Allowed

Kothuri Shankar v. the State of Ap., Rep Byits P.P

Telangana HC5 Jun 2018CRLA/44/2014

Case brief

AI extract

What is this about?

The court reviewed a murder conviction based on circumstantial evidence. Finding inconsistencies in prosecution witness accounts and failure to establish a minimum link between accused and crime, the court allowed the appeal and acquitted the appellant.

What did the court decide?

The conviction and sentence under Section 302 IPC are set aside, and the appellant is acquitted and released.

Kothuri Shankar Vs the State of Ap., Rep… — Murder and Culpable Homicide | Telangana HC (2018)

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THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

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AND

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THE HON’BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI CRIMINAL APPEAL No.44 of 2014

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JUDGMENT : (per Hon’ble Sri Justice C.Praveen Kumar)

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The sole accused in S.C.No. 415 of 2013 on the file of the II Additional Sessions Judge, Karimnagar at Jagital, is the appellant herein. He was tried for an offence punishable under Section 302 IPC, for causing the death of one Medini Peddulu (hereinafter referred to as “ the deceased” ) on 23.04.2013 at about 18.00 hours at Paidimadugu village. By its judgment, dated 18.10.2013, the learned Sessions Judge convicted the appellant for the offence punishable under Section 302 IPC and sentenced him to suffer “ imprisonment for life” and to pay a fine of Rs.2,000/ -, in default to suffer simple imprisonment for one month.

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The facts as culled from the evidence of the prosecution witnesses are as under:

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i) The deceased, who was related to PW.1, used to live in the house of PW.1, as he was not having anyone to take care of him. The deceased was working as watchman in the mango tope of Tenugu Laxman, while the accused was working as watchman in the mango garden of one Jagan Dora. The evidence of PW.1 is to the effect that on 23.04.2013 at about 12.00 noon, the deceased left the house after taking food and did not come back to the house on

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that night. The evidence of PW.3, who was also working as watchman in the mango garden of Tenugu Laxman, is that on

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23.04.2013 at about 4.00 p.m., he felt to have toddy. He made a phone call to the accused and asked him to come to him along with beedies stating that if he comes to his place both of them can consume the toddy together. By the time he brought toddy, the accused came there with beedies, meantime, the deceased also came there. The evidence of PW.2, who used to sell toddy, would show that on 23.04.2013 at about 5.30 p.m., while he was at kallumanduva, PW.5 and another came there. Thereafter, the deceased also came to his kallumanduva. After that the accused came to the said place, to whom he supplied toddy worth Rs.20/ -. It is his version that he also supplied toddy worth Rs.10/ - to the deceased. Thereafter all of them ie., the accused, the deceased and PW.3 started consuming toddy by sitting side by side. The deceased abused the accused in the name of his caste as “ Madigoda” . The accused is said to have asked the deceased not to abuse him by his caste, but the deceased did not heed the words of accused. Then PW.2, 5 and others intervened and asked the deceased not to abuse the accused and pacified the matter, thereafter they went away from that place. It is his version that when he left the place only the accused and the deceased remained in kallumanduva. The evidence of PW.3 is to the effect that when all the three namely himself, accused and deceased shared the toddy, each consumed one glass of toddy. At that time the deceased is said to have abused the accused in a vulgar language. The accused informed PW.3 that the deceased repeatedly and unnecessarily abusing him. PW.3 is said to have advised both of them

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to maintain good relation. Then he handed over an amount of Rs.10/ - to the deceased and asked him to get some more toddy. Accordingly, the deceased left that place. Within two or three minutes thereafter the accused left the place followed by the deceased. His evidence is to the effect that he remained at that place for about 10 to 15 minutes and as the weather was cloudy he left to his house. The evidence of PW.4, who was also present at the toddy shop, is to the effect that when the deceased abused the accused in vulgar language, the accused asked the deceased as to why he is abusing him. PWs.2 and 3 and others advised the accused and the deceased not to quarrel and thereafter he left the place. Similar is the evidence of PW.5.

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ii) The evidence of PW.1 is to the effect that on the following day ie., on the next day morning at about 10.30 a.m., the villagers found discussing some thing. Through villagers he came to know about the death of the deceased in Kallumanduva. Then himself and PW.2 rushed to kallumanduva and found the dead body of the deceased with bleeding injuries. They also noticed a cement stone by the side of the dead body.

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iii) On 24.04.2013 at about 12.30 noon PW.1 lodged a report, basing on which PW.11-the A.S.I. of Police, registered a case in Crime No.141 of 2013 for the offence punishable under Section 302 IPC and issued Ex.P14-the first information report. He examined and recorded the statement of PW.1 and later handed over the C.D. file to PW.12-the Inspector of Police.

