Telangana High Court
CRLA/912/2007 of Kannemadugu Gopal , Gopi,(A-1) Vs The State of A.P., on 30 December 2010
K.C. BHANU AND HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO Crl.A.No. 912 of 2007 DATE: 30-12-2010 Between: Kannemadugu Gopal @ Gopi and another ….. Petitioners and The State of A.P. …….. Respondent HON’BLE SRI JUSTICE K.C. BHANU AND HON’BLE SRI JUSTICE
Between:
HON’BLE SRI JUSTICE K.C. BHANUAND
HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO
Crl.A.No. 912 of 2007DATE: 30-12-2010
Kannemadugu Gopal @ Gopi and another
and
The State of A.P.
….. Petitioners
…….. Respondent
HON’BLE SRI JUSTICE K.C. BHANUAND
HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAOCrl.A.No. 912 of 2007
JUDGMENT:(Per Hon’ble Sri Justice N.R.L. Nageswara Rao)
This Criminal Appeal is filed by the Accused-A1 and A2 challengingthe convictions and the sentences imposed on them by the judgment,dated 10-07-2007 in Sessions Case No.378 of 2005 on the file of the VIIAdditional District and Sessions Judge (FTC), Madanapalle, ChittoorDistrict. The appellants-A1 and A2 were convicted for the offence underSection 302 of IPC and 302 read with 34 of IPC respectively and weresentenced to undergo imprisonment for life and also to pay a fine ofRs.500/-, in default to undergo simple imprisonment for three monthseach. They were also convicted for the offence under Section 324 and324 read with 34 of IPC respectively and were sentenced to undergorigorous imprisonment for a period of three months each. They werefurther convicted for the offence under Section 506(II) of IPC and weresentenced to undergo rigorous imprisonment for a period of three monthseach.
2. The case of the prosecution is that both the accused andanother person by name K. Sriramulu, who was a juvenile, are allbrothers and one Amaravathi (Deceased No.1) was their sister. She wasmarried to one P.Sekhar (Deceased No.2). Sekhar (D-2) used to have illicit intimacy with another girl by name Syamalamma of Nayanabhaviand due to that, the accused have developed anger against him as he didnot change his attitude and was not treating their sister properly. Sekhar(D-2) is said to have kept his wife with his mother (PW-1) at Madanapalleand was living with Syamalamma at Dharmavaram. On 03-01-2005,Sekhar (D-2) along with Syamalamma came to Madanapalle to thehouse of one Reddemma (PW-4) at Vijayanagar Colony and called hismother (PW-1) and his wife Amaravathi (D-1). The accused came toknow about the arrival of Sekhar (D-2) and planned to attack him inaccordance with their plan. On 04-01-2005 at about 8-00 PM, A-1 armedwith a hunting sickle, accompanied by his other brothers, and went to thehouse of PW-1 and called Sekhar (D-2) and Amaravathi(D-1). Theaccused got enraged when Amaravathi(D-1) asked them to leave and inthat transaction, A-1 is said to have hacked Amaravathi (D-1) and Sekhar(D-2) and caused injuries, due to which they died. A-2 and A-3 are alsosaid to have encouraged A-1. PW-2 is also said to have received injurieswhen he tried to interfere in the incident. PWs.1, 2 and 4, who are themother, brother-in-law and sister of the Sekhar (D-2) respectively, werepresent. All of them have witnessed the incident and on a complaintgiven by PW-1, a case in Crime No.2 of 2005 for the offence punishableunder Section 302 read with 34 of IPC was registered and investigatedinto. During the course of investigation, the statements of the witnesseswere recorded, the panchanama of the scene was conducted and theinquest was held over the dead bodies and the dead bodies were sent forpostmortem examination.
