The Court examined whether circumstantial evidence and a confession sufficient to support conviction, noting lack of eyewitness to the fatal blow and disputed recovery of the weapon. The Court found gaps in establishing identity and motive.
Conviction and sentence under Sections 302 and 201 IPC set aside; appellant acquitted and set at liberty.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD
Crl.A.No.1064 of 2008
ORDER: (per the Hon’ble Sri Justice P.Durga Prasad)
This appeal is directed against the conviction and sentence passed in S.C.No.205 of 2007 by the VII Additional Sessions Judge (Fast Track Court), Visakhapatnam on 31.07.2008.
The appellant herein, who is accused No.1, along with two others were prosecuted for the offences under Sections 302, 201 read with 109 and 34 IPC.
According to the prosecution the deceased Yellapu Suryanarayana is a resident of Sai Ram Colony and he was the president and elder of the colony and used to settle the maters if any arose between residents of Sai Ram Colony and he used to entrust mason works to the masons available in the colony equally. Previously he used to entrust all the mason works to A.2 prior to other masons came to Sai Ram Colony as A.2 alone was available in the said Sai Ram Colony, when the other masons came to colony he entrusted the works to other masons along with A.2 equally, thereby the income of A.2 got down and he is unable to get more work through the deceased, thereby he bore grudge against the deceased. Apart from that the deceased made A.2 to vacate from the site grabbed by him with the help of M.R.O and police. Therefore, A.2 and his family members developed enmity against the deceased and came to conclusion to get rid of the deceased from colony as he became hurdle for the acts done by A.2. A.2 also expressed his view as he will see the end of the deceased when he intervened in the dispute between A.2 and RTC conductor Nookaraju and when they beat each other, the deceased advised the RTC conductor to give a report to the police. Thereby A.1 to A.3 decided to kill the deceased and A.2 and A.3 abetted their son A.1 to
kill the deceased and they were waiting for an opportunity. On 30.03.2004 night at about 11.30 hours the accused found the deceased going to the house of Tripuragiri Suribabu to witness the T.V., which is situated near the scene of offence and decided to avail the opportunity to kill the deceased when the deceased will come back to go to his house alone. When the deceased going back to his home alone and when he reached scene of offence the accused, who hide himself near the scene beat the deceased on the head with deadly weapon i.e. iron rod thrice with force and caused grievous head injury and thereby the deceased died on the spot. On hearing alarm, Sabbi Pydamma, who is going to upstairs diverted her attention towards scene of offence and found the accused with iron rod and deceased in blood-shed in the lighting of the street light available there. Likewise on hearing the sound, Koteswara Rao came out of his house and found the accused committing the offence and leaving the scene of offence and found the deceased in blood-shed and came to know about the offence committed by the accused through Sabbi Pydamma and P.W.3. P.W.1 came to the scene of offence on hearing the cries and shifted the injured to KGH, where the Doctors declared the injured was dead. Thereafter, he has gone to the police station and gave report to the police at about 04.00 hours on 31.03.2004, basing on the said complaint, P.W.11 has registered the case under Sections 302 and 109 read with 34 IPC. P.W.12 took up the investigation, conducted the scene of offence panchanama, examined the witnesses, held inquest over the dead body of the deceased, arrested A.2 and A.3 and interrogated them and A.2 confessed about the commission of offence. A.1 surrendered before the IX Metropolitan Magistrate, Bheemili on 06.05.2004. P.W.11 obtained A.1 for police custody and interrogated him and he confessed about the commission of offence and at his instance P.W.12 recovered the blood stained shirt and also the weapon used in the commission of offence. After completion of investigation P.W.12 has filed the charge sheet against A.1 for the offences under Sections 302 and 201 IPC and against A.2 and A.3 for the
offences under Sections 109 IPC.
The learned Sessions Judge has framed the charges under Sections 302 and 201 IPC against A.1, under Sections 109 and 302 read with 34 IPC against A.2 and A.3 and they pleaded not guilty for the said charges.
In order to establish the said charges, the prosecution examined P.Ws.1 to 12 and got marked Exs.P.1 to P.12 and M.Os.1 to 9. No oral evidence was adduced on behalf of the accused, but Ex.D.1 was marked on their behalf.
