Sontari Laxmana Vs. State of A.P., Rep. by Its P.P.,high Cou - Court Judgment

THE HONBLE SRI JUSTICE L. NARASIMHA REDDY and THE HONBLE SRI JUSTICE M.S.K.JAISWAL Crl.Appeal No.195 of 2010 27-03-2014 Sontari Laxmana Rao Appellant-Accused State of A.P., rep. by its P.P.,High Court of A.P., Hyderabad ...Respondent Counsel for the Appellant:Sri K. Satyanarayana Rao Counsel for respondent : Public Prosecutor HEAD NOTE: ?.Cases Referred : . HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.195 of 2010 Dated:

27. 03.2014 Criminal Appeal No.195 of 2010 JUDGMENT

: (Per Honble Sri Justice M.S.K.Jaiswal) The accused in S.C.No.96 of 2009 on the file of the VIII-Additional Sessions Judge (FTC), Visakhapatnam, is the appellant. Through its Judgment, dated 07-10-2009, the trial Court found him guilty of committing an offence punishable under Section 302 I.P.C., and sentenced him to undergo imprisonment for life and to pay fine of Rs.100/-, in default, simple imprisonment for one month. The same is challenged in this appeal.

2. The facts in brief are as under:- Jarra Moddu (hereinafter referred to as the deceased) and the accused are the residents of Pooluguda village, Borra Panchayat, Ananthagiri Mandal. On 29-10-2008 at about 07.30 p.m., the accused is alleged to have stabbed the deceased with scissors and also beat him with an axe on the head, due to which he died instantaneously. The motive therefor is said to be the illegal contacts in between the deceased and the wife of the accused. The incident is said to have been witnessed by Nangeli Rama Murthy and Samareddi Arjun, PWs.2 and 3. Next day i.e., on 30-10-2008 at about 08.00 a.m., in the morning, PWs.2 and 3 informed the incident to the Sarpanch of the village, PW.1. He visited the scene of offence, saw the dead body and thereafter at 08.00 p.m., gave the complaint Ex.P.1. Cr.No.48 of 2008 was registered by the Police, Ananthagiri. Investigation was conducted by P.W.9 the Inspector of Police. Scene of offence panchanama was conducted, inquest over the dead body was held and the dead body was sent to post-mortem examination. The Medical Officer (PW.10), who conducted autopsy, opined that the cause of death of the deceased was due to cardio respiratory arrest secondary to head injury and cerebral bleeding. The accused was arrested on 13-11-2008 and in pursuance to his confession, the scissors and the axe (M.Os.1 and 2) were recovered. Charge-sheet was filed before the Judicial Magistrate of First Class, Araku Valley, where it was registered as P.R.C.No.9 of 2009. The case was committed to the Court of Sessions. Charge under Section 302 of I.P.C. was put to the accused and on his denial, trial was taken up. PWs.1 to 10 were examined and Ex.P.1 to Ex.P.19 and M.Os.1 to 5 were brought on record. The accused was examined under Section 313 Cr.P.C., where he denied the evidence on record and contended that he has been falsely implicated. Through the Judgment under appeal, the accused has been convicted and sentenced, as stated above.

3. Learned Counsel for the accused submits that the evidence on record is not adequate to establish that the accused committed the crime and he has been erroneously found guilty by the trial Court. Learned Counsel submits that there is inordinate delay in lodging the complaint and the case of the prosecution cannot be believed for the reason that there were pre-existing hostilities between the accused and the deceased. Learned Counsel further submits that just by relying upon the alleged confession said to have been made by the accused leading to the recovery of M.Os.1 and 2, the trial Court found the accused guilty, ignoring the evidence on record, which clearly shows that the said allegation is incorrect.

4. Learned Additional Public Prosecutor submits that the evidence on record, particularly, the oral evidence of the witnesses clearly shows that it is the accused, who committed the crime. She contends that on the basis of legally acceptable evidence, the trial Court convicted the accused and that there are absolutely no grounds to interfere with the said finding.

5. The point for consideration is as to whether the prosecution proved its case against the accused beyond reasonable doubt so as to sustain the conviction and sentence, or whether it needs to be set aside, modified or varied?.

6. POINT:- The accused and the deceased were the residents of the same village. The accused was suspecting that the deceased was having illicit intimacy with his wife. It is alleged that on 29-10-2008 at about 07.30 p.m., in the evening, when the deceased was returning home from Kasipatnam fair, the accused first attacked him with a saloon scissors and thereafter dealt a blow with an axe on head, which resulted in his instantaneous death. The incident is said to have been witnessed by PW.2 and on his raising hue and cry, P.W.3 and the neighbouring resident viz., Pothi and Raju (not examined) came there.

7. PWs.2 and 3 are said to have informed the incident to PW.1, the village Sarpanch, on the next day morning at about 08.00 a.m. At about 08.00 p.m., PW.1 lodged the complaint Ex.P.1. The contents of Ex.P.1 are based on the information that is furnished by PWs.2 and 3. Similarly, the oral evidence of the complaint PW.1 is the hearsay evidence. He has not witnessed the incident. The material evidence is that of PWs.2 and 3.

8. PW.2 deposed that on the date of the incident at about 07.30 p.m., he has seen the accused stabbing the deceased with a shaving scissors in the abdomen and chest and thereafter, the accused hit the deceased on the backside of the head, with an axe. PW.3 deposed that on hearing the cries of PW.2, he went there and has seen the accused standing there holding scissors in one hand and the axe in the other. PW.3 further deposed that the accused claimed that he has killed the deceased and that if anyone interferes, he will kill them also.

