Allowed

Sandaka Durga Rao , Babi, v. The State of Andhra Pradesh

Telangana HC28 Feb 2012CRLA/383/2008

Case brief

AI extract

What is this about?

Criminal appeal against conviction for murder. The High Court acquitted the appellants after finding the prosecution failed to establish the chain of custody for seized weapons due to lack of dustbin evidence contradicting eyewitnesses, and noted inconsistencies in eyewitness testimony regarding identification and sighting of the accused.

What did the court decide?

Conviction and sentence set aside; appellants acquitted of murder and set at liberty.

Sandaka Durga Rao , Babi, Vs The State of… — Murder and Culpable Homicide | Telangana HC (2012)

¶1

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

¶2

Crl.A.No.383 of 2008

¶3

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

¶4

This appeal is directed against the conviction and sentence passed in S.C.No.196 of 2006 by the VII Additional District and Sessions Judge, (Fast Track Court) Vijayawada on 05.04.2007.

¶5

The appellants herein are the accused Nos.1 and 2 and they were prosecuted along with the accused No.3 for the offence under Section 302 read with 34 IPC.

¶6

According to the prosecution accused Nos.1 and 2 are the friends of the deceased, about 6 months back accused Nos.1 and 2 asked the deceased to give money for consuming liquor, for which the deceased denied. Thereupon, accused No.1 hit the deceased with key bunch on his ribs. The deceased retaliated and beat accused Nos.1 and 2 with hands. At that time, accused No.2 sustained injury on his right eye and he lost eyesight. Accused No.2 spent a huge amount of about Rs.30,000/- towards eye operation and treatment. Accused No.2 demanded the deceased for compensation. After long negotiations, the deceased agreed to pay only Rs.5,000/-, but he could not pay the amount till then. As such accused No.2 developed grudge against the deceased as he lost his eyesight because of the acts of the deceased and also he did not pay the compensation. About 15 days back, accused Nos.1 and 2 went to the deceased and threatened to kill him if he does not pay the amount soon. Accused No.2 sought the assistance of his paternal uncle, accused No.3. Pursuant to the previous grudge of accused No.2, on 29.04.2006 at about 20.30 hours at Brahmin Street, Mallikharjunapet, accused Nos.1 to 3 raided on the deceased. Accused No.2 hacked the deceased with the coconut cutter

¶7

on his neck from back. While accused No.2 is pulling the knife, accused No.1 sustained bleeding injury to his right hand, accused Nos.2 and 3 stabbed and hacked the deceased with coconut cutter and long knife on his back and neck. Accused No.1 stabbed the deceased with the knife indiscriminately all over the body at stomach, chest, face, hands and legs. While accused No.1 is stabbing, accused Nos.2 and 3 also stabbed the deceased with the coconut cutter and the long knife, caused 28 bleeding injuries all over the body and brutally murdered the deceased in furtherance of their common intention. On 29.04.2006 night P.W.1 came to the police station and narrated about the incident and P.W.9 recorded her stated statement and registered the same as a case in Crime No. 221 of 2006 of I Town police station, Vijayawada. P.W.11 took the investigation and examined the scene of offence in the presence of mediators, P.W.8 and another and seized the incriminating material from the scene of offence and held inquest over the dead body of the deceased in the presence of P.W.6 and another and sent the dead body for postmortem examination. P.W.7, Doctor, has conducted the autopsy over the dead body of the deceased and opined that the death was due to multiple injuries and its complications. P.W.11 has sent the material objects to R.F.S.L., for chemical analysis, the chemical analyst found the blood on the material objects of human origin. On 01.05.2006 at 06.00 hours near Milk Factory Bus shelter, Chittinagar, P.W.11 arrested the accused and interrogated them in the presence of mediators and they confessed about the commission of offence and P.W.11 seized the weapons used in the commission of offence at the instance of accused Nos.2 and 3. After completion of investigation, P.W.11 filed charge sheet against the accused.

¶8

The learned Sessions Judge has framed the charge under Section 302 read with 34 IPC against the accused and he pleaded not guilty for the said charge.

