Bongu Babu Rao, v. The State Of Andhra Pradesh,

THE HON'BLE SRI JUSTICE SURESH KUMAR KAIT AND THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO CRIMINAL APPEAL No.1556 of 2010 JUDGMENT: (Per Hon'ble Sri Justice U.Durga Prasad Rao) This appeal is filed by appellant/accused aggrieved by the judgment dated 27.10.2010 in S.C.No.25 of 2010 passed by I Additional Metropolitan Sessions Judge, Visakhapatnam whereby the learned Judge convicted the accused for the offences punishable under Sections 302 and 324 IPC and sentenced him to suffer RI for life and to pay fine of Rs.1,000/- in default to suffer SI for one month for the offence under Section 302 IPC and also sentenced to suffer RI for three months for the offence under Section 324 IPC and directed both the sentences to run concurrently.

2) The prosecution case is thus:

a) The deceased-Mummana Lakshmi, was a resident of Pinagadi village of Pendurthi Mandal, Visakhapatnam District; she was working in the tiffin centre of PW3 at Naidu Thota, Pendurthi Mandal; she developed illicit intimacy with PW1, who used to come to the Tiffin centre and they used to sleep during the night time in Mandal Praja Parishad (MPP) School in the village.

b) The accused-Bongu Babu Rao was originally a resident of Ravisindri village, Sarubujji Mandal, Srikakulam District and about 25

years back his parents migrated to Visakhapatnam for livelihood and staying at Prahladapuram; he was a coolie and doing house painting works. He married PW5 about 9 years back and during their wedlock they had a son and daughter. While so PW5 developed illicit intimacy with one Chinna and maintaining extra marital life with him. In that regard, disputes arose between the accused and PW5 and accused admonished her. Hence, PW5 lodged a complaint and police advised both of them to live amicably, but PW5 continued her illegal affair with Chinna. While so, on the night of 26.06.2009, the accused saw PW5 and Chinna together at M.P.P. School and on seeing the accused both of them ran away.

c) During the midnight of 26.06.2009 at about 1:00 AM, the accused again went to M.P.P.School thinking that his wife-PW5 and her paramour-Chinna were sleeping in the said School; he decided to kill his wife for her obdurate illicit connection with Chinna. He procured a wooden pole known as 'runner' and went to the school. At that time, he noticed one male and female were sleeping; suspecting them to be his wife and her paramour, he beat the male person on his head with wooden pole and caused injury; he also beat the female person with the said wooden pole on her head; in fact they were PW.1 and the deceased. When the injured raised cries, the accused ran away from the scene of offence along with weapon. PW1 immediately went to the house of PW4 and informed the same. Thereafter, the son-in-law of PW4 called 108

Ambulance and sent the deceased and PW1 to K.G.Hospital, Visakhapatnam for treatment.

d) On receipt of information from the hospital authorities over telephone about the incident, PW8-S.I. of Police, Pendurthi Police Station went to Hospital; found the deceased in an unconscious state; recorded the statement of PW1-injured and registered a case in Cr.No.195 of 2009 under Section 307 IPC; thereafter, he visited the scene of offence on 27.06.2009 at about 7 AM, observed the scene of offence in the presence of mediators; prepared Ex.P5-scene of offence observation report, Ex.P8-rough sketch; seized one white colour blood stained mattress (MO2), blood stained blanket (MO3), one pair of slippers (MO4); one cap (MO5), controlled earth at the scene of offence and got photographed the scene of offence.

e) On the same day i.e. on 27.06.2009, son of the deceased lodged a report with the police stating that deceased died in the hospital while undergoing treatment. Basing on the said report, PW8 altered the section of law from 307 IPC to Section 302 IPC and issued Ex.P11-express FIR to all the concerned. Thereafter, PW10-Inspector of Police took up further investigation; visited the hospital; held inquest over the dead body of the deceased in the presence of mediators; prepared Ex.P2inquest report. He also seized blood stained towel of PW1 and thereafter sent the dead body for post-mortem examination. PW9-Assistant Professor of Andhra Medical College conducted autopsy over the dead body of the deceased and issued Ex.P.12-post-mortem report and

opined that deceased would appear to have died of respiratory and circulatory failure due to head injury and the said injury was sufficient to cause death of the deceased in the ordinary course of nature. f) During the course of investigation, PW10 arrested the accused and sent him to judicial custody and basing on his confessional statement PW10 recovered MO1-stick used in the commission of offence. After completion of investigation he laid the charge sheet. On appearance of the accused, the trial Court framed charge under Sections 302 and 324 IPC against him and conducted trial.

