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2011 Supreme(AP) 360
High Court of Andhra Pradesh
JUSTICE V. ESWARAIAH & V. SURI APPA RAO
Gandikota Venkateswarlu & Others
Versus
The State of Andhra Pradesh, Rep. by the Public Prosecutor
Criminal Appeal Nos.1123 of 2007, 1124 of 2007, 1158 of 2007 & 1326 of 2007
Decided On: 20-04-2011
For the Petitioners:C. Padmanabha Reddy, Senior Counsel, Representing, C. Praveen Kumar, D. Poornachandra Reddy, Advocates.
For the Respondent: Public Prosecutor High Court of A.P.
Headnote:A) PENAL CODE, 1860, Sections 302, 348, 331, 201 and 109:- In the criminal prosecution for custodial death in Mahila Police Station, head injury caused to the deceased being certified as the main reason for her death and homicidal nature of the death is established. It is admitted that deceased was regularly attending the P.S. and as per record on her attended the P.S., but there is nothing on record when she was handed over to the Mahila P.S., where she is reported to have tortured and died. (Paras 13 to 19)
B) EVIDENCE ACT, 1872, Section 3 - Penal Code, 1860, Section 302, 302 r/w 109 IPC, 324, 331, 342 and 201 – From the evidence available on record it was held that there is no record regarding the time as to when the deceased was taken into custody (Paras 83 to 86)
C) EVIDENCE ACT, 1872, Section 3 - Penal Code, 1860, Sections 302, 348, 331, 201 and 109 – On the basis of evidence available on record it had been held that without the approval of senior police officer, the case against the deceased could not be transferred to the Mahila Police Station. In the circumstances it could not be held that Mahila P.S was in lawful custody of the deceased. (Paras 104 to 117)
D) PENAL CODE, 1860, Sections 302, 348, 331, 201 and 109 – In the absence of any credible evidence against A-1 to A-4 that they are responsible for the death of the deceased who was in custody of the Mahila Police Station, either direct or circumstantial, their conviction by the Sessions Judge was perverse and not sustainable and hence set aside the conviction in the appeal. (Paras 124 to 128)
E) PENAL CODE, 1860, Section 201:- A-3 and A-4 who were in duty in the Mahila Police station where the deceased had died while in custody and keeping silent with regard to the cause of the death of the deceased, but while cross-examining of P.Ws.30, 41 and 45, Police Constable, Sub Inspector of Police and Investigating Officer, respectively, made suggestion that P.Ws.30 and 41, Police Constable and Sub Inspector of Police, respectively, are responsible for causing the death of the deceased. By their conduct they are guilt of disappearance of evidence and hence guilty of Section 201 IPC. They were convicted of two years rigorous imprisonment and fine of Rs.1000/- each. (Para 132 to 142)
F) PENAL CODE, 1860, Section 302:- Trial Court conviction of A-5 to A-7 who were in no way having any access to the Mahila P.S. where the custodial death had occurred is set aside because it was clear that P.Ws.18 to 20 are only planted witness to implicate, conviction Therefore conviction against A-5 and A-6 liable to be set aside, accordingly set aside Appeals filed by A-1 and A-2 and A-S and A-6 allowed - Conviction against them for offences u/ss 348, 331 and 201 IPC set aside - Appeals filed A-3 and A-4 partly allowed - Conviction against them u/s 109 r/w Sections 348, 331 and 302 IPC set aside Conviction against them u/s 201 IPC confirmed. (Paras 143 to 148)
V. Suri Appa Rao, J.
1. Criminal Appeal No.1123 of 2007 is filed by accused 5 and 6, Criminal Appeal No.1124 of 2007 is filed by accused 1 and 2, Criminal Appeal No.1158 of 2007 is filed by accused No.3 and Criminal Appeal No.1326 of 2007 is filed by accused No.4 against the judgment of conviction and sentences dated 17-8-2007 in Sessions Case No.137 of 2000 passed by the learned Sessions Judge, Mahila Court, Vijayawada, Krishna district, whereby the appellants in Criminal Appeal Nos.1124, 1158 and 1326 of 2007, who are the accused 1 to 4, were convicted for the offence under Section 302 of the Indian Penal Code (for short, ‘I.P.C.’) and were sentenced to ‘imprisonment for life’ and to pay a fine of Rs.5,000/- each, in default to undergo simple imprisonment for one year each; they were further convicted for the offence under Section 348 of I.P.C., and were sentenced to suffer rigorous imprisonment for two years each and to pay a fine of Rs.1,000/- each, in default to suffer simple imprisonment for three months each; they were further convicted for the offence under Section 331 of I.P.C., and were sentenced to suffer rigorous imprisonment for two years each and to pay a fine of Rs.2,000/- each, in default to suffer simple imprisonment for six months each; and they were further convicted for the offence under Section 201 of I.P.C., and were sentenced to suffer rigorous imprisonment for two years each and to pay a fine of Rs.1,000/- each, in default to suffer simple imprisonment for three months each.
2. The appellants in Criminal Appeal No.1123 of 2007, who are the accused 5 and 6, were convicted for the offence under Section 302 read with Section 109 of I.P.C., and were sentenced to ‘imprisonment for life’ and to pay a fine of Rs.5,000/- each, in default to undergo simple imprisonment for one year each; they were further convicted for the offence under Section 348 read with Section 109 of I.P.C., and were sentenced to suffer rigorous imprisonment for two years each and to pay a fine of Rs.1,000/- each, in default to suffer simple imprisonment for three months each; they were further convicted for the offence under Section 331 read with Section 109 of I.P.C., and were sentenced to suffer rigorous imprisonment for two years each and to pay a fine of Rs.2,000/- each, in default to suffer simple imprisonment for six months each; and they were further convicted for the offence under Section 201 read with Section 109 of I.P.C., and were sentenced to suffer rigorous imprisonment for two years each and to pay a fine of Rs.1,000/- each, in default to suffer simple imprisonment for three months each.
3. Aggrieved by the said conviction and sentences passed against the appellants, they preferred these appeals under Section 374 (2) of the Criminal Procedure Code (for short, ‘Cr.P.C.’). Therefore, all these appeals are being heard and disposed of by this common judgment.
4. The case of prosecution, in brief, is as follows:
(a) On 30-4-1999 accused No.5 gave a complaint Ex.P-31 to P.W.41 Sub Inspector of Police, Payakapuram Police Station stating that his newly married daughter Gowri, aged 18 years was missing since 19-4-1999. P.W.41 registered the same as a case in Crime No.126 of 1999 under the head ‘woman missing’ and took up investigation. He also deputed P.W.30 R.Sankar Rao, a Police Constable attached to Payakapuram Police Station to search for one Kona Krishna Kumari (hereinafter referred to as ‘the deceased’) and one Vijaya alias Mary, who were suspected by the complainant behind the missing of his daughter. Therefore, P.W.30 along with accused 5 and 6 visited the house of P.W.8 Kota Narayana Rao and enquired his father P.W.9 Kota Suvarna Raju about the deceased. He came to know through P.W.9 that the deceased went to Ghantasalapalem. P.W.8 visited Ghantasalapalem on 01-5-1999 and informed the deceased and P.W.2 Dasi Baby Nancharamma, sister of the deceased about the enquiries made by P.W.30.
(b) On 02-5-1999 P.W.30 fol
