Allowed

Soyyari Sukharayya, v. The State of A.P.

Telangana HC8 Oct 2012CRLA/1444/2008

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a conviction for murder and house-trespass. The court held that unexplained delay in lodging the complaint, inconsistencies in medical evidence regarding fatal injuries, and doubtful identification evidence created reasonable doubt, requiring acquittal.

What did the court decide?

The conviction and sentence are set aside; the appellant-accused is to be released forthwith if not involved in any other case.

Soyyari Sukharayya, Vs The State of A.P. — Murder and Culpable Homicide | Telangana HC (2012)

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THE HONOURABLE SRI JUSTICE N.V. RAMANA AND THE HONOURABLE SRI JUSTICE P. DURGA PRASAD

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Criminal Appeal No. 1444 of 2008

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Judgment: (Per Justice P. Durga Prasad)

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This criminal appeal is directed against the judgment dated 26.09.2008, passed by the II Additional Sessions Judge (Fast Track Court) at Parvathipuram, Vizianagaram District, convicting the appellant-accused for the offence punishable under Sections 449 and 302 I.P.C., and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs.100/-, in default to suffer simple imprisonment for one month, for the offence under Section 302 I.P.C. and to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs.100/-, in default to suffer simple imprisonment for one month, for the offence under Section 449 I.P.C.

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The case of the prosecution in brief is that the accused is a resident of Yeguvagotturu village, which is situated within the limits of Pachipenta Police Station. The deceased, namely Sebi Thammayya is the son of P.W.1 and Chinammi, who are also residents of Yeguvagotturu village. P.W.2, namely Sebi Mangamma is the wife of one Sebi Dasu, who is the eldest son of P.W.1 and Chinammi. Sebi Dasu died about three years back, and after his death, the deceased kept P.W.2 as his wife. The accused, who is aggressive in nature, forced P.W.2 to have illicit intimacy with him, and despite her protest, the accused did not pay any heed. In that regard, about a week prior to the incident, the accused and the deceased quarreled with each other.

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While so, on the night of 16/17.03.2008, the deceased slept in the varandah of the house of P.W.3. P.W.3 also slept in the same varandah. At midnight, the accused trespassed into the varandah and

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stabbed the deceased with a knife on his abdomen and killed him. P.W.3 raised cries, and immediately, several people rushed to the spot, chased the accused and caught hold of him.

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On the report given by P.W.1, P.W.9 registered a case in Crime No. 10/2008 under Section 302 I.P.C. on the file of Pachipenta Police Station. Thereafter, P.W.12 took up investigation.

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During the course of investigation, P.W.12 seized control earth, blood stained earth, blood stained clothes and knife from the scene of offence at 6.30 a.m. on 18.03.2008 in the presence of mediators, namely P.W.8 and Adaiah. On the same day, he arrested the accused at 16.00 hours near the tamarind tree towards the west of Yeguvagotturu village, and on interrogation, he confessed to the commission of the crime in the presence of P.W.8 and Adaiah. Thereafter, he seized the clothes of the accused under cover of mediators report. P.W.6-the Medical Officer, CHC, Salur, conducted post-mortem examination over the dead body of the deceased and opined the cause of death of the deceased as due to haemorrhage shock. Thereafter, P.W.12 forwarded the seized material objects to P.W.11-the Assistant Director, Regional Forensic Laboratory, Visakhapatnam, through a Police Constable for analysis. P.W.11, having analyzed the same, issued analysis report dated 19.05.2008. Thereafter, P.W.12 filed charge sheet against the appellant-accused for the offences punishable under Sections 448 and 302 I.P.C.

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The learned Sessions Judge framed charges against the appellant-accused for the offences punishable under Sections 449 and 302 I.P.C. The appellant-accused pleaded not guilty for the said charges and claimed to be tried.

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To prove the guilt of the appellant-accused, the prosecution examined P.Ws.1 to 12 and marked Exs.P1 to P12 and M.O.1 to 6. In

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defence, neither any witness was examined nor any document was marked.

