Judgment:
THE HON'BLE Sr.JUSTICE L.NARASIMHA REDDY AND THE HON'BLE Sr.JUSTICE M.S.K.JAISWAL, CRIMINAL APPEAL Nos.1295 of 2006 and batch 12-02-2014 Kathi Venkanna and others...APPELLANTS The State of A.P.,rep.
by its Public Prosecutor, High Court of A.P., Hyderabad ..Respondent Counsel for appellants:Sr.A.Prabhakara Rao Smt.A.Gayatri Reddy' Counsel for respondent:The Public Prosecutor : : ?.cases Referred: COMMON JUDGMENT
: (per the Hon'ble Sr.Justice L.Narasimha Reddy) A1, his mother, A2, and brother, A3, were tried for the offence of committing murder of Puli Subbaratnam, wife of A1, on 17.11.2003 at Boddikurapadu Village of Prakasam District by the Court of IV Additional District and Sessions Judge (Fast Track Court).Markapur in S.C.No.189 of 2005.
The case of the prosecution was that A1 was married to the deceased about ten years prior to the incident, two sons, P.Ws.7 and 13, were born out of the wedlock, but the couple used to quarrel now and then.
The parents of the deceased are from the same Village.
P.W.1 is the brother, P.W.2 is the mother and P.W.3 is the younger sister of the deceased.
P.W.1 submitted a complaint, Ex.P1, before the Station House Officer, Tallur Police Station at 4.00 p.m.stating that at about 7.00 a.m.on that day, the deceased and A2 quarrelled with each other and on that, A1 beat the deceased.
He stated that at about 9.00 a.m.when he was proceeding in the street along with his sister, P.W.3, they came across A1 and when enquired about the quarrel in the house, A1 is said to have stated that there is nothing serious about it and asked them not to worry.
P.W.1 is said to have entertained a doubt about the veracity of statement of A1 and asked P.W.3, his younger sister, to go to the house of the accused and the deceased and verify.
P.W.3 is said to have returned and informed P.W.1 that by the time she went to the house of the accused, Subbaratnam was found lying on a heap of manure.
Thereafter, P.Ws.1 to 3 and some others are said to have gone to the spot.
They are said to have noticed the blood coming from the nasals and a contusion at various places of the body, apart from broken bangle pieces.
He suspected the role of the accused, in the death of the deceased.
He alleged that on the preceding day, A3, visited the Village and incited A1 to kill the deceased.
Crime No.55 of 2003 was registered alleging offence under Section 302 I.P.C.and F.I.R.was issued.
The Station House Officer, Tallur Police Station proceeded to the spot, prepared scene of offence panchanama and got the inquest and post- mortem of the deceased conducted.
The Investigating Officer filed a charge sheet.
Taking the same into account, the trial Court framed necessary charges against the individual accused.
Before the trial Court, P.Ws.1 to 16 were examined and Exs.P1 to P27 were marked.
M.Os.1 to 5 were taken on record.
Through its judgment, dated 12.09.2006, the trial Court acquitted A2 and A3, but convicted A1 for the offence punishable under Section 304 Part-II I.P.C.and sentenced him to undergo Rigorous Imprisonment for seven yeaRs.While A1 filed Criminal Appeal No.1295 of 2006 challenging the conviction and sentence, the State filed Criminal Appeal No.1389 of 2009 against the acquittal of A2 and A3.
Learned counsel for the accused submits that the FiRs.Information Report itself was submitted after the delay of about nine hours and that time was utilised by P.W.1, the brother of the deceased, to implicate not only A1, but also his mother and brother.
She contends that the deposition of P.W.1 is a substantial improvement upon Ex.P1.
It is argued that the source of information about the death of the deceased to P.W.1, as per Ex.P1, is P.W.3, whereas in his deposition, P.W.1, for the fiRs.time stated that his mother, P.W.2, passed on the information to him.
It is also pleaded that the presence of P.Ws.7 and 13, the children of the deceased, was not mentioned in Ex.P1 or for that matter, in the depositions of P.Ws.2 and 3, but still, P.W.13 was treated as an eye witness by the trial Court.
Learned counsel submits that even according to P.W.13, he was tutored by a Counsel at DaRs.as to what he must depose in the Court and the evidence of such a witness, that too a juvenile cannot at all be taken as reliable.
Learned Public Prosecutor, on the other hand, submits that since the parents of the deceased are from the same Village, there cannot be anything extraordinary about P.Ws.1 to 3, the brother, mother and sister of the deceased, getting knowledge of the incident, instantly.
She contends that the delay in filing the complaint occurred on account of the fact that the Police Station is at a distant place and P.W.1 was busy in attending to the disturbing situation on account of the death of the deceased.
It is urged that the evidence on record is sufficient to convict A2 and A3 also, particularly, when it is the specific case of the prosecution that the root cause for the death of the deceased is the quarrel raised by A2 with her, followed by beating of the deceased by A1.
She contends that the entire incident occurred on account of the instigation made by A3.
Since we heard the arguments advanced on behalf of both the parties at length and perused the evidence on record, we propose to undertake a common discussion for the appeal presented by A1 challenging the conviction and the appeal filed by the State, assailing the acquittal of A2 and A3.
The Police received Ex.P1 at 4.00 p.m.on 17.11.2003.
Even from a perusal of Ex.P1, it emerges that P.W.1 suspected some quarrel in the house of A1 and deceased at 7.00 a.m.itself.