g) During trial, PWs.1 to 10 were examined and Exs.P1 to P13 were marked and MOs.1 to 9 were exhibited on behalf of prosecution. No oral or documentary evidence was led on behalf of defence. h) After completion of trial, the accused was examined under Section 313 Cr.P.C. and incriminating circumstances revealed in the prosecution evidence were put to him and the accused denied. 3) A perusal of the judgment of the Court below would show that trial Court after considering both oral and documentary evidence observed that deceased met with homicidal death and accused is responsible for the death of the deceased. To come to the aforesaid conclusion, the trial Court relied upon the oral evidence of PW1-the victim, PW5-wife of the deceased, PW6-mediator, PW10Investigating Officer and also relied upon the recovery of MO1-stick

on the confession of the accused. The trial Court accordingly convicted and sentenced the accused as stated supra.

Hence the appeal.

4) Heard arguments of Sri B.Parameswar Rao, Legal Aid counsel for appellant and learned Public Prosecutor for the State (Andhra Pradesh). 5) Severely remonstrating the judgment of the trial Court, counsel for appellant would argue that trial Court convicted the accused purely on surmises and conjectures. In expatiation, he argued, PW1 on whom the trial Court placed implicit reliance cannot be treated as eye-witness though he was the injured in the incident because, he named the accused only during the trial but in his statement given to the police immediately after the incident, he stated as if, himself and deceased were hit by an unknown person. Hence, his evidence during trial that the accused beat him and deceased cannot be believed. However, the trial Court relied upon PW1 without appreciating his evidence in a proper manner.

It accepted the weak circumstances and depositions of other witnesses. Learned counsel would further argue that the trial Court placed much reliance on the alleged confession of the accused before police and mediators, which allegedly led to recovery of MO1 at his instance. Arguing that a confession is a weak piece of evidence, learned counsel would submit that by the date of alleged confession of the accused, the police had not even had a slightest doubt about the participation of accused in the offence and in fact, police had no clue about the involvement of any named person in the offence.

highly unbelievable that the accused himself would go to police station, make a confession and surrender himself before the police. Therefore, the alleged confession and consequent recovery of MO1 at the instance of accused were all make believable stories created by the prosecution to implicate the accused. He argued that as observed by the trial Court, PW6, the alleged mediator was not an independent witness but he was the Sarpanch of Pinagadi Gram Panchayat and therefore, in view of his post he would generally oblige the police. In fact, he admitted that as he was the Sarpanch of the village, police would usually consult him regarding the offences, if any, committed in their village. He further admitted that he got cordial relations with the police.

However, in the cross-examination he stated as if MO1 was seized by the police on the night of 27.06.2009 contrary to the date and time of recovery as mentioned in Ex.P4-mediators report. As per Ex.P.4, MO1 was allegedly recovered at 9.00 AM on 01.07.2009. He vehemently argued that the evidence of PW6 thus would not help establish the recovery. 6) Learned counsel would further argue that the evidence of PW5 which was strongly relied on by the trial Court, even if accepted, would only help to the extent that PW5 was the wife of accused and she had illicit connection with one Chinna and hence the relationship between her and accused was estranged and on the night of incident at about 9:00 PM the accused found PW5 and her paramour near MPP School and he chased to catch them but in vain.

school i.e. scene of offence again in the night at 1:00AM and mistakenly beat PW1 and deceased. Learned counsel vehemently argued that there was no basis for the trial Court to make wild guess on the crucial offence portion. He further argued that prosecution failed to match the blood group on MO1-stick with the blood group on other MOs. He submitted that for all the aforesaid reasons, appeal may be allowed and conviction and sentence may be set aside.

