Dismissed

The State of A.P. Rep., by Its Pp v. Shaik Khaleel and Another

Andhra Pradesh HC8 Nov 2022CRLA/491/2015

Case brief

AI extract

What is this about?

In this criminal appeal, the State challenged the Sessions Court's acquittal of accused persons charged with murder and robbery. The High Court examined inconsistencies in prosecution evidence, doubts regarding medical records, and flaws in an extrajudicial confession. Upholding the trial court's decision as reasonable, the appeal was dismissed, confirming the acquittal.

What did the court decide?

The appeal was dismissed, confirming the acquittal of the accused for offences under Sections 302, 326, and 382 IPC.

The State of A.P. Rep., by Its Pp Vs… — Murder and Culpable Homicide | Andhra Pradesh HC (2022)

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THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

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AND

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

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Criminal Appeal No. 491 of 2015

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

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1. Assailing the judgment in Sessions Case No. 57 of 2012

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on the file of VII Additional District and Sessions Judge, Madanapalle, wherein, the Accused were acquitted of all the charges framed, the present Criminal Appeal is filed by the State under Section 378(3) and (1) of Criminal Procedure Code.

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1. The facts, in issue, are as under:

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i. PW1, PW2 and PW3 are residents of Punganur Village, while PW4 is the resident of Basinivayunipalle Village. PW4 is the wife of the deceased [Krishnappa], while PW3 is the daughter of the deceased. PW2 is the husband of PW1.

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ii. It is said that, deceased was doing business in pigs. On the date of incident, PW1 went to Banaganipalle to receive Rs.3,000/- being the amount for which he sold a

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pig. After receipt of the amount, he went to Government Hospital, Punganur, and, at 10.30 P.M he started proceeding towards his house. On the way, when PW1 reached an old tiled house belonging to the Government, he heard cries of the deceased. He found Accused No.1 and 2 beating the deceased. As PW1 knows the deceased, he identified the deceased. When PW1 questioned Accused No. 1 and 2, Accused No. 1 is said to have beat him with roof tile on his head, while Accused No. 2 beat him with roof title on right shoulder. Thereafter, Accused No. 2 beat PW1 on his chest with brick. PW1 fell down in front of the tiled house. The amount of Rs.3,000/-, also fell down and that he does not know who has taken the money as he lost consciousness. According to him, on the next day morning i.e., 02.08.2011 at about 7.00 or 8.00 A.M., when three persons were grazing their cows, by signs, requested them to inform in his house about him. Thereafter, his wife and daughter came and took him to a hospital at Punganur.

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iii. Pursuant to an intimation received from the Hospital, which is placed on record as Ex.P12, PW13 visited the Government Hospital, Punganur and recorded the statement of PW1. Ex.P1 is the statement of PW1 recorded by PW13 at Government Hospital, Punganur. Basing on the said statement, PW13 registered a case in Crime No. 177 of 2011 for the offences punishable under Sections 307, 379 read with 34 I.P.C. After registering the crime, PW13 again went to Government Hospital and recorded the statement of PW1 and PW3 under Section 161 Cr.P.C. PW13 also visited the scene of offence located at Thota Bungalow of Punganur Town, wherein, he prepared a rough sketch of the scene and also scene observation report in the presence of PW9 and PW10. Ex.P9 is the rough sketch and Ex.P8 is the scene observation report.

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iv. On 02.08.2011 at about 8.30 P.M., PW13 received death intimation of the deceased from the Government Hospital, Punganur. Ex.P13 is the hospital intimation. Thereafter, PW13 altered the section of law from Section 307 I.P.C. to 302 I.P.C. Further, investigation, in this

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case, was taken up by PW14 [Inspector of Police], who after receiving the altered First Information Report, visited the scene of offence and, thereafter, went to Government Hospital, Punganur, where, the dead body of the deceased was present. It is said that, PW14 conducted inquest over the dead body, which is placed on record as Ex.P5. At the time of inquest, he examined PW2, PW3, PW4, PW5, PW6 and PW12. The witnesses examined at the time of inquest opined that the cause of death was due to assault by the Accused. After completing the inquest, the dead body was forwarded for post-mortem examination.

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v. PW11 – the Civil Assistant Surgeon, Community Health Centre, conducted autopsy over the dead body of the deceased and issued Ex.P11 – post-mortem report. According to him, the time of death was 13 to 15 hours prior to post-mortem examination and that the injuries are possible if a person is beaten with stones and pieces of tiles.