The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found A.1 guilty for the offences under Sections 302 and 201 IPC and convicted and sentenced him to undergo imprisonment for life and also to pay fine of Rs.1,000/- in default to undergo rigorous imprisonment for one month for the offence under Section 302 IPC and he was further sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.500/- in default to undergo rigorous imprisonment for one month for the offence under Section 201 IPC. A.2 and A.3 were found not guilty for the charges framed against them and they were acquitted.
Aggrieved by the said conviction and sentence, A.1 has filed the present appeal.
Now, the point that arises for consideration is: Whether the prosecution could able to establish the charges under Sections 302 and 201 IPC against A.1 beyond reasonable doubt?
P O I N T:
The appellant’s counsel has pleaded that there are no eyewitnesses to the incident and the even the circumstantial evidence of P.Ws.3 and 5 does not disclose that the accused has committed the offence and P.W.3 did not state before the police about his seeing A.1 at
the scene of offence and P.W.5 also did not state before the police about the puncture of his scooter tyre and his going to Kumadi junction in auto and from there to colony by walking and saw A.1 with an iron rod, and the other witnesses are came to the scene of offence and found the dead body of the deceased. She further pleaded that the motive for the commission of offence by the accused is only for A.2 but not for A.1 and when the other accused i.e. A.2 and A.3 were acquitted, A.1, who was said to have been abetted by A.2 and A.3 for commission of offence cannot be convicted.
The Additional Public Prosecutor on the other hand has pleaded that the circumstantial evidence of P.Ws.3 and 5 clearly establishes the finding of A.1 near the dead body of the deceased with an iron rod and the medical evidence clearly establishes that the deceased died due to head injury, thus, the prosecution could able to connect the accused with the commission of offence and the prosecution could also able to establish the motive for the accused to commit the offence and the trial Court has rightly convicted the accused for the offence under Section 302 IPC.
According to the prosecution, the motive for the commission of offence is that the deceased was elder person in Sai Ram colony and he used to entrust mason works to the masons available in the colony equally, previously he used to entrust all the mason works to A.2 prior to other masons came to Sai Ram Colony as A.2 alone was available in the said Sai Ram Colony, when the other masons came to colony he entrusted the works to other masons along with A.2 equally, thereby the income of A.2 was reduced. Further the deceased made A.2 to vacate from the site grabbed by him with the help of M.R.O and police and he also interfered in the dispute between the A.2 and Nookaraju, R.T.C. conductor and supported the Nookaraju and advised him to give a report to the police, thereby A.1 to A.3 decided to kill the deceased and A.2 and A.3 abetted their son, A.1 to kill the deceased.
P.W.1, who is the son of the deceased, has stated that his father was elected as a president to their colony from 1996 till his death and if any disputes arose between his colony people, his father used to settle the disputes between them and if any person constructs house, his father used to entrust the work to A.2. Later mason people increased, so he distributed the work to all the masons equally, thereby A.2 bore grudge against his father as the work entrusted to him from the beginning was distributed to other masons. He used to quarrel with his father. His behind house owner Nookaraju secured sand, then Nookaraju asked A.1 why the gravel stones were placed on the sand, then A.1 replied that he did not know but his father placed the same, then Nookaraju went to A.2 and questioned him why he placed gravel. Then A.2 replied that it is his will and he may do what he wants, then they quarreled with each other, then his father interfered and requested them not to quarrel and advised Nookaraju to give police complaint against A.2, then A.2 warned his father with dire consequences for interfering in between them and they will kill him and the said incident has taken place on 25.03.2004.
P.W.2, who is the locality person, came to know about the dispute between Nookaraju and A.2 with regard to the placing of stones on the sand collected by Nookaraju and the deceased advised him to lodge the complaint with the police, but he is not an eyewitness to the said incident.
P.W.3 is also a locality person, he also stated that the deceased was elder of the colony and also president of the colony and he used to settle small disputes between the people in the colony and One Simhachalam and A.1 quarrelled with each other regarding the construction of contract work and sand, then the deceased advised and supported the RTC conductor, then the accused bore grudge against the deceased and caused the incident. In the cross-examination he admitted that the deceased advised Nookaraju to give police report though A.1 and A.2 received injuries and he know A.1 and A.2 gave a police report
against Nookaraju.
P.W.4 is also a locality person. He also came to know about the disputes between the accused and deceased with regard to entrusting of mason work.
P.W.5 did not state anything about the disputes between the accused and the deceased even though he is also residing in the same locality.
