Lolapu Chinnanna Vs. the State of A.P., Rep. by Public Prosecutor, High Court of A.P. - Court Judgment

Excerpt:
- - strong reliance was placed on jarnail singh vs .state of punjab, 1996crilj1139 .the learned counsel while further elaborating his submissions would contend that the other evidence is only hear-say evidence and hence, the same is inadmissible. p-12-forensic science laboratory report, and ultimately, the counsel concluded his submissions saying that on overall appreciation of the material available on record, the prosecution failed to bring home the guilt of the accused and hence, he is entitled for an acquittal. the learned counsel also placed strong reliance on state of west bengal v. 1 also deposed that accused told her daughter that she should not live with him as she failed to attend the land and do coolie work and exchange of words took place in their house. 3 as well. a strong reliance was placed on ex. strong reliance was placed on jarnail singh v. state of punjab (1 supra) relating to evidence and proof in the case of criminal trial wherein apex court held in criminal cases the burden of proving the guilt of the accused beyond all reasonable doubt always rests on the prosecution and, therefore, if it fails to adduce satisfactory and reliable evidence to discharge that burden it cannot fall back upon the evidence adduced by the accused persons in support of their defence to rest its case solely thereupon. when once the accused had taken the defence of total denial and on the material the court is satisfied that the presence of the accused along with the deceased on the fateful day cannot be in any doubt, then how the incident had happened, and it would be within the exclusive knowledge of the appellant-accused. in this regard, the learned additional public prosecutor placed strong reliance on section 106 of the indian evidence act, 1872. in state of west bengal v. but the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation, which might drive the court to draw a different inference. had observed that section 106 of the evidence act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts, which are particularly within the knowledge of the accused. on the contrary, it is designed to meet certain exceptional cases in which it would impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or in convenience. even though section 106 of the evidence act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. it is needless to say that the learned judge had taken a lenient view and had convicted the accused under section 27 of the indian arms act and while imposing the sentence also the learned judge had taken a lenient view and hence, in the light of the foregoing discussion, this court is of the considered opinion that the findings recorded by the learned judge are perfectly in accordance with law and well justified.p.s. narayana, j.1. the appellant-accused preferred the present appeal aggrieved by the conviction recorded and the sentence imposed by judgment dated 26.05.1997 in sessions case no. 103 of 1996 on the file of the additional sessions judge, adilabad. 2. the appellant-accused was charged with offences under section 302 of the indian penal code (ipc) and under section 25 (1)(a) of the indian arms act in crime no. 38 of 1994 of oala police station.3. the case of the prosecution in brief, is as hereunder:the deceased by name muthavva was the kept mistress of the accused and she was married to one yellanna and she had divorced him and subsequent thereto she developed illicit intimacy with appellant-accused who gave shelter to her by providing a house to her at suryapur. the deceased also gave birth to a male child through the accused and subsequent thereto, accused began suspecting the fidelity of the deceased and started abusing her. on 24.09.1994 at about 11-00 p.m., the accused came to the deceased with country made single barrel 12 bore gun and began abusing her stating that she had betrayed him by carrying illicit intimacy with others also and aimed the gun at the deceased. p.w.1 who was sleeping nearby woke up and went to rescue the deceased. the accused pushed her aside and opened fire against the deceased and due to the fire arm injuries the deceased died. on hearing the gun firing, p.ws 2 and 3 rushed to the spot and found the deceased lying in a pool of blood with fire arm injuries on her chest and meanwhile the accused ran away. on 25.09.1994 at 11.30 a.m. p.w.1 reported the incident to oala police station orally and it was reduced into writing and a case in crime no. 38 of 1994 was registered under section 302 i.p.c. and section 25(1)(a) of the indian arms act. the investigating officer had taken up the investigation, visited the scene of offence, held the inquest over the dead body and also had drawn the rough sketch of the scene of offence. the witnesses were also examined by the investigating officer and the post mortem examination was conducted at government hospital, bhainsa and opinion was given by the medical officer that the death was due to shock and haemorrhage due to fire arm injuries on vital organ of the body and the medical officer had taken out five pillets from the chest of the deceased. p.w.11 arrested the accused on 30.09.1994 and on his confession before the panch witnesses, a single barrel 12 bore gun used by the accused in the commission of the offence in question had been recovered at the instance of the accused in the field of