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Docid # IndLawLib/944986
(2009) 1 ALT(Crl) 379 : (2009) 1 AndhLD(Criminal) 429 : (2009) 1 APLJ 282
: (2009) CriLJ 2102 : (2009) 2 Crimes 500 : (2010) 6 RCR(Criminal) 1135
ANDHRA PRADESH HIGH COURT
DIVISION BENCH

SUNTRU SOMI REDDY — Appellant

Vs.

THE STATE OF A.P. — Respondent

( Before : G.V. Seethapathy, J; A. Gopal Reddy, J )
Criminal Appeal No.1304 of 2006
Decided on : 04-02-2009

Criminal Procedure Code, 1973 (CrPC) - Section 235(1), Section 294,

Section 294(2), Section 313
Penal Code, 1860 (IPC) - Section 302

Counsel for Appearing Parties

E. Venkat Reddy, for the Appellant; Public Prosecutor, for the Respondent
Cases Referred

Sait Tarajee Khimchand and Others Vs. Yelamarti Satyam alias Satteyya
and Others, AIR 1971 SC 1865 : (1972) 4 SCC 562 : (1971) 3 UJ 644
Ganpat Raoji Suryavanshi Vs. State of Maharashtra, (1980) CriLJ 853 :
(1978) MhLj 6
P.C. Poulose Vs. State of Kerala, (1996) CriLJ 203 : (1996) 1 ILR (Ker) 376
Kota Peda Nagesh Vs. State of A.P., (1999) 2 ALD 383 : (1999) 1 ALD(Cri)
519 : (1999) 1 ALT(Cri) 364 : (1999) CriLJ 2051