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The learned Sessions Judge, having appreciated the entire evidence available on record, found the appellant-accused guilty of the offences punishable under Sections 449 and 302 I.P.C., and accordingly convicted and sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs.100/-, in default to suffer simple imprisonment for one month, for the offence under Section 302 I.P.C. and to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs.100/-, in default to suffer simple imprisonment for one month, for the offence under Section 449 I.P.C.

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Questioning the said conviction and sentence, the appellantaccused, filed this criminal appeal.

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The learned counsel for the appellant-accused pleaded that the witnesses examined by the prosecution are not eye-witnesses to the incident. There is unexplained delay of more than 29 hours in lodging the complaint, which is fatal to the prosecution. The medical evidence is not corroborated with the ocular evidence of P.Ws. 1 to 5. There is every possibility of the accused being implicated in a false case as there are disputes between the accused and the deceased with regard to maddi kallu.

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The learned Additional Public Prosecutor pleaded that even though there are no eye-witnesses to the incident, the circumstantial evidence of P.Ws. 1 to 5 establishes that the accused alone is responsible for causing the death of the deceased. The accused was caught red handed by P.Ws. 1 to 5 at the scene of offence itself and also recovered the weapon used by him in the commission of offence. The medical evidence also clearly shows the corresponding injury caused by the accused to P.W.1 and as such, the prosecution could establish the charge against the accused.

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The point that arises for consideration in the present appeal is whether the prosecution could establish the guilt of appellant-accused for the offences punishable under Sections 449 and 302 I.P.C. beyond all reasonable doubt?

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The case of the prosecution is that the deceased-Thammayya was having illicit intimacy with P.W.2 and kept her as his mistress. The accused also had illicit intimacy with P.W.2 and wanted to keep her as his kept mistress. In that regard, quarrels took place between the accused and the deceased frequently. With a view to keep P.W.2 as his kept mistress, the accused decided to kill the deceased. On the date of the incident, when the deceased and P.W.3 were sleeping on the pial of the house of P.W.3, the accused came to the pial with a knife and poked the deceased with the knife in the stomach. On hearing the cries of the deceased, P.W.3 woke up and saw the accused running away. On his raising cries, Sottayya, P.Ws. 4 and 5, came there, and then himself and P.Ws. 4 and 5, chased the accused and caught hold of him. By the time they returned to the pial, the deceased died.

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To prove the motive for the accused to kill the deceased, the prosecution examined P.Ws. 1 to 5. P.W.1 is the brother of the deceased. He stated about the deceased keeping P.W.2 as his mistress and P.W.2 also having illicit intimacy with the accused. And as the accused also wanted to keep P.W.2 as his mistress, there were frequent quarrels between the accused and the deceased, and in that connection, the accused bore grudge against the deceased and decided to kill him. This version of P.W.1 is supported by P.W.2, who had illicit relationships with both the deceased and the accused. P.W.2 admitted that she was having illicit intimacy with the deceased and lead life as his kept mistress, and that out of fear, she also had illicit intimacy with the accused, and as the accused wanted to keep

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her as his kept mistress, the deceased and the accused quarreled frequently with each other. P.Ws. 3 to 5 also supported the version of P.W. 1 by deposing about P.W.2 having illicit intimacy with the deceased and she being his kept mistress and about P.W.2 also having illicit intimacy with the accused and the accused having the intention to keep P.W.2 as his kept mistress, and to avoid the deceased, deciding to kill him. From this evidence of P.Ws. 1 to 5, the prosecution could establish the motive for the accused to kill the deceased.