d. gajjaram under the cover of panchanama.the material objects including five pillets had been sent to the chemical examination in forensic science laboratory, hyderabad. sanction was also given by the district collector to prosecute the accused under section 25(1)(a) of the indian arms act. 4. the trial court framed the charges against the accused under section 302 ipc and section 25(1)(1) of indian arms act, and the said charges were read over and explained to the accused and the accused pleaded not guilty. the learned additional sessions judge at adilabad recorded the evidence of p.ws 1 to 11 and also marked exs.p1 to p.15 and m.o.1 to m.o4. on appreciation of the entire evidence on record, the learned additional sessions judge came to the conclusion that the prosecution proved the guilt of the accused beyond all reasonable doubt, under section 304-part-ii of ipc for the offence of culpable homicide not amounting to murder and also under section 27 of the indian arms act and the accused also was examined regarding sentence and ultimately, the learned judge had imposed rigorous imprisonment of four years and a fine of rs.300/- and in default, to undergo rigorous imprisonment for three months for the offence under section 304-part-ii i.p.c. and a further sentence of rigorous imprisonment for four years and to pay a fine of rs.200/-and in default, to undergo rigorous imprisonment for three months for an offence under section 27 of the indian arms act and the main sentences of imprisonment shall run concurrently. aggrieved by the same, the present appeal is preferred. 5. heard the learned counsel sri nazir khan representing the appellant-accused and the learned additional public prosecutor sri niranjan reddy. 6. the learned counsel representing appellant-accused made the following submissions. the counsel would contend that even by virtue of the contents of ex.p-1- first information report even prior to the incident, there was no cordial relationship between the deceased and the accused and hence, the very incident alleged to have happened on the fateful day cannot be believed. the counsel would contend that the defence version is one of total denial and he was falsely implicated. the learned counsel would further submit that except the evidence of p.w.1, there is no other evidence available on record and the other witnesses just say that p.w.1 had stated what had happened to them when they reached the scene. the learned counsel also made an attempt to show that in the light of the character of the deceased and also the nature and character of p.w.1, the mother of the deceased, conviction cannot be sustained on the sole testimony of p.w.1. the learned counsel also further contended that at any rate the weakness of the defence cannot be taken advantage and the prosecution may have to prove the case beyond all reasonable doubt. strong reliance was placed on jarnail singh vs . state of punjab, : 1996crilj1139 . the learned counsel while further elaborating his submissions would contend that the other evidence is only hear-say evidence and hence, the same is inadmissible. reliance was placed on mukul rani varshnei v. delhi development authority, 1995 (4) crimes 49, 1995 scc (crl.) 1049. the learned counsel also would submit that in relation to ex.p.6 confession and recovery panchanama, p.w.7 was declared hostile. the evidence of p.w.8 is doubtful and not trustworthy as the alleged recovery of m.o.1 is from the land of one d. gajjaram, as it was not under the control of the accused and hence, the very seizure of m.o.1 as alleged by the prosecution is doubtful and on this ground also, the accused is entitled for an acquittal by giving benefit of doubt. the learned counsel also had pointed out the motive and also certain discrepancies in ex.p-12-forensic science laboratory report, and ultimately, the counsel concluded his submissions saying that on overall appreciation of the material available on record, the prosecution failed to bring home the guilt of the accused and hence, he is entitled for an acquittal.7. per contra, the learned additional public prosecutor sri niranjan reddy would contend that the evidence of p.w.1 is clear and categorical and she is a natural witness which definitely inspires the confidence of the court and in such cases corroboration may not be necessary. the learned counsel also would submit that the evidence of the other witnesses who immediately rushed to the spot definitely would constitute res geste and the same is admissible and such evidence can not be brushed aside or thrown out on the ground that it is hear-say what had been spoken to or stated by p.w.1 to the other witnesses just immediate after the incident in continuation of the transaction, definitely would be relevant. the learned counsel also would maintain that the aspect of leading immoral life is only in relation to the motive for the commission of the offence and merely because p.w.1 is the mother of the deceased, a lady of such character, such evidence cannot be disbelieved. the learned counsel also would submit that the entire case of the prosecution is not based on the recovery of m.o1 only and there is other material available on record and hence, on the ground that the same was recovered from the land of d. gajjaram and not from the accused, the findings recorded by the learned judge cannot be reversed in this regard. the learned additional public prosecutor while elaborating his submissions