessions Judge, by way of the impugned judgment, recorded conviction and sentenced both the accused/appellants herein in the manner indicated supra.

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Heard Smt. A.Gayatri Reddy, learned counsel for the appellants and Sri N.Dushyanth Reddy, learned Additional Public Prosecutor appearing for the State, apart from perusing the material available on record.

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It is contended by the learned counsel for the accused/appellants that the impugned judgment is erroneous, contrary to law, weight of evidence and probabilities of the case; that the learned Sessions Judge grossly erred in placing reliance on the highly interested and discrepant testimony of the evidence of P.Ws.3 to 9 and 12; that the prosecution failed to prove the chain of circumstances to connect the accused with the commission of offence; that there is no proximate motive for the accused to kill the deceased; that P.Ws.1 and 2, who are the son and elder sister of the deceased, did not support the case of the prosecution; that the evidence of P.W.8 is in direct conflict with the evidence of P.W.4; that as per the evidence of P.W.3, panchayat was held 8 years back and there is no proximity between the panchayat and the alleged incident.

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Per contra , it is strenuously contended by the learned Additional Public Prosecutor, Sri N.Dushyanth Reddy that there is no error in the impugned judgment and the same does not warrant any interference of this Court under Section 374(2) of Cr.P.C. It is further contended that by adducing oral and documentary evidence, the prosecution established all the links in the chain of circumstances to connect the accused with the commission of offence. It is the further submission of learned Additional Public Prosecutor that in view of the confession made by the accused before P.W.12, the learned Sessions Judge is perfectly justified in convicting the accused.

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In the above background, now the points that arise for consideration of this Court are as follows:

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"(1) Whether the prosecution established the guilt of the appellants-accused beyond reasonable doubt?

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(2) Whether the impugned judgment warrants any interference of this Court under Section 374(2) of Cr.P.C.?"

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In the instant case, admittedly, there is no eyewitness for the offence and the entire case of the prosecution rests on circumstantial evidence, as such, thorough and meticulous analysis of the entire material on record is very much essential and imperative.

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P.Ws.1 and 2, who are the son and the elder sister of the deceased, turned hostile and did not support the case of the prosecution. P.W.3 is not an eyewitness to the incident and he stated that the deceased and A1 used to quarrel with each other and about 8 years back, on the request of A1, himself and one Kistappa conducted panchayat and in the said panchayat, A1 complained that her husband was beating her and the deceased replied that A1 was having illegal relationship with A2 and moving with him, as such, he became angry and beat her. He further deposed that in the said panchayat, A2 was also called to the house of the deceased and they advised A1 not to go to work under A2 and both of them agreed for the said advice, but thereafter also, A1 was going to work under A2. According to his evidence, at about 7.30 or 8.00 a.m. on 21.03.2012, he went to attend the nature calls, where he along

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with two others found the dead body of the deceased and he asked somebody to inform the same to the wife of the deceased and also passed on the message to Kistappa and he also stated that he came to know that both the accused might be responsible for the death of the deceased. So, according to the evidence of P.W.3, in the panchayat conducted by him and Kistappa, he admonished the accused.

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Coming to the evidence of P.W.4–– P.W.4 is a resident of Somandepalli village and about one year prior to giving evidence by him, both the accused were found at her house at about 6.30 p.m., and during night, A1 slept in her house as the husband of A1 was not found. She further deposed that on the next day morning at about 6.30 a.m., A1 went to her house and subsequently at about 7.30 a.m., P.W.4 came to know that the deceased died at Gundlapalli kunta and thereafter, she went to the scene of offence and saw the dead body of the deceased.

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P.W.5, who is also a resident of Somandepalli village, deposed that on 21.03.2012 at about 6.00 or 6.30 p.m., while he was returning from Gundlapalli kunta, the deceased and both the accused were coming opposite to him and on being questioned as to where they were going, the deceased told him that they were going to the tomb of his younger son. He further deposed that on the next day morning at about 7.30 a.m., P.W.3 told him that the dead body of the deceased was lying at his younger son’s tomb near Gundlapalli kunta and thereafter, he went there and found the dead body of the

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deceased with injuries on his forehead and near his private parts.

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According to P.W.6, on 20.03.2012 at about 8.00 p.m., he went in search of his lost sheep with torchlight towards Gundlapalli kunta and as his sheep was not found, he was returning and heard that somebody was talking. He further deposed that when he focused his torchlight towards the said sounds, he saw both the accused by the side of kunta.