Therefore, P.W.1, who is the son of the deceased, has spoken about the disputes between the deceased and A.2 with regard to entrustment of the mason work and also deceased supporting the Nookaraju in the dispute between the Nookaraju and A.2. Therefore, as per the said evidence disputes are between the deceased and A.2 and A.2 warned the deceased with dire consequences and also threatened to do away with his life. Thus, A.2 has got the motive to cause the death of the deceased but not the other accused. Moreover, according to the prosecution A.2 and A.3 instigated A.1, their son to cause the death of the deceased, but there is no evidence to establish the abetment caused by A.2 and A.3 to A.1, moreover A.2 and A.3 were acquitted by the trial Court for the said charge of abetment.
With regard to the occurrence of the incident, P.W.1, who is the son of the deceased, came to know about the incident through P.W.3. Therefore, he is not an eyewitness to the incident and he came after the incident and shifted his father to KGH, where the doctors declared him as dead, then he lodged Ex.P.1, complaint with the police. In Ex.P.1, he has narrated the entire incident as if he is an eyewitness to the incident. As per the said complaint Sabbi Pydamma and Bypilli Ramana witnessed the incident, but the prosecution has not examined the said Sabbi Pydamma as she is no more and they examined Bypilli Ramana as P.W.3.
P.W.2, who is resident of same locality, has stated that on 30.03.2004 at about 01.00 a.m. he heard the cries and came to the road and about 4 or 5 persons were present there and one Chiranjeevi was also present there along with others, then he asked the people regarding the incident, they replied that Simhachalam beat the deceased and the aid incident has occurred between 11.00 and 11.30 p.m. Therefore, P.W.2 is also not an eyewitness to the incident and his evidence is only hearsay evidence.
P.W.3 said to be the eyewitness to the incident has stated that the incident has occurred on 30.03.2004 at about 11.00 p.m. when he was taking meals he heard a sound from outside, then he came out of his house and found that the deceased was in pool of blood, and A.1 was running on seeing him. There is an iron rod in the hands of A.1. One Pydamma was also present there, then he raised cries loudly and brought some water and pour to the deceased. Ramarao, Suribabu and Sathibabu came there and took the deceased to K.G.H, and on the next day morning he came to know that the deceased died in K.G.H. In the cross-examination, he admitted that he stated before the police that on 30.03.2004 when he was sleeping in the house. He further admitted that he stated before police that the person, who beat the deceased, was running towards Kommadi junction with a rod. Therefore, P.W.3 has not witnessed A.1 beating the deceased, but he only found A.1 running away from the scene of offence with iron rod.
P.W.4 has found the deceased in a pool of blood and spoken about P.W.1 and others shifted him to K.G.H.
P.W.5 is another eyewitness to the incident. According to him on 30.03.2040 at about 11.45 p.m. when his scooter was punctured he came by auto and got down at Kommadi junction and going to his house by walk. Then A.1 came running in his opposite direction with a tension mood, then he questioned him why he is running, then A.1 replied that
his parents were ill-health, so he went to hospital. Then he proceeded to some distance and public gathered there and the deceased was in pool of blood. Public told that the accused killed him and he did not see the injury on the deceased. In the cross-examination he admitted that he has noted down the date and time of incident on his palm for his remembrance. He further admitted that he did not state to police that his scooter tyre was punctured and he came in an auto and then he saw the accused.
The investigating officer, P.W.12, also admitted in his crossexamination that P.W.5 did not state before him that when his scooter was punctured he came in auto to Kommadi junction and from there by walking to his house. According to him as per his investigation and statement of P.W.5 he came by bus to Kommadi on 30.03.2004 at about 11.45 p.m. Therefore, the factum of puncture of the tyre of the scooter of P.W.5 was not spoken by him and also his going to the scene in auto, then seeing the accused. Thus, in view of the omissions in the evidence of P.W.5, his evidence cannot be relied upon. Thus, the only circumstantial evidence available on record is the evidence of P.W.3. As already discussed above, P.W.3 also not seen the A.1 beating the deceased, but he only found the A.1 running away on seeing him and he found the deceased in a pool of blood. When the case of the prosecution is only based on circumstantial evidence, the motive for the accused plays an important role for connecting the link to the accused for the commission of offence. In the present case, as already observed above, the motive alleged by the prosecution for causing the death of the deceased is only for A.2, but not for other accused. No motive was attributed by the prosecution for A.1, on the other hand according to the prosecution A.2 and A.3 abetted A.1 to cause the death of the deceased, but they were acquitted by the trial Court.