further would rely upon section 106 of the indian evidence act, 1872 and would contend that in the light of the clear evidence of p.w.1 and the statements of p.w.3 and p.w.4 who had immediately reached the spot, the presence of the accused along with the deceased on the fateful day at the relevant point of time, cannot be doubted at all. the next question would be, how the incident had happened. relating to this aspect apart from the evidence of p.w.1, what actually transpired on the fateful day should have been within the exclusive knowledge of the accused and the accused alone and the defence is surprisingly one of total denial but not anything else and this stand cannot be believed and hence, the learned judge had recorded proper reasons in this regard and recorded relevant findings. the learned counsel also placed strong reliance on state of west bengal v. mir mohammad omar, : 2000crilj4047 in this regard.8. heard both the counsel and perused the oral and documentary evidence available on record. 9. the story of the prosecution in nutshell had been already referred to supra. p.w.1 is the mother of the deceased. p.w.1 had deposed that the accused is a resident of oala and deceased muthavva is her daughter and she died about two years ago and her daughter was originally married to one yellanna who lived for four years and subsequent thereto divorce was taken and after divorce, her daughter was living with her and subsequent thereto, accused kept her daughter as his mistress and both of them lived together as husband and wife and accused constructed one house by the side of her house, and the accused and her daughter muthavva lived together in the said house and out of their relationship they gave birth to one son by name sekhar. p.w.1 also deposed that prior to death, her daughter did not go for cooly work for one month as she suffered from eye infection, and since the accused got land, her daughter used to go to the land of the accused to do work in the land. p.w.1 also deposed that accused told her daughter that she should not live with him as she failed to attend the land and do coolie work and exchange of words took place in their house. p.w.1 also deposed that during night on the date of incident, the accused beat her daughter muthavva with a gun and on hearing the sound, she rushed to the house where the accused and her daughter were together and the accused pushed her out when she questioned the attitude of the accused and the accused fired with the gun against her daughter at the right side of the chest and her daughter fell down after receiving the injury from the gun and she raised cries. she further deposed that on hearing the cries islampur adellu, kodarapu lachubai, madhu viswanath and poshetty came to the spot, and after firing against her daughter, the accused ran away. p.w.1 also deposed that she had reported the incident to the police and police recorded her statement and obtained her thumb mark on ex.p1 dated 25.09.1994. p.w.1 was cross-examined at length. several suggestions were put to p.w.1, which were denied. the main version of the defence appears to be as per certain suggestions that inasmuch as it was the idea of the accused to take away the house again, this false implication was thought of. this evidence of p.w.1 both chief and cross-examination had been dealt with in detail by the learned judge. no serious contradictions as such had been elicited in the evidence of p.w.1. it is no doubt true that except the evidence of p.w.1, there is no other direct evidence available on record. 10. p.w.2 no doubt deposed that immediately he had reached to the scene of offence after hearing the cries, p.w.1 informed him that muthavva died after receiving firing injury by a gun by the accused. this is the evidence of p.w.3 as well. 11. p.w.4 had also deposed about the same and p.w.4 also deposed that in the morning after that night police visited scene of offence and held inquest over the dead body of the deceased and he was present at that time along with yellanna and he had put his thumb mark on inquest report marked as ex.p.2 and they opined that muthavva died by receiving injuries by firing gun and p.w.1 was present at the time of ex.p2-inquest panchanama.12. p.w.5 is the village administrative officer who had deposed that the accused is an agriculturist and after knowing the incident through village sarpanch, he had gone to the scene of offence and had seen the dead body of the deceased and found bullet injury on her chest. he also deposed that the accused is having a gun and he has got licence to posses and use the gun. 13. p.w.6 is the photographer who had deposed about exs.p-3 to p-5, the photos taken by him relating to the dead body of the deceased with negatives.14. p.w.7 is one of the witnesses relating to ex.p.6 confession and recovery panchanama relating to m.o1. no doubt he was declared hostile. p.w.8 is another panch witness relating to ex.p.6, who had supported the version of the prosecution. 