7) Per contra, learned Public Prosecutor (AP) argued that trial Court rightly believed the evidence of PW1 to connect the accused to the offence as PW1 clinchingly stated that accused beat him and deceased. Learned Public Prosecutor argued that as per PW1 he knew the accused since some years prior to the date of incident and therefore, his evidence regarding the identification of accused cannot be doubted. Apart from the evidence of PW1, trial Court has also considered recovery of MO1 at the instance of accused as one of the instances to connect accused to the crime. Trial Court also considered that the accused had grouse against his wife and her paramour and in their search, he went to MPP School and beat the deceased and PW1 under a mistaken impression. He argued that appreciation of evidence and conclusions arrived at by the trial Court in fixing the guilt of the accused are based on strong evidence and sound reasoning and therefore appeal may be dismissed. 8) In the light of above rival arguments, the point for determination in this appeal is:

"Whether the conviction and sentence recorded by the trial Court are factually and legally sustainable?"

9) POINT: The admitted facts are that the deceased-Mummana Lakshmi was working in the Tiffin Centre of PW.3 at Naidu Thota, Pendurthi Mandal and she developed illicit intimacy with PW.1 and became his concubine and they used to sleep in the night times in MPP School in the village. It was also an admitted fact that on the night of 26.06.2009, PW.1 and the deceased slept in the said MPP school building and in the midnight they received injuries in the hands of an unknown assailant, who beat them indiscriminately with a stick. While PW.1 suffered only a laceration, the deceased sustained fracture injuries on her head and face and ultimately succumbed to death on the early morning of 27.06.2009 at about 7:45am, in K.G.Hospital, Visakhapatnam.

As per prosecution, the assailant turned out to be the accused, who under a mistaken impression that the persons sleeping in the MPP school were his wife and her paramour-Chinna, who continued their illicit relation despite the admonitions of the accused, beat PW.1 and the deceased indiscriminately and thus the accused was guilty of transmigration of malice. The accused was ultimately convicted for the offences under Sec.302 and 324 IPC. As can be seen, the trial Court to come to the aforesaid conclusion relied upon: i) The ocular evidence of PW.1, PW.5, PW.6 and PW.10 ii) The confession of guilt by the accused before the police and mediators and consequent recovery of MO.1 at his instance.

iii) MO.1 containing human blood.

The above factors led the trial Court to record conviction.

Since the appellant severely castigates the findings of the trial Court as perverse and bereft of logic, it necessitates the appellate Court to reappraise the facts and evidence to know whether the judgment of the trial Court is factually and legally sustainable or not. 10) So the oral evidence is concerned, PW.1 is admittedly the victim in the incident and as such in the normal course he should be regarded as eye witness in the eye of criminal law. His evidence in chief was to the effect that about one year prior to his evidence, himself and deceased were sleeping in the nearby school of Prahladapuram during the night time and the accused came and beat them with MO.

1-stick and immediately he raised cries and the accused ran away from that place and on hearing the cries, the inmates of the locality gathered at the scene of offence and they summoned 108 ambulance and took both of them to the Hospital and while undergoing treatment, Lakshmi died in the hospital. Thus PW.1 in his evidence named their assailant as accused. In his chief-examination he further deposed that he got acquaintance with the accused for the last many years prior to the offence. He stated that his statement was recorded by the police in the hospital under Ex.P.1. a) Then a perusal of Ex.P.1 would show that the statement of PW.1 was recorded in the K.G. Hospital, Visakhapatnam by PW.8-S.I of Police, Pendurthi at about 5:00am on 27.06.2009 in the presence of Casualty Medical Officer.

It was the earliest statement of the victim regarding the offence. In Ex.P.1, PW.1 did not name either the accused or some other person as the assailant.

unknown person beat him and the deceased and ran away. Thus as stated supra, in his earliest statement, PW.1 did not mention the name of accused as his assailant though according to PW.1 he knew the accused since some years prior to the incident as they belong to the same village. b) In Para 20 of the impugned judgment, the trial Court dealt with the evidence of PW.1 and also the defence plea. It must be noted, the trial Court did not decide the veracity of PW.1 on the strength of his own evidence but it curiously observed that the other evidence on record lent support to the evidence of PW.1 and also the prosecution case to the effect that it was the accused alone who had attacked both PW.1 and the deceased. In essence, without analysing the evidence of PW.1, the trial court accepted the evidence of PW.

