The High Court quashed the conviction of Appellant-A2 in a murder case, holding that the prosecution failed to prove his participation beyond reasonable doubt, while confirming A1's conviction.
Appellant-A2 is acquitted; Appellant-A1's conviction and sentence are confirmed.
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 HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
(Special Original Jurisdiction)
TUESDAY, THE TENTH DAY OF JULY TWO THOUSAND AND TWELVE
PRESENT THE HON'BLE SRI JUSTICE N.V.RAMANA AND
THE HON'BLE SRI JUSTICE P.DURGA PRASAD
CRIMINAL APPEAL No.963 of 2008 AND CRIMINAL APPEAL No.1086 of 2009
CRL.A.No.963 of 2008 Between: Kolipyaka Gajjaram @ Devidas
. .Appellant-A2 And
The State of A.P. represented by its Public Prosecutor, Hyderabad.
.. Respondent-
Complainant
CRL.A.No.1086 of 2009 Between: Surneeda Sayanna @ Myadari Sayanna
. .Appellant-A1 And
The State of A.P. represented by its Public Prosecutor, Hyderabad.
.. Respondent-
Complainant
HONOURABLE SRI JUSTICE N.V.RAMANA AND
HONOURABLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No.963 of 2008 AND
CRIMINAL APPEAL No.1086 of 2009
COMMON JUDGMENT:
(Per. Hon’ble Sri Justice N.V.Ramana)
These two criminal appeals are being disposed of by this common judgment since Crl.A.No.1086 of 2009 filed by A-1 and Crl.A.No.963 of 2008 filed by A-2 are directed against the very same judgment of the learned I-Additional Sessions Judge, Adilabad, in S.C.No.211 of 2005 dated 26.02.2008, whereby the appellants-A1 and A2 were convicted for the offences under Sections 302 read with Section 34 of I.P.C. and 201 of I.P.C. and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.1,000/- each, in default to suffer simple imprisonment for three months each, for the offence under Section 302 read with Section 34 of I.P.C. and they were further sentenced to undergo rigorous imprisonment for One year and also to pay a fine of Rs.500/- each, in default to suffer simple imprisonment for three months each, for the offence under Section 201 of I.P.C. while making it clear that the sentences imposed against them shall run concurrently.
The case of the prosecution, in brief, is that one Bayagadi Babu (hereinafter referred to as the deceased) and A-1 and A-2 are residents of Mahagaon village of Bhainsa Mandal. The deceased was habituated to consume toddy and after consuming toddy he used to attend calls of nature in between 7.00 and 7.30
P.M. in the bushes situated nearby the school. A-1 and A-2 are friends. A-1 had no issues and as such his wife developed illegal contacts with the deceased and the same was noticed by A-1 and as such A-1 developed grudge against the deceased and informed the same to A-2, and both of them decided to kill the deceased.
While so, on 20.11.2004 at about 7.00 P.M. when the deceased as usual left to attend calls of nature in the bushes at the school near the hand-bore pump, A-1 and A-2 came there and attacked the deceased. A-2 caught hold of the legs of the deceased and dragged him, as a result of which, he fell down on the ground and then A-1 axed the deceased on his neck and waist causing instantaneous death. They cut the dead body of the deceased into three pieces i.e., head, trunk and legs. They threw two pieces (trunk and legs) in the field of Kompally Babu and the head portion in a dried up Well of Kulkarni Manohar Rao. A-1 also cut the penis of the deceased with an axe and removed the clothes and threw them in different places. They also removed two rings, one silver hand Kadiyam and one wrist watch from the deceased and threw them in the bushes and A-1 hid the axe in his cattle shed. Subsequently, to conceal the evidence, the dead body of the deceased was shifted from the place of occurrence.
