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In the High Court of Judicature, Andhra Pradesh at Hyderabad
K.M. AGARWAL AND A. GOPAL RAO, JJ.
Karanam Balaramakrishna Murthy and others – Appellant
Versus
State of Andhra Pradesh rep. by its Public Prosecutor - Respondent
Criminal Appeal Nos. 258, 259, and 379 of 1994
Decided on : 28-06-1994
In a criminal trial, the prosecution has the burden of proving beyond reasonable doubt that the victim is dead and that the death was homicidal in nature.
Headnote:
CRIMINAL LAW - MURDER - SECTION 302 IPC - EVIDENCE - BURDEN OF PROOF - PROSECUTION FAILED TO PROVE THE DEATH OF THE VICTIM AND THE HOMICIDAL NATURE OF THE DEATH - ACCUSED ENTITLED TO ACQUITTAL.
Fact of the Case:
The prosecution alleged that the accused persons had murdered one Venkata Subbaiah by exploding country-made bombs and had taken away the dead body. The accused denied their guilt.
Finding of the Court:
The court found that there was no direct evidence to prove that Venkata Subbaiah died on the date and time alleged by the prosecution, and that the dead body was not recovered. The court also found that the prosecution had failed to prove any bomb blast resulting in any injury to property or person.
Issues: Whether the prosecution had proved the death of Venkata Subbaiah and the homicidal nature of the death.
Ratio Decidendi: The court held that the prosecution had failed to prove that Venkata Subbaiah was dead, much less the nature of death, natural or homicidal. The court also held that the prosecution had failed to prove any bomb blast resulting in any injury to property or person.
Final Decision: The court allowed the appeals filed by the accused persons and set aside their convictions and sentences for offences under Sections 302, 201 IPC, and 3 of the E.S. Act. The court also dismissed the State's appeal against the acquittal of one of the accused persons.
JUDGMENT :
K.M. AGARWAL, J.
1. The appellants in Criminal Appeal Nos. 258 and 259 and the respondent in State Appeal No. 379 of 1994 were jointly tried for various offences including those under Section 302 and 201 I.P.C. and under Section 3 of the E.S. Act in S.C. No. 78 of 19.90 by the Sessions Court, Prakasam Division, Ongole. The appellants in the first two appeals were found guilty under Section 302, read with Section 34, and 201 I.P.C. and also under Section 3 of the E.S. Act and accordingly convicted and sentenced to life imprisonment for the first offence, further sentenced to 3 years R.I. for the second offence under Section 201 I.P.C. and to 5 years R.I. for the last offence under Section 3 of the E.S. Act. The respondent in the State Appeal was acquitted of all the charges against him. Being aggrieved, the convicted persons have filed the first two appeals, whereas the State has filed the third appeal against the order of acquittal in favour of the rt ???ndent in that appeal.
2. It was alleged that on 30-6-1987 at about 8-30 p.m. at Jampanivari Cheruvu, all the five accused persons had formed an unlawful assembly and in furtherance of the common object of that assembly, they had murdered one Nallapaneni Venkata Subbaiah by exploding country made bombs. The dead body was said to have been taken away and thrown somewhere by them. All the five denied their guilt, but 4 out of 5 were found guilty and convicted and sentenced as aforesaid. The remaining one was acquitted. Being aggrieved, the convicted persons have filed the first two appeals, whereas the State has filed the third appeal against the order of acquittal recorded in favour of one of the accused persons.
3. Without going into any further details, we may notice certain peculiar features of the case. It was the specific case of the prosecution that Venkata Subbaiah was murdered on 30-6-1987 at about 8-30 p.m., but there was no direct evidence to prove that he died on 30-6-1987, muchless a homicidal death the dead body was not recovered. The F.I.R. (Ex. P. 1) lodged on the next day at about 8-15 a.m. by one Bollenpalli Nagendram (P.W. 1) in a nearby Police Station without any reasonable explanation for the delay also did not give any indication about the death or nature of death of Venkata Subbaiah on the said date, time or place of occurrence, though he claimed himself to be an eyewitness. The attempt that was made by the prosecution was to show that Venkata Subbaiah was forcibly taken away in a jeep and, thereafter, murdered by the accused persons. In order to prove that Venkata Subbaiah was no longer alive, a further attempt was made to connect the bones and skull of a burnt dead body that were discovered on 20-7-1987 with those of Venkata Subbaiah. As would appear from paragraph or clause V of Inquest Report (Ex. P-23), only bones and skull were discovered by the police on 20-7-1987 without any marks for identification. Even the learned Sessions Judge recorded a finding in paragraph (XIV) of his judgment that, “It is-crystal clear, as discussed above, that the body of Venkata Subbaiah, whether he was unconscious or dead was lifted to the jeep of the accused and was taken away on 30-6-1987 night at about 8-30 p.m. from the scene of offence at Jamapanavari Cheruvu. Till now the whereabouts of the said Venkata Subbaiah are not known.” We fail to understand, how after recording such a finding, the learned Sessions Judge could have come to a conclusion that the appellants in the first two ap peals were guilty of committing murder of Venkata Subbaiah. It does not appear necessary to remind that no offence under Section 302 I.P.C. can be made out without proving that the victim under consideration was dead and that the death was homicidal in nature. In the present case, the prosecution has utterly failed to prove either of them and, therefore, all the appellants in the first two appeals are entitled to acquittal of the charge under Section 302 I.P.C. For similar rea