¶9

In order to establish the said charge, the prosecution examined P.Ws.1 to 11 and got marked Exs.P.1 to P.12 and M.Os.1 to 11. No oral or documentary evidence was adduced on behalf of the accused.

¶10

The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found the accused Nos.1 and 2 guilty for the offence under Section 302 read with 34 IPC and convicted and sentenced them to undergo imprisonment for life. Accused No.3 was found not guilty for the offence under Seciton 302 read with 34 IPC and he is acquitted.

¶11

Aggrieved by the said conviction and sentence, the present appeal is filed by the accused Nos.1 and 2.

¶12

Now, the point that arises for consideration is:

¶13

Whether the prosecution could able to establish the charge under Section 302 read with 34 IPC against the accused Nos.1 and 2 beyond reasonable doubt?

¶14

P O I N T:

¶15

The appellants’ counsel has pleaded that P.W.1 is not an eyewitness to the incident and she has not disclosed about the persons, who has informed about the incident to her, but P.Ws.2 and 3, who are said to be the eyewitnesses to the incident have stated that they have informed P.W.1 about the incident and there are contradictions in the evidence of P.Ws.2 and 3, as such P.Ws.2 and 3 cannot be termed as eyewitnesses and P.W.4, who is cited as eyewitness, has not identified the accused as the persons involved in the commission of offence and the scene of offence Panchanama does not disclose about the presence of electric pole or the dustbin at the scene of offence, whereas P.Ws.2 and 3 have specifically stated that

¶16

on seeing the incident due to fear they ducked behind the dustbin existing at the scene of offence. Therefore, in the above circumstances the evidence of P.lWs.2 and 3 cannot be believed. The appellants’ counsel has further pleaded that P.W.8, mediator for the scene of offence, has stated that M.O.1, knife was seized at the scene of offence by P.W.11, whereas P.W.11 has stated that it was seized on 01.05.2006 and it does not disclose that it was seized from the scene of offence. Therefore the prosecution has failed to establish the charge framed against the accused.

¶17

The Additional Public Prosecutor on the other hand has pleaded that P.Ws.2 and 3 are the eyewitnesses to the incident and they have specifically stated about their witnessing the incident and simply because P.W.1 did not state about the name of the person, who informed the incident to her, the evidence of eyewitnesses P.Ws.2 and 3 cannot be disbelieved and P.W.4 also identified the accused present in the court, who attacked the deceased. The minor discrepancies in the evidence of P.Ws.2, 3 and 4 are not fatal to the case of the prosecution. She further pleaded that P.W.11 has arrested the accused on 01.05.2006, and M.Os.4 and 6, which were used in the commission of offence, were seized at their instance and M.O.1, knife was seized from the scene of offence at the time of observation of scene of offence. Thus, the prosecution could able to establish the motive and commission of offence by the accused and the lower Court has rightly convicted the accused for the offence under Section 302 read with 34 IPC.

¶18

The learned Sessions Judge has convicted the appellants as the prosecution could able to establish the motive for the accused to commit the offence and the same was witnessed by P.Ws.2, 3 and 4 and the weapons used in the commission of offence by the accused were seized by the investigating agency, but acquitted the accused No.3 only on the ground that his name was not mentioned in the

¶19

complaint, Ex.P.1 and thereby given the benefit of doubt to accused No.3.

¶20

The case of the prosecution is that accused Nos.1 and 2 and deceased are friends and six months prior to the incident accused Nos.1 and 2 demanded money from the deceased for consuming liquor, as he refused to pay the said amount an altercation took place between them, accused No.1 hit the deceased with key bunch on his ribs and the deceased retaliated and beat accused Nos.1 and 2 with hands. At that time, accused No.2 sustained injury on his right eye and he lost his eye sight. Accused No.2 spent huge amount of Rs.30,000/towards eye operation and treatment. Accused No.2 demanded the deceased for compensation. After long negotiations, the deceased agreed to pay only Rs.5,000/- but he did not pay the same. Fifteen days prior to the incident, accused No.2 demanded the deceased for payment of the said amount, failing which he threatened to kill him. In pursuance of the said motive, the accused No.2 took the assistance of accused No.3, who is his paternal uncle, and along with accused No.1 raided the deceased on 29.04.2006 at about 20.30 hours at Brahmin street, Mallikharjunapet and accused Nos.2 and 3 stabbed and hacked the deceased with coconut cutter and long knife on his back and neck, accused No.1 stabbed the deceased with the knife indiscriminately all over the body at stomach, chest, face, hands and legs, and caused 28 bleedings injuries all over the body and brutally murdered the deceased.

