Murder -Un creditworthy injured eye witness - Delay in filing complaint to police - absence of Injuries on the body of injured eye witness - absence of light how the injured eye witness identified the accused - Motive for offence not supported by independent evidence - Non- Recovery of bed, bed sheet, pillow etc., - unnatural conduct of injured eye witness/wife after the incident - their lordships of High court held that Though the existence of an injured eye witness is an important factor to be taken into account, and would help the prosecution to bring the accused close to the crime, we find that the evidence of PW-2 does not command the required amount of credibility and acceptability. It is not at all safe to convict the accused on the basis of untrustworthy account of a witness, who is none other than the wife of the deceased. In the result, the Criminal Appeal is allowed. The conviction and sentence ordered in S.C.No.148 of 2008 on the file of the I Additional Sessions Judge, Mahabubnagar, dated 28-08-2009, against the appellant, are set aside. = Vemula Jagadish..appellant The State of A.P. Rep. by its Public Prosecutor, High Court of A.P...Respondent = 2014 (Feb. Part) judis.nic.in/judis_andhra/filename=10933

Murder - Un creditworthy injured eye witness - Delay in filing complaint to police - absence of Injuries on the body of injured eye witness - absence of light how the injured eye witness identified the accused - Motive for offence not supported by independent evidence - Non- Recovery of bed, bed sheet, pillow etc., - unnatural conduct of injured eye witness/wife after the incident - their lordships of High court held that Though the existence of an injured eye witness is an important factor to be taken into account, and would help the prosecution to bring the accused close to the crime, we find that the evidence of PW-2 does not command the required amount of credibility and acceptability.  It is not at all safe to convict the accused on the basis of untrustworthy account of a witness, who is none other than the wife of the deceased. In the result, the Criminal Appeal is allowed.  The conviction and sentence ordered in S.C.No.148 of 2008 on the file of the I Additional Sessions Judge, Mahabubnagar, dated 28-08-2009, against the appellant, are set aside. =

Delay in lodging complaint

The submission of Ex.P-1 at 8:00 a.m. in the morning of

14-09-2007 is an important factor, to be taken into account.

The incident occurred at 10:30 p.m. of the preceding day.  Even if PWs 1 and 2

cannot be expected to inform the Police during the night, they could have

availed the earliest opportunity, to intimate the incident to the Police on the

next morning.  It was not necessary for them to physically hand over the

complaint to the police.  Even a telephonic message would have served the

purpose.  Ex.P-1 was submitted only at 8:00 a.m. on the next day i.e. 14-09-

2007.

In between, plenty of time was available to think over the matter,

in the context of providing missing links, if any, to connect the accused with

the incident.

Motive no support evidence

She contends that

no independent witness has spoken about the allegation pertaining to the motive

of the accused to commit the murder of the deceased.

Identification of accused is doubtful

It is her specific case that she identified the accused in the light of the

electric bulb in the premises.  However, her evidence is not clear as to whether

the light emanated from any bulb, in their house, or any street light in the

neighbourhood or vicinity.  To a specific question put to her, in the cross-

examination, in this behalf, she replied,

"...I did not give any documentary evidence to show that there was electricity

supply to our house...  It is not true to suggest that there was no electricity

supply and light to our house in those days and that I deposed false in the said

context also..."

PW-13 was working as Assistant Sub-Inspector of Police, when the incident had

occurred.  He is the person, who went to the spot on receiving the complaint;

recorded the statements of PW-2 and other witnesses; conducted the inquest over

the dead body of the deceased, and prepared the scene of offence panchanama. 

When asked about the source of light, during the night, at that place, he

stated,

"...There is no mention in Ex.P-1 that in the illuminating light of electric

bulb, PW-2 saw the accused at the time of alleged offence.  Witness volunteers

that it was stated by witness in her 161 Cr.P.C. statement.   There is no

mention in the inquest about the existence of such light.  It is not mentioned

in the scene of offence panchanama about existence of electricity poles, wire,

bulb, electricity connection etc., to the house of the deceased..."

Similar answer was given by PW-14, the Investigating Officer.  

