Chiluka Ashok vs State of Andhra Pradesh

N.V. Ramana, J.—This appeal is directed against the judgment dated 7.3.2008 in SC No. 493 of 2007 passed by the learned Sessions Judge, Karimnagar, whereby the appellant-accused was convicted for the offence u/s 302 of I.P.C. and sentenced to undergo life imprisonment. The gravamen of the indictment against the appellant-accused is that on 2.11.2006 at about 6.00 p.m., he caused the death of one Gouru Pochaiah (hereinafter referred to as ''deceased'') by cutting his neck with a sickle.

The case of the prosecution, in brief, is that the deceased was resident of Nimmapalli in Konaraopet Mandal. PW1-Gouru Sathavva is his wife. PW2-Myadari Narayana is the younger brother of PW1. The accused is the son of PW1''s younger sister. About three months prior to the date of incident, due to some disputes, the deceased scolded the accused and keeping the same in mind, the accused set fire to the hayrick of the deceased and also removed a guava plant. In that context, when the deceased reported the matter to the caste elders, they scolded the accused. Hence, it is alleged that the accused bore a grudge against the deceased and waited for an opportunity to kill the deceased.

On 2.11.2006 in the morning the deceased went to his field to cut the grass. PW2 was also attending to work in his own field, which is nearer to the field of the deceased. At that time, the accused came there and, on seeing him PW2 scolded the accused as to why he came there and on that the accused went away. On the same day, at about 6.00 p.m. the accused again came to the fields, he dragged the deceased to the nearby water canal, attacked and killed him by cutting his throat with a sickle and ran away. PW2, who was working in the nearby field, saw the accused proceeding towards the village and on suspicion, he went to the field of the deceased and found the deceased lying dead near a canal (Orre) with a cut injury on his throat. Then he rushed to the village and informed the same to PW1 and others, who rushed to the scene of offence and found the dead body of the deceased.

On 3.11.2006, at about 9.00 a.m., PW1 presented Ex.P1 report to PW10-Sub-Inspector of Police, Konaraopet Police Station, who registered the same as a case in Crime No. 56 of 2006 u/s 302 of I.P.C. against the accused. Subsequently, PW11-Inspector of Police, Vemulawada took up investigation, he visited the scene of offence, prepared Ex.P3-Crime Details Form in the presence of PW6 and another, got photographed the scene of offence and dead body of the deceased through PW8, examined the witnesses, held inquest over the dead body of the deceased, seized the clothes on the dead body, which are MOs.1 to 4, under a cover of panchanama, prepared Ex.P2-Inquest Report and sent the dead body for post-mortem examination. Subsequently PW7-Civil Assistant Surgeon, Area Hospital, Sircilla conducted post-mortem examination over the dead body of the deceased. He opined the cause of death of the deceased as due to haemorrhage and shock occurred due to cut of right jugular vein as in Injury No. 1. Subsequently, PW11 arrested the accused on 6.11.2006 at Nimmapalli Village in the presence of PW9, recorded his confession statement, seized MO5-sickle and MO6-shirt of the accused and prepared Ex.P9-confession-cum-recovery panchanama and after completion of the investigation filed charge-sheet against the accused for the offence punishable u/s 302 of I.P.C.

A charge u/s 302 I.P.C. was framed against the accused. The plea of the accused was one of total denial and claimed to be tried. The prosecution in order to prove its case against the accused examined PWs. 1 to 11 and got marked Exs.P1 to P13 and MOs.1 to 6.

The learned Sessions Judge, Karimnagar, on appraisal of entire evidence held that the prosecution has brought home the guilt of the accused beyond all reasonable doubt for the offence u/s 302 of I.P.C., and accordingly convicted and sentenced the accused to undergo imprisonment for life. Aggrieved by the conviction and sentence, the accused preferred this appeal.

