Mangali Santhosh v. The State Of A.P.,

THE HON'BLE SRI JUSTICE SANJAY KUMAR AND THE HON'BLE DR. JUSTICE SHAMEEM AKTHER CRIMINAL APPEAL NO.218 OF 2011

J U D G M E N T

(Per Hon'ble Sri Justice Sanjay Kumar) This appeal under Section 374(2) CrPC is directed against the judgment dated 23.11.2010 of the learned VI Additional District and Sessions Judge (FTC), Nizamabad at Kamareddy, in Sessions Case No.129 of 2009 convicting the appellant, the sole accused therein, under Section 302 IPC and sentencing him to undergo imprisonment for life apart from paying a fine of Rs.1,000/-, in default of which he was to undergo simple imprisonment for a period of four months. The charge against the appellant was that he attacked his brother, Mangali Gopal, at about 4.00 AM on 19.05.2007 and caused severe bleeding head injuries which led to his death, thereby committing an offence punishable under Section 302 IPC. The case of the prosecution was that on 19.05.2007 at about 7.00 AM, the wife of the deceased, P.W.

1, came to Yellareddy police station and presented Ex.P1 complaint to the Sub-Inspector of Police, Yellareddy (P.W.14). Thereupon, he registered Crime No.81 of 2007 under Section 307 IPC. Ex.P17 is the original FIR. P.W.14 thereupon examined P.W.1 and recorded her statement. He then visited the Government Hospital, Yellareddy, and came to know that Mangali Gopal, the brother of the accused, was referred to Gandhi Hospital, Secunderabad, for treatment. He then visited the scene of the offence along with P.W.10 and P.W.11 and drafted the scene of the offence panchanama and a rough sketch. Ex.P18 is the scene of the offence panchanama and Ex.P19 is the rough sketch.

course of his examination of the scene of the offence, he seized a pillow (M.O.1) and a blanket (M.O.2) under cover of Ex.P18 scene of the offence panchanama. At about 7.30 AM on the said day he received information from P.W.3 about the death of Gopal and issued a Memo altering the provision of law from Section 307 IPC to Section 302 IPC. Ex.P32 is the alteration Memo. He then held an inquest over the body of the deceased at the Government Hospital, Yellareddy, in the presence of P.Ws.10 and 11. Ex.P33 is the inquest report. During the course of the inquest, he examined P.Ws.3 to 7 and recorded their statements under Section 161 CrPC. He also seized the blood-stained lungi (M.O.3) belonging to the deceased. He returned to Yellareddy police station and secured the presence of P.W.8 and P.W.9 and recorded their statements.

The In-charge Inspector of Police, Yellareddy (P.W.15), then took up the investigation. He apprehended the accused at Adivilingala village and produced him before the Court. P.W.15 secured the presence of P.W.12 and Vadla Joginath (L.W.13) and recorded the confessional statement of the accused. Ex.P34 is the confession panchanama. Basing thereon, they proceeded to Adivilingala village to the house of the accused, where he produced one stick (M.O.4) under the cover of a seizure panchanama (Ex.P35). P.W.15 then requisitioned analysis of the case properties by the Forensic Science Laboratory and Ex.P36 is his requisition. Ex.P37 is the report furnished by the Forensic Science Laboratory. Ch.Laxminarayana, the Circle Inspector of Police, Yellareddy (L.W.

17), then took up further investigation in the case and having completed the same, he laid the charge sheet. The accused however denied the charge and claimed to be tried.

Upon committal, the prosecution examined 15 witnesses before the Sessions Court and marked in evidence 37 exhibits. Case properties were marked as M.Os.1 to 4. No evidence, oral or documentary, was let in by the accused.

Significantly, P.W.1, the wife of the deceased, was the only one who supported the prosecution. P.W.2, the mother of the deceased and the accused, and P.Ws.3 to 8, the neighbours, all turned hostile. P.W.9, the scribe of Ex.P1 complaint, contradicted what was stated by P.W.1, while the panch witnesses, P.W.10, P.W.11 and P.W.12, deposed against the prosecution and were declared hostile. The salient points emerging from the evidence may be noted: P.W.1, the wife of the deceased, stated that about three years previously, the accused had married her sister, Navatha, and shifted residence to Hyderabad. However, after three months he shifted back to Adivilingalapally and set up his family in the portion adjacent to their home. She stated that on Friday, they performed a cradle ceremony function but did not invite the accused to the same.