15. p.w.9 is the sub-inspector of police who had deposed that he had assisted circle inspector of police in carrying out investigation and the other details. p.w.10 is the c.a.s. who had deposed about the injuries and the cause of death. she explained in detail the cause of death is due to haemorrhage and shock as a result of injury to vital organ by fire arm. 16. p.w.11 is the c.i. of police who had deposed that he had received the message about crime no. 38 of 1994 and received copy of express f.i.r. in the crime and immediately he had gone to the spot and at that time p.w.9 was present at the scene of offence. he further deposed that p.w.9 examined p.w.1 and recorded her statement. p.w.11 deposed that he had examined p.w.2, p.w.3, p.w.4 and p.w.5 and recorded their statements and he had got the scene of offence photographed by p.w.6 and he held inquest over the dead body of the deceased in the presence of panch witnesses, p.w.4 and two others. ex.p.2 is the inquest panchanama. he also deposed that he had sent the dead body to post-mortem examination to government hospital, bhainsa. p.w.11 also had stated that on 30.09.1994 he had arrested the accused and interrogated him in the presence of panch witnesses and recorded the confessional statement of the accused in the presence of p.w.7 and p.w.8 and recovered m.o.1. ex.p.6 is the confessional-cum-recovery panchanama relating to m.o.1. p.w.11 also deposed that m.o1 was sent to forensic science laboratory, hyderabad through judicial first class magistrate, nirmal, and he had also sent blood stained earth, control earth and five pillets collected by p.w.10 during postmortem examination to forensic science laboratory, hyderabad. ex.p.9 is the requisition given by him and ex.p.10 is letter of advice, ex.p-11 is the covering letter, ex.p.12 is the report of the forensic science laboratory and ex.p.13 is the second part of fsl report for blood stained earth and control earth. this witness also in detail had deposed about m.o1-gun, m.o2-five pillets, m.o3-blood stained earth and m.o4- control earth. no doubt, he was cross-examined at length and attention was drawn by pointing out certain contradictions. a strong reliance was placed on ex.d2 contradiction of p.w.2 wherein it is stated that he had stated 'i am resident of suryapur village. my house is near the houses of chinnanna, muthavva, gadchanda devu bai. muthavva is being divorced women, hence lolapu chinnanna has kept her as concubine since 6 years and they blessed with one male child. chinanna belongs to munnurkapu, and he was hailing from oala village, and after keeping muthavva with him he constructed a house for her. some land is also given to her. yesterday night at about 11.00 hours i heard the gun sound and came out from my house and saw that devu bai weeping saying that chinnanna killed muthavva with gun and muthavva found dead by that time, the blood is oozing from her chest. devu bai stated that chinnanna alleged that muthavva is leading the life as prostitution. i am seeing the gun near the lolapu chinnanna since long time, he also used to go for hunting.'17. on the strength of this contraction or the statement, no doubt certain submissions were made to the effect that the story of the prosecution cannot be believed. on careful scrutiny of both exs.d1 and d2, every contradiction definitely cannot vitiate the story of the prosecution unless such contradictions are material contradictions. be that as it may, the defence of accused is one of total denial. strong reliance was placed on jarnail singh v. state of punjab (1 supra) relating to evidence and proof in the case of criminal trial wherein apex court held 'in criminal cases the burden of proving the guilt of the accused beyond all reasonable doubt always rests on the prosecution and, therefore, if it fails to adduce satisfactory and reliable evidence to discharge that burden it cannot fall back upon the evidence adduced by the accused persons in support of their defence to rest its case solely thereupon. in the instance case, however, courts below made use of the evidence of defence witnesses only for lending assurance to the conclusions already drawn by the courts on the basis of the evidence of prosecution witnesses such a course is legally and legitimately permissible, for said defence witness was subjected to cross-examination and in fact cross-examined-at the instance of the accused after being cross-examined by the public prosecutor. that the accused could not elicit any answer in his favour thereby would not alter the position as regards the admissibility, relevancy or worth of the evidence of the said witness.'reliance was also placed on sadasiva jena v. state, 1983 crl.l.j. 521. the learned counsel for the appellant strongly relied upon mukul rani varshnei v. delhi development authority (2 supra) for the preposition that hear-say evidence is not admissible. there cannot be any controversy in relation to the said preposition. 18. in the present case the evidence of p.w.1 is clear and categorical. p.ws 2 to 4 who immediately rushed to the spot and to whom a statement was made by p.w.1 what actually had happened just prior thereto form part of the same transaction, definitely would be relevant as res-geste. this evidence of p.ws 2 to 4 can definitely be taken as corroborative evidence to that of p.w.l relating to what actually had happened on the fateful day. in jetha ram v. the state of rajasthan, : 1978crilj26 the apex court held that 'certain witnesses stated that they not only saw but also relied on the version given by the other witnesses immediately after the occurrence that the accused was assailant and even taking that the witnesses relied on the version given by the person at the scene immediately after the occurrence it was admissible as a relevant fact under the evidence act.'in this view of the matter, i am of the considered opinion that the learned judge had recorded