Allowed

Yesgi Narsimulu, v. The State of Andhra Pradesh

Telangana HC24 Jan 2012CRLA/286/2008

Case brief

AI extract

What is this about?

The High Court/Court of Session overturned a conviction and life sentence for murder and theft. The Appellate Court held that the prosecution's case, entirely based on circumstantial evidence, failed to form an unbroken chain of events proving the accused's guilt beyond reasonable doubt.

What did the court decide?

The conviction and sentence recorded by the trial Court against the appellant is set aside and the accused is acquitted for the offences punishable under Sections 302 and 379 IPC, and he shall be rele

Yesgi Narsimulu, Vs The State of Andhra Pradesh — 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. 286 of 2008

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Judgment: (Per Sri. N.V. Ramana, J.)

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This criminal appeal is filed by the sole accused, challenging the judgment dated 11.12.2007, passed by the Special Judge for Trial of Offences under S.Cs. & S.Ts. (PoA) Act-cum-V Additional District and Sessions Judge, Sanga Reddy, Medak, in S.C. No. 7 of 2007, convicting the accused for the offences punishable under Section 302 and 379 IPC and sentencing him to suffer imprisonment for life and to pay fine of Rs.2,000/- in default to suffer rigorous imprisonment for three months for the offence punishable under Section 302 IPC, and to suffer rigorous imprisonment for six months for the offence under Section 379 IPC. Both the sentences were directed to run concurrently

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The case of the prosecution in brief is that on 22.12.2005 at about 2.00 p.m., the de facto complainant, namely S. Kistaiah, Village Secretary of Potpally village, Kangti Mandal, lodged a complaint with Police Kangti stating that dead body of an unknown woman, aged about 30 years was found in the fields in Sy. No.30/35-A with injuries on face.

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On receipt of information, the Kagti police registered a case and took up investigation. The police, during the course of investigation, conducted panchanama of scene of offence and held inquest over the dead body and took photographs, seized a broken ear top, a beedi, burnt match stick, blood stained earth and controlled earth and blood stained black stone, from the scene of offence under cover of

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panchanama. They shifted the dead body of the deceased to Government Hospital, Narayankhed, for post-mortem examination. They examined and recorded the statements of the witnesses. The witnesses identified the dead body as of one Peeramma @ Peeravva w/o Y. Narsimlu, the accused. The Medical Officer, who conducted post mortem opined that the death of the deceased was caused due to head injury and asphyxia.

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The investigation further revealed that the accused married the deceased 20 years back. Two or three years after the marriage, she begot one male child. The accused suspected the fidelity of the deceased and started harassing the deceased mentally and physically. Due to continuous harassment, the deceased left the husband and started living separately with the help of her brother for the last 16 years. During the 16 years period, the accused never visited his wife and son. About three months prior to the offence, the accused, who suffered snake bite went to the deceased and the caste elders counseled the deceased that the accused would not harass her in future. The deceased re-joined the family of the accused and both were moving here and there for treatment of the snake bite with quack doctors. The accused and the deceased resided in Damaragidda, native village of the accused for about two months. Thereafter, they came to Mubarakpur, native village of the deceased and stayed there for about one month. Their son, who was studying and staying in the hostel, used to come on holidays to meet the accused and the deceased. The accused and the deceased told that they would go to Hyderabad for their livelihood.

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On 21.12.2005, the deceased and accused left the Rajem Thanda, Pedda Mubarakpur, after taking medicine for snake bite, and on the way taking advantage that the deceased was lonely, assaulted

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her and beat her on the face with a stone till she died. The incident took place in the fields of one Rathod Maruthi (LW2). Later the accused removed silver kadas chains, gold gundlu from the dead body of the deceased and escaped. On 01.01.2006, at about 17.30 hours, the accused was arrested and his confession was recoded in the presence of panch witnesses and the accused voluntarily admitted the offence. The stolen property i.e. two silver kadas and 18 gundlu, rekhas and one puste with black beats along with thread, were recovered from the possession of the accused and they were seized under the cover of panchanama. Thus, as per the evidence collected, the accused committed the offence punishable under Sections 302 and 379 IPC.

