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Judgment
These appeals are preferred being aggrieved by the judgment dated 11.12.2014 passed by the VIII Additional District and Sessions Judge, at Medak, in S.C.No.247 of 2013 whereunder, the trial Court found all the accused guilty for the offences punishable under Sections 364, 302 read with 34 and 201 of IPC and convicted them under Section 235(2) of Cr.P.C., and sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/- each, for offence under Section 302 read with 34 of IPC. Further, to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.5000/- each, for offence under Section 364 of IPC. Furthermore, to undergo simple imprisonment for a period of three years and to pay a fine of Rs.5000/- each, for offence under Section 201 of IPC. All the sentences were directed to run concurrently.
Aggrieved thereby, accused Nos.1 and 2 filed Crl.A.No.1415 of 2014 and accused No.3 filed Crl.A.No.1426 of 2014 challenging the judgment dated 11.12.2014 in S.C.No.247 of 2013.
The case of the prosecution before the trial Court is that one Mallugalla Srisailam is the deceased. The deceased and accused No.1 are kinsmen and have land dispute. The father of accused No.1 did not share the land equally to the deceased and in this regard there were frequent quarrels between the accused No.1 and deceased. Whenever the accused Nos.1 to 3 were found by the deceased, he abused and threatened them to kill. Accused Nos.2 and 3 move friendly with accused No.1. Accused No.1 planned to kill the deceased, as such, on 10.02.2013 at about 21:00 hours, accused Nos.1 to 3 went to the house of the deceased and forcibly took him out of the house and went to outskirts of Marelly Village at Srisailam, agriculture field and consumed liquor. The deceased consumed large quantity of liquor, whereas, the accused Nos.1 to 3 consumed less quantity.
As the deceased was in a drunken condition, the accused No.1 beat the deceased with stick on his chest and then accused No.2 beat on the back of neck with chappals and accused No.3 kicked the deceased due to which the deceased fell down and then accused No.1 had taken the lungi of the deceased and strangulated it to the neck of the deceased due to which he died. Accused Nos.1 to 3 shifted the dead body of the deceased to nearby well and took one granite stone and tied the dead body to it with the help of towel and threw the dead body into the well.
On 11.02.2013 on the report given by the wife of deceased, a case in Cr.No.16 of 2013 was registered and Police investigated the case and filed charge sheet.
To prove the case, the prosecution examined PWs.1 to 9 and got marked Exs.P1 to P14 and MOs.1 to 6. On behalf of accused Nos.1 to 3 no evidence was adduced as defence.
Basing on the evidence on record and on hearing either side, the trial Court convicted accused Nos.1 to 3 as stated supra. Aggrieved thereby, these appeals are filed.
Heard Smt Y.Ratnaprabha, learned counsel for appellants in Crl.A.No.1415 of 2014 (accused Nos.1 and 2), Sri C.Pratap Reddy, learned counsel representing Sri Palle Sriharinath, learned senior counsel appearing for appellant in Crl.A.No.1426 of 2014 (accused No.3), and Sri T.V.Ramana Rao, learned Additional Pubic Prosecutor, appearing for respondents in both the appeals.
Learned counsel appearing for accused Nos.1 and 2 submitted that the trial Court failed to note that there are no direct witnesses to the occurrence of incident and the case completely rests on circumstantial evidence. Further, the trial Court ought to have taken note that the medical evidence was not supported by prosecution theory. She contended that the trial Court wrongly relied on the confessional statement of the accused Nos.1 and 2, before the Police Officials as the confession was recorded by coercion. Therefore, prayed the Court to allow the appeal, setting aside the impugned judgment dated 11.12.2014 and acquitting accused Nos.1 and 2.
Learned counsel appearing for accused No.3 submitted that the PW.3 village servant, Marelly Village, stated that the elder brother of deceased brought the accused persons and confined them in panchayath Office and then Police arrived and enquired with the accused persons in his presence, whereas, the PW.8 – S.I., of Police stated that he apprehended accused persons at the house of father of accused No.1 and interrogated, as such, there is discrepancy in the evidence of PW.3 and PW.8 and the same was not taken note by the trial Court. He contended that the trial Court failed to note the discrepancy pertaining to the timings i.e., as to when the accused No.3 is said to have come to the house of PW.1 and took the deceased. According to the FIR (Ex.P1), the time was 9 PM, whereas, PW.1 stated that it was 6 P.M., and the same goes to the root of the matter. He further contended that there was no boundary dispute between the accused persons and deceased. Furthermore, the trial Court failed to note that the confession of accused persons was under coercion of Police as they beat the accused persons to confess the commission of offence. Therefore, as there is no evidence on record to prove the allegations raised against accused No.3, prayed this Court to allow the appeal, setting aside the impugned judgment dated 11.12.2014 and acquitting accused No.3.