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With regard to occurrence of the incident and apprehension of the accused at the scene of offence, the prosecution examined, P.Ws. 1, 3, 4 and 5. P.W.1, who is the brother of the deceased stated that on the day of incident, on hearing the cries of P.W.3, he came out of the house and reached the scene of offence, and when the accused was trying to escape from the scene of offence, Sottayya and Chinnayya and P.Ws. 3 to 5 caught hold of the accused. P.W.3, who is said to be an eye-witness, stated that himself and the deceased were sleeping on the pial of his house and at that time, the accused came there and poked the deceased with knife in his stomach. On hearing the cries of the deceased, he gained consciousness and woke up. When the accused after poking the deceased, was running away, then himself and P.Ws. 4 and 5 chased and caught hold of him. In his crossexamination, he stated that at the when the accused poked the deceased, he was in deep sleep and on hearing the cries of the deceased, he gained consciousness and found the accused running away, and on his raising cries, Sottayya and P.Ws. 4 and 5 gathered and caught hold of the accused.

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P.W.4 who resides by the side of the house of P.W.3 has stated that on the date of the incident, the deceased and P.W.3 were sleeping

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on the pial of the house of P.W.3. On hearing the cries of P.W.3, he came out of the house, and then, himself P.W.3, Sottayya and P.W.5 caught hold of the accused by chasing him. He stated that he found M.O.1-knife in the hands of the accused, and identified the same to be one used by the accused in the commission of the offence. P.W.5, who also resides by the side of the house of P.W.3 stated that on hearing the cries of P.W.3, he came out of the house and found the accused running away, and then himself, P.Ws. 3, 4 and Sottayya, caught hold of the accused that he found a knife in the hands of the accused.

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P.Ws. 2 to 5 stated that they have caught hold of the accused at the scene of offence. According to the prosecution, there were electric poles and the accused was identified under the illumination of electric bulbs. In Ex.P12-rough sketch of the scene of offence, P.W.12 noted the telephone poles. However, in his evidence P.W.12 while admitting that he noted telephone poles in Ex.P12, volunteered that they are not telephone poles but electric poles. He admitted that he did not mention the description of the poles in Ex.P12. P.W.3 in his evidence stated that they cannot identify any person in that midnight. He denied the suggestion that there was no power supply on that night, and stated that he identified the accused under the illumination of current bulb, but he admitted that it is too difficult to identify as to who is Balayya and who is Thammayya due to dark night. P.W.4 stated that there are current poles in front of his house. That there was power supply at the time of incident and that they identified the accused under illumination of bulbs. Even though P.Ws. 3 and 4 deposed that there was power supply and they identified the accused under the illumination, the fact remains, P.W.1 stated that no lights were fixed to the poles, and supported the version of P.W.3 that it is too difficult to identify as to who is Thammayya and who is Balayya in the dark night. In view of the discrepancies and inconsistencies in the evidence of

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P.Ws. 1, 3, 4 and 12 and Ex.P12-rough sketch of the scene of offence prepared by P.W.12 showing telephone poles, the existence of electric poles with illuminating bulbs at the scene of offence and the identification of person caught hold of by P.Ws. 2 to 5 to be the accused, becomes highly doubtful.

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According to P.W.3, when himself and the deceased slept on the pial, the accused poked the deceased with knife in the stomach. It has to be examined whether the stab injury inflicted by the accused to the deceased on the stomach caused his death. P.W.8, who is mediator to Ex.P7-inquest report stated that the panchayatdars unanimously opined that the deceased must have died due to stab injuries. P.W.12-Investigating Officer, who held inquest over the dead body of the deceased stated that he found only one injury on the dead body of the deceased and that he did not find any visible injuries, except one injury. However, P.W.6, who conducted autopsy over the dead body of the deceased, found the following external and internal injuries on the dead body of the deceased:

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External injuries:

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(1) Incised wound over right side of epigastric region 2” x 1” depth: Medial Lobe of liver through and through about 6” track tank side the abdomen. Skin edges are everted. On opening of the abdomen about 1.5 to 2” clotted blood in the abdominal cavity.

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(2) Bleeding from nose and mouth present.

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Internal injuries:

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(1) Fracture middle third of femur shaft on right side.

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(2) Fracture skull over right parietal region.

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(3) Brain matter is liquefied.

