THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No.432 of 2007 Date of Judgment: 03-09-2010 Between: Shaik Khadeer Ahmad ..Appellant and 1. The State rep. by Public Prosecutor, High Court of A.P., Hyderabad and another. ..Respondents The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No.432 of 2007 Judgment: (Per Hon’ble Sri Justice A.Gopal Reddy) 1. The appellant/sole accused, who was tried and convicted for the offences under Sections 367, 376, 302 IPC and sentenced to undergo imprisonment for 10 years and to pay a fine of Rs.2,000/-, in default to undergo simple imprisonment for a period of six months for the offences punishable under Sections 367 and 376 IPC on each count; and to undergo imprisonment for life and to pay a fine of Rs.2,000/-, in default to undergo simple imprisonment for a period of six months for the offence punishable under Section 302 IPC; all the sentences are directed to run concurrently by a judgment dated 20-03-2006 in S.C.No.636 of 2005 by the Special Sessions Judge for Trial of Offences under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 at Karimnagar, filed this appeal challenging the conviction and sentence recorded against him. 2. The gravaman of the charge against the accused is that on 18/19-03-2002 he kidnapped Mutyali (hereinafter referred to as “the deceased”) w/o Lavudiya Beekya (P.W.1), a member of Scheduled Tribe community, and after committing rape he murdered her. 3. The prosecution story as unfolded during the course of trial may, briefly, be stated as under: The Inspector of Police, Husnabad P.S.—P.W.18, on receipt of information at about 7 A.M. on 19-03-2002, that a dead body of a woman is lying besides R&B Road, running from Husnabad to Elkathurthi, outskirts of Ummapur village, rushed to the scene of offence and found P.W.1, husband of the deceased was present at the spot, who made oral complaint, which was reduced into writing and after read over the contents and obtained the thumb impression of P.W.1, sent the said complaint to the Station House Officer (SHO), Husnabad directing him to register the case. Accordingly, the Assistant Sub-Inspector of Police—P.W.16 registered the same in Cr.No.42 of 2002 and sent the CD file to P.W.18. As per the statement of complaint made by P.W.1, while he was sleeping in his house, at about 11.30 P.M., P.W.2 came and informed that she and the deceased returned from Pushpanagar in a tractor and reached Husnabad. On reaching Husnabad, all others went in a tractor to Mirzapur whereas herself and the deceased took an auto to Jillellagadda by fixing the hire charges and loaded the chilly bags; the driver of the said auto was driving in a zigzag manner and was uttering obscene words. After the auto crossed Mirzapur, the driver turned the auto towards Mirzapur and out of fear P.W.2 jumped from the auto and came to the home by running. On the information given by P.W.2, P.W.1 and the villagers searched for the deceased from Jillellagadda to Mirzapur road and Husnabad road. The search party searched throughout the night but could not locate the deceased. In the morning, at about 6 A.M. the dead body was found by the side of the black top road running from Elkathurthi to Husnabad at a place called Nalla Ralla Boru and the chilli bags were found at a distance from the dead body. On the suspicion raised by P.W.1 that the auto driver might have committed rape and killed the deceased, P.W.16, on the instructions of P.W.18, registered a case in Cr.No.42 of 2002. P.W.18 after guarding the scene of offence, proceeded to Mirzapur cross roads, from where P.W.2 jumped from the auto, observed the scene and prepared scene of observation report covered under Ex.P4 in the presence of P.W.5 and another and seized broken pieces of glass, kara pockets and right leg slipper of the deceased—M.Os.4 to 6; returned to the scene of offence; conducted inquest over the dead body in the presence of P.W.9 and another; prepared inquest report—Ex.P2 and sent the dead body of the deceased for postmortem examination. During the inquest it was noticed that the deceased was having one pustelatadu with one gold puste, two silver anklets to the legs, two roldgold ear rings, silver toes to the fingers of both legs. During the course of inquest, he recorded the statements of P.Ws.1 to 3, Lingya— L.W.3, Sampath—L.W.5, Mirza—L.W.6 and P.W.10. P.W.15, the doctor who