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iv) On receipt of the C.D. file, PW.12-the Inspector of Police, took up investigation, visited the scene of offence which is situated at the outskirts of Paidimadugu village. He recorded the statements of PWs.2,4 and others. He got photographed the scene of offence through PW.6. In the presence of PW.7 and another, he conducted panchanama of the scene-cum-crime details form, which contain the rough sketch of the scene. Ex.P9 is the crime details form. He claims to have seized one cement stone which was found by the side of the dead body and also the controlled and blood stained earth. He, then conducted inquest over the dead body of the deceased in the presence of PW.7 and another. Ex.P8 is the inquest panchanama. Thereafter, the body was sent for postmortem examination.

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v) PW8-the Civil Assistant Surgeon, Government Maternity Hospital, Korutla, conducted autopsy over the dead body of the deceased and issued Ex.P10-the postmortem examination report. According to the doctor, the cause of death was “ due to neurogenic shock due to contusion and sub-dural hematoma of left temporal lobe of the brain” .

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vi) PW.12 continued with the investigation. On 29.04.2013 while he was at his office, the accused was brought down to the police station by PW.9 and handed him over to the police. PW.9 is said to have stated to him that the accused appeared before him with a request to make arrangements for surrender after confessing about the commission of murder of the deceased. Upon such surrender, PW.12 took the accused into custody and interrogated

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him in the presence of PW.11 and another. The confessional statement of the accused is placed on record as Ex.P12. Pursuant to the confession made, the accused led them to the agricultural field of one Jagan Rao, situated at the outskirts of Paidimadugu and produced a stick which was used in the commission of offence. After completing the investigation, he filed the charge sheet which was taken on file as P.R.C.No.35 of 2013 on the file of the II Additional Sessions Judge, Karimnagar at Jagital. On committal of the case to the Sessions Division under Section 209 Cr.P.C., the same came to be numbered as S.C.No.415 of 2013.

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Basing on the material on record, a charge under Section 302 IPC was framed, read over and explained to the accused, to which he pleaded not guilty and claimed to be tried.

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In support of their case, the prosecution examined PWs.1 to 12 and got marked Exs.P1 to P15 and M.Os.1 to 6. After the closure of evidence, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him, in the evidence of the prosecution witnesses, to which he denied. No oral evidence was adduced on behalf of the accused but Ex.D1-contradiction part of Section 161 Cr.P.C. statement of PW.2 was marked.

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Out of 12 witnesses examined by the prosecution, PW.9, the person before whom the accused is said to have made the extra judicial confession, did not support the prosecution case and he was declared hostile by the prosecution. Relying upon the evidence of

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PWs.1 to 5, the learned Sessions Judge convicted the accused in the manner referred to above. Challenging the same, the present appeal came to be filed.

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The learned counsel for the appellant mainly submits that there are no eye witnesses to the incident and the case rests on the circumstantial evidence. According to him, the circumstances relied upon by the prosecution do not form a chain of events so as to connect the accused with the crime.

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On the other hand, learned Public Prosecutor would contend that the fact that the accused and deceased had a quarrel on the previous day night and both of them were seen together in Kallumanduva at that time and as the body was found in the said kallumanduva, it is to be inferred that the accused alone who was responsible for the death of the deceased.

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The point that arises for consideration is whether the accused was responsible for the death of the deceased?

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As seen from the record, there are no eye witnesses to the incident and the circumstances relied upon by the prosecution are the accused and deceased being last seen together on the previous day evening; alleged extra judicial confession made by the accused before PW.9 and the recovery of M.O.6 stick and stone alleged to have been used in the commission of offence.

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Insofar as the extra judicial confession made before PW.9 is concerned, the same is not established by the prosecution as PW.9,

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the person before whom the accused is said to have confessed and requested him to make arrangements for surrender, did not support the prosecution case. Though he was cross-examined, nothing useful was elicited to prove the same. The suggestion given by the prosecution with regard to his version in the earlier statement was denied by him.

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Insofar as the theory of last seen is concerned, it is to be noted that it is not the case of the prosecution that the accused took the deceased along with him or any of the person known to the accused, took the deceased to kallumanduva for consuming toddy. The evidence of PWs.2, 3 and 4 is to the effect that the deceased on his own came to the said place and purchased toddy worth Rs.10/ -. The evidence of PW.3 is to the effect that he requested the accused to come over to the said place along with the beedies and informed him that both of them can have toddy together. This occurred at about 4.00 p.m. on 23.04.2013. PW.2 in his evidence deposed about the deceased alone coming to kallumanduva, where he said to have supplied toddy worth Rs.10/ - to the deceased and toddy worth Rs.20/ - to the accused. In the evidence of PW.2, there is no reference to the presence of PW.3. However, it is the evidence of PW.3 that after the arrival of the accused, the deceased joined them and all the three consumed one glass of toddy each. It is said that at that time the deceased abused the accused in vulgar language, which was objected to by the accused. The accused claims to have informed about deceased abusing him to PWs.3 and 4. At that time, PWs.3 and 4 intervened and pacified the matter.