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vi. On 05.08.2011, while PW14 was present in the Police Station, PW6 brought the Accused to the Police Station along with Ex.P6-report, and surrendered them before PW14, in the presence of PW10 and another V.R.O. PW14 questioned the Accused and seized a sum of Rs.1,200/- from Accused No.1 and Rs.700/- from Accused No. 2 under Ex.P7. Thereafter, finger prints of Accused were obtained and sent the same for comparison to F.F.B. After collecting all the necessary material, a charge-sheet came to be filed, which was taken on filed as P.R.C. No. 18/2011 on the file Judicial Magistrate of First Class, Punganur.

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On appearance, copies of documents as required under Section 207 Cr.P.C. were furnished. Since the offence is triable by the Court of Sessions, the matter was committed to the Court of Sessions under Section 209 Cr.P.C. Basing on the material available on record, charge under Section 302 IPC came to be framed, read over and explained to the Accused, to which, they pleaded not guilty and claimed to be tried.

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To substantiate its case, the prosecution examined P.Ws.1 to 14 and got marked Ex.P1 to Ex.P16, beside marking MO.1 to MO.7. Out of 14 witnesses examined by the prosecution, PW5, PW6 and PW7 did not support the prosecution case and were treated hostile by the prosecution. After completion of the prosecution evidence, the accused were examined under section 313 Cr.P.C with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which, they denied, but, however did not adduce any oral evidence in support of his plea.

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Having regard to the evidence adduced by the prosecution, more particularly, the inconsistencies in the evidence of PW1 to PW3, coupled with a doubt as to whether the Accused would have made extra-judicial confession before PW9, the Sessions Judge acquitted the Accused. Challenging the same, the State has preferred the Appeal.

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1. The point that arises for consideration is, whether the

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view taken by the trial Court is a possible view?

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As seen from the record, the entire case rests on the evidence of PW1 and the evidence of PW9 before whom the Accused is alleged to have made extra-judicial confession and the medical evidence.

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Insofar as the evidence of PW1 is concerned, it is his version that, on the date of incident i.e., on 01.08.2011 at about 10.30 P.M., while he was proceeding towards his house and when he reached an old tiled house belonging to the Government, he heard cries of the deceased. He went there and saw the deceased being beaten by Accused. When questioned, both the accused are alleged to have beat PW1 with roof tile on his head and right shoulder. He further deposed that, fell down on the ground in front of the tiled house and cannot say who has taken the money of Rs.3,000/- which was with him. He categorically states that, on the next day morning when three persons were grazing the cows, he sign them to inform about him at her house and, thereafter, his wife and children came there and took him to Government Hospital, Punganur. At the hospital, his statement was recorded and the law was set into motion.

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From the evidence of this witness, it is clear that, the incident in question took place on 01.08.2011 and he was taken to hospital on 02.08.2011. In the hospital, he is alleged to have made a statement mentioning the names of Accused No.1 and 2 as the assailants of the deceased. But, this evidence of PW1 is demolished by the evidence of PW3 and Investigating Officer.

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PW3, who is none other than the son of deceased, in the cross-examination admits that, on 01.08.2011 at about 10.30 P.M., he came to know that his father and PW1 were assaulted and both of them were admitted [deceased] in Government Hospital at 11.00 P.M., on the day of incident. He also informed the police about admission of PW1 and his father in Government Hospital, Punganur. He further submits that, on the same day his statement was also recorded by the Police. According to him, his father and PW1 stated that some unknown persons assailed them and caused injuries. PW3 further states that, the above acts were stated to the Police also. To a suggestion that he is not aware about the incident was denied by him. Though he was sought to be reexamined by the Public Prosecutor, but the same was

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deferred and no steps were taken to declare this witness hostile.

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Further, PW14 – the Investigating Officer in his crossexamination admits that, as per the prosecution case PW1 and deceased joined in the Hospital on 01.08.2011 itself. He further admits that, prosecution witnesses never stated before PW14 during examination under Section 161 Cr.P.C. as if Accused No. 1 and 2 beat the deceased with a stone and broken roof tiles specifically.

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From the evidence of PW3 and PW14, it stands established that the family members of the deceased came to know about the incident on 01.08.2011 itself and, immediately thereafter, they have admitted him in the hospital and at the earliest point of time, PW1 and the deceased disclosed to the police that they were beaten by some unknown persons. This piece of evidence gets fortified by Ex.P12 – “intimation of incident and injuries to the police” issued by the duty doctor [PW11]. In the third column of the said document, it is stated “brought by self”. The word “self” has been clarified by Doctor [PW11] stating that the patients

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are not joining the hospital through police or by an ambulance and it means to say that they directly came to hospital and joined. Therefore, as per the intimation record, the injured themselves went to the hospital and got admitted. Further, PW11 in cross-examination admits that the attenders of the patients informed him that some unknown person, who were three in number, beat the deceased and PW1 at 10.00 P.M. on 01.08.2011 at Christian Hospital ground. Therefore, at the earliest point of time, the information that was available to the police and the family members was that some unknown person beat the deceased. Subsequently, the police have developed the case from stageto-stage leading to recording an extra-judicial confession by PW9.