conducted postmortem examination on the deceased found five ante mortem injuries and injury number 5 is fatal injury and M.O.3— stone can cause the said injury. Later, P.W.18 visited Jillellagadda village, examined and recorded the statements of P.W.7, Hari—L.W.8, Srinivas—L.W.9, P.W.4, Beemu—L.W.11, Lavudiy Sukru—L.W.12, Hemu—L.W.13, P.Wws.5, 6, 7, Aruna—L.W.16, Mallamma—L.W.18, Lalithavva—L.W.19 and Neela—L.W.20 and made a special drive to get identify the auto. During the course of investigation on 22-03-2002, on receiving credible information that auto bearing No.AP15T 3966 was parked in the hospital premises in a secret place, he visited the hospital and examined Sanjeev—L.W.21, Purushotham—L.W.22 and P.W.8 and seized the auto under the cover of seizure panchanama— Ex.P13 and on the same day he arrested the accused in his brother in law’s house at Potlapalli village and in the presence of two mediators —P.W.12 and Ailaiah—L.W.30 he recorded the confession made by the accused and recovered the gunny bag concealed in the dry grass heap situated in front of the house under a cover of panchanama— Ex.P5 and deposited M.Os.1 to 7 before the Judicial Magistrate of First Class, Husnabad with a request to forward the same to FSL, Hyderabad. He also made a request for forwarding the petty coat of the deceased and the hair collected from the scene to FSL, Hyderabad for obtaining DNA profile and handed over the file to Sub-Divisional Police Officer, Karimnagar—P.W.20, as the deceased is a member of Scheduled Tribe. On receipt of relevant reports P.W.20 laid the charge sheet. 4. On committal, the learned Sessions Judge framed five charges for the offences punishable under Sections 364, 302, 376, 354 IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the accused pleaded not guilty and claimed to be tried. 5. In support of its case, the prosecution has examined P.Ws.1 to 20 and got marked Exs.P1 to P22 besides case properties—M.Os.1 to 20. When the accused was examined under Section 313 Cr.P.C. about the incriminating evidence made against him, he reported no defence evidence on his side. 6. The learned Sessions Judge found that the case of the prosecution rests upon circumstantial evidence; the chain of events as narrated by P.W.2, who last seen the deceased in the mid night 18/19- 034-2002, informed the incident to P.W.1 immediately; the accused satisfied his lust having sexual intercourse with the deceased; the dead body of the deceased was found in the morning which was homicidal death and the subsequent event of recovery of articles belonging to the deceased holds that the accused has committed the offence and accordingly convicted and sentenced him as aforementioned. 7. The learned counsel for the appellant contends that when the entire case rests upon the circumstantial evidence, as P.Ws.2 or 7 have not identified the auto, there is no evidence to show that the auto belongs to the accused in which the deceased and P.W.2 travelled; M.O.6 slipper of right leg of the deceased, which was seized from the scene of offence, has not been put to any of the witness nor there is any evidence that the chappal belongs to the deceased; when P.W.2’s evidence shows that no material objects were shown to her, which were identified as articles belonging to the deceased; M.Os.7 to 19 were not shown to the witness; whereas the evidence adduced by the prosecution is that abandon auto was parked in the hospital two or three days back; if that be the case, auto which was driven by the accused is also suspicious. Therefore, the entire investigation is shabby and in the absence of prosecution establishing that auto belongs to the accused and he has driven the same on the relevant time, he cannot be connected with the commission of offence and entitled to acquittal. 8. Per contra, learned Additional Public Prosecutor while sustaining the conviction contends that P.W.2, who travelled along with the deceased and jumped from the auto, informed to P.W.1 that the deceased was kidnapped by the auto driver whom she identified in the Identification Parade at Karimnagar. P.W.7 also saw while the deceased and P.W.2 boarding the auto along with chilly bags at 9.30 P.M. and later the dead body was found in the morning; so it is for the accused to explain how the deceased met with homicidal death and who raped her. The evidence of doctor—P.W.15, who conducted post mortem examination, also corroborates the evidence of P.Ws.2 and 7. The articles belonging to the deceased were recovered at the instance of the accused. Therefore, the conviction and sentence needs no interference. 