Therefore, the

very identification of the accused, by PW-2, becomes doubtful.  If the incident

has taken place at 10:30 p.m., and if there was illumination in the Verandah, or

in the surroundings, it becomes highly improbable that PW-2 was asleep by that time, and was able to identify any one, soon after she woke up.=

Unnatural reaction of Eye Witness

PW-2 further stated that soon after noticing the death of her husband, the

deceased, and herself receiving injuries,

she raised hue and cry and ran to the house of PW-5, where her son PW-1 was  

sleeping.  This appears to be not a natural reaction or event.  The reasons are:

a) PW-5's house is about 150 yards away from the place of occurrence, b) the

houses of PWs 3 and 4; the brother of the deceased, PW-7, are in the immediate neighbourhood of about 30 yards, and c) even according to PW-2 several persons were there in the

vicinity, and when a ghastly incident like murder takes place, just on the

hearing of it, the persons in the neighbourhood would gather.  The very fact that PW-2 did not

speak of the presence of any third party, but has gone straightaway to her son,

PW-1, where he was sleeping in the house of his friend, PW-5, at a distance of

150 yards; presents something unnatural.=

Non - Recovery of Bed , Bedsheet and Pillow etc., and Absence of blood stains and injuries of Eye Witness 

The death of the deceased occurred on account of a blow with an axe.  The axe is

said to have been recovered and is marked as MO-1.  The shirt and towel of the

deceased were taken on record, as MOs 2 and 3.  However, no part of the bed,

such as bed sheet, the cot, pillow were taken as MOs.  The major quantity of the

blood would have accumulated on the bedding, and failure of the prosecution to

collect the clothes on the bed, and to send them for examination by Forensic

Science Laboratory is certainly a lapse on the part of the prosecution.

PW-2 stated that she too received injuries in the hands of the accused, that

too, with the same material objective.  The Doctor, PW-12, who treated her,

stated that he did not notice any stains of blood on her.  In case PW-2 was

sleeping by the side of the deceased, and the deceased died on a stroke of axe,

his blood would certainly have spilled on PW-2.  If she received an injury with

an axe, blood is bound to come out.  The record discloses that there were no

stains on the clothes of PW-2, either of her own blood or the blood of the

deceased. =

Though the existence of an injured eye witness is an important factor to be

taken into account, and would help the prosecution to bring the accused close to

the crime, we find that the evidence of PW-2 does not command the required

amount of credibility and acceptability.  It is not at all safe to convict the

accused on the basis of untrustworthy account of a witness, who is none other

than the wife of the deceased.

In the result, the Criminal Appeal is allowed.  The conviction and sentence

ordered in S.C.No.148 of 2008 on the file of the

I Additional Sessions Judge, Mahabubnagar, dated 28-08-2009, against the

appellant, are set aside. 

2014 (Feb. Part) judis.nic.in/judis_andhra/filename=10933

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K.JAISWAL                    

Criminal Appeal No.1203 of 2009 

10-02-2014 

Vemula Jagadish..appellant 

The State of A.P. Rep. by its Public Prosecutor, High Court of A.P...Respondent

Counsel for the appellant: Smt. A. Gayatri Reddy

Counsel for the Respondent: Addl. P.P.

                                                

<GIST: 

>HEAD NOTE:    

?Cases referred

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY          

AND  

THE HON'BLE SRI JUSTICE M.S.K. JAISWAL       

Criminal Appeal No.1203 of 2009 

JUDGMENT:  (Per the Hon'ble Sri Justice L. Narasimha Reddy)  

        

The sole accused in S.C.No.148 of 2008 on the file of the

I Additional Sessions Judge, Mahabubnagar filed this appeal, feeling aggrieved

by the judgment dated 28-08-2009, rendered therein.  The accused was tried for

the offence under Section 302 I.P.C. for committing the murder of one Sri

Cheerala Keshavulu, 

on 13-09-2007.  Sentence of imprisonment for life and fine of Rs.100/- was

imposed.  He was also tried for the offence under Section 324 I.P.C. for causing

injuries to the wife of the deceased, PW-2;

and found guilty of the same.  Sentence of rigorous imprisonment for one year

and fine of Rs.100/- was imposed for that offence.

The case of the prosecution was that the deceased was a shepherd by profession 

and the accused has enmity with the deceased on the ground that the latter used

to make his sheep to graze in the field of the former, despite the objection.

It was also alleged that a tamarind tree in the agricultural land of the accused

withered away all of a sudden, and he suspected the accused of doing sorcery,

and on verification, he came to know that many persons became victims of the

sorcery performed by the deceased.  A child of the brother of the accused, by

name, Shiva Prasad, is said to have fallen seriously ill and died within a

month, and in that context, the deceased was called to a place in the Village,

and there, the deceased is said to have given a blunt answer to the effect that

he would kill the other members of the family of the accused, one after the

other, in the same way.  Afraid of the sorcery by the deceased, the accused and

his mother are said to have migrated to a different place for livelihood and

that about 20 days prior to the incident, i.e. 13-09-2007, the mother of the

accused came back to their Village, Srirangapur and within two days after her

arrival, she is said to have got sores over the knees and her health condition

deteriorated, despite the treatment taken from an R.M.P in the Village.

The prosecution alleged that with the grievance and motive referred to above,

the accused went to the house of the deceased at 10:30 p.m. on 13-09-2007, armed 

with an axe and gave a blow on the right side of the neck of the deceased, while

he was sleeping in the Verandah of his house along with his wife, PW-2.