3. The accused were arrested on 09-01-2005 and they gavevoluntary confessional statement and in pursuance of the confession ofA-1, M.Os.11 to 14 were seized. The accused were sent for remand andafter receipt of the FSL report and postmortem report, the accused werecharged for the offence under Section 302 read with 34 of IPC. The casewas taken on file as P.R.C.No.37 of 2005 by the II Additional JudicialMagistrate of First Class, Madanapalle and the same was committed to the Court of Sessions. After the appearance of the Accused, chargesunder Sections 302, 324 and 506(II) of IPC were framed against A-1 andcharges under Sections 302 read with 34, 324 and 506(II) of IPC wereframed against A-2, read over and explained to them and they pleadednot guilty.
4. On behalf of the prosecution, PWs.1 to 16 were examined andExs.P-1 to P-18 and M.Os.1 to 16 were marked. After the evidence of theprosecution is over, the accused were examined under Section 313 ofCr.P.C. and no defence evidence was adduced. After considering theevidence on record, the learned Sessions Judge found both the accusedguilty of the offences and accordingly, convicted and sentenced them asstated above. Aggrieved by the said judgment, the present Appeal isfiled.
5. Heard Sri D. Kodanda Rami Reddy, learned counsel for theaccused and the learned Public Prosecutor.
6. The points that arise for consideration are:
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1. Whether the prosecution has proved beyond reasonabledoubt the guilt of the accused-A1 and A2 for committing themurder of Sekhar (D-2) and Amaravathi (D-1) with commonintention? anddoubt the guilt of the accused-A1 and A2 for committing themurder of Sekhar (D-2) and Amaravathi (D-1) with commonintention? and
2. Whether the convictions and the sentences imposed by thelearned Sessions Judge are legal and sustainable?learned Sessions Judge are legal and sustainable?
7. In support of the prosecution case, PW-1, who is the motherof Sekhar (D-2), deposed that Sekhar (D-2) was married with Amaravathi(D-1) of Malluruvandla palle. After marriage, the deceased personsstayed at Dharmavaram for four years and thereafter they came toMadanapalle about six months prior to the incident. The deceasedpersons were said to have stayed in the house of Ramanjulu (PW-2), andher son was said to be having illicit intimacy with one Syamalamma ofNayanibavi. Her son intended to go to Dharmavaram and asked her tostay at Madanapalle to look after his children. Accordingly, she came toMadanapalle on Tuesday at about 2-00 PM and stayed in the house ofPW-2 and the incident happened on that day. At about 8-00 PM, herself, PWs.2 and 4 along with both the deceased persons were inside thehouse and at that time, the accused persons came there and calledAmaravathi (D-1) to come along with the child stating that they will begoing to Dharmavaram on the next day. They also proclaimed that inspite of several warnings, Sekhar (D-2) did not change his attitude andcontinued the illicit intimacy with Syamalamma. Then Amaravathi (D-1)replied to the accused that they will go to somewhere and leave them. PWs.2 and 4 also advised them to go away and they also took theaccused by pushing upto the road. Then the accused proclaimed thatthey will kill Amaravathi (D-1) and accordingly, hacked Amaravathi (D-1)with the hunting sickle on the back side of her head due to which she felldown. In the meanwhile, Sekhar (D-2) came there and when he tried tointerfere, he was pushed inside the house by all the accused and PW-2also went inside. Then A-1 hacked Sekhar (D-2) with hunting sickle onthe back side of the neck. It was stated that the other accused wereholding Sekhar (D-2) and A-1 hacked him. When PW-2 intervened, A-1hacked him on his right palm, right thumb and left side forehead causinginjuries. Thereafter, the accused left proclaiming that they will killanybody whoever comes and interferes. Then, at the instance of PW-3,she got a complaint, Ex.P-1, drafted and presented to the police.
In the cross-examination, she stated that she has good eyesightand she was examined by the police three times and the complaint wasprepared near the scene only. She does not know whether her soncontinued or discontinued the relationship with Syamalamma after hismarriage. She also stated that there was a quarrel between Sekhar (D-2)with the brothers of Syamalamma with regard to the conduct of Sekhar(D-2). She came to Madanapalle only because she was called by herson. She stated that she does not know whether her son Sekhar (D-2)had illicit intimacy with number of ladies and has got other enemies.
