Allowed

Somadula Venkatesh at Venkat, E.G.Dist. v. Thimmapuram P.S.

Andhra Pradesh HC3 Nov 2022CRLA/505/2015

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal, setting aside the conviction and life sentence imposed for murder under Section 302 IPC. The Court held that the sole circumstance of the last seen theory was not corroborated and the conduct of prosecution witnesses created reasonable doubt, violating the requirements of circumstantial evidence.

What did the court decide?

Conviction and sentence under Section 302 IPC quashed; appellant set at liberty immediately.

Somadula Venkatesh at Venkat, E.G.Dist… — Murder and Culpable Homicide | Andhra Pradesh HC (2022)

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CPK, J & BVLNC, J Crl.A.No.505 of 2015

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THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

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CRIMINAL APPEAL No.505 of 2015

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

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Heard Sri D. Purnachandra Reddy, learned counsel, representing Sri A.K. Kishore Reddy, learned counsel for the appellant, Sri S.Dushyantha Reddy, learned Public Prosecutor for the State and perused the record.

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The sole accused in SC No.288 of 2013 on the file of the VI Additional Sessions Judge, Kakinada, is the appellant herein. He was tried for an offence punishable under Section 302 of IPC for causing the death of one Erugula Sravani Devi (hereinafter referred to as “the deceased”) on 06.03.2012 at about 2.00 p.m. in the Mango and Cashew nut tope of Penumarthi village. V ide judgment dated 23.04.2015, the learned VI Additional Sessions Judge, Kakinada convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs.100/-.

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The facts as culled out from the evidence of prosecution witnesses are as under: The accused and the deceased are known to each other. PW.3 is the friend of the accused, who also knows PWs.1 and 2. PW.4 also knows the accused and the deceased. PW.5 is the foster-father of the deceased, while PW.6 is a native of Ambedkar Colony, who also knows the deceased and the accused. The deceased along with PW.4 and others was studying Intermediate in Mohan Junior College. According to the evidence of PW.4, the accused was their senior in the said college. There was a rumor in the college that there was a love affair in between

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the accused and the deceased. On 06.03.2012, PW.4 and the deceased appeared for the examination held in Williams College and after the examination, they reached near III APSP Gate, where they boarded the auto of PW.1. When the auto was moving, accused also boarded the auto and sat by the side of PW.1. PW.1 asked the accused got into back seat of the auto to avoid police case. On that the accused came to the back seat and sat by the side of deceased. The accused who sat on the rear side by the side of the deceased, entered into conversation with the deceased. According to PW.1, when the auto reached Atchimpeta junction, PW.4 requested him to drop her at her village Navara and on her request, he turned the auto towards Navara. At that point of time, PW.4 asked the deceased as to why she has not alighted at that spot and as to why she is going to Thimmapuram, on that the deceased stated that she got relatives at Vunduru and that she has to go there. Accordingly, PW.1 drove the auto to Navara village, where PW.4 alighted from the auto. At that time, the accused requested PW.1 to take both of them in his auto for some time and that he will pay the amount as demanded by him. It appears that at about 2 p.m., PW.1 stopped the auto near cashew nut tope at the request of the accused. Accused and the deceased went inside the tope and asked PW.1 to come to other end of the road and accordingly, PW.1 took his auto to the other side of the road and waited for some time. He made a call to the accused, but the accused requested him to wait for 15 minutes. As the accused did not come out, PW.1 made a call to the accused, on that the deceased lifted the cell phone and stated that they are coming and asked him to wait for some more time. As they did not come out even after waiting for a considerable period of time, PW.1 is said to have again called the accused, but the

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cell phone of the accused was switched off. At about 4 p.m. PW.1 went inside the tope and he noticed the deceased on the ground with her face covered with chunni. He called her but there was no response. He went near to her and removed the chunni, which was around the neck with a knot and found her dead. Being afraid of the same, he returned to the road and on the way, he telephoned to his owner PW.2, who scolded him for boarding such type of persons into the auto and asked him to come to his residence. On that he started his auto and when he came to ADB road, noticed the accused. He stopped the auto and got boarded the accused into his auto. When he asked the accused as to what happened to the deceased, the accused is alleged to have replied that as the girl has not consented for his love affair, he tied a chunni around the neck of the deceased and killed her. He took the accused to the house of PW.2 and informed him what was happened. PW.3 reached there and all of them discussed about the acts of the accused.

