Allowed

Sivangula Srinivasa Rao, v. The State of A.P.

Telangana HC9 Oct 2012CRLA/1378/2008

Case brief

AI extract

What is this about?

This criminal appeal highlighted severe discrepancies in prosecution witness testimony regarding the lending of money, the sequence of events, and the exact location of the murder. The Court found the scene of offence panchanama contrary to oral evidence and the FIR delays unexplained. Due to failure to prove all ingredients of murder, the conviction was set aside.

What did the court decide?

Conviction and sentence under Section 302 IPC set aside; appellant-accused to be set at liberty forthwith.

Sivangula Srinivasa Rao, Vs The State of A.P. — Murder and Culpable Homicide | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD

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CRIMINAL APPEAL No.1378 of 2008

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JUDGMENT: (per the Hon’ble Sri Justice P.Durga Prasad)

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This appeal is directed against the conviction and sentence passed in S.C.No.48 of 2008 by the Sessions Judge, Guntur on 29.07.2008.

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The appellant herein is the sole accused and he was prosecuted for the offence under Section 302 of the Indian Penal Code, 1860 (for short “IPC”).

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According to the prosecution, PW.1 and the accused belong to Emmajigudem village and the deceased is the son of PW.1. PW.1 lent an amount of Rs.10,000/- as hand loan to the accused two months back on assurance that he can repay the same within ten days, but the accused did not repay the same. On 07.11.2007 at about 6.00 p.m. while PW.1 proceeding towards high school bazaar to secure coolie workers for yielding the cotton crop, met with the accused at the school and PW.1 asked him about the repayment of the debt. The accused made a quarrel with PW.1 and beat him with hands and threatened him with dire consequences. PW.1 escaped from his clutches and returned to his house but the accused did not leave him and came to his house by yielding a knife and abusing PW.1 by staying outside the house. On hearing the abuses, PW.2, the daughter of PW.1, came out and questioned the accused about his abuses. The accused forcibly pushed her. On witnessing the same, PW.1 and deceased rushed to the spot and when they tried to rescue PW.2, the accused stabbed in the heart of the deceased with knife. On seeing the same, PWs.3 to 6 rushed to the spot and on seeing them the accused ran away. The deceased was shifted to hospital in a tractor and on the way he succumbed to injuries

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near Papayapalem village. On the written report of PW.1, PW.10 has registered the case in Cr.No.79 of 2007 under Section 302 of IPC and issued the FIR. Thereafter, PW.11 took up the investigation and inspected the scene of offence in the presence of PW.8 and another and seized the blood stained earth, control earth under cover of panchanama. He held inquest over the dead body of the deceased in the presence of said mediators and sent the dead body for post mortem examination to the Government Hospital, Sattenapalli. PW.7, the doctor, who conducted autopsy over the dead body of the deceased, opined that the deceased died due to stab injury passing into right atrium of heart. PW.11 arrested the accused on 12.11.2007 at 3.00 p.m. at Bellamkonda cross roads in the presence of PW.9 and another and in pursuance of the confession seized the blood stained iron knife, which was used in the commission of the offence and sent him to judicial custody. He sent the said seized material objects to the RFSL, Guntur for chemical analysis and after completion of the investigation, filed the charge sheet against the accused.

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The Sessions Judge has framed the charge under Section 302 of IPC against the accused and the accused pleaded not guilty for the said charge.

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The prosecution in order to establish the said charge examined P.Ws.1 to 11 and got marked Exs.P-1 to P-11 and MOs.1 to 8. No oral evidence was adduced by the accused but Ex.D-1 was marked on his behalf in defence.

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Taking into consideration of said oral and documentary evidence, the Sessions Judge found the accused guilty for the charge under Section 302 of IPC and convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for one year.

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Aggrieved by the said conviction and sentence, the present

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appeal is filed.

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Now the point that arises for consideration is whether the prosecution could establish the charge under Section 302 of IPC against the accused beyond reasonable doubt?