Final Result : Allowed

JUDGMENT

G.V. Seethapathy, J.—This appeal is directed against the judgment dated 16-
05-2006 in S.C.No.35 of 2005 on the file of Principal Sessions Judge, East
Godavary, Rajahmundry, wherein the appellant was found guilty for the
offence u/s 302 IPC and was convicted for the same and sentenced to
undergo imprisonment for life and to pay a fine of Rs.100/-, in default to
suffer simple imprisonment for one month.
2. The case of the prosecution in brief is as follows:
3. The accused is a resident of Ramannavalasa and the deceased-Pallala
Kannamreddy is a resident of Bodigagondi village. The accused is close
relative of the deceased being the nephew of the mother of the deceased.
About one year prior to the occurrence, the accused developed illicit
intimacy with the mother of the deceased and it was known to one and all.
The accused used to visit the house of the deceased now and then to meet
the mother of the deceased. About one month prior to the occurrence, the
mother of the deceased left Bodigagondi village along with the accused and
shifted to Ramannavalasa. About one week prior to the incident, the father
of the deceased went to Ramannavalasa and convinced his wife and got her
back to Bodigagondi village. On the next day the accused along with his
family came to Bodigagondi and stayed in the house of the deceased. The
deceased was demanding the accused to leave his house and the accused
paid a deaf ear to his demand. On 05-04-1996 at about 8 P.M. when the
deceased went to the house of Suntru Mangi Reddy on the pretext of
bringing the accused for supper, there was a wordy altercation between the
accused and the deceased, which led to exchange of hot words. On hearing
the same, Pallalla Subbalakshmi, wife of the deceased, went to the house of
Suntru Mangi Reddy accompanied by Duda Amrutha Prasad-L.W.7 and
Pallala Pandureddy-L.W.2. On seeing them the accused grew wild against the
deceased and took a knife from his waist and started chasing the deceased
by saying that "he will kill him" and take away the mother of the deceased-
Pallala Subbayamma. After chasing the deceased to some extent, the accused
caught him and stabbed him with a knife on his left temporal region in the
presence of Pallala Pandureddy-L.W.2; Pallala Subbalakshmi-L.W.3; Suntru
Rajareddy-L.W.4; Suntru Lakshmamma-L.W.5; Suntru Bullemma-L.W.6;
Duda Amrutha Prasad-L.W.7; Suntru Pandureddy-L.W.8 and Pallala
Subbayamma-L.W.9 and ran away. The deceased died on the spot. On the
next day i.e. on 06-04-1996, Gorla Ponnamma, Village Administrative Officer-
P.W.1 gave a complaint-Ex.P1 to the Sub-Inspector of Police-P.W.7, who
registered a case in Cr.No.4 of 1996 u/s 302 IPC. Since the Inspector of Police-
P.W.8 was on other duty, P.W.7 took up investigation, examined the scene of
offence, prepared observation report-Ex.P2, rough sketch-Ex.P15 and
conduced inquest over the body of the deceased in the presence of
mediators and sent it for postmortem examination. The Medical Officer,
Government Hospital, Rampachodavaram issued postmortem certificate to
the effect that the deceased sustained deep stab injury on the left side of
temporal region and death might have been caused due to injury to vital
organs like eye ball and brain and death might have occurred 60 to 62 hours
prior to postmortem examination. On 27-05-1996 at 2 P.M. the accused was
arrested at Kakiwada village and at his instance the knife was recovered
under Ex.P5 in the presence of mediators-P.W.5 and another and the accused
was sent for remand. The material objects were sent to RFSL for chemical
analysis under a cover of letter of requisition-Ex.P16 and letter of advise-
Ex.P17. A report-Ex.P18 was received from the RFSL to the effect that human
blood was detected on the knife-M.O.3 and it was of 'B' group. After
completion of investigation the Inspector of Police- P.W.8 filed the charge
sheet on 13-06-1996.
4. The learned Sub-Divisional Magistrate (Mobile Court), Rampachodavaram
has taken cognizance of the offence u/s 302 IPC in P.R.C.No.29 of 1996 and
committed the case to Sessions Judge, Rajahmundry by committal order
dated 22-05-1997. It is unfortunate that more than 8 years later the same was
taken on file in S.C.No.35 of 2005 by the Principal Sessions Judge, East
Godavari, Rajahmundry.
5. On appearance of the accused, a charge u/s 302 was framed to which he
pleaded not guilty. In support of its case, the prosecution examined P.Ws.1 to
8 and marked Exs.P1 to P19 and also M.Os.1 to 3. The accused was examined
u/s 313 Cr.P.C. and he denied all incriminating circumstances appearing
against him in the evidence. He did not adduce any oral or documentary
evidence.
6. On a consideration of the evidence available on record, the learned
Sessions Judge found the appellant/accused guilty of the offence u/s 302 IPC
and accordingly convicted him for the same and sentenced him to undergo
imprisonment for life and also to pay a fine of Rs.100/-, in default to suffer
simple imprisonment for one month. Aggrieved by the conviction and
sentence the accused preferred the present appeal.
7. Arguments of the learned counsel for the appellant/accused and the
learned Additional Public Prosecutor representing for the respondent-State
are heard. Perused the records.
8. The learned counsel for the appellant/accused would submit that there is
delay of 3 days in registering the FIR and the same has not been explained.
He further submits that the testimony of P.W.2 and P.W.4, who were said to
be eyewitnesses to the occurrence, is discrepant and mutually contradictory
and the prosecution relied upon scanty evidence of P.Ws.2 and 4 available
on record for conviction of the accused. He further submits that the Medical
Officer who conducted postmortem examination and issued postmortem