According to her, there was an altercation between the accused and the deceased about electricity bills payment and in that regard, the deceased insulted the accused. She alleged that on the date of the incident, the accused switched off supply of electricity to their portion and as there was failure of power, her husband opened the door for having air and at that time, the accused came and beat him on the head with a stick and caused bleeding injuries. She stated that she witnessed the said incident and that after hitting the deceased, the accused ran away. She stated that she raised cries and upon hearing the same, P.Ws.

to Gandhi hospital, Secunderabad, for treatment and died in the said hospital. She stated that as she had a two month old baby, she could not accompany her husband. She further stated that she gave Ex.P1 complaint to the police. In her cross-examination, she stated that P.W.9 scribed Ex.P1 upon her dictation. She stated that the name of the first wife of her husband was Annapurna and she was alive. According to her, there were no disputes between her husband and Annapurna as they took a divorce as per the decision of the caste elders. She denied the suggestion that Annapurna used to quarrel with her. She admitted that her husband had 9 to 10 acres of land but she could not say whether the land was partitioned between her husband and the accused. She again said that there was no partition of property between her husband and the accused.

She denied the suggestion that her husband celebrated the marriage of the accused with her sister, Navatha. She further stated that their house consisted of three rooms and that they were staying in one room, while the accused and his wife stayed in two rooms. She stated that her mother-in-law was staying with the accused. She denied the suggestion that the electricity meter was fixed in her portion of the house. According to her, there was darkness in the house but lighting was available outside the house. She also stated that there was one door way in between her house and the house of the accused and that the said door way was closed. She denied the suggestion that her husband had no disputes with the accused in respect of his marriage with her sister and about payment of electricity bills.

She denied the suggestion that the accused did not beat her husband with a stick on his head and cause injuries and that she was deposing falsely.

The depositions of P.Ws.2 to 8 are not worthy of reference as they did not support the prosecution and nothing useful was elicited even during their cross-examination by the prosecution after they were declared hostile.

P.W.9, the scribe of Ex.P1 complaint, further compounded the case of the prosecution. He stated in his cross-examination by the defence that he did not know P.W.1 and that he had scribed Ex.P.1 upon the dictation of the police. He was neither declared hostile nor subjected to cross-examination by the prosecution. At this stage, it would be relevant to note the contents of Ex.P1. Therein, P.W.1 stated that on 18.05.2017, they had a naming ceremony for her daughter but they did not invite the accused for the function because he had married her sister and they were angry about the same. She further stated that after having dinner on 18.05.2017, while they were sleeping inside the house, at about 4.00 AM in the morning, current went off and because of the resultant stuffiness, her husband left the door open and they went back to sleep.

About half an hour later, the accused came with a stick and hit her husband, who was sleeping, upon the head and other places, injuring him. As the accused had married her sister and they did not like it and because the accused had been asked by the deceased to pay the current bill, the accused harboured ill-feelings against her husband and tried to murder him by hitting him. Immediately thereafter, the locality people gathered and took her husband to Yellareddy hospital.

It is clear that the version of P.W.1 as to what had happened was not consistent. In her deposition before the Court, she spoke to the effect that as soon as the deceased opened the door at 4.00 AM

after the current went off, the accused attacked him with a stick and hit him causing bleeding injuries and she witnessed the incident. However, in Ex.P1, the deceased was stated to have left open the door at 4.00 AM after the current went off, whereupon they went back to sleep and it was only half an hour later that the accused came with a stick and hit the deceased on his head and other places. Significantly, P.W.1 did not state as to how she saw the accused in the dark, as the power had gone off, and more so, as she went back to sleep after the door was left open by her husband. P.W.10, who attested Ex.P9 inquest report, Ex.P18 scene of the offence panchanama and Ex.P19 rough sketch, stated that he signed Ex.P9 inquest report, but while admitting his signatures on Exs.P10 and P11, he denied knowledge of the contents thereof.

In his crossexamination, he stated that he was not present at the scene of the offence or at the time the rough sketch was drafted or at the time the clothes were seized at the scene of the offence. Similarly, P.W.11 admitted his signatures on the scene of the offence panchanama and the rough sketch, but denied knowledge of the contents thereof. In his cross-examination by the prosecution, he stated that he was not present when the police examined the scene and at the time of drafting the rough sketch. P.W.12, who signed the confessional panchanama of the accused (Ex.P34), stated that his signature was obtained by the police at the Gram Panchayat office at 1600 hours, but he did not know the contents thereof. He stated that he signed on the seizure panchanama (Ex.P35) at 17.15 hours at the Gram Panchayat office, Adivilingala.

He further stated that he did not know the contents of the seizure panchanama.

his cross-examination by the prosecution that he was not present when the accused gave the confessional statement and that he was not present when the properties were seized.