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POINT:

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The counsel Smt.A.Gayathri Reddy, appearing for the appellant, has pleaded that the prosecution could not point out the exact scene of offence as there is a variation from the evidence of PWs.1 to 3 and the mediator for the scene of offence and the rough sketch drawn by the investigating officer. She further pleaded that PWs.1 and 2 are interested witnesses and the evidence of independent witnesses i.e. PWs.3 to 6, is contrary to each other and as such their evidence cannot be relied upon. She further pleaded that there is a delay in lodging the complaint and sending the same to the Magistrate Court and thereby the FIR was created subsequently after due consultation with the political party to which the witnesses belong to.

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The Additional Public Prosecutor, on the other hand, has pleaded that PWs.1 and 2 are the probable witnesses and even though they are interested witnesses, their evidence cannot be discarded and their evidence was supported by the independent eye witnesses PWs.3 to 6 and there is no variation in the scene of offence and the scene of offence is at a distance of 100 feet from the house of PW.1 and the weapon used by the accused in the commission of the offence was also recovered at the instance of accused in pursuance of his confession and the same was found containing human blood and as such the prosecution could able to establish the charge under Section 302 of IPC against the accused.

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According to the prosecution, PW.1 lent an amount of Rs.10,000/as hand loan to the accused and when he met the accused near the school on 07.11.2007 at 6.00 p.m. PW.1 asked him to repay the said

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amount. Instead of returning the same amount, the accused made a quarrel with PW.1 and beat him with hands and threatened him with dire consequences. Thereupon PW.1 came back to his house and the accused followed him by yielding a knife, started abusing him by standing in front of the house and PW.2 questioned the accused abusing her father. The accused forcibly pushed her. Then PW.1 and his son, the deceased, came to rescue PW.2, then the accused stabbed the deceased with a knife on the chest and the same was witnessed by PWs.3 to 6.

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The motive for the accused to commit the offence is PW.1 demanding the accused the return of the amount lent to him. According to PW.1, he lent Rs.10,000/- to the accused on his assurance to repay the amount within ten days but he did not repay the same. On the date of incident, while he was going in the bazaar for talking to the labourers for plucking cotton, he met the accused near the school and demanded him for return of the said amount as he was not having money for payment to the labourers. According to him, earlier also four or five times, he has demanded for the said money. In the cross-examination he has stated that he does not remember the exact month, during which he lent Rs.10,000/- to the accused but it was about two months prior to the occurrence of the incident. Except himself and his son, none were there when he lent the amount to the accused. Therefore, PW.1 could not state the date of lending the money to the accused.

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PW.2, the daughter of the PW.1, even though she is not an eye witness to the occurrence that has taken place at the school, has stated about PW.1 demanding the accused for payment of Rs.10,000/- lent by him and in the cross-examination she has admitted that she has no personal knowledge about the quarrel took place between her father and accused near the school regarding the amount.

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PW.3, who is the nephew of PW.1, has admitted in the crossexamination that one month prior to the offence, PW.1 informed him that

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he lent Rs.10,000/- to the accused and in spite of his demand the accused has not repaid the same.

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Admittedly, PW.1 has not disclosed about his lending the amount to anybody except to his deceased son and it is not the case of PW.1 that he has informed PW.3 about lending the amount. According to PW.1, he lent the amount two months prior to the occurrence, whereas PW.3 has stated that he lent the amount one month prior to the occurrence of the incident and PW.1 could not say the date or month of his lending the amount to the accused, the PW.1 lending the amount to the accused is doubtful. Moreover, simple demand to return of the amount borrowed from PW.1 cannot be said to be the motive for the accused to commit the offence.

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According to the prosecution, when PW.1 has questioned the accused about the repayment of the said amount and when he met him at the school, he abused him and beat him with hands, thereupon PW.1 rescued himself and came to his house and the accused came to the house of PW.1 and the accused started abusing by holding a knife and when PW.2 objected for abusing her father, he pushed her aside and when deceased came to her rescue, the accused stabbed the deceased on his chest. The same was stated by PW.1 in his chief examination and the same was supported by PW.2, the daughter of PW.1 and the sister of the deceased. Whereas, PW.3 has stated that on 07.11.2007 at 6.30 p.m. he was in the house and on hearing the cries from the bazaar he came out and saw the accused coming towards the house of PW.1 with a knife in his hand and abusing PW.1. On hearing his cries, PW.2 and the deceased came out and questioned the accused as to why he beat PW.1. At the same time PW.1 also came out of the house and PW.2 questioned the accused as to why he tore off the shirt of PW.1. Then the accused pushed her aside and then stabbed the deceased with a knife on his chest, consequently deceased fell on the ground and they took him in his DCM van to Sattenapalli for treatment but on the way at Papayapalem he succumbed to injuries. Therefore, the