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According to P.W.8, he is a resident of Saptagiri colony in Somandepalli village and he does real estate business and on 20.03.2012, he went to the house of Viswanatha Reddy, Sarpanch of the village, at about 4.30 p.m. on some work and he was there till 8.00 p.m. He further deposed that during his return through Gundlakunta by walk, he saw the deceasedGovindachari, his wife and another person in the light of the torch. According to P.W.9, the accused and the deceased went towards Gundlakunta and at about 8.00 p.m., both the accused returned to her house. According to P.W.9, she is a neighbour of the accused and the deceased.

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It is very much evident from a perusal of the evidence of P.Ws.3 to 6, 8 and 9 that they mentioned different timings and number of persons also and the said contradictions should necessarily enure to the benefit of the accused and the said contradictions are fatal to the case of the prosecution. At the cost of repetition, it is significant to note that according to P.W.4, on the fateful day, A1 slept in the

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house of P.W.4 during night and left the house only on the next day.

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It is pertinent to note that P.W.1 in his complaintEx.P.10 stated categorically that his father left the house at about 2.00 p.m. on 20.03.2012 and did not return. When it is the evidence of P.W.4 that from 6.30 p.m. onwards on 23.03.2012, A1 stayed in the house of P.W.4, the version of P.Ws.5, 6, 8 and 9 that they saw the accused either at 6.00 or 6.30 or 8.00 p.m. does not appear to be probable. As observed supra, according to the evidence of P.W.9, at about 8.00 p.m., both the accused came back to the house of A1. As such, the question of witnessing the accused by P.W.6 and P.W.8 at about 8.00 p.m. cannot be believed.

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Coming to the extra judicial confession said to have been made by the accused before P.W.12––– P.W.12 in his evidence, stated that on 28.03.2012 at about 7.00 a.m., while he was at his house, both the accused came to him and stated to him that they were having illegal relationship since three or four years, and since the deceased was coming in their way, they decided to kill him and they took the deceased to the tomb of the younger son of A1 and the deceased, under the guise of putting a lamp at the tomb, and murdered him by pressing his private parts. According to him, they made a request to save them from the police and thereafter, he had given Ex.P.7report.

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It is required to be noted in this context that it is a settled and well established principle of law that the confession

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is a weak piece of evidence and cannot be given any credence in the absence of any corroboration.

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Admittedly, P.W.12 is a resident of some other village, which is approximately 8 to 9 kilometers away from Somandepalli village, where the offence had taken place. According to P.W.12, the accused came to him on 28.03.2013, but as per the complaint given by P.W.1, the offence took place on 21.03.2012 and admittedly, P.W.12 did not make any endeavour to record the statements. It is significant to note in this context that according to the complaint lodged by P.W.1, his mother was sitting near the dead body on 21.03.2012 and was weeping.

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It is a known reality that normally nobody in the village attempts to go near the burial ground during the night times to attend nature calls. Therefore, the evidence of the prosecution witnesses that they saw the accused in the light of the torch is not trustworthy. In the considered opinion of this Court, in view of the above contradictions and discrepancies in the case of the prosecution, it is not safe to convict the accused on the basis of the circumstantial evidence. The prosecution, in the considered opinion of this Court, failed to establish the chain to connect the accused with the commission of the offence beyond reasonable doubt. In the absence of any eyewitness and in view of the failure on the part of the prosecution in establishing all the links which can connect the accused with the commission of offence, the accused are entitled for the benefit of doubt and consequently for acquittal.

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Accordingly, the Criminal Appeal is allowed and the conviction and sentence recorded against appellants herein-accused Nos.1 and 2 in Sessions Case No.406 of 2012, vide judgment dated 12.07.2013, by the Additional Sessions Judge, Ananthapuramu at Hindupur, are hereby set aside. The accused Nos.1 and 2/appellants herein are found not guilty of the offence with which they are charged and are accordingly, acquitted of the same. Both the accused are set at liberty. It is informed by the learned counsel for the appellants that the State Government ordered release of accused No.1 by way of a governmental order by granting one-time remission. Accused No.2 shall be released forthwith, if he is not required in any other case. Fine amount, if any, paid by the appellants/accused Nos.1 and 2 shall be refunded to them.

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As a sequel, miscellaneous petitions, if any pending in this case, shall stand closed.

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A.V.SESHA SAI, J

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Date: 14.12.2020 siva

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THE HON'BLE SRI JUSTICE A.V.SESHA SAI AND

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THE HON’BLE SRI JUSTICE K.SURESH REDDY

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CRIMINAL APPEAL No. 779 OF 2013

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Date: 14.12.2020

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siva

Kamsali Sarojamma, and Another, v. the State of Ap Rep Pp Hyd.

Case brief

What is this about?

What did the court decide?

Kamsali Sarojamma, and Another, v. the State of Ap Rep Pp Hyd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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