Learned Counsel for the appellant-accused submits that there is absolutely no direct evidence whatsoever to connect the appellant-accused with the commission of offence and the entire case is based on circumstantial evidence. He further submits that the alleged arrest and recovery of crime weapon from the possession of the appellant-accused are all fictitious. He further submits that there are inconsistencies in the evidence of prosecution witnesses and therefore, the appellant-accused is entitled to benefit of doubt.

On the other hand, the learned Public Prosecutor contended that there is sufficient material to show that the appellant-accused was responsible for the commission of offence, and therefore, the conviction and sentence passed by the trial Court is justified and no interference is called for.

The point that arises for consideration in this appeal is whether the prosecution could establish the charge framed u/s 302 of I.P.C. against the appellant-accused beyond all reasonable doubt?

PW1, who lodged Ex.P1 report before PW10-Sub-Inspector of Police, Konaraopet Police Station, is the wife of the deceased. PW2, is the younger brother of PW1 and brother-in-law of the deceased; PW3 is the village elder, who reprimanded the accused on the issue of setting fire to the hayrick of the deceased; PW4 is the Sarpanch of the village and PW5 is a neighbouring land owner of the deceased and all are circumstantial witnesses. PW6 is the panch witness for the inquest and observation of scene of offence by the police. PW7 is the doctor, who conducted the postmortem examination over the dead body of the deceased and issued Ex.P4-Post-Mortem Report. PW8 is the photographer, who took photographs of the dead body of the deceased. PW9 is the panch witness for confession and recovery of crime weapon from the possession of the accused. PW10 is the Sub-Inspector of Police, Konaraopet Police Station, who registered Ex.P1 complaint lodged by PW1. PW11 is the Investigating Officer, who filed the charge-sheet against the accused.

In order to establish the fact that the death of the deceased is a homicidal death, the prosecution examined PW1, PW2, PW6 and PW7. The evidence of said witnesses coupled with Ex.P2-Inquest Report and Ex.P4-Post-Mortem Report, amply proves that the death of the deceased is homicidal death.

Since the death of the deceased is homicidal death, it has to be examined whether the appellant-accused has caused the death of the deceased or not.

As per the material available on record, there is no direct evidence to substantiate the case of prosecution. The entire case mainly rests upon the circumstantial evidence of PW2, who is the younger brother of PW1 and brother-in-law of the deceased and also PW5, who is the neighboring land owner of the deceased. When a case rests upon circumstantial evidence, the law is well settled that the following tests have to be satisfied by the prosecution as laid down by the apex Court in Padala Veera Reddy Vs. State of Andhra Pradesh and others,

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(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

(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.

Bearing the above principles in mind, it has to be seen whether the circumstances adduced by the prosecution are sufficient to infer that the appellant-accused alone was responsible for causing the death of the deceased.

PW2, who is the younger brother of PW1 and brother-in-law of the deceased, has stated in his evidence that on 2.11.2006 at about 12.00 noon he went to his field and after sometime the deceased also came to his field and when both of them were engaged in work in their respective fields, the accused came there and on seeing the accused PW2 asked him as to why he came to their fields as there are no good terms between them and then the accused left the place. PW2 further deposed that in the evening at about 5.00 p.m. while he was proceeding to his home, he saw the accused near the canal (Orre) while he was proceeding towards the village and then PW2 having entertained suspicion, again went back towards the canal and found the dead body of the deceased lying in a pool of blood with a fresh cut injury on the front side of his neck with blood oozing. According to him, he saw MO3-Black striped towel, belonging to the accused, which was placed on the face of the deceased and then he rushed to the house of PW1 and informed her about the incident. However, in the cross-examination PW2 admitted that he did not mention in his statement u/s 161 Cr.P.C. that he entertained a doubt and hence he went back again to the field of the deceased. He further admitted that he did not inform to the police that the cut injury on the neck of the deceased appeared to be fresh. According to him, on the night of the incident at about 9.00 p.m. himself and PW4-Sarpanch informed to the police over phone about the incident and the police did not come to the village on that night, but they instructed to the village Sunkari to guard the dead body of the deceased. PW2 further stated that on the next day morning the villagers tied the accused to a pole and then police came to the village. PW2 further admitted in his cross-examination that he did not inform the police that when the accused came to their fields he questioned him as to why he came there since there were no good terms between him and PW2 and the deceased. In the cross-examination PW2 further admitted that about one year prior to his death, the deceased purchased Acs. 2.00 of land from him and still some balance amount is due to him. However, PW2 denied the suggestion that he was deposing falsehood at the instance of PW1 due to fear that unless he deposes in favour of PW1, she would not pay him the balance of sale consideration. PW2 further states that at a distance of 500 to 600 yards from the dead body, a road which leads from Nimmapally to Sircilla is running and the people moving on that road will be visible from the scene of offence.