1 that they were beat by accused as true, not on the strength of his deposition, but on the strength of other evidence and circumstances. In our view, since PW.1 was the injuredvictim in the incident, the trial Court ought to have analysed his evidence and ought to have arrived at a conclusion regarding his identifying capacity. Instead, the trial Court on the strength of some other circumstances and evidence, accepted the evidence of PW.1 to be true on the aspect of his identifying the accused as the assailant. In our considered view, this is the basic flaw in the appreciation of evidence of a crucial witness i.e, PW.1. Hence, it necessitated us to scrutinise the evidence of PW.1 on the aspect of his identifying the accused. When the evidence of PW.

offence. Admittedly, PW.1 and accused belong to same village. Therefore, there can be no demur that PW.1 can identify the accused if really accused attacked PW.1 and the deceased. However, in Ex.P.1 which was the earliest statement of the PW.1 with regard to the offence, he only stated that when himself and deceased slept in the Elementary School, some unknown assailant came at about 1:00am and beat them and caused injuries and ran away. PW.1 specifically stated that he could not identify the assailant. He further reiterated in Ex.P.1 that when the neighbours came to the spot on hearing their cries, he stated that some unknown person beat them and ran away. So in Ex.P.1, he emphatically stated that some unknown assailant attacked them and he could not identify him.

If he had acquaintance with the accused since some years prior to the date of offence, then he would have been in a position to identify the accused if he really attacked them. Since it was dark in the night, himself and deceased were in deep sleep when they were attacked, naturally he could not identify who the assailant was. To that extent, there is nothing to disbelieve PW.1. However, the question is, how PW.1 could, all of a sudden, identify the accused as his assailant during the trial for the first time. There is no plausible explanation from the prosecution and PW.1 to that crucial question. It is also pertinent to mention here that on the next day morning the son of deceased went to the Hospital and found his mother dead and then he gave Ex.P.10report to police on 27.06.2009 at about 10.00am.

In the said report also he stated that when his mother and PW.

injuries. Thus Ex.P.10 reveals that even by 10:00am, on the next day of incident also, the police, the victims and their kith and kin did not know who the assailant was. Moreover, in Ex.P.2-inquest report which was prepared on 27.06.2009 at about 3:00pm, it was mentioned that the deceased and PW.1 were beaten by an unknown person. Thus it is clear that even by the time of inquest also the assailant was not known to them. Then a perusal of the evidence of PW.10 would show that on 01.07.2009 the accused allegedly approached the Pendurthi Police Station and surrendered himself and confessed his guilt. Till such time also, the police had no clue about the assailant. In the above facts and circumstances, how PW.1 could all of a sudden identify his assailant as accused is quite mysterious.

As discussed supra, there was no plausible explanation from the prosecution or PW.1 in this regard. Therefore, the obvious conclusion is that PW.1 did not know his assailant but at the instance of police, he named the accused as his assailant during the trial for the first time. Therefore, the evidence of PW.1 is helpful only to the extent that himself and deceased were attacked and injured by an unknown assailant but his evidence will not help connect the accused to the offence. Unfortunately, the trial Court without proper analysis of his evidence and surrounding facts, accepted the evidence of PW.1 to connect the accused to the crime.

10) Excluding PW.1, to fix the guilt of accused, we have the evidence of PW.5. The trial Court regarded PW.5 as a crucial witness. Hence, her evidence has to be analysed. Admittedly, PW.5 is the wife of the

accused. Her evidence is that the accused introduced to her one Chinna, who is a mason. Sometime after, the accused suspected her fidelity as he attributed illegal connection between her and Chinna and thereby disputes arose between PW.5 and accused on account of Chinna. Once she lodged report to the police on the allegation that the accused was harassing her by attributing illegal contacts between her and Chinna and the police counselled them and advised them to live amicably. Her further version is that in the month of June, 2009, when herself and Chinna were in School in Pendurthi at 9:00pm i.e, few hours prior to the offence, the accused came there and out of fear, herself and Chinna ran away.