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According to P.W.6, all the injuries found on the dead body of the deceased are ante-mortem in nature as there is sewage of blood into the subcutaneous tissue. He opined that the deceased might have died due to pain, haemorrhage and shock. P.W.6 in his crossexamination, stated that there is no connection with the injury, which is mentioned in Ex.P2 with the blood oozing from the nostril and mouth.

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The blood that was oozing from the nostril and mouth of the deceased was due to skull fracture. Even though P.W.6 has found as many as two external injuries and three internal injuries on the dead body of the deceased, but in his cross-examination, he admitted that internal injury Nos. 1 and 2 cannot be caused by M.O.1-knife, but M.O.1-knife can cause injury on the stomach, which is external injury No.1. He also admitted that no blood would ooze from mouth and nostril due to injury No.1. P.W.6 has not specified as to which injury has caused the death of the deceased. Admittedly, external injury No.1 and internal injury Nos. 2 and 3 are fatal in nature. The case of the prosecution being that the accused caused the death of the deceased by poking M.O.1 into his stomach. The evidence of P.W.3 is inconsistent with the medical evidence of P.W.6 and the prosecution has failed to explain as to how the deceased sustained fracture of skull over right parietal region and how brain matter is liquefied, which are fatal injuries, and further P.W.6 having not specified as to which of the injuries found by him on the dead body of the deceased, would cause the death of the deceased. Thus the prosecution has failed to establish that the death of the deceased was due to injury caused on his stomach as stated by P.W.3.

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The counsel for the appellant-accused has pleaded that the prosecution has not explained the delay in lodging Ex.P1-compplaint. Ex.P10-FIR, which was registered based on Ex.P1-report given by P.W.1 on 17.03.2008 at 11.00 p.m., the incident has taken place on the night of 16/17.03.3008 at 12.00 a.m., and the FIR reached the Magistrate on the next day i.e. 18.03.2008 at 6.00 a.m. Thus there is a delay of nearly 23 hours in lodging the complaint and 29 hours in reaching the Magistrate. The only reason for the delay in lodging Ex.P1-report by P.W.1 is it is a tribal area and he came by walk. Admittedly, the incident took place at Yeguvagotturu. P.W.8-Village

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Revenue Officer, Yeguvagotturu, who is mediator to the inquest and scene of panchanama, in his evidence stated that on the request of P.W.12 he went utpo Diguvagottur in their jeep, and from there, he went to Yeguvagotturu by walk. The distance between Diguvagotturu and Yeguvagotturu is about 4 or 5 Kms. He further stated that one can reach Pachipenta MPDO Headquarters to Diguvatotturu within half an hour. In view of this evidence of P.W.8, even if the evidence of P.W.1 that he went by walk from Yeguvagotturu to Pachipenta Police Station to give Ex.P1, it would not take more than an hour to reach. P.W.1 has not explained why he did not give Ex.1-report on the morning of 17.03.2008 and waited till 11.00 p.m. of that day to give Ex.P1-report. This creates a suspicion of the possibility of the accused being implicated in the case, because P.W.4 in his evidence has stated that there are disputes between the accused and the deceased with regard to “maddi kallu” also. Hence, we hold that the unexplained delay in lodging Ex.P1-report to the police, which is not properly explained, is fatal to the prosecution.

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For the foregoing reasons, we hold that the prosecution could not prove the charges under Sections 449 and 302 I.P.C. against the accused beyond all reasonable doubt, and the appellant-accused is entitled to benefit of doubt.

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In the result, the criminal appeal is allowed. The conviction and sentence imposed against the appellant, by judgment dated 26.09.2008 passed in S.C. No. 106 of 2008 by the II Additional Sessions Judge, Fast Track Court, Parvatipuram, Vizianagaram, for the offences under Sections 449 and 302 I.P.C., is hereby set aside. The appellant-accused shall be released forthwith, if he is not required in any other case.

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________________ N.V. RAMANA, J.

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____________________ P. DURGA PRASAD, J.

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Dated: 8^th October, 2012 KSR

Soyyari Sukharayya, v. The State of A.P.

Case brief

What is this about?

What did the court decide?

Soyyari Sukharayya, 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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