2019 Supreme(AP) 45
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
C. Praveen Kumar, M. Satyanarayana Murthy, JJ.
Morigondi Sampurna – Appellant
Versus
State of A.P. – Respondent
Criminal Appeal No. 939 of 2012
Decided On : 26-02-2019
For the Appellant : Y. Balaji
Headnote:
Criminal procedure Code, 1973 – Section 374(2) – Penal Code, 1860 – Sections 302 and 201 – Appeal against Conviction – Impugned order challenged – Whether Prosecution prove – Witness hostile – Offence of Murder – Held, Court find that, it may not be safe to act on alleged extra judicial confession made by accused No. 1 before P.W. 15 – In fact, it is to be noted that, at a particular stage, P.W. 15 was also declared hostile by prosecution and he was cross-examined – Court do not find any reason to accept evidence of P.W. 15 as an independent witness – Prosecution failed to establish guilt of appellant-accused No. 1 for offences for which she was convicted, and as such judgment of lower Court cannot be sustained and same is liable to be set aside – Criminal Appeal allowed and conviction and sentence imposed against appellant-accused No. 1 set aside. (Para 31, 32 and 33)
Facts of the Case:
Assailing conviction and sentence imposed wherein accused No. 1 was convicted for offences punishable under Sections 302 and 201 of Indian Penal Code and sentenced her to undergo imprisonment for life and to pay a fine of Rs. 1,000/- in default, to suffer simple imprisonment for two months, and to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month, respectively, the present appeal came to be filed under Section 374(2) of Cr.P.C. by the appellant-accused No. 1.
Findings of the case:
Court find that, it may not be safe to act on alleged extra judicial confession made by accused No. 1 before P.W. 15 – In fact, it is to be noted that, at a particular stage, P.W. 15 was also declared hostile by prosecution and he was cross-examined – Court do not find any reason to accept evidence of P.W. 15 as an independent witness – Prosecution failed to establish guilt of appellant-accused No. 1 for offences for which she was convicted, and as such judgment of lower Court cannot be sustained and same is liable to be set aside
Result: Criminal Appeal allowed and conviction and sentence imposed against appellant-accused No. 1 set aside.
C. Praveen Kumar, J.
1. Assailing the conviction and sentence imposed in Sessions Case No. 25 of 2011 on the file of the VI Additional District and Sessions Judge (Fast Track Court), Markapur, Prakasam District, dated 13-7-2012, wherein accused No. 1 was convicted for the offences punishable under Sections 302 and 201 of the Indian Penal Code (for short "I.P.C.") and sentenced her to undergo imprisonment for life and to pay a fine of Rs. 1,000/- in default, to suffer simple imprisonment for two months, and to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month, respectively, the present appeal came to be filed under Section 374(2) of Cr.P.C. by the appellant-accused No. 1.
2. Originally two accused were tried on two charges - the first charge was under Section 302 r/w. Section 34 of IPC and the second charge was under Section 201 r/w. Section 34 of IPC. While acquitting accused No. 2 of both the charges, convicted accused No. 1 as referred to above.
3. The substance of both the charges against accused Nos. 1 and 2 is that on 7-9-2011 at 12.30 hours in Ekalavya Colony, Markapur, in the house of sister of accused No. 1, both the accused caused the deceased boy Yanmani Venkata Siva Prasad, aged about 9 years, by throttling his neck and later poured kerosene over the body of the deceased and set him fire with a match stick, to screen away the evidence.
4. The facts as culled out from the evidence of prosecution witnesses are as under:-
P.W. 1 is the father, P.W. 2 is the mother, P.W. 3 is the grand mother (mother of P.W. 2) and P.W. 4 is the neighbour of the deceased, who were examined to speak about the circumstances, relied upon by the prosecution. P.W. 1, who is the father of the deceased, in his evidence deposed that he is eking out his livelihood by doing coolie work. According to him, he used to go to coolie work at 6.00 a.m. in the morning and return home at 9.00 p.m. On the date of incident, at about 2.30 p.m. while he was attending his work, one Ramesh (not examined) telephoned to the water vehicle driver informing about the death of the deceased as he was set fire after pouring kerosene. Immediately, P.W. 1 rushed to his house, situated in Ekalavya Colony, Markapur, and noticed his son's dead body burnt to ashes, in the middle room of his house. He also observed gathering of all his neighbours at his house. On the same day at about 4.00 p.m. he lodged a report before P.W. 19-Sub-Inspector of Police, Markapur Town Police Station, basing on which, P.W. 19 registered a case against P.W. 2 and accused No. 1 in Crime No. 152 of 2011 for the offences punishable under Sections 302, 201 r/w 34 of IPC and issued Ex. P-18 FIR. Further investigation in this case was taken up by P.W. 20 - the Inspector of Police, Markapur Circle. He proceeded to the scene of offence and in the presence of P.W. 15 -- Makam Kotaiah, V.R.O. he prepared Ex. P-11 the scene of offence observation report. He noticed the dead body lying in supine position. He also noticed a green colour kerosene can, a match-box and half burnt mat, on which the dead body was lying. He also got photographed the scene of offence and prepared Ex. P-19 the rough sketch of the scene of offence. As it was late in the evening, he returned to his office by posting a guard at the scene of offence. On the next day morning, he again visited the scene of offence and conducted inquest over the dead body of the deceased in the presence of mediators and blood relatives of the deceased. During inquest, he examined P.W. 1, P.W. 3, P.W. 4 and others. All the witnesses unanimously opined that the deceased might have been killed by P.W. 2, mother of the deceased or accused No. 1 or their paramour. After completing the inquest, he sent the dead body of the deceased to the Government Area Hospital, Markapur for autopsy. P.W. 17-Dr. S. Ravindra Reddy, C.A.S.. Government Area Hospital, Markapur, conducted autops