8. The evidence of PWs.2 and 4 is almost corroborating withthe evidence of PW-1 on material particulars about the conduct of Sekhar(D-2) and the incident on the date near the house of PW-2. PW-2
specifically stated that when he intervened, he was beaten with the axeon his palm.
9. PW-3 is said to be the witness who has helped PW-1 indrafting complaint, Ex.P-1. He did not support the prosecution case andwas declared as hostile.
10. The evidence of PW-5 is that he is the landlord of PWs.2and 4 and was residing in the upstairs portion and on the date of incident,he heard some cries stating that work is completed and observed twopersons with blood stains and thereafter he became drowsy. He did notsupport the prosecution case about witnessing the incident andidentifying the witnesses and was declared as hostile.
11. PW-6 deposed that on 04-01-2005 at about 8-00 or 8-15 PM, when he was at his house, he heard cries and observedAmaravathi (D-1) having fallen down with child and some water wasgiven to her. There was galata in the house of PW-2 and after going tothat place, he found A-1 coming out from the house with a hunting sickleand a gunny bag followed by A-2. On seeing that, he went to a side. Healso claims to have seen Sekhar (D-2) inside the house. According tohim, he saw A-1 and A-2 only on the date of incident in the light availablethere.
12. The evidence of PW-7 is about taking of the photographsat the scene of incident.
13. The evidence of PW-8 is about the presence at the time ofinquest held over the dead body of the deceased persons and seizure ofthe property. He did not support the prosecution case in other materialparticulars and was declared as hostile.
14. The evidence of PW-9 is about the apprehension of theaccused in his presence and the accused giving voluntary confessionalstatement, but he did not support the prosecution case and was declaredas hostile.
15. The evidence of PW-10 is about the examination of A-2 on10-01-2005 and finding simple injury.
16. The evidence of PW-11 is about conducting postmortemexamination over the dead body of Sekhar (D-2) and finding the followinginjuries and issuing certificate, Ex.P-10, opining that the deceased (D-2)died due to injury to vital organs.
External injuries:
1. An incised injury 14 cm x 3 cm x Bone deep, present on rightoccipital area obliquely situated.occipital area obliquely situated.
Internal examination:
Head: multiple cut section of right occipital bone present. Injury to brainand meninges present on right occipital area. Multiple haematomas withpooling of blood present. Fractured base of the skull present. Neck: onboth sides major vessels were injuries present. (carotids, venis). Muscles and vessels cut section over left fore arm B-B fracturespresent. On cut section face right side compound fracture of facemandible present.”
17. The evidence of PW-12 is about conducting inquest overthe dead body of the deceased persons as he was the M.R.O. at thattime.
18. The evidence of PW-13 is about conducting postmortemexamination over the dead body of Amaravathi (D-1) and finding thefollowing injuries and giving opinion in Ex.P-11, certificate.
-External Injuries:
1. A cut injury of 17 cm x 3 cm x 2 cm involving right ear andposterior part of skull extending from the middle of the right earinvolving fragus and pinna of the right ear and lower 1/3[rd] ofposterior part of skull extending from the middle of the right earinvolving fragus and pinna of the right ear and lower 1/3[rd] of both occipital bones with fracture of both occipital bones and thebrain matter is exposed from the wounds. The wound ishorizontal to semilunas in shape.
2. A cut injury of 7 cm x 3 cm x 2 cm across the left lowerpinna of the ear extending across the left parietal and occipitalbones with fracture of both bones.
3. An abrasion of 2 cm x 1 cm over the skin of right tibia.
Internal injuries:
The skull: There is fracture of occipital and parietal bones correspondingto above injuries. The lower part of contusion and laceration of lowerpart of brain, item surrounded by a contusion (hematoma) of 5 cm x 3cm x 2 cm in size with torn meninges around it. Neck: Hyoid is intact. Soft tissues and treachea are normal. Thorax: lungs normal in size andheart normal in size and empty. Abdomen: Stomach is empty viseeraare normal.”