The deceased is said to have died on the spot, and that PW-2 identified the

accused, since there was light through electric bulb

in that house, at that time.  On the alarm raised by PW-2,

the accused is said to have caused injury to her, with the same axe, on the

right side of the chest, with an intention to kill her also,

but she is said to have fled away.  The son of the deceased and PW-2, i.e. PW-1,

was said to be sleeping in the house of his friend, PW-5, and that PW-2

immediately went to the house of PW-5 to inform about the incident to PW-1.

Complaint about this was given to the Police Station in the next day morning at

8:00 a.m., i.e.

14-09-2007 by PW-1 and Crime No.44 of 2007 was registered.  

The Station House Officer, PW-14, got the scene of offence panchanama drawn, 

caused inquest and post-mortem, and on the basis of the same, investigation was

conducted.  He filed the charge-sheet, alleging offences under Section 302

I.P.C., against both, the deceased, and 324  I.P.C., vis--vis PW-2.

Before the trial Court, PWs 1 to 14 were examined and Exs.P-1 to P-14 were

filed.  MOs 1 to 3 were taken on record.  The trial Court convicted and

sentenced the accused as indicated at the threshold of this judgment.

Smt. A. Gayatri Reddy, learned counsel for the accused submits that PW-2 was 

shown as the injured eye witness, but there are any number of improbabilities

and inconsistencies in her evidence.  She submits that though PW-2 stated that

she was able to identify the accused in the light of electric bulb, she admitted

that there is no electric supply for her house.  It is also pleaded that in the

scene of offence panchanama, no indication was given as to the existence of

electric wires or the bulb.  She contends that when PW-2 stated that there were

many persons in the neighbourhood, but she did not speak of the presence of any

of them.  It is also argued that though the house of the brother of the

deceased, PW-7, is in the immediate neighbourhood, the statement of PW-2, that 

she went to the house of PW-5 about 150 yards away from her house to inform her

son, PW-1, about the incident; is totally unbelievable, particularly, when PW-5

did not accompany them to the spot. 

Learned counsel further submits that the distance between the Village and the

Police Station is hardly 15 KMs and the FIR was submitted only at 8:00 a.m.  on

14-09-2007, i.e. about 10 hours after the alleged incident.  She contends that

no independent witness has spoken about the allegation pertaining to the motive

of the accused to commit the murder of the deceased.  Another plea of the

learned counsel is that though the deceased is said to have been killed, when he

was sleeping on the bed, neither any bed sheet, nor any other material of the

bed was alleged to be containing any stains of blood, nor they were marked as

MOs.  It is also pleaded that though PW-2 is said to have received injuries in

the hands of the accused, no stains of blood, either of her, or that of the

deceased, were found on the clothes or body of PW-2.

Learned Additional Public Prosecutor submits that PW-2,

the wife of the deceased, was not only the eye witness, but also sustained

injuries, and thereby, her evidence cannot be doubted

at all.  She contends that the accused had a clear motive to kill the deceased,

suspecting sorcery, and the prosecution has established a clear chain of

evidence, to connect the incident with the deceased.

The death of the deceased is said to have occurred at 10:30 p.m. on 13-09-2007.

PW-2, the wife of the deceased, stated that at the time of the incident, herself

and the deceased were sleeping on a bed in the Verandah of their house, in their

native village, and when she woke up on hearing the hue and cry, she found the

accused armed with an axe, and that a blow was already given upon the neck of

the deceased.  She further alleged that the accused caused injuries to her also.

It is her specific case that she identified the accused in the light of the

electric bulb in the premises.  However, her evidence is not clear as to whether

the light emanated from any bulb, in their house, or any street light in the

neighbourhood or vicinity.  To a specific question put to her, in the cross-

examination, in this behalf, she replied,

"...I did not give any documentary evidence to show that there was electricity

supply to our house...  It is not true to suggest that there was no electricity

supply and light to our house in those days and that I deposed false in the said

context also..."

PW-13 was working as Assistant Sub-Inspector of Police, when the incident had

occurred.  He is the person, who went to the spot on receiving the complaint;

recorded the statements of PW-2 and other witnesses; conducted the inquest over

the dead body of the deceased, and prepared the scene of offence panchanama. 

When asked about the source of light, during the night, at that place, he

stated,

"...There is no mention in Ex.P-1 that in the illuminating light of electric

bulb, PW-2 saw the accused at the time of alleged offence.  Witness volunteers

that it was stated by witness in her 161 Cr.P.C. statement.   There is no

mention in the inquest about the existence of such light.  It is not mentioned

in the scene of offence panchanama about existence of electricity poles, wire,

bulb, electricity connection etc., to the house of the deceased..."

Similar answer was given by PW-14, the Investigating Officer.  