PW5, who is the neighbouring land owner of the deceased, has deposed in his chief-examination that on 2.11.2006 at about 12.00 noon while he was in his field, he saw the accused going on the road leading from Nimmapally towards Sircilla. However, he says that the accused was proceeding towards the fields of himself and the deceased, and at that time, the accused was wearing a black striped green coloured towel on his shoulder. But in the cross-examination, PW5 stated that he saw the accused while he was proceeding on the main road, but thereafter he did not see him in which direction he went. He further stated that if the accused has to go to his field, he has to turn towards his left from the road. In the cross-examination, PW5 further stated that MO3-Towel is blue in colour. He further stated that the distance between the land of the accused and the deceased is about 1/2 Km. and the distance between his land and the land of the accused is about 1 Km.

PW9 who is the panch witness for confession and recovery of crime weapon from the possession of the accused, deposed in his evidence that on 6.11.2006 at about 2.00 p.m. PW11-Circle Inspector of Police was taking the accused to his house and he witnessed the same from his house. He further stated that in the interrogation the accused confessed to the commission of the crime and he produced MO5-Sickle from the attik of his house, which was seized by PW11 under the cover of Ex.P9-Confession-cum-Recovery Mahazar. In the cross-examination, PW9 admitted that on the next day of the death of the deceased, villagers tied the accused to a pole on the allegation that he committed the murder of the deceased. He, however, stated that he does not know when the police came after the accused was tied to a pole and when they have taken the accused into custody. PW9 further stated in his cross-examination that the police brought the accused along with them and then they all went to the house of the accused. He further stated that the accused himself went inside his house and produced both MO5-Sickle and MO6-Sky blue colour shirt and MO5-Sickle appears to be a used one as it got rusted.

PW10, who is the Sub-Inspector of Police, Konaraopet Police Station, has stated in his evidence that on 3.11.2006 at about 9.00 a.m., PW1 came to the police station and presented Ex.P1 complaint to him. In the cross-examination, he stated that he did not receive any intimation about the murder of the deceased on the previous night. He further stated that PW1 did not state in her statement that her daughter-in-law also came along with her to the scene of offence and she did not state that the accused removed the guava plant of the deceased. PW10 admitted in his cross-examination that on the next day of incident it was published in the newspapers to the effect that the villagers tied the accused to a pole and later police came and took him into custody.

PW11, who took up investigation from PW10, has stated in his evidence that he arrested the accused on 6.11.2006 at 2.00 p.m. at his house at Nimmapalli Village. In his cross-examination, PW11 admitted that he does not know when PW10 sent the FIR to the Magistrate. He further admitted that he did not examine the owners of surrounding fields at the scene of offence. He further stated that in view of presence of banks on either side of water channel, people may not be able to see the occurrence at the scene of offence. He further stated that he did not go inside the house of the accused, but he stood at the doorstep of the house and the accused went inside the house and brought the sickle.