On 24.11.2004 at 11.00 hours, P.W.1, the brother of the deceased, lodged a complaint before the Sub Inspector of Police, Bhainsa Rural Police Station, who in turn registered a case in Crime No. 89 of 2004 for the offences under Sections 302 and 201 of I.P.C. Subsequently P.W.10-Inspector of Police, Bhainsa Police Station took up investigation. During the course of investigation, he visited the scene of offence, drafted scene of offence panchanama in the presence of P.W.7, examined the witnesses and recorded their statements, got photographed the dead body of
the deceased, held inquest over the dead body of the deceased (without head) in the presence of P.W.7 and seized the Silver hand Kadiyam of the deceased from nearby bushes and also other material objects. Subsequently, P.W.9-Doctor, who conducted autopsy over the dead body of the deceased, opined that the death was due to shock and haemorrhage, as a result of multiple injuries. Subsequently, P.W.10 arrested A-1 on 25.11.2004 at 2.00 P.M., and on interrogation in the presence of P.W.8 and others, A- 1 voluntarily confessed the commission of offence along with A-2 and his confession statement was recorded. He seized the blood stained clothes and the weapon used in the commission of offence from the possession of A-1 and after completion of investigation filed charge sheet against the accused for the offences punishable under Sections 302 and 201 of I.P.C.
The learned I-Additional Sessions Judge, Adilabad, has framed the charges under Sections 302 read with Section 34 of I.P.C. and 201 of I.P.C. against A-1 and A-2 and the accused pleaded not guilty for the said charges.
The prosecution, in order to establish the said charges against the accused, examined P.Ws.1 to 10, got marked Exs.P1 to P16 and M.Os.1 to 8. No oral or documentary evidence was adduced on behalf of the accused.
The learned I-Additional Sessions Judge, taking into consideration of the said oral and documentary evidence, found A- 1 and A-2 guilty for the offences under Sections 302 read with Section 34 of I.P.C. and 201 of I.P.C. and accordingly convicted and sentenced them as stated supra.
Aggrieved by the said conviction and sentence, the present appeals are filed by A-1 and A-2. Learned Counsel appearing on behalf of the appellant-A-1
has submitted that the alleged confession made by A-1 before police is not admissible in evidence and as such, conviction of the accused based on such confession is bad. He further submitted that there is no proper identification of the dead body as that of the deceased and therefore, the trial Court erred in coming to the conclusion that the headless body is that of the deceased by relying on the evidence of P.Ws.1 to 6.
Learned Counsel appearing on behalf of the appellant-A2 has submitted that there is absolutely no eyewitness to the incident and the circumstantial evidence relied upon by the prosecution do not form a chain of events to connect the accused with the commission of the crime. There is also no motive or enmity proved by the prosecution between A-2 and the deceased. He further submitted that there is no evidence even in regard to the identification of the body of the deceased.
Learned Additional Public Prosecutor, on the other hand, contended that there is sufficient material to show that the appellants-A1 and A2 were responsible for the commission of offence and therefore the conviction and sentence passed by the trial Court is justified and it does not warrant any interference by this Court.
Now the point that arises for consideration is - whether the prosecution could establish the charges framed under Sections 302 read with Section 34 of I.P.C. and 201 of I.P.C. against the appellants-A1 and A2 beyond all reasonable doubt?
P.W.1 is the brother of the deceased, who is said to have lodged Ex.P1-report before police. P.W.2 is the wife of the deceased. P.W.3 and P.W.4 are circumstantial witnesses. P.W.5 and P.W.6 are neighbours of the deceased. P.W.7 is the mediator for Ex.P2-Inquest report and also Ex.P3-seizure panchanama.
P.W.8, the Mandal Revenue Officer, is the panch witness for Ex.P4-Confession Panchanama of A-1 and recovery of M.Os.1 to 6. P.W.9 is the Doctor, who conducted post mortem examination over the dead body of the deceased. P.W.10 is the Inspector of police, who conducted investigation and filed charge sheet against the accused.