Therefore, the

very identification of the accused, by PW-2, becomes doubtful.  If the incident

has taken place at 10:30 p.m., and if there was illumination in the Verandah, or

in the surroundings,

it becomes highly improbable that PW-2 was asleep by that time, and was able to

identify any one, soon after she woke up.

PW-2 further stated that soon after noticing the death of her husband, the

deceased, and herself receiving injuries,

she raised hue and cry and ran to the house of PW-5, where her son PW-1 was  

sleeping.  This appears to be not a natural reaction or event.  The reasons are:

a) PW-5's house is about 150 yards away from the place of occurrence, b) the

houses of PWs 3 and 4; 

the brother of the deceased, PW-7, are in the immediate neighbourhood of about

30 yards, and c) even according to PW-2 several persons were there in the

vicinity, and when a ghastly incident like murder takes place, just on the

hearing of it,

the persons in the neighbourhood would gather.  The very fact that PW-2 did not

speak of the presence of any third party, but has gone straightaway to her son,

PW-1, where he was sleeping in the house of his friend, PW-5, at a distance of

150 yards; presents something unnatural.

The death of the deceased occurred on account of a blow with an axe.  The axe is

said to have been recovered and is marked as MO-1.  The shirt and towel of the

deceased were taken on record, as MOs 2 and 3.  However, no part of the bed,

such as bed sheet, the cot, pillow were taken as MOs.  The major quantity of the

blood would have accumulated on the bedding, and failure of the prosecution to

collect the clothes on the bed, and to send them for examination by Forensic

Science Laboratory is certainly a lapse on the part of the prosecution.

PW-2 stated that she too received injuries in the hands of the accused, that

too, with the same material objective.  The Doctor, PW-12, who treated her,

stated that he did not notice any stains of blood on her.  In case PW-2 was

sleeping by the side of the deceased, and the deceased died on a stroke of axe,

his blood would certainly have spilled on PW-2.  If she received an injury with

an axe, blood is bound to come out.  The record discloses that there were no

stains on the clothes of PW-2, either of her own blood or the blood of the

deceased. 

PW-3 is the younger brother of the deceased.  He was very much in the Village,

when the incident is said to have taken place.  In his chief-examination, he

stated that he heard weeping of

PWs 1 and 2, went to the house of the deceased, and saw him in a pool of blood.

He, however, stated that due to fear, he left the said house and sat at a

distant place, and that he did not ask

PWs 1 and 2 as to how the deceased died, nor they have informed him about it.

This witness was declared hostile and was cross-examined by the Public

Prosecutor.  He was confronted with Ex.P-3, the portion of statement recorded

under 161 Cr.P.C.  PW-2 stated that on hearing the cries of herself and PW-1,

PW-3 came to the place of occurrence and she narrated the incident to him.

This does not accord with the evidence of PW-3.  Though PW-4 is said to have

reached the place of occurrence, on hearing the cries of PW-2, the presence of

this witness was not spoken to by PW-2.  PW-2 admitted that she did not inform

the police about the accused suspecting the role of the deceased, for his

becoming sick or death of his bulls.

PW-7 is one of the brothers of the deceased. He was examined, his evidence is

not much of help, since he was at Hyderabad on the day of incident.

The submission of Ex.P-1 at 8:00 a.m. in the morning of

14-09-2007 is an important factor, to be taken into account.

The incident occurred at 10:30 p.m. of the preceding day.  Even if PWs 1 and 2

cannot be expected to inform the Police during the night, they could have

availed the earliest opportunity, to intimate the incident to the Police on the

next morning.  It was not necessary for them to physically hand over the

complaint to the police.  Even a telephonic message would have served the

purpose.  Ex.P-1 was submitted only at 8:00 a.m. on the next day i.e. 14-09-

2007.

In between, plenty of time was available to think over the matter,

in the context of providing missing links, if any, to connect the accused with

the incident.

Though the existence of an injured eye witness is an important factor to be

taken into account, and would help the prosecution to bring the accused close to

the crime, we find that the evidence of PW-2 does not command the required

amount of credibility and acceptability.  It is not at all safe to convict the

accused on the basis of untrustworthy account of a witness, who is none other

than the wife of the deceased.

In the result, the Criminal Appeal is allowed.  The conviction and sentence

ordered in S.C.No.148 of 2008 on the file of the

I Additional Sessions Judge, Mahabubnagar, dated 28-08-2009, against the

appellant, are set aside.  The appellant shall be set at liberty forthwith,

unless his detention is needed in any other case.  The fine amount, if any, paid

by the appellant shall be refunded to him.

There shall be no order as to costs.

_______________________    

L. NARASIMHA REDDY, J.     

_______________________    

M.S.K. JAISWAL, J.  

Dt.10-02-2014