Allowed

Inapakurthi Shanmukha Rao, Vizianagaram Dt., v. State of Ap., Rep Pp.

Andhra Pradesh HC2 Nov 2022CRLA/261/2015

Case brief

AI extract

What is this about?

Criminal Appeal against murder conviction pronounced by Sessions Court. Court held circumstantial evidence was incomplete as medical evidence did not corroborate hacking theory and 'last seen' witness testimony lacked corroboration in inquest report.

What did the court decide?

Conviction and sentence for offences under Sections 302 and 201 IPC set aside; accused acquitted and set at liberty.

Inapakurthi Shanmukha Rao, Vizianagaram… — Murder and Culpable Homicide | Andhra Pradesh HC (2022)

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THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR AND

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HON’BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

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Criminal Appeal No. 261 of 2015

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JUDGMENT : ( Per Hon’ble Sri Justice C.Praveen Kumar)

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Heard Sri. G. Vijaya Saradhi, learned Counsel appearing for the Appellant/Accused and Sri. S. Dushyanth Reddy, learned Additional Public Prosecutor, appearing for the State.

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The Sole Accused in Sessions Case No. 96 of 2014 on the file of the Family Court-Cum-III Additional District and Sessions Judge, Vizianagaram, is the Appellant herein. He was tried for the offences punishable under Sections 302, 364 and 201 of Indian Penal Code [‘ I.P.C. ’]. By its Judgment, dated 30.01.2015, the learned Sessions Judge, while acquitting the Accused of the offence punishable under Section 364 I.P.C., convicted the Accused for the offence punishable under Section 302 of I.P.C. and sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs.500/- in default to undergo simple imprisonment for three months. The Accused was also sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 100/- in

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default to undergo simple imprisonment for fifteen days for the offence punishable under Section 201 I.P.C. The substantive sentences were directed to run concurrently. Assailing the said conviction and sentence imposed, the present Appeal is preferred.

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The gravamen of the charges against the Accused is that, on 15.05.2013, near Bheemuni Guha, Ramatheertham Village, the Accused is said to have abducted and caused the death of one Pedapudi Karuna [‘ Deceased ’] by stabbing her with a knife and, thereafter, dumped her body into the deep rocky slope to screen the evidence.

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1. The case of the prosecution, as unfolded through the evidence of prosecution witnesses, is as under:

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i) PW3 is the father and PW4 is the brother of deceased. The deceased is the daughter of paternal uncle of the Accused. PW3 to PW5 and the deceased are residents of Sivvam Village. PW1, PW2, PW7 to PW9 are the residents of Ramatheerdhala Village, while the Accused and PW6 are residents of Kurupam Village.

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ii) It is said that, the Accused who is related to PW3 used to visit the house of PW3, and developed acquaintance with the deceased, though he was married by then and residing at Peddimpeta. It is said that, the Accused promised to marry the deceased and made her pregnant. A dispute was raised by PW3 before PW5, PW6, PW14 and others on a premise, that, it was the Accused who was responsible for the pregnancy. At the instance of elders/mediators, the Accused agreed to marry the deceased and look after her properly.

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iii) It is said that, on 14.05.2015, on invitation of the Accused, the deceased along with PW4 went to Parvathipuram. Initially, they went to R.T.C. Complex and on a call made by the Accused, they went towards a fruit juice shop. There, the Accused told PW4 that he and deceased will come to the Village later and sent PW4 back. It is said that, PW4 went to a movie and at about 8.00 P.M., he reached his house. When the father of the deceased enquired as to the whereabouts of the deceased, PW4 informed him that she along with Accused will come later. But, it appears that, neither of

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them came home. Later, PW4 parents tried to inquire the Accused by calling him on phone, but the phone remained switched off. PW3 searched for the Accused and his daughter [deceased], but in vain.

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iv) On 15.05.2013, PW8 – the Thalari of the Village, on receipt of information, went to the scene of offence along with some Villagers and saw a dead body lying at Bheemuni Gruha. He, immediately, telephoned to PW1, who went there and saw the dead body of a female person, which lead to lodging of a report by PW1. Basing on Ex.P1 report, PW15 [Sub-Inspector of Police] registered a case in Crime No. 55 of 2013 at Nellimarla Police Station under Section 174 Cr.P.C. Ex.P12 is the First Information Report. Thereafter, PW15 visited the scene of offence and prepared an observation report of the scene, which is marked as Ex.P2. He also drew a rough sketch of the scene, which is marked as Ex.P13. He also got the scene of offence photographed. At the scene, he seized blood stained earth and controlled earth in the presence of PW2 and another. Thereafter, PW15 conducted inquest over the dead body of the

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deceased in the presence of PW2 and others. Ex.P3 is the inquest report. During inquest, he examined PW1, PW3, PW4, PW7, PW8 and PW14 and recorded their statements. After completing the inquest, the body was sent for post-mortem examination to M.R. Government Hospital, for post-mortem examination.