Learned Additional Public Prosecutor submitted that the evidence on record is sufficient to convict the accused Nos.1 to 3 and there are no infirmities in the judgment of the trial Court, as such, prayed the Court to dismiss both the appeals.
To prove the case, the prosecution examined PWs.1 to 9 and got marked Exs.P1 to P14 and MOs.1 to 6.
PW.1 is the wife of the deceased. She deposed that on the date of incident at about 6 P.M., when herself and her husband were at home, accused Nos.1 to 3 came to their house and took her husband for consumption of liquor. She waited for her husband till 8 P.M., and then went to the house of LW.2 and informed that her husband was taken by accused Nos.1 to 3 at 6 P.M., and that they searched the deceased in and around the village but did not find accused Nos.1 to 3 and the deceased. She also deposed that previously accused No.1 quarreled with deceased regarding land dispute.
PW.2 deposed that on the date of incident when he came to know about the dead body in the well of LW.7, he went there and found the presence of S.I., of Police and accused persons. The dead body was found floating at about 6 P.M., and then the dead body was taken out from the well. The dead body was found tied to a stone with the help of lungi. MO.1 is the stone and MO.2 is the lungi.
PW.3 is the village servant of Marveli Village. He deposed that the elder brother of deceased, brought the accused persons and confined them in panchayath Office and locked and then Police came and enquired with accused persons in his presence. Initially, the accused persons denied killing the deceased but when Police beat them, the accused persons confessed that they killed the deceased and dropped the dead body into the well of LW.7. Later, when all went to the well in search of dead body, three persons found the dead body of the deceased floating in the well and they took it out of the well.
PW.4 is the photographer who took photographs at the scene of offence.
PW.5 is the panch for scene of offence and inquest panchanama.
PW.6 is the panch for confession. He deposed that on 11.02.2013 at evening hours the Police called him to the house of father of accused No.1 where the accused persons were in custody of the Police and at request of Police, when he questioned the accused persons, the accused No.1 told that due to disputes with deceased they planned to kill the deceased and they killed the deceased and threw the dead body into the well. Later, accused Nos.2 and 3 also confessed the same. When accused persons took the Police and PW.6 to the well they found chappals, quarter bottle and one stick near the well which were seized by the Police.
PW.7 is the Inspector of Police who investigated the case. He deposed that on 11.02.2013 he received complaint and he registered FIR on the same day at about 5 PM and added Sections of law and filed memo before the Magistrate. Then along with D.S.P., he proceeded to the well of LW.7 and by the time they reached the place, the dead body was taken out of the well. He recorded the statements of PWs.1 to 4 and LWs.2 to 4 and 6 to 10. He also examined accused Nos.1 to 3 with reference to the confessional statement and found it to be correct. On the next day he examined the scene of offence and conducted panchanama and held inquest over the dead body and sent it for postmortem examination.
PW.8 is the S.I., of Alwal Traffic Police Station. He received the complaint from PW.1, basing on which he registered a case and recorded statement of PW.1 and proceeded to Marvelly Village and apprehended accused Nos.1 to 3 at the house of father of accused No.1. He interrogated accused Nos.1 to 3 separately in the presence of LWs.16 and 17. The accused persons confessed the commission of offence and their confessional statements were also recorded. He informed to his higher Officers about the confession of commission of offence and scene of offence panchanama and seizure of chappals, bottle and stick.
PW.9 is the medical Officer who conducted the post mortem examination over the dead body of the deceased. He deposed that he found 11 injuries on the body of the deceased and the death was due to asphyxia caused by strangulation and multiple injuries over the chest around 36 to 48 hours prior to postmortem examination.
Now, the points for determination are:
Whether the prosecution proved the guilt of accused Nos.1 to 3 for the offences punishable under Sections 364, 302 read with 34 and 201 of IPC and 235(2) of Cr.P.C., beyond reasonable doubt?
Whether the judgment of trial Court needs interference?
POINT Nos.1 & 2:
Having regard to the rival submissions made, it is noted that the case of prosecution is relied on the circumstantial evidence as there are no eye witnesses to the incident. The trial Court relied on five circumstances to prove the guilt of accused Nos.1 to 3. The first circumstance is that the accused persons had taken away the deceased from his house on 10.02.2013 for consuming liquor along with them and that he was last seen with the accused persons. The evidence of PW.1 is that at about 6 PM., the accused Nos.1 to 3 came to her house and took the deceased along with them for consumption of liquor, whereas, in FIR (Ex.P1) the time mentioned is 9 PM. It is also noted that according to PW.1, it is not for the first time the deceased and accused persons gathered together for consumption of liquor, previously also they used to consume liquor together. Therefore, this circumstance is not helpful to the prosecution.