She further deposed that on the next day morning Chinna brought police and during the enquiry she informed them that on seeing her husband, herself and Chinna ran away from the School. She went to the extent saying that subsequently accused informed her that he killed the deceased on the suspicion that the deceased was PW.5, who was sleeping along with Chinna in the School on that night. She also deposed that when she went to see the accused in the Jail, he threatened that he would kill her one day. In the cross-examination she denied the suggestions that though the accused knew about her illegal contacts with Chinna, he never chastised them; after the incident she eloped with Chinna to Vizianagaram; herself and Chinna conspired together and implicated the accused in this case.

She admitted that Chinna was killed by somebody and in that murder case, she was arrayed as one of the accused. This is her evidence.

a) A close scrutiny of her evidence would reveal that she is the wife of the accused and she developed illegal intimacy with one Chinna and the accused came to know about their affair. Further, since there is no specific denial suggestion given by the defence to the effect that the accused did not find PW.5 and Chinna at the School at 9:00pm on the night of incident and he did not chase them, it can be accepted that such an incident did take place. In our considered view, her evidence is helpful to prosecution only to that extent.

The rest of her evidence that accused making a confession before her about his killing the deceased under a misconception and his threatening her that one day he would kill her are quite unbelievable for the reason that even according to her own admission, there were no talking terms between her and accused since one year prior to the date of offence on account of the disputes. If that were the case, it is difficult to believe that the accused would make a naive confession before his unchaste wife. In this regard the possibility of PW.5 and Chinna trying to implicate the accused cannot be ruled out because, if he was sent to Jail, their way would be clear. This doubt gets intensified in view of her evidence that on the next day of incident, Chinna brought police to her house and she explained them what had happened on the previous night.

When admittedly police had no clue or suspicion against anybody on the next day of incident, their coming to her house for any purpose is a quite unbelievable and unusual one. In that sense, since accused found Chinna and PW.5 at 9:00pm on the previous night at the MPP School and few hours thereafter the incident of beating of PW.

possibility of PW.5 and Chinna taking advantage of that incident and trying to implicate the accused in the case to eliminate him cannot be ruled out. As otherwise, as already pointed out supra, when Police had no clue of the assailant and they did not lay suspicion against anybody, the question of Police coming to the house of PW.5 does not arise. Since Chinna himself brought the police to their house, the possibility of Chinna and PW.5 conspiring to implicate accused cannot be obviated. The trial Court is concerned, it may be right in believing the version of PW.5 about the incident that took place at about 9:00pm at the MPP School.

However, at the fag-end of Para 20 of its judgment, the trial Court basing on the incident at 9:00pm, automatically jumped into the conclusion to the effect that the accused again went to the School premises at about 1:00am on that night with a stick and beat her and her paramour (under misconception). It must be noted that even if the deposition of PW.5 regarding the incident at 9:00pm is accepted, there is no scope to jump into an automatic conclusion that accused again went to the School at 1:00am and beat PW.1 and deceased under a misconception. The chances of accused again going or not going to the School on that night at 1:00am in search of his wife and Chinna were only 50:50. Just because an incident did take place at 9:00pm at the School, there was no guarantee that PW.

5 and Chinna would again come to that spot on that night and therefore, it cannot be said that accused would definitely go to the School on that night. Hence, pragmatically speaking, there is no scope for trial Court to come to such a definite conclusion, that too, on the crucial aspect of the offence portion.

needless to emphasize that the golden principle of criminal law is that while appreciating the evidence, if two views emerge, one creating suspicion on accused and another creating opinion about his innocence, the benefit of doubt must always go to him. This principle is based on the anglo saxon rule of criminal jurisprudence to the effect that let 100 culprits may be escaped but one innocent should not be punished. In AIR 2013 SC 3817 (Sujit Biswas vs. State of Assam)1, the earlier decision in AIR 1973 SC 2773 (Kali Ram vs. State of Himachal Pradesh) was followed wherein it was held thus: "Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."