¶21

The investigation was commenced on the statement given by P.W.1 before P.W.9 in the police station on 29.04.2006 at 9.30 p.m. and the said statement was marked as Ex.P.1. In the said statement, she has stated that the deceased was her younger brother and she gave her daughter Nagalakshmi to him in marriage about 2 years back on 03.11.2005 and about six months back on 03.11.2005 while her younger brother (deceased) was coming to the house after taking his

¶22

salary and at about 1.30 p.m. in the night he was talking with his friend at Ramanaiah Drink Shop centre of I Town, accused Nos.1 and 2 demanded her younger brighter to give money for drinking purpose and he has replied that he has no money, for which they find fault with her younger brother and hacked him with a bunch of keys, and her younger also beat them with hands, as a result which accused No.2 sustained grievous injury to his eye and lost his vision and he spent Rs.30,000/- for the eye treatment. For the last six months, accused Nos.1 and 2 coming to her younger brother and demanding him to pay the compensation, at last her younger brother accepted to pay Rs.5,000/- but he could not pay the same due to financial difficulties. Finally, accused Nos.1 and 2 came to her younger brother and pressuring him to make the payment and also threatened to kill if the amount is not paid. About 15 days back this fact was revealed by her younger brother to her and her mother. They pacified and stated that they will adjust the amount some how or other. On 29.04.2006 at night time at about 8.30 p.m. accused Nos.1 and 2 and some others attacked her younger brother near Jammidoddi with knives, stabbed him and ran away and she came to know about the incident when she was at her house. Immediately, herself, her mother and other relatives left for that place and found her younger brother with bleeding injuries with intestines came out and lying dead in a pool of blood and the part at forearm of right hand was found cut and separated. It appears that the assailants sprinkled chilli power on the eyes of her younger brother, tied his hands and later stabbed him. Thus in the complaint, P.W.1 has stated about the previous incident, that was occurred on 03.11.2005, which is the motive for the commission of offence by the accused. Admittedly, she is not an eyewitness to the incident occurred on 29.04.2006. According to her, on the information she came to the spot and found her deceased brother at the spot.

¶23

P.W.1, in her chief-examination has stated the same facts as

¶24

mentioned in the complaint. In the cross-examination she admitted that she has no previous acquaintance with accused Nos.2 and 3. She denied the suggestion that she did not state before police as in Ex.P.1 or in her 161 Cr.P.C. statement that the accused used to threaten the deceased in her presence that they kill him if the amount is not paid. She admitted that she received information at the first time in between 8.30 and 9.00 p.m., and she did not state in Ex.P.1 or in her 161 Cr.P.C. statement the name of the person, who informed the incident to her.

¶25

P.W.2 said to be the eyewitnesses to the incident. According to him, on 29.04.2006 while he was going from Ratham centre to his house, he saw the accused chasing the deceased with knives at Jammichetti centre, by that time himself and P.W.3 were returning from their work i.e. at about 8.30 p.m. near Jammichetti centre all the accused stabbed the deceased, accused No.1 stabbed the deceased on his front side and accused Nos.2 and 3 stabbed him on his back, out of fear they did not go to the scene of offence and that after the accused left the scene of offence, they went there and found that the right hand of the deceased was cut off from his wrist portion. Then he went to the house of the deceased and informed his relatives about the incident and came to the scene of offence along with the relatives of the deceased. In the meanwhile, police came there and examined him. In the cross-examination, he has stated that he has no prior acquaintance with accused Nos.1 to 3, he has not given any identification marks of the accused or their descriptive particulars when the police examined him. He has not identified the accused in identification proceedings or in the presence of any one. He denied that there is a road form Bhavanipuram to Mallikharjunapet through Gosala road and the Gosala road is nearer than the route via scene of offence. Ratham centre is at a distance of one furlong from Gosala Road. He volunteers that the two routes are of the same distance. He

¶26

admitted that Gosala road is the direct road to their houses, scene of offence road is round about from Bhavanipuram to Mallikharjunapeta and after seeing the incident he ducked at a distance of 20 feet on the back side of dustbin and P.W.3 also ducked along with him. About 50 to 60 passers also ran away from the scene of offence and the said passers-by did not duck anywhere. Except informing to the relatives of the deceased, he did not inform to anyone about the incident.