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The Sessions Judge framed the charges under Sections 302 and 379 IPC and the accused pleaded not guilt for the said charges and claimed to be tried.

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The prosecution examined P.Ws. 1 to 20 and marked Exs. P1 to P10 M.Os. 1 to 6 in support of its case. The accused did not choose to examine any defence witness, but got marked Ex. D1.

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The Sessions Judge having considered the evidence found the appellant guilty of the offence punishable under Section 302 IPC and 379 IPC and convicted him for the said offence and sentenced them to suffer imprisonment as noted above. Hence, this appeal by the appellant.

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Heard the learned counsel for the appellant and the learned Public Prosecutor for the State.

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The learned counsel for the appellant pleaded that there are no eye witnesses to the occurrence except circumstantial evidence, and the said evidence does not connect each event, pointing towards the guilt of the accused, and the trial Court has committed an error in

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convicting the accused for the offence punishable under Sections 302 and 379 IPC and sentencing him to suffer imprisonment for life, and therefore, the conviction and sentence for the aforesaid offences are liable to be set aside.

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On the other hand, the learned Public Prosecutor representing the State pleaded that the accused and deceased were having strained relations and they were living separately for the last 15 years. Just three months before the occurrence, the accused and the deceased started staying together. The accused was last seen in the company of the deceased and the recovery of M.Os. 3 to 4 from the scene of offence and recovery of M.Os. 1 and 2 from the possession of the accused, clearly prove that he has killed the deceased. Therefore, the trial Court rightly convicted the accused for the offences charged with, and Criminal Appeal is liable to be dismissed.

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The entire case of the prosecution is based on circumstantial evidence. When the case of the prosecution rests mainly upon circumstantial evidence, as per the law laid down by the Apex Court in Padala Veera Reddy v. State of A.P .^[1] and Sanjay Thakram v. Subhash Chandra Nanda^[2] , such evidence must satisfy the following tests:

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1. The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.

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2. Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused.

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3. The circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and

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4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

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We shall therefore examine, whether in the instant case, the

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prosecution, based on the circumstantial evidence, has proved the chain of events pointing the guilt of the accused beyond reasonable doubt.

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P.W.1 is the Secretary of Potipally Gram Panchayat, P.W. 2 is the Village Secretary. P.Ws. 3 to 8 are the relatives of the deceased, P.W.9 is an independent witness, P.W.10 is the Photographer. P.Ws. 11 and 13 are panch witness to the Inquest Panchanama and recovery of M.Os. 3 to 6, namely beedi, match stick, blood stained stone and blood stained earth, while P.W.14 is the panch for the Inquest Panchanama, P.Ws. 12 and 19 are panch witnesses to the recovery of M.Os. 1 and 2, namely silver anklets and gold gundlu, from the accused, P.Ws. 15 and 18, namely Head Constable and Constable, apprehended the accused, P.W.16 is the Sub-Inspector of Police, who registered Ex.P6 and went to the scene of offence, P.W.17 in the Doctor, who conducted autopsy over the dead body of the deceased and, P.W.20 is the Circle Inspector of Police.

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P.W.1-Secretary of Gram Panchayat, Potipally, is the de facto complainant. The complaint lodged by him to the police is marked as Ex.P1. Though in his examination-in-chief he stated that on 22.12.2005 in the afternoon hours one Machokoori Sai Gonda came and informed him that he found the dead body of a lady in the fields of Rathod Maruthi Naik, he admitted in his cross-examination that he has not mentioned in Ex.P1-report given to the police that one Sai Gonda informed him about the dead body, but stated that he has mentioned that one Rathod Maruthi Naik informed him. P.W.2-Village Secretary, in his evidence stated that he saw dead body of the deceased in his fields and that he informed one Machkoori, namely Sai Gonda and P.W.1 about the dead body. Based on Ex.P1-report lodged by P.W.1, P.W.16-S.I. of Police, registered Ex.P6-FIR. He deposed that he

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recorded the statements of P.Ws. 1 and 2 and went to the scene of offence, and later handed over the C.D. to file to C.I. of police. He admitted in his evidence that P.W.1 did not mention date in Ex.P1 and that that the hand writing in Ex.P1 differs from the words written subsequently, but denied the suggestion that certain words entered in Ex.P1 were written by him. He admitted in his evidence that in Ex.P1, it is not mentioned that Sai Gonda i.e. P.W.1 informed him. From this evidence, it is clear that P.W.1 did not mention the date and the name of Machkoori, namely Sai Gonda in Ex.P1. The date and name of Machkoori, namely Sai Gonda were added subsequently in Ex. P1, and this is evident from the fact that the handwriting in Ex.P1 differs with the handwritten words added subsequently.