According to him, when himself and P.W.3 were proceeding towards the house of A1, the latter came across in the way and on enquiry, he is said to have stated that everything is normal.
Soon thereafter, P.W.1 is said to have sent P.W.3 to find out the situation and that on reaching the house of the accused and the deceased, P.W.3 noticed the death.
If this sequence of events is taken into account, at least by 8.00 a.m.the knowledge about the death of the deceased has reached everyone in the family and all of them are said to have gone to the scene of occurrence.
Once P.W.1 suspected that his sister was murdered, the fiRs.thing expected from him, is submission of complaint to the Police.
It was elicited in the cross- examination of P.W.1 that there is telephone facility in the village and there are quite a good number of motorcycles.
However, it is only at 4.00 p.m.that he submitted the complaint.
Added to that, the FiRs.Information Report reached the Jurisdictional Magistrate at 9.20 p.m.In a grave offence of this nature, it should not have taken even one hour for the police to apprise the Magistrate over the occurrence.
Suggestions were made to the effect that there are interpolations in Ex.P1 and that P.W.1 consulted an Advocate at DaRs.before submitting Ex.P1.
No effort was made by the prosecution to explain the delay of 8 to 9 houRs.We do not feel it necessary to reiterate the effect of delay in filing a complaint, particularly in matters of this nature.
Coming to the merits of the matter: the version about the death is briefly furnished in Ex.P1.
According to this, P.W.1 did not notice the incident.
He sent his sister, P.W.3, to the house of the accused and the deceased, and on noticing the death of the deceased, she came and informed her family membeRs.Whoever, in his chief-examination, P.W.1 presented a totally different picture.
He stated that his mother, P.W.2, heard some galata in the house of the accused early in the morning and on noticing galata in the house, she pacified them.
Thereafter, she is said to have informed P.W.1 and other family members about the incident.
Relevant portion reads as under: ".On the date of incident at about 7 or 7.30 a.m.while my mother (LW2) was attending calls of nature near the house of the accused she heard galata from the house of accused.
Then, L.W.2 proceeded to the house of accused and found A1 and A2 were beating the deceased.
L.W.2 pacified the quarrel and came to her house and informed the same to us".This is a complete improvement, if not a contradiction from Ex.P1.
P.W.3, sister of P.W.1, did not say in her evidence that she accompanied his brother and both of them have come across A1 in the street.
On the other hand, she stated that on being asked by P.W.2, her mother, she went to the house of the accused and the deceased and there they found her sister lying on a heap of manure.
She is also said to have interacted with A1, who is stated to have informed her that the deceased died due to consumption of insecticide.
It is important to note that in none of the depositions of P.Ws.1 to 3, there is a reference to the presence of the children of A1 and the deceased i.e.P.Ws.7 and 13 or the information about the death of the deceased having been passed on to them.
It appears that after the death of the deceased, out of two minor boys, the younger one is with the family of the accused and the elder one is with the family of the parents of the deceased.
P.W.7, who was about nine years as on the date of deposition did not support the case of the prosecution and he was declared hostile.
Nothing substantial was elicited from him.
P.W.13 stated that though his parents i.e.A1 and deceased were cordial when they were residing at Kanigiri, quarrel started between them after they came to Boddikurapadu Village.
He stated that on the date of incident, A2 raised a quarrel with the deceased to the extent of fighting with each other by holding tufts and A1 is said to have beat the deceased with a plank which was being used by them as cricket bat.
According to this witness, he has seen A1 beating the deceased with bat and that A1 asked himself and P.W.7 to go to the school.
He stated that P.W.3 came to the school and informed him about the death of the deceased.
It is important to note that P.W.3 did not mention this.
The Courts are required to be careful and cautious in dealing with the evidence of juvenile witnesses.
Though they may not be having any intention to unnecessarily implicate any one, and they tend to speak whatever they have witnessed, many a time they are prone to be tutored.
If the tutoring takes place for quite a considerable time, they may honestly repeat it without knowing the implications thereon.
This is a typical case, which fortifies the phenomenon mentioned above.
P.W.13 was so honest that he admitted that he was tutored by a Counsel at Darsi.
He stated: ".Twice or thrice I was taken to Darsi.
I was also taken to a pleader.
At the house of the pleader, I was tutored as to what I have to state before the Court".He has also admitted that he did not state before the Police that P.W.3 came to the School and informed him about the death of the deceased.
When this is the evidence of P.W.13, it is not at all safe to convict anyone on the basis of such slippery and tutored evidence.
The trial Court has, for all practical purposes, treated P.W.13 as an eye witness and convicted A1.
We are of the view that the trial Court was correct when it acquitted A2 and A3.
At the same time, we do not find anything specific or grave on the part of A1 warranting his conviction.
Once the evidence of P.W.13 is discarded as being the result of tutoring, there hardly exists any material to connect A1 to the death of the deceased.
We, therefore, allow Criminal Appeal No.1295 of 2006.
The conviction and sentence ordered in S.C.No.189 of 2005 on the file of the VI Additional District & Sessions Judge (Fast Track Court) Markapur, dated 12.09.2006, against A1- appellant, are set aside.
A1-appellant shall be set at liberty forthwith, unless his detention is needed in any other case.
The fine amount, if any, paid by A1-accused shall be refunded to him.
Criminal Appeal No.1389 of 2009 is dismissed.
The miscellaneous petitions filed in these appeals shall also stand disposed of.
______________________ L.NARASIMHA REDDY, J ____________________ M.S.K.JAISWAL,J Dt: 19.02.2014