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evidence of PW.3 is not consistent with the evidence of PWs.1 and 2 with regard to the accused coming to the house of PW.1 and PW.1 coming out of the house and questioning the accused and no reason was stated why the accused has stabbed the deceased.

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PW.4, who is said to be an eye witness to the incident, has stated that the deceased was killed on 07.11.2007 at 6.00 p.m. on that day himself and some other labourers were distributing the wages earned by them by the side of the house of PW.1. He heard the cries and came to the house of PW.1 and seen the accused stabbing the deceased with a knife and running away. In the cross-examination he admitted that there are about 10 to 15 houses in between his house and the house of PW.1. He denied the suggestion that the distance between his house and that of PW.1 is one kilometer but he admitted that it is 3/4^th KMs. The investigating officer, PW.11 admitted that PW.4 did not state before him that when himself and other labourers were sharing the wages the incident has occurred. According to PW.11, PW.4 has stated before him as in Ex.D-1 and Ex.D-1 is to the effect that while he was standing in front of his house, he heard the cries. Therefore, the evidence of PW.4 is an improvement with regard to hearing the cries when they were sharing the wages earned by them at the time of incident. Therefore, his presence at the place at the time of incident is doubtful and moreover his house is at a distance of 3/4^th kilometer from the house of PW.1.

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The other eye witness is PW.5 and according to him, on the date of incident at about 6.00 p.m. he has seen the accused abusing PW.1 by standing in front of the house of PW.1, when PW.1 questioned him he tried to stab him but he escaped. Then he stabbed the deceased with a knife. The witness says that having heard the abuses PW.2 intervened and questioned the accused as to why he was abusing her father and then the accused pushed her away and when the deceased intervened the accused stabbed him with a knife. PW.5 at the first instance has stated about PW.1 questioning the accused and the accused tried to

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stab him, which is not the case of PWs.1 and 2 but subsequently he tried to cover up his lapse by stating that PW.2 has questioned the accused for his abusing her father and then he pushed her and stabbed the deceased when intervened.

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PW.6, who is another eye witness to the incident, stated that on the date of incident at about 6.30 p.m. when he was in his house, he heard the cries of the accused, he saw the accused abusing PW.1 and he went there and PW.2 came out of the house and questioned the accused as to why he is abusing her father, then the accused pushed her, seeing the same the deceased intervened and questioned the accused, immediately the accused stabbed the deceased with the knife on the chest causing bleeding injuries.

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PW.11 stated that PW.6 has not stated before him about the deceased questioning the accused and intervening to save PW.1. He also disclosed that his house is intervened by two houses from the house of PW.1. Therefore, the evidence of PWs.3 to 6 is not corroborating with each other with regard to the occurrence of the incident. Thus, the only evidence available on record is the evidence of PWs.1 and 2. PW.2, the daughter of PW.1 and sister of the deceased, she was married and she was staying with her husband at Gudavelli. According to PW.1 she came to see him on the date of incident and PW.2 has stated in her cross-examination that she came to the house to see her parents, one day prior to the occurrence and her husband has dropped her at her parents’ house and went away. But whereas PW.3 in his cross-examination has stated that PW.2 came to her parents’ house two days prior to the occurrence from her in-laws house at Sattenapalli and she alone came having been brought by PW.1. Therefore, the evidence of PWs.1, 2 and 3 with regard to PW.2 coming to the house of PW.1 is doubtful.