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P.W.3, who is the brother of the deceased, in his chiefexamination stated that the deceased and the accused were living separately for the last 15 years, that three months before the incident, the accused came to Mubarakpur, where the deceased is living with her parents, and requested the deceased to come along with him stating that he was bitten by snake, that he took treatment for snake bite at Mubarakpur for 8 or 10 days and later they left to Hyderabad for treatment, that he came to know through police that the deceased was killed, that they suspected that the accused killed the deceased. However, P.W.3 in his cross-examination admitted that in his statement recorded by the police under Section 161 Cr.P.C., he did not state that he came to know through police that the deceased died and that the deceased and the accused left the village. He admitted that he did not state to the police that he told the same to Machkoori, namely Sai Gonda and also to P.W.1., which is marked as Ex. D1. He also admitted that he does not know when the accused and the deceased left the village and that neither of them informed him. He further stated

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that he saw the dead body of the deceased in the hospital, but did not find any injuries on the face of the deceased, however, Ex.P7-postmortem report issued by P.W. 17, reflects that the deceased injuries on her face. This evidence of P.W.3 makes it is clear that he does not know when the accused and the deceased left Mubarakpur village to Hyderabad.

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P.W.4, is the son of the deceased and the accused. In his evidence he deposed that the accused, who is his father, did not take care of him and his mother, that he is living with his mother since last 15 years, that about 18 months back the accused came to Mubarakpur and took his mother to Damaragidda on the pretext that he is suffering from snake bite, that after some days, his mother and accused returned to Mubarakpur, and thereafter, the accused took his mother to Hyderabad stating that he will take treatment there, and after three days, he came to know that his mother died and her dead body was kept in the mortuary, and that he along with P.W.3, his aunt and other went to the hospital and saw the dead body of the deceased, which was having injuries on the breast and left cheek and that they came to know that the accused killed his mother and took away the gold articles, which are marked as M.Os. 1 and 2. However, in his crossexamination, he admitted that he stays in hostel and that he was in the hostel when the deceased and the accused left the village and that he does not know when they went. This evidence of P.W.4 makes it clear that he was in the hostel at the relevant time and he does not know when the accused and the deceased left Hyderabad.

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P.W.5 is the brother of the deceased and elder brother of P.W.3; P.W.6, who is the sister-in-law of the deceased and P.W.3; P.Ws. 7 and 8, who are the relatives of the deceased and; P.W.9, who knows P.Ws. 1 to 8, deposed on the lines as deposed by P.Ws. 3 and 4.

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Though in his examination-in-chief, they stated that about one and a half year back the accused came to Mubarakpur to take the deceased to his village, on the pretext that he was suffering with snake bite, that they stayed at Damaragidda village for two months, and thereafter they came to Mubarakpur, and from there, they left to Hyderabad for treatment, but in his cross-examination, they admitted that the accused and the deceased left the village without informing her and that they came to know about the death of the deceased through police. This evidence of P.Ws. 5 to 9, makes it clear that they do not know when the accused and the deceased left Mubarakpur to Hyderabad.

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Basing on the evidence of P.Ws. 3 to 9, who does not even know as to when the deceased and the accused left the village to Hyderabad, much less last seen the accused in the company of the deceased, we are of the firm opinion that finding the accused guilty of killing the deceased, is not proper.

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P.W.17 is the Doctor, who conducted autopsy over the dead body of the deceased and issued Ex.P8. He denied the suggestion that the injuries reflected in Ex.P8 are not possible with a stone like object M.O.5.