19. The evidence of PW-14 is about the receipt of the complaint, Ex.P-1, and registering the crime.
20. The evidence of PW-15 is about examining PW-2 and finding the following injuries and issuing certificate, Ex.P-13.
1. An abrasion about 1 cm x 1 cm lateral to the left eye.
2. An abrasion about 1 cm x 1 cm on the thumb on the dorsalaspect.aspect.
3. A lacerated injury about 3 cm x 1/4 cm x 1/4[th] cm on theforearm lateral side.forearm lateral side.
4. An abrasion about 2 cm x 1 cm on the right palm dried clottedblood present over the injury.blood present over the injury.
21. The evidence of PW-16 is about the investigation done by him in this case.
22. The learned counsel for the accused contends that theevidence of PWs.1, 2 and 4 about the incident cannot be believed asthey are all interested witnesses and further there are no overt actsattributable to A-2 and the other independent witnesses, who are said tohave seen the accused in the incident, did not support the prosecutioncase and the motive attributed is not valid and therefore, the conviction ofthe accused is bad.
23. On the other hand, learned public prosecutor submits that the evidence of PWs.1, 2 and 4 is very specific and there is no ambiguityabout the identification of the accused and both the accused came withpreparation for commission of the offence and therefore, the convictionimposed by the learned Sessions Judge cannot be interfered.
POINT Nos.1 and 2:
24. There is no dispute about the fact that Amaravathi(D-1) andSekhar (D-2) are wife and husband and for sometime they lived atDharmavaram and later shifted to Madanapalle. It is not in dispute thatthe accused are the brothers of Amaravathi (D-1). According to the caseof the prosecution, Sekhar (D-2) is said to be having illicit intimacy withone Syamalamma, which was not relished by the accused and they havewarned Sekhar (D-2) several times, but there was no change in hisattitude. So far as this fact is concerned, the evidence of PWs.1 and 4,who are no other than the mother and sister of Sekhar (D-2) respectively,clearly shows that Sekhar (D-2) was having illicit intimacy with oneSyamalamma. Therefore, there cannot be any doubt about theprosecution case that the conduct of Sekhar (D-2) was not relished by theaccused though their sister Amaravathi (D-1) has pleaded to leave heralone. The incident is said to have happened at about 8-00 PM in the house of PW-2. Evidently, PW-1 was said to have beencalled to Madanapalle by Sekhar (D-2) to look after his children as heintended to go to Dharmavaram. Therefore, Sekhar(D-2) was intending togo to Dharmavaram and leave his wife Amaravathi (D-1) at Madanapallewhich was again a cause for complaint by the accused. At about 8-00PM, when PWs.1, 2 and 4 along with the deceased persons were said tobe present in the house of PW-2, the incident is said to have happened. In the cross-examination of PW-1, the presence of PWs.2 and 4 and thedeceased in the house of PW-2 is not at all disputed. The fact that boththe murders have taken place in the house of PW-2 is also not in dispute.Therefore, the prosecution case and the evidence of PW-1 that she cameto the house of PW-2 only when she was called for a particular purposeis true. Hence, there cannot be any doubt about the identification of the real culprits when particularly the accused, who are the brothers ofAmaravathi (D-1), are known to PWs.1, 2 and 4. In fact, it is not thespecific case sought to be made out by the accused that they are notknown to PWs.1, 2
and 4. Further, the incident is said to have happened at about 8-00 PM and the complaint Ex.P-1 was lodged with the police withoutmuch delay at about 11-00 PM on the same day. The possibility ofimplicating innocent persons is remote and in fact, when PW-1 lost herson and daughter-in-law, there is no reason to leave the real culprits andimplicate the accused persons. In fact, it is not a case where the accusedtried to contend that PWs.1, 2 and 4 have got any individual grouseagainst all the accused to implicate them in any false case. Therefore,there is no need for PWs.1, 2 and 4 to leave the real culprits and speakfalsehood against the accused if really they are not perpetrators of thecrime. In the cross-examination of PWs.1, 2 and 4, we do not have muchmaterial to discredit their testimony, as being natural, reliable andcorroborative, which was accepted by the learned Sessions Judge.