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According to the prosecution, the incident has taken place in front of the house of PW.1. PWs.1 and 2 admitted about the occurrence of

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the incident in front of their house when the accused started abusing PW.1 by standing in front of the house with a knife and PW.3 has also admitted in the cross-examination that the blood has fallen in front of the house of PW.1, and PW.4 has stated that the deceased fell on the floor in front of his house, and PWs.5 and 6 have also stated that the incident has taken place in front of the house of PW.1. According to the investigating officer, PW.11, who has conducted the scene of offence panchanama, has reached the scene of offence at Emmajigudem, which is in front of the house of Rudrala Venkateswarlu and he has prepared the rough sketch of scene of offence Ex.P-8. He further stated that the house of PW.1 is situated opposite to the house of Rudrala Venkateswarlu and was separated by a cart road. The scene of offence is in front of both the houses but in the cross-examination he admitted that as per the rough sketch Ex.P-8, the scene of offence is shown opposite to the house of Rudrala Venkateswarlu S/o Narayana and he further admitted that opposite to the house of Rudrala Venkateswarlu, the house of Rudrala Venkateswarlu S/o Ramaiah is situated. He denied the suggestion that the distance between the house of PW.1 and the scene of offence is about 250 feet but admitted that it is only 100 feet and he further admitted that the record does not show that the house of PW.1 is opposite to the house of Rudrala Venkateswarlu S/o Narayana. He further admitted that he has seized blood stained earth from the scene of offence, which is opposite to the house of Rudrala Venkateswarlu S/o Narayana. Ex.P-8 discloses that the scene of offence is shown in front of both the houses of Rudrala Venkateswarlu S/o Ramaiah and Rudrala Venkateswarlu S/o Narayana, which are opposite to each other, and in between the houses of said Rudrala Venkateswarlu S/o Narayana and PW.1, there is a dilapidated house and the house of PW.1 is not opposite to the house of Rudrala Venkateswarlu S/o Narayana. Therefore, the scene of offence as per Ex.P-8 is not in front of the house of PW.1 and as admitted by PW.11, it is at a distance of 100 feet. Whereas the oral evidence of PWs.1 to 6 shows that the incident has taken place in front of the house of PW.1

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and the deceased fell down in front of the house of PW.1 and there are blood stains in front of the house of PW.1. Therefore, the scene of offence panchanama and the rough sketch are contrary to the oral evidence with regard to the scene of offence. Therefore, the prosecution failed to establish the actual place of scene of offence.

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The appellant counsel has pleaded that there is a delay in lodging the complaint and also delay in sending the FIR to the Court.

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According to PW.1, after the incident they took the deceased in a DCM van to Sattenapalli for treatment but on the way he died at Papayapalem and they took back the dead body and placed it in front of his house. The lorry driver left the place and at about 3.30 a.m. one auto came and in that auto himself, PW.3 and PW.5 went to Bellamkonda police station and presented the report Ex.P-1. In the cross-examination he has stated that he is an illiterate and one constable drafted Ex.P-1 report in the police station. He cannot say his name or number. They went to the police station at about 4.00 a.m. and it took one hour for the constable to examine them and draft the report. He also read over the contents to him, then he gave it to the S.I. of Police and came back at 7.00 a.m. Apart from himself, PWs.3 and 4 were present in the police station.

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According to PW.10, the Sub-Inspector of Police, on 08.11.2007 at about 4.00 a.m. PW.1 came to the police station and reported orally about the murder of his son and one constable of their police station reduced the statement into writing and took his thumb impression. Ex.P1 is the statement recorded on that day. On the basis of Ex.P-1, he registered the case in Cr.No.79 of 2007 under Section 302 of IPC. In the cross-examination he admitted that he has not mentioned the number of police constable, who wrote the contents of Ex.P-1. In all, three persons came including PW.1 to the police station to report the matter on that day. He does not remember the names of other two