Unfortunately the trial Court did not consider this aspect. So at the outset, the evidence of PWs.1 and 5 either independently or cumulatively is not suffice to connect accused to the offence. d) Then we are left with the so-called confession statement made by the accused before PWs.6 and 10 and consequent recovery of M.O.1 on his revelation. PW.10-the Investigating Officer deposed that on 01.07.2009, when he was in Pendurthi Police Station, the accused 1 AIR 2013 SC 3817

approached him and voluntarily surrendered in the P.S and gave a confession statement under Ex.P.3 which was recorded in the presence of mediators i.e, PW.6 and LW.22-Mudapaka Srinu. Basing on the revelation of accused, PW.10 deposed, he recovered M.O.1-wooden stick from the house of one Bongu Kameshwar Rao, the brother of accused in the presence of aforesaid mediators under the cover of Ex.P.4-mediator's report. PW.10 further claimed that he sent the blood stained clothes and M.O.1-stick to RFSL for analysis and as per Ex.P.13, blood was detected on M.O.1-stick. The trial Court, it would appear, relied upon the recovery of M.O.1 basing on the observation that M.O.1 contained blood stains on it as per Ex.P.13 and PW.6 an independent witness supported the prosecution case on the aspect of confession of accused his showing them M.O.1.

Learned counsel for appellant vehemently opposed the very confession theory propounded by the prosecution. On a close analysis of the facts and evidence, we agree with him. It is needless to emphasize that generally extra judicial confession is a weak piece of evidence and if such an extra judicial confession is made before police, the same is inadmissible too. Before discussing whether the so-called recovery of M.O.1 at the instance of accused would help prosecution to fix the guilt of accused, it is pertinent to discuss whether in fact the accused made any such confession at all. As stated supra, according to PW.10, on 01.07.2009 the accused voluntarily went to Police Station and confessed before him about his guilt. How far such a claim of PW.10 was true is the question. As already discussed earlier, by 01.07.

were absolutely clueless about the assailant. The police have not even had any suspicion against anybody by that date. That being the situation, when there was no threat of arrest, it is very difficult to digest the version of prosecution that on 01.07.2009 the accused himself went to P.S and confessed the offence which led to recovery of M.O.1. Therefore, the so-called theory of confession and recovery of M.O.1 cannot be accepted to be true. PW.6 in strict sense cannot be said to be an independent witness as he was admittedly the Sarpanch of the village and by virtue of his post, he has to accommodate the police. In his evidence, he admitted that he was the Sarpanch and Police will usually consult him regarding the offences committed in their village. Hence, it is not safe to rely upon his evidence.

Further, in the cross-examination, he stated that the recovery of M.O.1-stick was made in the night time on 27.06.2009 which militates against Ex.P.4, wherein it was mentioned as if the recovery was made in morning at about 9:00am on 01.07.2009. The trial Court gave concession to PW.6 on the ground that he was a rustic person and he gave evidence 15 months after the offence. In our view, the variation is not a negligible one, since even a rustic can well differentiate between day time and night time. Above all, even if the recovery of M.O.1 is accepted to be true, still it failed to connect the accused to the guilt because as per Ex.P.13-report, though blood was detected on M.O.1, its origin could not be determined. Therefore, there is no evidence to hold that the blood found on M.O.

1 was a human blood and that too it belonged to the same group as contained on other items. Unfortunately, the trial Court did not discuss this aspect.

presence of thumb impressions of accused on Exs.P.3 and P.4 are concerned, they themselves would show that the accused is an illiterate. In Exs.P.3 and P.4 there is no specific mention that the contents were read over and explained to him. In these circumstances, it is not safe to rely upon those LTMs to convict accused.

10) So, on a conspectus of the entire evidence and other facts and circumstances on record, it must be said that the prosecution could only create a feeble suspicion against accused but failed to establish his guilt beyond all reasonable doubts as narrated supra. Therefore, the conviction and sentence recorded by the trial Court are liable to be set aside. 11) In the result, this Criminal Appeal is allowed and the conviction and sentences recorded by the trial court in its judgment dated 27.10.2010 in S.C.No.25 of 2010 are set aside and the accused is found not guilty of the charges levelled against him and accordingly, he is directed to be set at liberty forthwith provided if he is not required in any other crime.

As a sequel, miscellaneous petitions, pending if any, shall stand closed.

______________________ SURESH KUMAR KAIT, J _________________________ U. DURGA PRASAD RAO, J Date: 22.03.2017 Murthy/scs