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Thereafter, PW.3 handed over an amount of Rs.10/ - to the deceased and asked him to get some more toddy. Accordingly, the deceased left the place. Couple of minutes later the accused is said to have left the place. 10 or 15 minutes later PW.3 left to his house.

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As stated earlier, the evidence of PW.2 nowhere refers to the presence of PW.3 at the scene. According to him, when he left kallumanduva only accused and deceased remained in kallumanduva, which version is contrary to the version of PW.3. It would be appropriate to extract the relevant portions in the evidence of PWs.2 and 3, which are under:

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PW2:

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“ That Peddulu abused the accused by taking his caste name “ Madigoda” . The accused asked that Peddulu not to abuse him with his caste name, but, that Peddulu not headed to the words of accused and he abused further. Then myself, LW.7 and LW.8 intervened in between and asked that Peddulu not to abuse the accused and pacified the matter and we left away from that place. When I left from that kallumanduva at that time only the accused and the Peddulu remained in the kallumanduva.”

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PW.3:

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“ The accused came along with beedies by the time I brought the toddy from near by toddy tope. In the meanwhile near to that place the deceased Peddulu also came. Then we three shared that toddy in between us and each of we consumed one glass of toddy. That Peddulu abused the accused by saying “ Nee Madiga Pendlanni Denga” . Then the accused said with me that Peddulu repeatedly and un-necessarily abusing him. Then I said with both of them not to quarrel and to maintain good

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relation. Then I handed over an amount of Rs.10/ - to that Peddulu and asked him to go away and to get some more toddy. Accordingly, that Peddulu left away. Within 2 or 3 minutes the accused left my place by following that Peddulu. I remained at that place for about 10 or 15 minutes and due to clouds in the sky and anticipating heavy rain I left to my house.”

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The evidence of PW.4 also does not anywhere refer to the presence of PW.3. However his evidence is to the effect that he pacified the quarrel and left the place along with PW.5. From the evidence of these witnesses, it is clear that the deceased came to the said place on his own, purchased toddy and thereafter consumed the same along with the accused. The evidence on record gives two different versions as to their presence at kallumanduva and the deceased leaving the place earlier followed by the accused. Since two versions are projected by the prosecution from the evidence of PWs.2 and 3, the theory as to whether the accused and the deceased were there together in kallumanduva on that night or for that matter on that evening after consuming of toddy appears to be suspicious. The evidence of PW.3 clearly discloses that the deceased left the place and the accused followed him. Both of them did not return to the said place for about 10 or 15 minutes. It is also to be noted here that PW.3 in his evidence never refers to the presence of PW.2 anywhere near that place.

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Further the case of the prosecution is that the incident happened in kallumanduva and the body was found in kallumanduva, but the evidence of investigating officer indicates

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that the dead body was not found in kallumanduva and that it was found on a pathway near toddy courtyard. Even assuming that accused and deceased were found together at 4.00 p.m., in kallumanduva, the dead body was found at 10.00 a.m., on the next day. It is not in dispute that the place where the dead body was found is accessible to all. It is not the case of the prosecution that the accused and deceased alone were there at that time. The postmortem certificate, which is placed on record, would show that the death was about 18 to 20 hours prior to the commencement of autopsy which was at 4.15 p.m., on 24.04.2013. If the said time is taken into consideration, the death would be sometime late in the evening and there is no material to show that the accused and deceased were together at that time.

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15) It is also to be noted here that the versions of PWs.2 to 4 with regard to the words alleged to have been used by the deceased against the accused vary with each other. PW.2 in his evidence deposed that the deceased abused the accused by using the word “ Madigoda” . PW.3 in his evidence deposed that the deceased abused the accused by using the words as “ Nee Madiga Pendlanni Denga” . PW.4 in his evidence deposed that the deceased abused as “ Madiga Lanjakoduka, Nee Pendlanni Denga” . Therefore, the motive for the attack which is now sought to be projected by the prosecution namely the quarrel between the accused and deceased is doubtful in view of the variations in the words alleged to have been used. There was no need to have so many versions if really there was a quarrel.

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16) In view of the evidence referred above, we feel that the circumstances relied upon by the prosecution do not form a chain of events to connect the accused with the crime.

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For the aforesaid reasons, we are of the opinion that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt.

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In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/ accused in the judgment, dated 18.10.2013, in Sessions Case No.415 of 2013, on the file of the II Additional Sessions Judge, Karimnagar at Jagtial, for the offence punishable under Section 302 I.P.C., are set aside and he is acquitted for the said offence. Consequently, the appellant/ accused shall be set at liberty forthwith, if he is not required in any other case or crime.

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Consequently, miscellaneous petitions, if any, pending shall stand closed.

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____________________ C.PRAVEEN KUMAR, J

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__________________________ KONGARA VIJAYA LAKSHMI, J

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05.06.2018 gkv/ GK

Kothuri Shankar v. the State of Ap., Rep Byits P.P

Case brief

What is this about?

What did the court decide?

Kothuri Shankar v. the State of Ap., Rep Byits P.P

Case brief

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