certificate-Ex.P19 could not be examined, as according to the prosecution he
is no more. But, no steps were taken by the prosecution to produce
secondary evidence to prove the signature of the Medical Officer, who issued
Ex.P19- postmortem certificate and also the contents thereof and in the
absence of such evidence, the trial court erred in relying upon Ex.P19 which
is said to have been marked by consent. He further submitted that the
accused never gave consent for marking the document and has denied the
offence in toto and even disputed the incriminating circumstances
pertaining to occurrence in the examination u/s 313 Cr.P.C.
9. The learned Additional Public Prosecutor representing the
respondent/State, on the other hand, contended that having regard to the
fact that the incident occurred in a remote forest area situated in agency
tracts, which is 17 kilometers away from the police station, the delay in
lodging the compliant may not be taken serious notice of. He further submits
that in view of the testimony of P.Ws.2 and 4, who have witnessed the
occurrence, the conviction of the accused recorded by the trial court need
not be interfered with.
10. P.W.3 is the wife of the deceased. One Pallala Subbayamma-L.W.9 is the
mother of the deceased. The said Subbayamma is said to have developed
illegal intimacy with the accused. According to the prosecution, about a
week prior to the occurrence, Subbayamma went to Ramannavalasa along
with the deceased and her husband-Pandu Reddy went and brought her
back. In that regard, there was an altercation between the deceased and the
accused. The prosecution alleges that on the date of occurrence at about 9
P.M. when such altercation was going on, P.W.2 went there and witnessed the
occurrence where the accused stabbed the deceased with a knife-M.O.3 and
ran away. Subbayamma cited as L.W.9 was not examined and was given up
by the prosecution. Her husband-Pandu Reddy cited as L.W.2 is not
examined, as he was no more. The incident of stabbing was witnessed by
Suntru Raja Reddy-L.W.4, who is said to be no more, and Suntru Bullemma-
L.W.6 is also not examined by the prosecution.
11. Apart from P.W.2, the only other eyewitness to the occurrence examined
before the Court is P.W.4. According to P.W.4, on that day at about 8 P.M.
while he was in the house of Mangi Reddy the accused and the deceased
altercated with each other and during the said altercation the accused
stabbed the deceased with M.O.3-knife near the tamarind trees and ran
away. According to P.W.2, the incident occurred at about 9 P.M., whereas
P.W.4 stated that it occurred at 8 P.M. P.W.3, who also claims to be an
eyewitness to the occurrence, stated that the occurrence took place at 6 P.M.
Three witnesses-P.Ws.2, 4 and 3, have given different timings regarding the
occurrence. The learned Additional Public Prosecutor appearing for the
State stated that having regard to the fact that the witnesses are villagers
and inhabitants of agency area, they may not be having proper or correct
sense of time and variation in their evidence regarding time of occurrence
may not be taken seriously. Further, the witnesses were examined almost 10
years after the occurrence and it is only natural that after lapse of such long
period there is every possibility of their memory not serving them correctly
at that length of time. But the fact remains that even the FIR- Ex.P14, which
was registered a couple of days after the occurrence, the time of occurrence
is noted as 8 P.M. The fact, therefore, remains that at 8 P.M. in a forest area
the possibility of sun light still being available is too remote and so the
evidence of P.Ws.2 and 4 regarding their witnessing the occurrence on the
dark night has to be scrutinized carefully. The testimony of P.Ws.2 to 4 does
not inspire any confidence to believe their presence at the time and place of
occurrence. The prosecution is silent as to what made them reach the scene
of offence at that hour in the dark night.
12. That apart, the offence is said to have taken place on 05-04-1996 and
P.W.1, Village Administrative Officer, testified that she received the
information only at 8 P.M. on the next day i.e. on 06-04-1996, and on the next
day i.e. on 07-04-1996 she gave the complaint-Ex.P1 to the police. In Ex.P1,
P.W.1 stated that P.W.2 came to her on 06-04-1996 at 4 P.M. and informed her
about the incident, whereas in the evidence P.W.1 stated that P.W.2 came to
her at 8 P.M. Be that as it may, P.W.1 has not taken any immediate action in
pursuance of information received by her pertaining to occurrence of
offence and only on the next day i.e. on 07-04-1996 at 9 A.M. she has given
the complaint-Ex.P1 to the police. There is absolutely no reason or
explanation on the part of the prosecution for the delay of nearly 20 hours in
giving information by P.W.2 to P.W.1. It is also not the evidence of P.W.2 that
she could not reach the place of P.W.1 on that night or on the next day
morning for want of transport or any other reason. Even assuming that
P.W.2 could not reach the place of P.W.1, who is staying at Chatlavada, which
is only 2 kilometers away from the Bodigagondi on the night of occurrence
owing to darkness or lack of transport, there is no reason why P.W.2 has not
made any effort to convey the information about the incident to P.W.1 or the
police at least on the morning of the next day i.e. on 06-04-1996. In the
absence of any explanation whatsoever in the evidence of P.W.2 or any other
witness for the abnormal delay in giving information to the police through
P.W.1, the compliant-Ex.P1 which was given almost three days after the
occurrence cannot be given due weight or credence. Even otherwise, P.W.1 is