The second circumstance relied upon by the trial Court is that the accused persons had confessed about commission of offence before the S.I., of Police and witnesses to the scene of offence but the same leads to discrepancy on the ground that according to prosecution, after receiving complaint by PW.1, the PW.8 went to Marelly Village and in the house of the father of accused No.1 he found accused Nos.1 to 3 and on interrogation, they confessed about commission of offence and leading the Police to the well where the dead body was thrown, whereas, the evidence of PW.8 is not supported by any other evidence. Per contra, PW.3 clearly deposed that on the date of incident, the accused persons were brought by elder brother of the deceased and confined them in panchayath Office and then the Police arrived and in the presence of PW.3, the accused persons were interrogated. Initially, the accused persons denied committing the offence but when the Police beat them, they confessed committing the offence. As such, it can be said the confession statement was recorded under coercion. Therefore, this circumstance also is in no way helpful to the prosecution.
The third circumstance relied upon by the trial Court is that basing upon the confession of accused persons, the Police arrived at the place of offence and at about 6 P.M., PW.2 and others found the dead body floating in the well of LW.7 and then they took it out from well, whereas, PW.1 deposed that the dead body was taken out from the well at 11 am itself, and the same is contradictory to the statement of PWs.7 and 8. There is contradiction not only with regard to dead body but also with regard to the apprehension that accused persons were found in the house of father of accused No.1 and their confession that led to the well of LW.7 and the dead body of deceased. Therefore, this circumstance is also not helpful to the prosecution.
The fourth circumstance relied upon by the trial Court is that while throwing the dead body into the well, the dead body was tied with a big granite stone with the help of lungi of deceased to prevent it from floating and the PWs.1 to 4 also deposed the same. There is no dispute that the death of deceased is homicidal death and even according to evidence of PW.9 the death of deceased is homicidal one, caused due to strangulation. Therefore, though there is no dispute that the death of deceased is homicidal death, the prosecution has to prove that the accused persons are responsible for the said homicidal death. The circumstances four and five, relied upon by the trial Court are only to the extent of proving that the death of deceased is homicidal death.
However, though prosecution relied on the evidence of PWs.1 to 3, it is noted that PWs.1 to 3 are not eye witnesses to the incident. Further, the evidence of PW.1 is only to the extent that the deceased went along with accused persons for consumption of liquor and that there are land disputes between accused No.1 and deceased. Furthermore, though PW.1 deposed that there were land disputes between the deceased and accused No.1, during cross examination, she clearly deposed that there were no boundary disputes between the deceased and accused No.1.
The evidence of PW.2 is only with regard to the retrieval of dead body of deceased. The evidence of PW.3 is crucial evidence as he clearly deposed that the elder brother of deceased brought accused persons to the panchayat Office and confined them. Moreover, PW.3 was neither declared as hostile, nor was cross examined by the Public Prosecutor. The evidence of PW.3 is totally against the case of prosecution. Though prosecution was able to prove that the dead body of deceased was found in a well and was tied with big granite stone and though according to the evidence of PW.9, the death of deceased is homicidal death, the evidence on record is not sufficient to prove that accused persons are responsible for the death of deceased.
Having regard to the submissions made by either side and on going through the material placed on record, this Court is of the view that the trial Court erred in convicting the accused persons for committing the offence and the evidence on record is not sufficient to prove the commission of offence by accused persons. Therefore, the impugned judgment of the trial Court is liable to be set aside. Accordingly, point Nos.1 and 2 are answered.
In view thereof, both the appeals are allowed. The appellants in Crl.A.No.1415 of 2014 (accused Nos.1 and 2) and the appellant in Crl.A.No.1426 of 2014 (accused No.3) are not found guilty of the offences punishable under Sections 364, 302 read with 34 and 201 of IPC and 235(2) of Cr.P.C. The impugned judgment dated 11.12.2014 passed by the VIII Additional District and Sessions Judge, at Medak, in S.C.No.247 of 2013, is set aside. Accordingly, the bail bonds of accused Nos.1 to 3 shall stand cancelled and they are set at liberty, forthwith, if they are not required in any other crime or case.
As a sequel, the miscellaneous petitions, if any, pending in these appeals shall stand closed.