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persons, who came along with PW.1 and he does not know the conveyance used by them for coming to police station. He further admitted that the distance between Sattenapalli and Bellamkonda is about 20 KMs. It takes about half an hour to cover the distance by motorcycle or by bus. He sent the FIR through a constable at 6.00 a.m. to hand it over to the Junior Civil Judge at Sattenapalli. The endorsement on Ex.P-7, the FIR, shows that it was received by the Magistrate at 10.30 a.m. He further admitted that he himself got it written in column No.8 that due to lack of conveyance PW.1 could not give the report early. According to PWs.1 to 3, the incident has taken place at about 6.00 or 6.30 p.m. on 07.11.2007 but the report was given on 08.11.2007 at 4.00 a.m. and no reasons were stated in the Ex.P-1 about the delay in lodging the complaint but in the FIR Ex.P-7 it was mentioned that the delay was occurred due to lack of conveyance to PW.1. According to PW.1, after the occurrence of the incident, he shifted his son in a lorry to Piduguralla for treatment but he died on the way and took back the dead body and keep it in front of his house and the lorry driver left the place. PWs.1 and 5 came to the police station in the auto. In the cross-examination he admitted that PW.3 is having one DCM van and his injured son was taken in the same lorry but PW.3 even though stated in the chief examination that they took the deceased in his DCM van to Sattenapalli for treatment, in the cross-examination he has stated that since tomato load has to be transported in the DCM lorry on that night, they did not go in that lorry to Bellamkonda. After tomatoes were unloaded the DCM van came to their village and in that lorry they went to the police station and he further admitted that autos will be plying in the village upto 7.00 or 7.30 p.m. and he further admitted that one auto is there in the village by that time and again says that now one auto is there and as on the date of incident, there are no autos at all. PWs.5 and 6 in their cross-examination have stated that they do not know to whom the lorry belongs to, in which the dead body was taken for treatment and PW.1 did not specify any reasons for the delay in lodging the complaint with the police but according to him, at

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3.30 a.m. he could secure one auto, that itself shows there are autos in the village as on the date of incident as admitted by PW.3 in the crossexamination. Moreover the alleged statement Ex.P-1 said to have been recorded by the police constable on the information furnished by PW.1, but the Ex.P-1, as admitted by PW.10, it does not disclose that it was scribed by a police constable. Moreover it is not a statement of PW.1 recorded by anyone, but it shows as a complaint addressed to the SubInspector of Police, Bellamkonda Police Station. Even if it is admitted that due to lack of conveyance, PW.1 could not lodge the complaint at 4.00 a.m. The investigating officer could not explain the reason for the delay in sending the FIR to the Court. Admittedly, there is a delay of about 6 ½ hours after registering of the crime in sending the said FIR to the Court. PW.10 has admitted that the Court at Sattenapalli is at a distance of 20 KMs, which can be covered within half an hour by a motorcycle or by bus and admittedly he has handed over the said FIR to the constable at 6.00 a.m. and admittedly, it was received at 10.30 a.m. Even then there is 4 ½ hours delay in sending the FIR to the Court. Therefore, the contention of the appellant’s counsel that the FIR was drafted subsequently after visiting of PW.11 to the scene of offence and after due consultations, the said complaint was drafted to suit their case, appears to be probable.

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From the evidence of PW.7, the deceased died due to stab injury passing into right atrium of heart. The said injury sustained by the deceased was supported by the evidence of PWs.1 to 6 and also the mediator for inquest PW.8. Thus, the prosecution could able to establish that the death of the deceased is a homicidal death, but, as discussed above, the prosecution could not establish that the said injury was caused to the deceased by the accused.

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Therefore, in view of the above discrepancies, as discussed above, the prosecution has failed to establish the charge under Section 302 of IPC against the accused and the findings recorded by the trial

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Court in convicting the accused for the offence under Section 302 of IPC is liable to be set aside.

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In the result, the Criminal Appeal is allowed and the conviction and sentence passed in S.C.No.48 of 2008 by the Principal Sessions Judge, Guntur for the offence under Section 302 of IPC, is hereby set aside and the appellant-accused shall be set at liberty forthwith, if he is not required in any other case.

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__________________ JUSTICE N.V.RAMANA

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______________________ JUSTICE P. DURGA PRASAD Date: 09-10-2012 MR.

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THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD

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CRIMINAL APPEAL No.1378 of 2008

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Date: 09-10-2012

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Sivangula Srinivasa Rao, v. The State of A.P.

Case brief

What is this about?

What did the court decide?

Sivangula Srinivasa Rao, v. The State of A.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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