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The other evidence on record would also show that on 06.03.2012 at about 5 p.m. while PW.10-Village Revenue Officer was in the MRO Office, he received information about the dead body lying in the garden of Nunna Vani. Immediately he rushed to the garden after taking permission from the MRO, where he noticed the dead body of a girl, aged about 18 years. He presented a report to Thimmapuram PS. Ex.P.4 is the said written report presented to Thimmapuram PS. Basing on the said report, PW.14 registered a case in Cr.No.36 of 2012 under Section 302 of IPC and issued Ex.P.12 FIR. Further investigation in this case was taken up by PW.15. According to PW.15 on 06.03.2012 at about 6 p.m. on receipt of information about the registration of crime, he reached Thimmapuram PS and

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took up investigation. He along with other staff of Timmapuram PS, PW.10 and others reached the scene of offence situated in cashew nut tope of Nunna Vani w/o Narasimha Rao of Penumarthi village. As it was late in the night, he posted a guard at the scene of offence, examined the Village Revenue Officer and Village Revenue Assistant and recorded their statements. It appears that while examining the scene, he found the hall ticket by the side of dead body and basing on the said hall ticket, came to know that the name of the deceased as Erugula Sravani Devi. He then started investigation as to the whereabouts of the accused and the family of the deceased. He examined the scene of offence, prepared a draft mediator’s report, which is placed on record as Ex.P.5. He also got prepared a rough sketch of the scene, which is marked as Ex.P.13. He took photos of the scene of offence. At the time of observation of the scene of offence, he found shirt pocket piece in right hand of the deceased and some hair in the left hand. These two items were seized with the assistance of clues team. MO.1, the shirt pocket piece was seized under cover of mediators report Ex.P.5. Thereafter, he secured the presence of mediators and conducted inquest over the dead body. Ex.P.6 is the inquest report. The inquestdars opined that the accused killed the deceased by strangulation with a chunni. After completion of the inquest, he sent the dead body for post-mortem examination to the Government General Hospital, Kakinada. PW.12, who was working as the Assistant Professor in Government General Hospital, Kakinada, conducted autopsy over the dead body of the deceased and issued Ex.P.9 postmortem certificate. According to him, the deceased died due to strangulation. They did not find any semen in the preserved swabs and slides. Ex.P.10 is the FSL report. Ex.P.11 is the final opinion.

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According to PW.15, on 13.03.2012 at about 11.00 a.m. Sub Inspector of Police, Thimmapuram PS informed him about PW.8 coming to the police station along with the accused, with the statement of accused and a report. He instructed the Sub Inspector of Police, Timmapuram PS, to secure the presence of the mediators and then reached the police station; examined PW.8; effected arrest of the accused and recorded the confessional statement, which was marked through the evidence of PW.11. Thereafter, accused lead them to his house situated at D.No.10-598/2, Eswar Nagar, Ramanayyapeta, from where he produced a cell phone and fancy ear jumka out of table drawer, which were seized in the presence of the mediators. The accused also displayed the photos of the deceased and also voice conversation. Sim cards used in the cell phone and the two memory cards marked as MOs.20 to MO.23 respectively, were seized. After collecting the necessary documents and examining the witnesses, he filed charge sheet, which was taken on file as PRC No.27 of 2012 on the file of IV Additional Judicial Magistrate of I Class, Kakinada.

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On appearance of the accused, copies of documents as required under Section under Section 207 Cr.P.C. were furnished. Since the case is triable by the Court of Session, the same was committed to the Court of Session under Section 209 Cr.P.C. After committal, charge as referred to above, came to be famed, read over and explained to the accused, to which he pleaded not guilty and claimed to be tried.

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In support of its case, the prosecution examined PWs.1 to 15 and got marked Exs.P.1 to P.14 and MOs.1 to 23. After completion of prosecution

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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. But however, no defense witnesses were examined and no documents were marked in support of his plea.

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Relying upon the evidence of PW.1 coupled with the medical evidence, recovery made and the deceased being last seen in the company of the accused, the learned Sessions Judge, convicted the accused as stated above. Challenging the same, present appeal came to be filed.

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The point that arises for consideration in this appeal is, whether the prosecution has proved the circumstances relied upon by them and if proved, whether they form a chain of events connecting the accused with the crime?