proper findings relating to the incident in the light of the evidence of p.w.1 corroborated by the evidence of p.ws 2 to 4. i have no hesitation in coming to the conclusion and there cannot be any doubt in the light of the factual position referred to supra the presence of the accused at the spot on the fateful day. 19. now, yet another submission was made by the learned defence counsel that even the evidence of p.w.1 on the aspect of actual firing appears to be suspicious and hence, benefit of doubt to be given. when once the accused had taken the defence of total denial and on the material the court is satisfied that the presence of the accused along with the deceased on the fateful day cannot be in any doubt, then how the incident had happened, and it would be within the exclusive knowledge of the appellant-accused. in this regard, the learned additional public prosecutor placed strong reliance on section 106 of the indian evidence act, 1872. in state of west bengal v. mir mohammad omar (3 supra) at page 2994 the apex court reiterating the view expressed in shambu nath mehra v. the state of ajmer, 1956 scr 1999 equivalent to : 1956crilj794 held as follows:'in this context we may profitably utilize the legal principle embodied in section 106 of the evidence act which reads as follows: 'when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.'the section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. but the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation, which might drive the court to draw a different inference.vivian bose, j. had observed that section 106 of the evidence act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts, which are particularly within the knowledge of the accused. the learned judge has stated the legal principle thus (para 11 of air):'this lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. on the contrary, it is designed to meet certain exceptional cases in which it would impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or in convenience. the word 'especially' stresses that. it means facts that are pre-eminently or exceptionally within his knowledge.' in ram gulam chaudhury v. state of bihar, 2001 air scw 3802 the apex court at para 24 observed that'even otherwise, in our view, this is a case where section 106 of the evidence act would apply. krishnanand chaudhary was brutally assaulted and then a chhura blow was given on the chest. thus chhura blow was given after bijoy chaudhary had said 'he is still alive and should be killed'. the appellants then carried away the body. what happened thereafter to krishnanand chaudhary is especially within the knowledge of the appellants. the appellants have given no explanation as to what they did after they took away the body. krishanand chaudhary has not been since seen alive. in the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. when the abductors withheld that information from the court there is every justification for drawing the inference that they had murdered the boy. even though section 106 of the evidence act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. the appellants by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference. we, therefore, see no substance in this submission of mr. mishra.'same view was expressed in state of kerala v. dr. c.k. bharathan, 1989 crl.l.j. 2025 and padmanabha padhi v. state of orissa, 1989 (1) crimes 84.20. hence, in the light of the clear legal position as applicable to the present facts, i have no hesitation to hold that in the light of the evidence available on record, the findings recorded by the learned trial judge cannot be assailed. yet another submission was made relating to recovery of m.o1 from the land of one d. gajjaram on the ground that the same is not under the control of the accused and in view of the fact that p.w.7 was declared hostile and there are some minor contradictions in the evidence of p.w.8, the same was not established and hence, an order of acquittal to be recorded by this court. this court is not inclined to accept the said contention also for the reason that the prosecution case is not based solely on the recovery and even otherwise, the said recovery was proved by examining p.w.8 who had supported the version of the prosecution though p.w.7 was declared hostile. 21. reliance was also placed on sunder v. state (nct of delhi), 2002 scc. (crl.) 1441 relating to the propriety of conviction in relation to section 25 of the indian arms act. it is needless to say that the learned judge had taken a lenient view and had convicted the accused under section 27 of the indian arms act and while imposing the sentence also the learned judge had taken a lenient view and hence, in the light of the foregoing discussion, this court is of the considered opinion that the findings recorded by the learned judge are perfectly in accordance with law and well justified. hence, the conviction and sentence imposed by the learned judge under section 304-part-ii ipc and section 27 of the indian arms act deserve no disturbance in the hands of this appellate court. 22. in the result, the conviction and sentence imposed by the additional sessions judge, adilabad in sessions case no. 103 of 1996, dated 26.05.1997 against the appellant-accused for the offence punishable under section 304-part-ii i.p.c and section 27 of indian arms act, are hereby confirmed and the criminal appeal shall stand dismissed. bail bonds shall stand cancelled.