P.W.13, the Civil Assistant Surgeon, Community Health Centre, Yellareddy, conducted the post-mortem examination of the body of the deceased and found the following injuries:

1. A lacerated injury 3 x 1/4th inch over the left parietal region of the skull. The injury is ante-mortem injury.

2. A lacerated injury 3 x 1/4 inch over the left parietal region of the skull one inch behind the first injury. It is ante-mortem injury in nature.

3. A lacerated injury 3 x 1/4 inch occipital injury of the skull. It is ante-mortem injury.

4. Bleeding from mouth.

5. Extra dural hemorrhage.

He confirmed that Ex.P16 was the post-mortem examination report given by him and that the deceased died of head injuries. P.Ws.14 and 15, the investigating officers, spoke of the various steps taken by them during the course of the investigation. In his cross-examination, P.W.14 admitted that he did not collect any material as to the marital status of the deceased, be it with his first wife Annapurna or P.W.1. In his cross-examination, P.W.15 denied that the accused did not give his confessional statement (Ex.P34) before him or produce M.O.4.

Perusal of the record reflects that Ex.P17 FIR was received by the Court only at 10.30 PM on 19.05.2007. The alteration Memo (Ex.P32) was also received by the Court at 10.30 PM. The FIR however records that information was received at the police station at 7.00 AM on 19.05.2007. There is no explanation forthcoming as to why there was such a long delay in sending the FIR to the Court.

This delay on the part of the police in transmitting the FIR becomes crucial, given the other weaknesses in the case built up by the prosecution. The most significant factor in this regard is the unrebutted evidence of P.W.9, the scribe of Ex.P1 complaint, that he wrote it upon the dictation of the police. This would explain the discrepancies therein when compared to the deposition of P.W.1 before the Court. In effect, two versions are now put forth by the prosecution-(1) that the accused hit the deceased upon the head with a stick as soon as he opened the door at 4.00 AM when the current went off, and (2) that the deceased left the door open at 4.00 AM after the current went off and the inmates went back to sleep whereupon the accused hit the deceased with a stick on the head and other places half an hour thereafter.

This lack of clarity on the part of the prosecution in presenting its case is further compounded by the medical evidence, which shows that injuries were sustained by the deceased only on the head and no other injuries were found on other parts of the body. If the accused hit the deceased at other places with a stick as claimed in Ex.P1, there would have been evidence of such injuries on the body which would have surfaced during the post-mortem examination.

The recovery of the stick (M.O.4) is rendered unworthy of credence as the witnesses who attested the seizure panchanama turned hostile.

Except for establishing that the deceased met with a homicidal death, the prosecution failed to clinchingly establish either the presence of the accused at or his active involvement in his homicidal death. But for the element of suspicion arising out of the ill-will between the brothers, the prosecution offered nothing more.

Overlooking these aspects and the glaring weaknesses in the case of the prosecution, the Sessions Court blindly relied upon the deposition of P.W.1, brushing aside the contradictions in what she deposed and what she stated in Ex.P1 complaint. The finding of the Sessions Court that P.W.1 was trustworthy, unambiguous and categorical in her testimony that the accused beat her husband with a stick on his head, is therefore unsustainable. As there were no eye witnesses to the offence, going by Ex.P1, wherein P.W.1 did not even state that she saw the accused hitting her husband with a stick, the case was entirely built up on circumstantial evidence. Trite to state, in a case based on circumstantial evidence, the prosecution must establish an unbroken chain of events unerringly pointing towards the guilt of the accused. Even if P.W.

1 claimed that she saw the accused attacking her husband with a stick, she had to explain as to how she did so at 4.00 PM in the morning when the current had gone off. No evidence was let in to show that there was any light available outside their home, as claimed by her, whereby she could have at least made out the identity of the attacker had she seen him. The testimony of P.W.1 was therefore most suspect and unworthy of reliance. As the prosecution failed to even establish the presence of the accused at the scene of the offence at the relevant point of time, let alone prove a chain of events leading to the conclusion that only he could have been guilty, the finding of the Sessions Court that the prosecution established his guilt beyond reasonable doubt, is unsustainable, both on facts and in law.

The appeal is accordingly allowed setting aside the conviction and sentence visited upon the appellant/accused. As the appellant/accused was enlarged on conditional bail by this Court

vide order dated 28.12.2016, he shall present himself before the Superintendent of Prisons, Central Prison, Chanchalguda, Hyderabad, forthwith so that necessary formalities may be completed to set him free, in accordance with the due procedure, in the light of his acquittal.

______________________ SANJAY KUMAR, J ________________________________ DR. SHAMEEM AKTHER, J 22nd AUGUST, 2017 Svv