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v) PW13 – the Civil Assistant Surgeon, conducted autopsy over the dead body of the deceased and issued Ex.P10 – preliminary post-mortem certificate and Ex.P11, the final post-mortem report.

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vi) On 17.05.2013, PW16 – the Circle Inspector of Police, who took up further investigation, received the foetus from the womb of the deceased and sent it to Forensic Science Lab for D.N.A. report, which revealed that the Accused has nothing to do with the foetus or that the profiling did not match with that of the Accused. The Accused was arrested on 19.05.2013 and pursuant to the disclosure statement made, clothes (M.O.5 and M.O.6) and knife [M.O.6] were discovered and sent to R.F.S. Lab.

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vii) After collecting all the necessary documents, a chargesheet came to be filed, which was taken on file as P.R.C. No. 7 of 2014 on the file of Additional Judicial Magistrate of First Class, Vizianagaram.

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On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court of Sessions, the same was committed to Court of Sessions under Section 209 Cr.P.C. Basing on the material available on record, charge as referred to above came to be framed, read over and explained to the Accused, to which, the Accused pleaded not guilty and claimed to be tried.

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In support of its case, the prosecution examined PW1 to PW17 and got marked Ex.P1 to Ex.P16, beside marking M.Os.1 to M.O.8. After completion of prosecution evidence, the Accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied, however, no evidence was adduced in support of his plea.

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Relying upon the following circumstances, namely, (1)‘motive’; (2) the Accused being ‘last seen’ in the company of the deceased by PW4 and also by PW7; (3) coupled with disputes between the two families, the learned Sessions Judge convicted the Accused. Challenging the same, the present Appeal came to be filed.

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(i) Sri. G. Vijaya Saradhi, learned Counsel appearing for the Appellant/Accused, mainly submits that, the circumstances relied upon by the prosecution are not proved and even if proved, do not connect the Accused with the crime. He further submits that, ‘motive’ which is sought to be relied upon by the prosecution is not proved and even otherwise, it is a double edged weapon, cannot be made basis to connect the Accused with the crime. Be that as it may, he would submit that neither the evidence of PW4 nor the evidence of PW7 on record establish the Accused being ‘last seen’ in the company of the deceased.

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(ii) He further submits that, the medical evidence also does not corroborate the manner in which the incident is said to have been committed.

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(iii) Insofar as the evidence of mediators are concerned, he would submit that, the Accused was pressurised to marry the deceased though the Accused was not responsible for the pregnancy of the deceased. According to him, as the pregnancy was through a third person, the deceased might have committed suicide. In view of all the above, he would contend that the prosecution failed to prove its case beyond reasonable doubt.

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On the other hand, Sri. S. Dushyanth Reddy, learned Additional Public Prosecutor appearing for the State, opposed the same contending that when the evidence of PW1 coupled with the evidence of mediators establish motive and the evidence of PW4 and PW7 being independent in nature, there is no reason to disbelieve the circumstances relied upon by the prosecution to connect the Accused with the crime. In other words, his argument appears to be that, the finding of the trial Court requires no interference.

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The point that arises for consideration is, whether the circumstances relied upon by the prosecution are proved and if proved, whether the events form a link connecting the Accused with the crime?

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As seen from the record, there are no eye witnesses to the incident and the case rests on circumstantial evidence. In a case arising out of circumstantial evidence, the prosecution has to prove each of the circumstance relied upon by them and the circumstances so proved should form a chain or link connecting the Accused with the crime, ruling out any other hypothesis.

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In the instant case, as stated by us earlier, there are about four circumstances relied upon by the prosecution to connect the Accused with the crime. Before dealing with the same, it would be appropriate to refer to the relationship between the parties.

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PW3 is none other than the father of the deceased and the Accused is sister son of PW3. It has also come on record that the mother and father of the Accused died long back. Apart from that, the evidence of PW3 also discloses that,

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mother of the Accused was given in marriage to his maternal uncle. PW3 also deposed that, the Accused used to come to his house during life time of his daughter [Karuna] and agreed before the elders to marry the deceased-daughter, though, he was married by then. PW3 also categorically states that, there were no good relationship between his family and the family of the Accused and that he did not attend the marriage of the Accused, since the Accused did not marry his daughter. But, however, he volunteers to say that, the Accused used to visit his house frequently and used to talk with his daughter [deceased]. At this stage, we may also mention that, the deceased herein discontinued her studies while she was studying intermediate and, thereafter, went to Bangalore to learn stitching work and stayed there for a period of one year. Thereafter, she went to Hyderabad and worked as Nurse for about four to five months.