not an eyewitness to the occurrence and in the compliant P.W.1 only claims
to have narrated the information received by her from P.W.2. However, on
account of non- explanation of abnormal delay in giving the complaint, the
genuineness of the contents thereof as conveyed by P.W.2 cannot be held to
be proved so as to incriminate the accused.
13. Apart from the fact that the testimony of P.Ws.2 and 4 does not inspire
any confidence so as to base the conviction thereon, the prosecution has not
chosen to substantiate their case by adducing any medical evidence. L.W.16
M.V.S.L. Narayana Rao, Medical Officer who conducted postmortem
examination was not examined and it is stated that he is no more. A perusal
of the record discloses that summons were issued to Dr.P.Nagendra Prasad,
Medical Officer, Rampachodavaram but prosecution did not choose to
examine him as additional witness though he was present in the Court by
way of secondary evidence to prove the contents of certificate-Ex.P19. The
learned Sessions Judge has observed that Ex.P19 was marked by consent u/s
294 Cr.P.C., as the doctor who issued Ex.P19 is no more.
14. Section 294 Cr.P.C. enables that where the genuineness of any document
is not disputed, such document can be read in evidence in any inquiry trial
or other proceeding without proof of the signature of the person by whom it
purports to be signed. To invoke the provisions of Section 294 the document
should be one the genuineness of which is not disputed.
15. In the present case, the accused has denied the evidence, pleaded not
guilty and disputed all the incriminating circumstances appearing against
him in evidence. While he was examined u/s 313 Cr.P.C., the accused no
where admitted the genuineness of the postmortem certificate-Ex.P19 nor
given any consent at any time for marking it as an exhibit. Apart from the
fact that the signature of doctor who issued postmortem certificate-Ex.P19 is
not proved by adducing any secondary evidence by way of examining
another doctor, who happened to be colleague of Dr. M.V.S.L. Narayanarao,
who could identify the signature of Medical Officer, the contents of
postmortem certificate-Ex.P19 are also not proved.
16. In P.C. Poulose Vs. State of Kerala, the Kerala High Court held as follows:
A reading of the above section shows that when a document is filed before
any Court by the prosecution or the accused, the particulars of every such
document shall be included in a list and the prosecution or the accused, as
the case may be, or the pleader for the prosecution or the accused, if any,
shall be called upon to admit or deny the genuineness of each such
document. It also interdicts that the list of documents shall be in such form
as may be prescribed by the State Government. Only where the genuineness
of any document is not disputed, such document may be read in evidence in
any inquiry, or trial without the proof of the signature of the person to
whom it purports to be signed. There is no material before this Court to
show that before Ex.P.7 was produced and marked as an exhibit the
petitioner was called upon to admit or deny the genuineness of Ex.P.7. Ex.P.7
was also not filed through a list, which shall be in the form prescribed by the
State Government as contemplated under sub section (2) of Section 294
Cr.P.C."
17. In the above case, post-mortem certificate was marked through a witness
PW.10, who deposed that he obtained the same from the doctor, who
conducted post-mortem examination. As there was nothing on record to
show that before marking post-mortem certificate Ex.P.7 the accused was
called upon to admit or deny the genuineness of that document. As the
prosecution did not strictly comply with the provisions of Section 294 Cr.P.C.,
it was held that 'the said post-mortem certificate ought not to have been
marked and proved as a document evidencing the cause of death of the
deceased Kader'.
18. In the above case, a reference was made to the decision of the Apex Court
in Sait Tarajee Khimchand and Others Vs. Yelamarti Satyam alias Satteyya
and Others, wherein it was held that 'the mere marking of a document as an
exhibit does not dispense with the proof of document'.
19. Another reference was also made to the decision of the Full Bench of
Bombay High Court in Shaik Farid Hussinsab v. The State of Maharashtra
1983 Cri. L.J. 487 (Bom.) (FB), wherein Bombay High Court took the view that
a document becomes both relevant and authentic evidence of its contents
without the proof of its authenticity by the author or anybody else by force
of Section 294 on its conditions being complied with.
20. In the present case also, the procedure prescribed u/s 294 Cr.P.C. has not
been followed and the conditions stipulated therein have not been complied
with and in fact, no witness is examined to formally prove the signature of
the Medical Officer, who issued post-mortem certificate Ex.P.12 or to prove
the contents thereof and it is purported to have been marked by consent,
which consent by the accused is in fact, not forthcoming on record.
21. In Ganpat Raoji Suryavanshi Vs. State of Maharashtra, the Division Bench
of the Bombay High Court held as follows:
It is well-settled that the memorandum of the post-mortem examination is
not a substantive evidence by itself. It is a document containing the notes
made by a doctor contemporaneously while he is conducting the post
mortem examination. That memorandum can be used by the doctor for
refreshing his memory while he is giving evidence in Court. It may be used
by the defence, if necessary, for contradicting the doctor's evidence in the
Court. The memorandum itself can never be substantive evidence though it
can be exhibited in the Court when the doctor is examined as a witness and
has deposed to the contents of that document. No Court can come to a proper