After going through the entire evidence, both oral and documentary, coupled with Ex.P9-Postmortem report of P.W.9Doctor, it amply proves that the death of the deceased was homicidal in nature. In view of the same, it has to be examined whether the appellants-A1 and A2 are responsible for the death of the deceased or not.
There is no direct evidence to substantiate the case of the prosecution. However, the entire case solely rests upon circumstantial evidence. In a case of this nature, the chain of circumstances has to be examined so as to connect the accused with the commission of offence beyond all reasonable doubt.
P.W.1, the brother of the deceased, stated in his evidence that about two years back at about 7.00 P.M. his deceased brother left the house for attending calls of nature, but he did not return back to home and three days thereafter one K.Yerranna (L.W.11), a villager, informed them that bad smell was emanating at the field of one K.Babu and then they went there and found part of the right hand with tattoo mark and they identified the same to be that of his brother and thereafter they dug the pit and found the dead body without head. According to P.W.1, the wife of the deceased used to tell them that the deceased was having illicit intimacy with the wife of A-1 and that A-1 and A-2 were found absconding from the village from the date of death of the deceased.
P.W.2, the wife of the deceased, supported the version of
P.W.1. P.W.3, who is working as a cook in a school, also stated that on the information given by L.W.11 he went and saw the dead body of the deceased without head in the field of one K.Babu and that he too suspected that A-1 and A-2 are responsible for the incident. P.W.4 stated that on the information given by one K.Babu, owner of the field, he went and saw the dead body without head and that he got suspicion that A-1 might have killed the deceased. P.W.5, neighbour of the deceased, stated that after coming to know that the dead body of the deceased was lying in the field of one K.Babu, he went and found the dead body without head and that the deceased got illicit intimacy with the wife of A-1.
P.W.6, the neighbour of the deceased, stated that he found the dead body of the deceased in three parts in the field of one K.Babu and having seen the tattoo mark similar to his name on the hand of the deceased, he identified the same to be that of the deceased. According to him, the deceased was having illicit intimacy with the wife of A-1.
P.W.7 is a panch witness. According to him, inquest over the dead body of the deceased was conducted in his presence under Ex.P2-Inquest panchanama and he found the dead body of the deceased in two pieces and the penis was cut off. He came to know that the deceased had illicit intimacy with the wife of A-1 and that A-1 killed the deceased with the help of A-2.
The entire case rests upon the evidence of P.W.8-Mandal Revenue Officer, in whose presence A-1 is said to have made a confession about the commission of offence along with A-2. According to P.W.8, on interrogation A-1 confessed that the deceased was having illegal intimacy with his wife and that he killed the deceased at the field of one K.Babu and at his instance the head of the deceased and blood stained clothes along with axe
were seized by the police. P.W.8 further deposed that panchanama Ex.P5 is for recovery of head of the deceased, Ex.P6 is for recovery of an axe, Ex.P7 is for seizure of controlled earth and blood stained earth which were prepared by the police.
From a perusal of the aforesaid evidence, it is clear that with the aid of Tattoo mark on the right hand, P.Ws.1 to 6 could identify to be that of the deceased. The same was also supported by Ex.P2-Inquest report, Ex.P5-seizure panchanama for recovery of head of the deceased. If that being the case, the question of non-identification of the dead body as that of the deceased does not arise. Therefore, the contention of the learned Counsel for the appellants-accused that there was no proper identification of the dead body of the deceased cannot be sustained.
In so far as the role played by Accused No.1 is concerned, it is the case of the prosecution that the deceased was having illegal intimacy with the wife of A-1. A-1 having noticed the same developed grudge against the deceased, and ultimately he killed the deceased. A perusal of the entire evidence of P.Ws.1 to 6 reveals that there was illicit intimacy between the deceased and the wife of A-1. Though their evidence is hearsay, but P.W.2 being the life-partner of the deceased is the correct person who knows about the acts of her husband in the routine course of life. P.W.2 has categorically stated in her evidence that the house of A-1 was adjacent to her house and her deceased husband had illicit intimacy with the wife of A-1 and in that regard, A-1 bore a grudge against the deceased. Therefore, there is every reason to believe that there was a strong motive on the part of Accused No.1 to commit the offence.