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PW9 is none other than the V.R.O. of Punganur Town. He was a panch for inquest report. According to him, on 13.08.2011, while he was present in his Office, Accused No.1 and 2 came to him and confessed that they assaulted PW1 and deceased and subsequently they came to know that Krishnappa [deceased] died. According to them, they decided to kill deceased as he lodged a complaint against one Khaleel

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who has committed theft of wire in electrical transformers. The statement of the Accused was reduced into writing and, thereafter, PW9 took them to Police.

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One thing, which requires to be noted here, is that, PW9 appears to be a stock witness to the police. In the crossexamination, he admits that, he has attended two to three inquest proceedings prior to Ex.P5 in this case. Even otherwise, it is to be noted that there was no necessity for the accused to make an extra-judicial confession before PW9, who will not be in a position to help them. Further, a perusal of Ex.P6 would show that the body of Ex.P6 was written with one pen and signature of PW9 with another pen. The letter ‘8’ under the signature, evidencing month of August, was overwritten. It would be appropriate to extract the same, which is as under:

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“The body of Ex.P6 was written with one pen and signature of me was with another pen. The letter ‘8’ under my signature showing the month of August was over written.”

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1. Further, the name of the person who scribed Ex.P6 was

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not mentioned in Ex.P6. In-fact, PW9 admits that, it was

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written by his Personal Assistant, who is employed by him and who is not a government employee. Therefore, a doubt arises as to making of extra-judicial confession before PW9.

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It is no doubt true that, the prosecution is relying on the evidence of PW1 mainly on the ground that he is an injured witness. It may also be true that the injury on PW1 gets corroboration from the evidence of Doctor, but, the earliest version given by PW1 before PW3, who is none other than the son and also before I.O. is to the effect that they were beaten by unknown persons and that they were admitted in hospital on 01.08.2011 itself, which is contrary to the evidence of PW11 and other evidence on record. Hence a doubt arises as to whether really PW1 is speaking the truth.

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It is to be noted that, this being an appeal against acquittal, interference is impermissible, unless the judgment of acquittal tends to be perverse or unless the inferences drawn in acquitting the accused are not reasonable. [ The State Rep.By CBI, Hyderabad v G.Prem Raj ]¹ .

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1 AIR 2010 SC 793

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18) In the case of M.S. Narayana Menon @ Mani v. State

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of Kerala & Anr.² , the Apex Court narrated the powers of High Court in an appeal against the order of acquittal. In para 54 of the decision, the Apex Court observed as under:

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"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

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At this stage, Sri. Soora Venkata Sainath, learned

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Special Assistant Public Prosecutor, appearing for the State, would contend that, the delay in First Information Report reaching the Court may not matter much, more so, when a suitable explanation was given by the prosecution for the delay in First Information Report reaching the Court.

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It may be true that the prosecution has explained to a certain extent, the delay in First Information Report reaching

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2 (2006) 6 S.C.C. 39

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the Court, but, having regard to the findings arrived at and since the evidence available on record is not cogent and convincing; this court is of the opinion that, the Judgment under challenge requires no interference.

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In the result the appeal fails and it is accordingly dismissed , confirming the acquittal of the

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Accused/Respondents for the offences punishable under Sections 302, 326 and 382 of Indian Penal Code, passed in S.C. No. 57 of 2012 on the file of VII Additional Sessions Judge at Madanapalle, on 29.10.2012.

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Consequently, miscellaneous petitions, if any, pending

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shall stand closed.

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_______________________________ JUSTICE C. PRAVEEN KUMAR

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____________________________________ JUSTICE B.V.L.N. CHAKRAVARTHI

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Date: 08.11.2022 dmr

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THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

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AND

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

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Criminal Appeal No. 491 of 2015 ( Per the Hon’ble Sri Justice C.Praveen Kumar)

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Date: 08.11.2022

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dmr

The State of A.P. Rep., by Its Pp v. Shaik Khaleel and Another

Case brief

What is this about?

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The State of A.P. Rep., by Its Pp v. Shaik Khaleel and Another

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