conclusion relating to the culpability of an accused person only on the basis
of the recital of the injuries in a memorandum of the post-mortem
examination. Thus, apart from the fact that the post-mortem memorandum
is not a substantive piece of evidence the doctor has got to be examined in
every prosecution not only to prove the injuries mentioned in the post-
mortem examination but also to give his opinion relating to those injuries."
It was further held as follows:
Section 294 is totally a new section inserted for the first time in the Code of
1974. It is meant to cover those documents, which require only formal proof.
It has been introduced for the purpose of accelerating the pace of the
criminal trial by dispensing with the formal proof of certain documents.
Where the contents of a document are to be proved by examining the author
of that document, the provisions of Section 294 of the Code cannot come into
play. Conceivably, Section 294 of the Code may cover letters written,
photographs taken and it may also cover specimen handwritings and
fingerprints. It is enough to mention that the memorandum of the post-
mortem examination is not a document the proof of which can be dispensed
with by resorting to the provisions of Section 294 of the Code. Indeed, the
memorandum of the post mortem examination does not prove by itself. A
document which is not a substantive evidence by itself, and the contents of
which have to be deposed to by a witness, can never be tendered in evidence
by following the procedure mentioned in section 294 of the Code.
22. In Kota Peda Nagesh Vs. State of A.P., the Division bench of this Court
held as follows:
...Merely because a document is obtained from the custody of the
Government Hospital, its genuineness is not automatically proved. The
person who has authored the said document or who has issued such
document must come and depose before the Court with regard to its
contents. Unless such document is proved, it cannot ensure to the benefit of
the party on whose behalf it is marked.
23. In the above case also, doctor Krishna Prasad, who is said to have
conducted post-mortem over the body of the deceased issued Ex.P.10 post-
mortem certificate, could not be examined, as he was stated to be no more
and the said document was sought to be proved by PW.13 Inspector of Police.
It was contended on behalf of the accused therein that when the prosecution
does not prove a document, the prosecution cannot press into service the
contents of such document for finding a person guilty. Agreeing with the said
contention, this Court held that Ex.P.10 post-mortem certificate issued by Dr.
Krishnaprasad has not been proved nor there was any effort by the
prosecution to seek the opinion of the doctor, who knows or identifies the
signature of Dr. Krishnaprasad and elicit the nature of the injuries and
implication of those injuries on the deceased.
24. In the present case also, no such effort is made by the prosecution to
examine another doctor, who could identify the signature and handwritings
of the doctor, who conducted post-mortem examination and to prove the
certificate Ex. P.12 and also elicit the nature of injuries and implication of
those injuries on the deceased. Marking of post-mortem certificate on the
basis of purported consent said to have been given by the counsel, especially,
when the accused has specifically denied every incriminating circumstance
appearing against her including the medical evidence, is unjustifiable and it
must be held that the prosecution has failed to establish the cause of death
of the deceased by necessary medical evidence.
25. In the light of the principles laid down in the above case and in view of
the fact that the prosecution has not chosen to adduce necessary evidence to
prove the fact of issuance of Ex.P19 and the contents thereof, the trial court
clearly erred in relying upon Ex.P19 certificate. Once Ex.P19 certificate is
taken out of consideration for want of necessary proof, there remains no
medical evidence on record to establish that the death of the deceased was
homicidal.
26. In view of the circumstances, the direct evidence on which the
prosecution seeks to rely upon being scanty and uninspiring and there being
no other circumstantial evidence which could fix the accused and there
being no medical evidence worthy of acceptance on record to show that the
death of the deceased was homicidal, it must be held that the prosecution
has not proved the guilt of the accused beyond all reasonable doubt. Except
seizing weapon-M.O.3 and sending the same to FSL for examination, the
Investigating Officer did not take any steps to seize blood stained earth or
control earth and send the same also along with M.O.3 for analysis. By not
taking steps to send M.O.1-lungi and M.O.2-waist thread of the deceased for
forensic examination, there is no evidence to connect the weapon-M.O.3
with the accused nor is there any evidence to show that blood detected on
M.O.3 was that of the deceased.
27. In the circumstances, the conviction of the accused for the offence u/s
302 IPC recorded by the learned Sessions Judge and the sentence imposed
against him for the same by the trial court are not sustainable and are
accordingly set aside.
28. In the result, the appeal is allowed and the conviction and sentence
imposed against the accused-Suntru Somireddy by Principal Sessions Judge,
East Godavari at Rajahmundry by impugned judgment dated 16-05-2006 in
S.C.No.35 of 2005 are set aside and consequently he is not found guilty u/s
302 IPC and acquitted thereof u/s 235(1) Cr.P.C. The accused shall be set at
liberty forthwith, if he is not required in any other case. The amount of fine
paid by the accused shall be refunded to him.