The other circumstance to connect the accused with the commission of offence is the recovery of weapon at the instance of the
accused. P.W.8 is the mediator for arrest of A.1 and recovery of weapon. According to him on 28.05.2004 in the morning hours at 10.30 to 11.00 hours he went to the police station and the police informed him that the accused was brought from court for police custody and police examined him about the incident and A.1 confessed about the commission of offence and he drafted the confessional statement of A.1 and himself and police went to Chandana gardens and A.1 brought the iron road from the Chandana gardens and handed over the same to the C.I of police. He has drafted the seizure report, Ex.P.5. Accused also took them to the Sairam colony and brought one shirt from the bushes and C.I of police seized the same. M.O.7 is the iron rod seized by the police. In the crossexamination he has stated that he know the difference between the iron rod and pipe. M.O.7 is an iron pipe. He further admitted that the police never obtained his signature on M.O.7 and no identity slips were affixed on M.O.7 and the iron pipes like M.O.7 are available in the bazar. He further stated that there are no identification marks to say that the iron rod seized by the police and the iron rod present in the Court are one and the same and after seizure of M.O.7, Ex.P.5 was drafted at the police station. He further admitted that as per Ex.P.5 there are no blood stains on the M.O.7.
Investigating Officer, P.W.12, has stated that on 19.05.2004 on the orders of IX Metropolitan Magistrate, Bhimili he took A.1 from Sub-Jail, Bhimili for police custody for 2 days at 17.00 hours, then he secured the mediators P.W.8 and another and he recorded the confessional statement of A.1 in police station. On 20.05.2004 in pursuance of confessional statement of A.1, he along with mediators and his staff and A.1 proceeded to Chandana Flower Garden wall near some vacant place and A.1 searched the place and produced one iron pipe M.O.7 and shown to him and mediators and informed that he has used the same in the commission of offence. He seized M.O.7 under the cover of mediators report. Therefore, according to the investigating officer, M.O.7 is iron pipe.
In the cross-examination he admitted that in Ex.P.5, mediators report the presence of blood stains on M.O.7 is not mentioned and he further admitted that as per Ex.P.6, M.O.8 is having blood stains and as per Ex.P.12, R.F.S. report, M.O.7, iron rod contains blood stains, but there is no reference about M.O.8. Therefore, according to P.W.12, investigating officer, M.O.7 is iron pipe and according to P.W.8, mediator also M.O.7 is iron pipe, which was shown to him, but there are no identification marks to say that the iron rod seized by the police and iron rod in the Court are one and the same and no identification slips were affixed on M.O.7. Therefore, the identity of M.O.7, iron rod seized under Ex.P.5 was not established by the prosecution. Moreover, according to the investigating officer, P.W.12, he has sent the material objects to R.F.S.L. and received the report, Ex.P.12. As admitted by him as per Ex.P.12, blood was detected on the iron rod, M.O.7, whereas the presence of blood was not noted down in Ex.P.5, seizure report of M.O.7. Therefore, in the above circumstances, the prosecution could not establish that M.O.7 is the iron rod and the same was seized at the instance of the accused. Therefore, the prosecution has failed to prove the commission of offence by the accused. Moreover there is no motive for A.1 to commit the offence and the circumstantial evidence produced by the prosecution i.e. P.W.3 does not connect the A.1 with the commission of offence. Therefore, in the above circumstances it is not safe to convict A.1 solely basing on the evidence of P.W.3. Hence, A.1 is entitled to benefit of doubt.
In the result, the Criminal Appeal is allowed. The conviction and sentence passed in S.C.No.205 of 2007 on 31.07.2008 by the VII Additional Sessions Judge (F a s t Track Court) , Visakhapatnam against the appellant-A.1, for the offences punishable under Sections 302 and 201 IPC is hereby set aside. The appellant-accused No.1 is acquitted for the said charges and he shall be set at liberty forthwith, if he is not required in any other case.
JUSTICE N.V.RAMANA
_____________________________ JUSTICE P. DURGA PRASAD Date:27-07-2012 Ksp
2 issues framed by the court
Whether the prosecution could establish the charges of murder and causing death by relaxing suicidal trespass beyond reasonable doubt based on circumstantial evidence.
Whether the absence of motive for the appellant and failure to establish the identity of the recovered weapon warrants acquittal of the appellant.
3 provisions across 1 enactments
Accused No.1 (Appellant)
State
N.V. Ramana
P. Durga Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