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The fact that there are no eye witnesses to the occurrence is not in dispute. In a case arising out of the circumstantial evidence, the prosecution has to prove each of the circumstance relied upon by them and the said circumstances should lead to a reasonable conclusion with regard to culpability of the accused in a commission of offence.

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It is now to be seen whether the circumstance relied upon by the prosecution, namely, accused was last seen in the company of the deceased, is proved and it is sufficient to convict the accused.

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PW.1 was examined to speak about the accused being last seen in the company of the deceased. According to him, on 06.03.2012 at about 12 noon the deceased along with PW.4 boarded his auto at 3^rd Gate of APSP and when the auto

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was moving, the accused also boarded the auto and sat by the side of the driver, who then requested the accused to sit in the rear seat, apprehending police case. While the accused and the deceased were talking with each other, PW.1 came to know that both of them are in love. When the auto reached a particular place, PW.4 who is a friend of the deceased got down and at that time, she asked the deceased as to why she is not alighting from the auto, for which the deceased stated that she has some relatives at Vunduru village and she has to travel further. After PW.4 alighted from the auto, the accused asked PW.1 for going around in the auto for some time and that he will pay whatever he likes, for which the deceased never objected and accordingly, they roamed in the auto. At 2 p.m., PW.1 was asked to stop his auto near cashew nut tope on Penumurthi village road, where both of them alighted and went into the tope. PW.1 was asked to come on to the other side of the road. PW.1 took the auto to the other side of the road, but neither the accused nor the deceased were there. He called the accused over phone, who asked him to wait for some more time. It is seen from the record that thrice PW.1 called the accused and on each occasion he was requested to wait and on one occasion, deceased herself picked up the phone and asked PW.1 to wait for some more time. As it was getting late, PW.1 claims to have gone in to the tope and noticed face of the deceased being covered with chunni. According to him, he removed the chunni and thereafter, noticed chunni around the neck with a knot. He also found the deceased dead. Immediately he informed about the same to his owner PW.2, who advised him to come to his house. On the way, PW.1 claims to have seen the accused and took him to the house of PW.2 and after discussions, they proceeded to the police station, but in the process, the accused escaped. This

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is the first circumstance relied upon by the prosecution to prove the accused being last seen along with the deceased on the date of the incident.

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At this stage, Mr. D. Purnachandra Reddy, learned counsel for the appellant, would contend that there are many circumstances to indicate that a false case has been foisted against the accused. According to him suspicion was against PW.1. In order to examine the same, it is to be noted that the evidence on record establishes that PW.10-VRO, lodged a report at 6.00 p.m. which was much prior to the time of arrival of PWs.1, 2 and others. His report is placed on record as Ex.P.4. In the said report, which was made on 06.03.2012, there is no reference to hair or the shirt pocket piece of the accused in the hands of the deceased. But on the next day when the police went to the scene of offence along with the panchayatdars for holding inquest, they noticed these two items in the hands of the deceased. At first we were of the opinion that the prosecution has proved its case, but a perusal of the evidence of PW.5, throws any amount of doubt in the version of the prosecution case. PW.5 is no other than the foster-father of the deceased. According to him, he came to know through police that the deceased was killed by the accused. According to him on 06.03.2012 the deceased went to the college to attend examination, but she did not return and they searched for her but in vain. In the evening at about 6 or 6.30 p.m. Timmapuram Police informed him that his daughter was killed in the cashew nut tope of Penumarthi village. He admits that at about 6.30 p.m. they reached dead body of the deceased, by then the driver of the auto and the accused were in the police station. Police did not inform him that the driver and the accused took his

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daughter to the garden. It would be appropriate to extract the relevant portion in the cross-examination of PW.5, which is as under.

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“It is not true to suggest that police has not informed me that Somadula Venkatesh killed my daughter as by then the police also do not aware who killed my daughter. At about 6.30 p.m. we reached to dead body of deceased. By then the driver of auto and the accused were in the police station. Police not informed me that the driver and the accused took his daughter to the garden.”

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Similarly, PW.7, who is also a friend of the accused, stated in his evidence about going to the college etc. In the cross-examination he admits as under:

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“I know the auto driver by name Rajeswararao @ Raju (PW.1). He also worked along with me as mason. On 06.03.2012 police called me to Timmapuram PS on that I went to Timmapuram PS at 6 p.m. By then the accused Venkatesh and the driver of auto Raju also in the police station.”