¶27

P.W.3, another eyewitness to the incident, has also stated that on 29.04.2006 at about 8.30 p.m. himself and P.W.2 were returning from their work, while they reached near Jammichetti centre they found some galata and he saw the accused stabbing the deceased and after the accused left the scene of offence, he went to the house of P.W.1 and informed the same to her. P.W.2 was also present at the scene of offence. When he returned along with the family members of P.W.1 to the scene of offence, police also present at the scene of offence and police examined him. In the cross-examination, he has stated that he do not know where accused Nos.2 and 3 are residing and he has no prior acquaintance with them and he has not given the special features of the accused when he was examined the police. He admitted that there is a short route to their house to go through Gosala Road. He further admitted that after seeing the incident he ducked behind a dustbin and after the accused ran away from the scene of offence, there is a gathering of 5 persons and during the commission of offence himself and P.W.2 ducked behind the dustbin and the dead body was in a pool blood and they did not attempt to shift the deceased to the hospital nor went to the police station to give report.

¶28

P.W.4, another eyewitness, has stated that he is a washer man and running an iron shop at Mallikharjuna pet and his iron shop is at a distance of 30 to 32 feet from the scene of offence and on the date of incident at about 8.30 p.m. while he was closing his business, he

¶29

heard some galata near Jammichetti centre. He saw 3 persons killing one person and he has no acquaintance with them prior to the incident and he can identify those persons, who killed the deceased if shown and the accused are the said 3 persons, who killed the deceased. Out of fear, he went to his house and all the 3 persons wearing with knifes used for cutting mutton and coconuts and one knife is a long knife. The accused went away thrown the knife at the scene of offence. On the next day he put his thumb marks. In the cross-examination, he has stated that he do not know where the accused are residing and he do not know the names of the accused. He did not state before the police that he can identify the accused if shown to him.

¶30

According to P.Ws.2 and 3 immediately after the incident they have gone to the house of the deceased and informed P.W.1 and her relatives about the incident and came to the spot along with them and by that time the police were already present in the spot. P.W.9, who has registered the crime, has stated in his cross-examination that except the information given by P.W.1, they have no prior intimation about the incident. According to him, Ex.P.1 shows that the report was given at 9.30 p.m. P.W.1 either in the Ex.P.1, report or in the statement before the police, did not state the names of P.Ws.2 and 3 as the persons, who informed her about the incident. Moreover, according to P.Ws.2 and 3 while the incident was going on, they ducked behind the dustbin, which is at a distance of 20 feet from the scene of offence.

¶31

P.W.11, investigating officer, has conducted the scene of offence observation Panchanama in the presence of P.W.8. According to P.W.11, Ex.P.4 is the scene of offence observation Panchanama, and he admitted in the cross-examination that Ex.P.4 does not disclose about the existence of a dustbin of Municipality near the scene. P.W.8, mediator also admitted in his cross-examination that there are no dustbins of Municipality near the scene of offence. Ex.P.4, scene of offence observation Panchanama and Ex.P.9, rough sketch of scene

¶32

of offence, do not disclose the existence of any dustbin near the scene of offence. When there is no dustbin of the Municipality near the scene of offence as observed above, the question of P.Ws.2 and 3 ducking behind the dustbin while the incident was going on cannot be believed. Thus, when P.W.1 has not stated that P.Ws.2 and 3 are the persons, who informed her about the incident and in the absence of any dustbin at the scene of offence as stated by P.Ws.2 and 3, it is doubtful whether they are the eyewitnesses to the incident or not. Moreover, as admitted by P.Ws.2 and 3 they have no previous acquaintance with the accused. P.W.2 in the cross-examination has stated that he has not identified the accused in the identification proceedings or in the presence of any one even though no test identification parade was conducted by investigating officer. In the above circumstances P.Ws.2 and 3 witnessing the incident is doubtful.