9. According to PW.2, the deceased sustained three injuries, caused with scissors and axe. One seldom comes across an instance, which smacks of ingenuity, where the assailant attacked the victim simultaneously with two weapons. The scissors that was said to have been used by the accused was 6 inches in length and he is said to have stabbed the deceased in abdomen and chest. The medical evidence is at variance with the eye-witnesses account. The Doctor PW.10, who conducted the autopsy over the dead body and issued post-mortem report Ex.P.19, found as many as 11 injuries on the dead body. The post-mortem was conducted at 04.00 p.m., on 31-10-2008 and according to the Doctor PW.10, the approximate time of the death of the deceased was 24 hours to 30 hours, prior to the autopsy. This approximately brings the time of incident and consequential death of the deceased between 10.00 a.m., to 04.00 p.m., of 30-10-2008. However, according to the prosecution as well as PWs.2 and 3, the deceased died at about 07.30 p.m., on 29-10-2008. This wide difference about the time of death of the deceased raises serious doubt about the version of the prosecution. This also gets strengthen from the other circumstances mentioned hereunder.

10. According to PWs.2 and 3, the incident took place at 07.30 p.m., on 29-10-2008. From their village, where the incident took place, the jurisdictional Police Station is 12 KMs., away and the place where the Sarpanch PW.1 was living is about 10 KMs. More than 12 hours after the incident, the information is said to have been given by PWs.2 and 3 to PW.1. Even thereafter, the Sarpanch is supposed to act with responsibility. If what is pleaded by the prosecution is true, PW.1 conducted himself in an irresponsible manner. When he was informed about the incident of grave crime at 08.00 a.m., on 30-10-2008, for full 12 hours, information was not given to the police, as noticed above, the complaint Ex.P.1 was lodged by PW.1 only at 08.00 p.m., on 30-10-2008. These circumstances, coupled with the opinion of the Doctor affects the credibility of the very case of the prosecution that the incident took place at 07.30 p.m., on 29-10-2008. It appears that the incident took place sometime in the afternoon of 30-10-2008, as opined by the Doctor.

11. That apart, the Investigating Officer P.W.9 visited the scene of offence only at 05.30 a.m., on 31-10-2008. He found the dead body lying on the road, which is quite unnatural. The dead body of the deceased would not have been allowed to lie on the road for nearly 36 hours i.e., two nights and one day.

12. The other circumstance that is relied upon by the prosecution to establish the nexus between the crime and criminal is the confession said to have been made by the accused, leading to the recovery of M.Os.1 and 2, which are the weapons said to have been used by the accused. According to P.W.9, the Investigating Officer, and the panch witness PW.6, the accused was arrested on 13-11-2008 at about 02.00 p.m. He is said to have made the confession and led the police and the panchas to his village and thereafter, the brother of the deceased has led them to the house of the accused. This is quite unnatural, for it is alleged that from inside the house, the accused brought M.Os.1 and 2 and handed them over to the police, and the same were seized. However, according to the eye-witness PW.3, after inflicting the deadly blows on the deceased, the accused threw away M.Os.1 and 2 at the spot and ran away from there.

13. Exs.P.5 to P.16 are the positive photos of the scene of offence as well as the deceased. According to the Investigating Officer, these photos were taken on 31-10-2008. PW.7 is the Departmental Photographer, who took the photos. In these photos, it is noticed that the axe M.O.2 is found lying near the dead body. The Investigating Officer, P.W.9 admits the said fact but stated that the axe that is found lying near the dead body is not the one with which the accused committed the crime. This is patently incorrect. If what is noticed in the photos is true, the very case of the prosecution, spoken to by the Investigating Officer P.W.9 and the panch witness PW.6 that on 13-11-2008 the accused was arrested, he confessed of having committed the crime and led to the recovery of the weapons turns out to be incorrect.

14. We are of the view that the Investigating Officer has not taken adequate precautions, which are required to be taken, while investigating the grave crime such as murder. Ex.P.4 is said to be the panchanama prepared at the time of arrest of the accused and recovery of M.Os.1 and 2. it is mentioned in Ex.P.4 that Jara Moddu is arrested. Jara Moddu is the deceased but not the accused. The Investigating Officer explained it away as a mistake. Similarly, in Ex.P.4, which is said to be the panchanama prepared on 13-11-2008, there is a material alteration in the date of incident.

15. The above facts and circumstances add strength to the contention of the learned Counsel for the accused that the entire investigation is perfunctory, if not imaginary. The evidence on record is full of discrepancies and inconsistencies, giving rise to serious doubt about the case of the prosecution. The trial Court did not appreciate these aspects in proper perspective and held the accused guilty. Such a finding cannot be sustained. The point is accordingly answered.

16. In the result, the Criminal Appeal is allowed. The conviction and sentence ordered in S.C.No.96 of 2009 on the file of VIII Additional District & Sessions Judge, Visakhapatnam, dated 07-12-2009, against the appellant-accused, are set aside. The appellant-accused shall be set at liberty forthwith, unless his detention is needed in any other case. The fine amount, if any, paid by the appellant-accused shall be refunded to him. ___________________ L.Narasimha Reddy,J.

_______________ M.S.K. Jaiswal,J.

Date:27.03.2014