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A reading of the above would clearly show that accused and PW.1 were in the police station on 06.03.2012 at 6 p.m. itself. Sri D.Purnachandra Reddy, learned counsel for the appellant, would contend that there is every possibility for the police to take hair and shirt pocket piece, while the accused was in the police station and then placing the same in the hands of the deceased to create evidence and make it believe that it was the accused who is responsible for the incident. If really the hair and shirt piece of the accused was in the hands of the deceased, the same would have been figured in the report Ex.P.4 given by PW.10 to the police on 06.03.2012 itself. It is not as if PW.10 has seen the deceased in darkness. As record shows he saw the body of the deceased at about 5 p.m. on 06.03.2012. In the cross-examination, he admits that he failed to mention about the same in his report.

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Apart from that one another circumstance that assumes significance and which falsifies the recovery made from the accused on 13.03.2012. When there was suspicion against PW.1 and the accused and when both of them were seen in the police station on 06.03.2012 itself and when it is nobody’s case that the accused was let out on that day, the arrest of the accused on 13.03.2012 appears to be incorrect and false. When once the arrest of the accused is false, then recovery of MOs.9 and 10 made pursuant there to looses significance. Hence, the recovery of cell phone and fancy ear ornament of the deceased made pursuant to confession of accused appears to be doubtful.

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The issue now is whether the sole circumstance of deceased being last seen in the company of accused from 12 noon to 2 p.m. which is sought to be established through the evidence of PW.1, can be made the basis to convict the accused? Even according to prosecution evidence, PW.1 was in the police station on 06.03.2012 itself. PWs.5 and 7 also speak about the same. Apart from that if really, the version of PW.1 with regard to deceased and the accused travelling in his auto; that at their request, he was moving the auto around from 12 noon to 2 p.m; stopped the auto near cashew-nut tope at the request of the accused and after some time called number of times over phone, enquired about them, is correct, which is the only circumstance relied upon by the prosecution to prove that the deceased was last seen in the company of the accused in the cashew-nut tope, then conduct of P.W.1 when has seen the accused on the road, while returning from tope would have been different. Further while taking the accused in his auto, he should be made every effort to take accused to the police station, instead of taking the accused to the house of PW.2. PW.2 who is the owner of the

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auto, who was informed about the incident, should have taken some steps in reporting the matter to the police or detaining the accused with him, but the same was not done even by PW.2. This attitude of PWs.1 and 2 creates a strong suspicion about accused being last seen with the deceased. In fact, the evidence on record show that Thimmapuram PS is on the way to the house of PW.2 and if that is so, PW.1 ought to have taken the accused to the police station and lodged a report. This conduct of PW.1 appears to be suspicious. In our view, it can be said without any hesitation that all is not well to believe the evidence of PW.1 for convicting the accused basing on the sole circumstance, more so when a suspicion was entertained against PW.1, who was in the police station along with the accused. An issue, as to whether a conviction can be given basing on the sole circumstance of last seen theory, came for consideration before the Hon’ble Supreme Court in Surajdeo Mahto and another vs. State of Bihar¹ , dealing with the same, the Hon’ble Supreme Court held that unless the fact of last seen is corroborated by some other evidence, the fact that the deceased was last seen in the vicinity of the accused, would by itself, only be a weak kind of evidence .

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In the result, the Criminal Appeal is allowed setting aside the conviction and sentence imposed against the appellant/accused in S.C.No.288 of 2013 by the learned VI Additional Sessions Judge, Kakinada, by judgment dated 23.04.2015 and

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1 2022 (1) ALD (Crl.) 33 (SC)

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the appellant/accused shall be set at liberty forthwith, if he is not required in any other case. Miscellaneous petitions, if any, pending in this appeal shall stands closed.

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_____________________ JUSTICE C.PRAVEEN KUMAR_

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_________________________ JUSTICE B V L N CHAKRAVARTHI_

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Date: 03.11.2022 BSS

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CPK, J & BVLNC, J Crl.A.No.505 of 2015

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HON’BLE SRI JUSTICE C.PRAVEEN KUMAR AND HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

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CRIMINAL APPEAL No.505 of 2015

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

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164

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Date: 03.11.2022

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BSS

Somadula Venkatesh at Venkat, E.G.Dist. v. Thimmapuram P.S.

Case brief

What is this about?

What did the court decide?

Somadula Venkatesh at Venkat, E.G.Dist. v. Thimmapuram P.S.

Case brief

What is this about?

What did the court decide?

What the court decided

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