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P.Ws. 11 and 13 and 14, are panch witnesses to the Inquest Panchanama and recovery of M.Os. 3 to 6. P.W.11 though deposed that the signed the inquest panchanama, and recovery of M.Os. 3 to 6 by police from the scene of offence, he admitted in his crossexamination that he does not know in how many pages the inquest panchanama was drafted and that he did not read the contents of Ex.P5 before signing it and that he does not remember as to on how many signatures he had put on it. Likewise P.W.13 in her crossexamination admitted that he does not remember as to how many pancanamas were conducted by the police and how many times, he

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signed. P.W.14, who is also a panch to the inquest under Ex.P4, admitted in her cross-examination that she does not know the contents of Ex.P4 and that she had signed when police asked her to sign. Thus from the evidence of P.Ws. 11, 13 and 14, could not establish the recovery of M.Os. 3 to 6 from the scene of offence.

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P.W. 15 is the Head Constable. He stated in his examinationin-chief that the C.I. of Police asked him to accompany him for apprehending the accused, but in his cross-examination, he admitted that he did not state in his statement that the C.I. of Police called him to apprehend the accused. P.W.18, Police Constable, denied the suggestion that himself and P.W.15 did not accompany the C.I. of Police to apprehend the accused at Masanpally X Road. P.W.20Circle Inspector of Police, in his evidence stated that P.Ws. 15 and 18 assisted him in apprehending the accused. That after apprehending the accused, he recorded the statements of P.Ws. 15 and 18 and called P.Ws. 12 and 19, namely panchas and in their presence, recovered M.Os. 1 and 2 from the possession of the accused.

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It is the contention of the prosecution that since M.Os. 1 and 2 were recovered from the possession of the accused, as per his confession, he has committed the offence of killing the deceased. P.W.20 in his evidence stated that he apprehended the accused at Masanapally, and he recovered M.Os. 1 and 2 as per his confession, in the presence of P.Ws. 12 and 19. P.Ws. 12 and 19 in their examination in chief stated that the accused was in the custody of police and on the request of the police, they enquired with the accused and the accused informed them that he was arrested at Masanpally X Road and that the accused voluntarily showed them silver anklets and gold gundlu which were in the plastic cover and that the police seized them in their presence under cover of panchanama. However, in his

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cross-examination, P.W.12 stated that he does not know as to how many pages the panchanama contains. While P.W.19 stated that he is an illiterate and that he does not know the contents of panchanama and that he does not know how many gundlu are there in M.O.1 and that how many pages the panchanama contains and on how many pages he has put his thumb impression. In view of the admissions made by P.Ws. 12 and 19 in their evidence, the prosecution failed to establish the recovery of M.Os. 1 and 2. Though they are panch witnesses to the recovery, it is curious to note that they have spoken to the confession, alleged to have been made by the accused in their presence. The recovery panchanama, should contain the details of the recovery only. It cannot contain the confession statement of the accused. The recording of confession statement in the recovery panchanama is unknown to criminal jurisprudence. Therefore, basing on such confessional statement, contained in the recovery panchanama, it is not proper to hold that the accused is guilty of killing the deceased.

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The material witnesses, namely P.Ws. 3 to 9 stated that the accused and the deceased have not informed them before leaving the village and it is also not their case that the accused was last seen in the company of the deceased. This apart, the prosecution also failed to prove the recovery of M.Os. 1 and 2 from the possession of the accused. Basing on such circumstantial evidence, which does not link one incident to the other, much less point the guilt of the accused in the commission of the crime, we are of the considered opinion, it would not be proper to sustain the conviction of the accused for the offence punishable under Sections 302 and 379 IPC and consequently the sentence imposed for the said offences also cannot be sustained. Therefore, the conviction and sentence recorded by the trial Court

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against the appellant, is liable to be set aside.

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In the result, the conviction and sentence passed in S.C. No. 7 of 2007 by the V Additional Sessions Judge, Medak, at Sanga Reddy, is set aside and the accused is acquitted for the offences punishable under Sections 302 and 379 IPC, and he shall be released forthwith, if 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: 24^th January, 2012 KSR

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[1] AIR 1990 SC 79 [2] (2007) 2 SCC (CrI) 162

Yesgi Narsimulu, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Yesgi Narsimulu, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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