On an analysis of the above evidence, it is clear that there is no substantial evidence to establish that the appellant-accused has committed the murder of the deceased. Except PW3 and PW11, all the other witnesses admitted that the villagers tied the accused to a pole on the next day morning of the date of incident (3.11.2006) on the suspicion that he might have killed the deceased and thereafter the police came and took the accused into custody. But, however, PW11-Investigating Officer stated in his evidence that he arrested the accused on 6.11.2006 at 2.00 p.m. at his residence. That being so, the question of again arresting the accused four days after the incident and recovery of MO5 from the accused, does not arise. Further, PW11 stated in his evidence that he has sent only MO4-Yellow colour banian and MO6-Sky blue colour shirt of the accused for chemical examination to R.F.S.L., Karimnagar through Judicial Magistrate of First Class, Siricilla, as is evident from Ex.P13-RFSL report. However, PW11 did not send MO5-sickle, which was alleged to be used by the accused in the commission of offence, for chemical examination to R.F.S.L. for the reasons best known to him. Further, PW9-Panch witness has stated in his cross-examination that MO5-Sickle appears to be a used one as it got rusted. Thus, it is clear that recovery of MO5 from the possession of the accused is doubtful.

The charge framed against the appellant-accused shows that on 2.11.2006 at about 6.00 p.m. the accused due to the previous disputes and enmity with the deceased, went to the agricultural field of the deceased, quarrelled with him and with an intention to cause his death, slit his neck with a sickle and killed him, but the prosecution has not adduced any evidence on that score.

PW5, who is the neighbouring land owner of the deceased, has deposed in his evidence that on 2.11.2006 at about 12.00 noon white he was in his field, he saw the accused going on the road leading from Nimmapally towards Sircilla. However, he says that the accused was proceeding towards his fields and the fields of the deceased, whereas in his cross-examination PW5 stated that he saw the accused while he was proceeding on the road but thereafter he did not see him in which direction he went. PW5 further stated in his chief-examination that the accused was wearing a black striped green coloured towel i.e., MO3 on his shoulder, whereas in his cross-examination, he stated that MO3 is blue in colour. In view of contradictory versions found in the evidence of PW5, it is unsafe to believe his evidence.

PW1, who is the wife of the deceased, stated in her evidence that after hearing the death of the deceased, herself and her daughter-in-law rushed to the scene of offence. According to the evidence of PW10 and PW11, PW1 did not specifically mention in her statement that her daughter-in-law also followed her to the scene of offence. Further, PW1 stated in her evidence that two months prior to the death of the deceased, the accused burnt the hayrick of the deceased and thereafter the accused removed a guava plant of the deceased. According to the evidence of PW10 and PW11, PW1 did not state in her statement that the accused removed the guava plant of the deceased. PW2, who is the brother-in-law of the deceased in his evidence stated that while he was proceeding, he saw the accused near the canal and he was proceeding towards the village and that he entertained suspicion and again went back towards the canal and found the dead body of the deceased lying in a pool of blood. According to the evidence of PW11, PW2 did not state before him that from the road again he returned back to the field and then found the dead body of the deceased and that PW2 omitted to state that he noticed the dead body of the deceased was covered with a towel. There are several discrepancies in the evidence of PW1, PW2, PW5, PW9, PW10 and PW11 and therefore it is not safe to believe their evidence.

Thus, the prosecution has failed to satisfy the aforesaid tests as laid down by the apex Court in the case of Padala Veera Reddy. The circumstances adduced by the prosecution are not sufficient to infer that the appellant-accused alone is responsible for causing the death of the deceased.

For the foregoing reasons, we are of the view that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and the accused is entitled to the benefit of doubt. In the result, the criminal appeal is allowed. The conviction and sentence passed by the learned Sessions Judge, Karimnagar, against the appellant-accused for the offence punishable u/s 302 of I.P.C., by judgment dated 7.3.2008 in SC No. 493 of 2007, is hereby set aside and the appellant-accused is acquitted of the said offence and he shall be set at liberty forthwith, if he is not required in any other case.