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As stated earlier, there is no dispute with regard to marriage of Accused with another girl. But, in-spite of the same, the Accused is alleged to have promised to marry the deceased. A panchayat was convened on a complaint given by PW3 that his Nephew, namely, the Accused was responsible

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for the pregnancy of his daughter. In the said panchayat, PW5 and PW6 called the Accused, wherein, he said to have admitted his guilt for causing pregnancy to the deceased and also agreed to marry the deceased.

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Insofar as the theory of pregnancy is concerned, which appears to be the reason for calling the panchayat and making the Accused to admit for marrying the deceased; it is to be noted that, the medical evidence on record disproves the same. PW13 – the Civil Assistant Surgeon, who conducted the post-mortem examination and who sent the foetus to the Forensic Science Lab, categorically admits in crossexamination that, milifilar STR analysis conclusively proves that the D.N.A. profiling obtained from foetal tissue of Item No. 1 is biologically not related to Inapakurthi Shanmukha Rao [Accused], shown of Item No. 2. Therefore, the first circumstance relied upon by the prosecution, namely, that the pregnancy was caused by the Accused and that he has done away with the deceased to overcome the promise made, appears to be incorrect.

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Coming to the disputes between the two families; the evidence of PW3 categorically shows that, there was no good relationship between both the parties, though, both of them are closely related to each other and that he did not go to the marriage of the Accused, as the Accused did not agree to marry his daughter. Therefore, the ‘motive’, as suggested by the prosecution, in our view, being double edged, cannot be made the basis, in the given set of circumstances, to establish the culpability of the Accused, in the commission of the offence. We feel that the same requires to be tested with other circumstances relied upon by the prosecution.

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The two other circumstances, which are strongly relied upon the prosecution are, the evidence of PW4 and the evidence of PW7.

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PW4 is none other than the brother of the deceased. He, in his evidence, categorically states that on 14.05.2013, the Accused invited his sister [deceased] to come to Parvathipuram, and that he and the deceased went to Parvathipuram and waited at R.T.C. Complex. While, they were waiting, the Accused telephoned to the deceased and

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asked her to come to juice shop and, accordingly, both of them went there. On reaching the juice shop, the Accused asked PW4 to go to his Village and, as such, he went to a movie and then returned to his Village at 8.00 P.M. When asked by his parents as to what happened to deceased, PW4 informed that the Accused and deceased will come later. This witness was cross-examined at length, wherein, he admits that, he did not state before the Police that he and deceased went to fruit juice shop on receiving phone call from the Accused. It would be appropriate to extract the same, which is as under:

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“It is true that, I did not state before Police that myself and my deceased sister went to fruit juice shop, on receiving phone call by the accused.”

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Further, the Investigating Officer [PW-15] in his

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evidence categorically states, as under:

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“It is true PW.4 did not state before me that on enquiry of his father about the deceased and accused, he stated to his father that he will come later and on the next day when PW.3 made a phone call to the cell phone of accused and deceased, the deceased phone was switched off.”

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From the evidence of PW4, it is clear that, in his earlier statements, he failed to mention two crucial facts, namely, that he along with deceased went from R.T.C. Complex to the fruit juice shop, where the deceased met the Accused and from there both of them went away asking PW4 to go back to his Village. Further, PW4 also did not mention in his earlier statement about the enquiry made by his father on returning home and he informing his father that the Accused and deceased will come later. Therefore, a doubt arises as to whether really he has seen the Accused and deceased together on that day or for that matter the deceased met Accused in Parvathipuram.

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The next circumstance, to prove the theory of ‘last seen’, is the evidence of PW7.

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PW7 in his evidence deposed that, he is a resident of Ramateerdhalu of Nellimarla Mandal, and working as Guide in Ramatheerdhalu Hill, and that, he used to attend Hill from morning to evening. According to him, about one and half year ago, while he was getting down the Hill, he saw one male and female persons climbing up the Hill. On the next day,

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while he was present in the Hill, he came to know through one boy that one person was sleeping by consuming alcohol. He then rushed to the place and noticed a dead body of a female, whom he has seen on the previous day, while getting down from the Hill. He intimated the said fact to Kancharapu Ramu and Tadi Satyanarayana [PW2], who in-turn informed the same to PW1. When examined by the Police, he informed about seeing both of them on previous day. He also claims to have identified the Accused in the Test Identification Parade conducted in Sub-Jail. But, the truthfulness of this evidence, in our view, has to be tested with other evidence of record.