25. The learned counsel for the accused contends that the deathof both the deceased persons is said to have been caused only byhacking with a sickle by A-1 and there are no specific overt acts attributedto A-2 except general allegations of threat to kill the deceased persons,and the evidence of PWs.1 and 2 is also only to the extent that the otheraccused caught hold of the Sekhar (D-2) when he was inside, and A-1hacked Sekhar (D-2).
26. As rightly contended by the learned counsel for theaccused, it might be a case where all the brothers intended to chastiseSekhar (D-2) about his conduct and to plead for their sister Amaravathi(D-1) and there is nothing to infer that A-2 has got knowledge that A-1was carrying weapon along with him and intended to kill any one of thedeceased persons. Therefore, mere accompanying with A-1, at the timewhen he intended to question the deceased persons, cannot be acommon intention inferable on the part of A-2, that he also shared the common intention of A-1 to attack the deceased persons. Theconfessional statement of A-1 leading to the recovery of material objectsshows that he is the only person, who committed the offence. If really theprosecution story about all the accused have planed to attack thedeceased persons is true, A-2 would have also carried some weaponwith him to attack. Even otherwise, according to the prosecution case,the accused persons went to question the deceased persons and whenthe conduct of their sister Amaravathi (D-1) was not to their taste and sheherself did not agree for their suggestions and intended to leave her forpeace, the conduct of A-1 has enraged.
27. So far as A-1 is concerned, there is no doubt, he has gonearmed with weapon and with preparation to cause the incident as such. He also concealed the weapon, which is not visible to any person,thereby the intention on his part is quite clear. Apart from it, he causedinjuries on vital organs of the deceased persons inspite of the objections.
28. Therefore, for all the above reasons, we find that there is areasonable benefit of doubt available to A-2 since his intention to commitany crime against the deceased persons and his knowledge that A-1 hasmade preparation for commission of the murder of the deceased persons,are not inferable. The prosecution has not proved beyond reasonabledoubt the guilt of A-2. Therefore, the convictions and the sentencesimposed against A-2 are liable to be set aside.
29. So far as A-1 is concerned, the intention and the nature ofattack are quite clear that he has committed the offence punishable underSection 302 of IPC against both the deceased persons without anydoubt. The prosecution has proved beyond reasonable doubt the guilt ofA-1. Therefore, the convictions and the sentences imposed on A-1 areliable to be confirmed.
30. The points are, accordingly, answered.
31. In the result, the Criminal Appeal is partly allowedconfirming the convictions and the sentences recorded against the firstappellant-A1 (Kannemadugu Gopal @ Gopi) by the VII Additional District and Sessions Judge, Madanapalle, vide Judgment, dated 10-07-2007 inS.C.No.378 of 2005 of the offences punishable under Sections 302, 324and 506(2) of IPC and setting aside the convictions and the sentencesrecorded against the second appellant-A2 (Kannemadugu Gangadhar) ofthe charges under Sections 302 read with 34, 324 and 506 (2) of IPC. Second appellant-A2 (Kannemadugu Gangadhar) is found not guilty ofthe offences with which he was charged and accordingly, he is acquittedof the same. Second appellant-A2 (Kannemadugu Gangadhar) shall bereleased forthwith if he is not required to be detained in any other case.The fine amount, if any, paid shall be returned to second appellant-A2(Kannemadugu Gangadhar).
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K.C. BHANU, J
Date: 30-12-2010YCR
______________________N.R.L. NAGESWARA RAO, J