According to the prosecution, Accused No.1 was interrogated in the presence of P.W.8-Mandal Revenue Office,r
and at the instance of A-1, head of the deceased and the axe were recovered. P.W.8-Mandal Revenue Officer, has stated that, on interrogation, A-1 confessed that the deceased was having illicit intimacy with his wife and that he killed the deceased, and at his instance, the head of the deceased and blood stained clothes along with axe were recovered by the police. Therefore, the chain of circumstances i.e., motive, recovery of the parts of the dead body and the weapon used for the commission of the offence amply prove that it is Accused No.1 who alone had caused the death of the deceased, by cutting his body into pieces, and to screen the evidence of murder he concealed the dead body of the deceased.
Therefore, we have no hesitation to hold that the prosecution could establish the guilt of Accused No.1 for the offences punishable under Sections 302 read with Section 34 of I.P.C. and 201 of I.P.C. beyond all reasonable doubt and the trial Court is justified in convicting Accused No.1 for the said charges.
However, in so far as the role played by Accused No.2 is concerned, except making a bald allegation in the charge sheet that A-1 took the assistance of A-2, who is his friend, for committing the murder of the deceased, the prosecution did not adduce any evidence to prove the same. Apart from that, P.Ws.1 to 6 have not deposed about any enmity or at least differences between A-2 and the deceased. In the absence of any such whisper, merely because A-2 is a friend of A-1, it cannot be said that A-2 had assisted A-1 in the commission of the offence.
That apart, P.Ws.1 and 2 have stated that A-1 and A-2 were found absconding from the village immediately after the occurrence. But, in our considered view, mere absconding or their absence from the village, at the relevant point of time, cannot be a
ground to infer that A-2 had participated in the commission of the offence along with A-1. Further, except the alleged confession made by a co-accused before the police, which is not admissible in evidence, there is no evidence placed by the prosecution to prove the involvement of A-2. Therefore, we have no hesitation to hold that the prosecution has miserably failed to establish the guilt of A-2 for the charges punishable under Sections 302 read with Section 34 of I.P.C. and 201 of I.P.C. beyond all reasonable doubt and as such Accused No.2 is entitled to the benefit of doubt and thereby he is entitled to be acquitted.
In the result, the Criminal Appeal No.963 of 2008 is allowed and the conviction and sentence passed by the I-Additional Sessions Judge, Adilabad, against the Appellant-Accused No.2 for the offences punishable under Sections 302 read with section 34 of I.P.C. and 201 of I.P.C, in Sessions Case No.211 of 2005 dated 26.02.2008, is hereby set aside and he is acquitted of the said offences and he shall be set at liberty forthwith, if he is not otherwise required in any other case. The fine amount, if any, paid by the Appellant-Accused No.2 shall be refunded to him.
However, the Criminal Appeal No.1086 of 2009 is dismissed confirming the conviction and sentence imposed by the trial Court against the Appellant-Accused No.1 for the offences punishable under Sections 302 read with section 34 of I.P.C. and 201 of I.P.C.
________________________ JUSTICE
N.V.RAMANA
____________________________ JUSTICE P.DURGA PRASAD
10.07.2012 Gsn
3 issues framed by the court
Whether the prosecution could establish the guilt of Appellant-A2 for murder beyond reasonable doubt based on circumstantial evidence.
Whether the absence of enmity or direct evidence regarding Appellant-A2's participation permits acquittal despite conviction.
Whether the conviction of Appellant-A1 for murder requires confirmation or setting aside.
2 provisions across 1 enactments
Kolipyaka Gajjaram @ Devidas
Surneeda Sayanna @ Myadari Sayanna
The State of Andhra Pradesh
N.V.Ramana
P.Durga Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