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According to PW7, he has seen the Accused and deceased climbing the Hill about one and half year prior to giving evidence. Even assuming that he has seen the Accused and deceased together on the date of incident, which would be on 14^th / 15^th May, 2013, he, in his evidence, categorically states about informing the Police about seeing both of them together on the said dates. But, strangely, though he was examined at the time of inquest, the said version is not spoken to by him. The fact that PW7 never spoke about seeing the Accused and deceased together at the time of inquest,

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which was held on 16.05.2013, is not disputed by the learned Additional Public Prosecutor. That being so, a doubt arises, as to whether really he has seen both of them together a day prior to the date on which the dead body was found on the Hill.

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The argument of Sri. G. Vijaya Saradhi, learned Counsel appearing for the Appellant/Accused that, if really the witness has seen both of them together and if really he has mentioned the same to the Police, when they examined him, he would not have missed mentioning the same at the time of inquest cannot be brushed aside. If really he has mentioned the same, column 15 of the inquest would have definitely referred to this important material fact.

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It is no doubt true that, inquest is conducted only to know the cause of death and the features on the body of the deceased, but, in a case of this nature and having regard to the facts in issue, we feel that the contents of the Inquest Report assumes significance to establish the guilt of the Accused. As stated earlier, the absence of crucial factual aspect, namely, Accused and deceased being ‘last seen’

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climbing the Hill in the Inquest Report, though, PW7 was examined, at the time of inquest, creates a doubt as to whether PW7 has really seen them.

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Coming to the last circumstance, namely, identification of the Accused by PW7 in the Test Identification Parade conducted. It is to be noted that, PW7 in his crossexamination admits that, “Police took him to Sub-Jail fifteen days after noticing the dead body”. From the above statement, it is clear that, around 30.05.2013, PW7 must have been taken to Sub-Jail. The purpose for taking him to Sub-Jail is not explained by the prosecution. Obviously, it must have been done only to make him see the Accused. Further, the Test Identification Parade was held by the Magistrate, which was on 22.06.2013. Therefore, possibility of Accused being shown to PW7, when he was taken to the Sub-Jail fifteen days after the body was traced, cannot be ruled out, otherwise, there is no reason for the Police to take PW7 to the Sub-Jail.

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One another circumstance, which falsifies the case of the prosecution, is the medical evidence. As per the charge, the Accused is said to have hacked the deceased on the head

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and other parts of the body and, thereafter, pushed her down the Hill after causing her death. But, the medical evidence does not support the case of the prosecution. It would be appropriate to refer to the medical evidence, which is as under:

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“ External Injuries : Crush injury of left fronto, perieto, temporo and upper occipital region of skull showing multiple skull fractures with partial loss of bone and brain. 2) Laceration of 4 x 1 x 0.5 cm (three in number) noted over the left wrist with bruising. 3)Laceration around the lobule of right ear with surrounding bruising and conjunction. 4) Laceration of 2 x 1 x 0.5 cm over the forehead in the midline with surrounding bruising and conjunction. 5)Laceration of 3 x 1 x 0.5 cm over the right eyebrow with surround bruising and conjunction.”

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I opined that the cause of death is due to crush injury to head, skull and brain.”

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28) In cross-examination, PW13 admits as under:

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“It is true that as per my observation, purtification is started. It is true that in case of purtification of the body it is not possible to estimate the time of death, so also, as to whether the injuries are antimortem or post-mortem, if purtification is starts. It is true that

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I have not noted the colour of spleen at my internal post-mortem examination. It is true that the colour of the spleen is one of the primary fact to decide the time of death. It is

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true that if anybody falls from height of 30 feet in rocky substance the crush injury like No. 1 is possible. I forwarded the purtors along with visceras. It is true that the other injuries like 2 to 5 mentioned in Ex.P10 are possible, if a person coming to contact with any tree or any rocks.”

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29) In Kailash Gour and others vs. State of Assam¹ the

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Apex Court held as under:

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“It is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between accused may have committed the offence' and must have committed the offence' which must be traversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognised as a human right which cannot be wished away.”

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Having regard to above, we feel that the circumstances relied upon by the prosecution are not proved beyond doubt and the said circumstances do not form a complete chain, connecting the accused with the crime. Considering the judgments referred to above and in the absence of any cogent and convincing evidence, we feel that, it may not be safe to

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1 AIR 2012 SC 786

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convict the Appellant/Accused for the charge of murder basing on the evidence adduced. Accordingly, we are inclined to acquit the Appellant/Accused by extending benefit of doubt.

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In the result, the Criminal Appeal is allowed . The conviction and sentence recorded against the appellant/accused in the Judgment, dated 30.01.2015, in Sessions Case No. 96 of 2014 on the file of the Family CourtCum-III Additional District and Sessions Judge, Vizianagaram, for the offences punishable under Sections 302 and 201 I.P.C. is set- aside and he is acquitted for the said offences. Consequently, the appellant/accused shall be set at liberty forthwith, if he is not required in any other case or crime. The fine amount, if any, paid by the appellant/accused shall be refunded to him.

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