¶33

P.W.4, washer man, who is said to have been eye witness to the incident having iron shop at the scene of offence, has stated that he do not know the names of the accused and where they are residing, but he identified the accused present in the court as the persons, who killed the deceased, but he has not stated any specific overt acts of each of the accused, but simply stated that 3 persons killed the deceased.

¶34

With regard to the recovery of weapons used in the commission of offence, P.W.4 has stated that the knife was thrown away at the scene of offence by the accused. P.W.8, mediator for the scene of offence, has stated that M.O.1 is the knife seized at the scene of offence by the police and the police also seized one pair of chappals and also one pair of spectacles, which are M.Os.2 and 3. He is also acted as mediator for the arrest of the accused and also for seizure of the weapon at their instance. According to him, on 01.05.2006 the inspector of police called him to the police station and took him to the Milk factory, there they found 3 persons and they are accused Nos.1 to

¶35

3 and one of them lead them to Jammichettu centre into a lane and shown the knife, which is in the drainage, M.O.4 is the said knife, M.O.5 is the 3 teeth recovered at the scene of offence. Police also seized M.O.6 from the arrested person, who brought the knife from the eves of a hut, but he cannot say where the hut is situated.

¶36

P.W.11, the investigating officer, in his chief-examination has stated that he has seized M.O.1 under a cover of mahazar in the presence of mediators from the scene of offence and on 01.05.2006 at 6.00 a.m. he arrested all the accused at the bus centre near milk factory, Chittinagar and accused No.2 lead them and produced M.O.4 from the drainage canal and accused No.3 produced M.O.6 from the drainage canal at Poojarivari street, I Town. In the cross-examination, he admitted that M.O.1 shows that it was seized on 01.05.2006 and it does not disclose that it was seized from the scene of offence. Therefore, the seizure of M.O.1 from the scene of offence could not be established by the prosecution.

¶37

According to the F.S.L report, Ex.P.12 one knife was sent to the F.S.L. for analysis and on analysis blood was deducted on the said knife, but P.W.11 has not spoken anything about which of the knives seized by him was sent to the F.S.L. for analysis. Therefore, in the above circumstances, the prosecution has failed to establish the recovery of M.Os.1, 4 and 6 and also failed to establish that accused Nos.1 and 2 are the persons, who caused the injuries to the deceased, which led to his death. Moreover, according to the prosecution, the appellants along with accused No.3 has committed the offence and when accused No.3 was acquitted by the learned Sessions Judge by giving benefit of doubt to him, appellants/accused Nos.1 and 2 are also entitled to the same benefit of doubt. Hence, the prosecution has failed to establish the offence under Section 302 read with 34 IPC against the appellants beyond reasonable doubt and accused Nos.1

¶38

and 2 are entitled to the benefit of doubt.

¶39

In the result, the criminal appeal is allowed. The conviction and sentence passed by the VII Additional District and Sessions Judge (Fast Track Court), Vijayawada in S.C.No.196 of 2006 on 05.04.2007 against the appellants-accused Nos.1 and 2, is hereby set aside and the appellants/accused Nos.1 and 2 are accordingly acquitted for the offence under Section 302 read with 34 IPC. The appellants-accused Nos.1 and 2 shall be set at liberty forthwith, if they are not required in any other case.

¶40

_______________________ JUSTICE N.V.RAMANA.

¶41

_____________________________ JUSTICE P. DURGA PRASAD Date:28-02-2012 Ksp

Sandaka Durga Rao , Babi, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Sandaka Durga Rao , Babi, v. The State of Andhra Pradesh

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

Similar cases

D. Subbarao Vs The Director General of Police

Singam Rajaiah Vs The State of Andhra Pradesh, Rep by its Principal Secretary

M. Chegamma Vs The Superintendent of Police

The State of a.P., Vs Palepu Dharma Rao

Ghun Bahadur, Vs The State of Andhra Pradesh

Ch. Naga Prasad alias Naga Venkata Durga Prasad, Vs The State of Andhra Pradesh