9. In the light of the submissions, referred to above, the point that arises for consideration in this appeal is: “Whether the prosecution is able to establish the chain of circumstances complete and incapable of explanation to bring home the guilt of the accused beyond reasonable doubt.” 10. P.W.1 testified that his deceased wife and Jyothi—P.W.2 along with some other persons went for mirchi work; work was for 10 days; the person who engaged all the people took them to Husnabad and from there to Pushpanagar and after the work is completed all the persons returned to Husnabad on a tractor; in the night at about 11 or 12, P.W.2 came to his house and told that all other persons went in one tractor to their respective villages, herself and the deceased hired an auto for coming to the village along with some mirchi; the auto driver stopped the auto on the way twice and once he put his hand on the lap of P.W.2; suspecting foul play, P.W.2 escaped and came to home and informed him; then some persons of dairy form searched for the deceased but did not find the deceased. In the morning, near hillocks, he found his wife’s dead body with injuries on the head backside and burn injuries on hand and thigh. 11. P.W.2, who is the material witness, stated that herself and the deceased went to Pushpanagar for mirchi work; on return they were dropped at Husnabad; her brothers—Ravi and Raju—P.Ws.5 and 7 boarded them in an auto from Husnabad to their village at about 10 P.M.; they started from Husnabad to their village, on the way the auto driver stopped twice stating that engine became heat and enquired whether they are married; the deceased told him that she is a married woman and got three children and P.W.2 told that her marriage was performed three years back and she was issueless; when the accused offered Rs.200/-, she told that they are not that type and asked him to drop in their village; after stopping the auto, on suspecting that he was diverting the road, she jumped from auto and informed the same to P.W.1, who along with others searched for the deceased whole night; in the morning they found the dead body; she also identified the accused in jail at Karimnagar and police have not shown her any articles. In the cross-examination she admitted that she has given the details to the Magistrate for identification of the accused and four days after the incident, the police have examined her. She did not know the name of the person for whom they worked at Pushpanagar and per day they were paid Rs.40/- towards labour charges. They were carrying two bags; in that, one bag belongs to her and another bag belongs to the deceased. The persons in the tractor have not seen the driver of the auto. The auto was stopped once at Nalla Ralla Boru, where the corps of the deceased was found; they have not raised any alarm nor tried to engage any auto; the auto was stopped second time at Mirzapur road, from there their village Jillellagadda was two kilometres; she did not jump from the auto along with her bag, but she alone jumped. She has not stated the auto number and description of the accused. 12. P.W.5, who saw the accused and P.W.2 while boarding the auto, stated that as he was sick, he went to Husnabad for treatment; P.W.2, his sister and the deceased requested him for hiring an auto; he enquired two or three auto drivers and they demanded high amounts; the accused, who was in drunken condition, accepted to come to Jillellagadda for Rs.20/-; P.W.2 and the deceased boarded the auto and left for Husnabad; he observed white spots on the chest of the accused; on the next day morning, he came to know that the deceased found dead near Nalla Ralla Boru and he went to saw the dead body. In the cross-examination, he stated that he cannot say the colour of the dress the accused wore; the auto was petrol auto and the persons in the tractor have not seen the auto driver; there were three mirchi bags and two clothe bags with P.W.2 and the deceased when they boarded the auto; P.W.2 identified the accused at police station and also in the jail. He was examined on the next day after seeing the dead body. 13. P.W.7, who said to have last seen when P.W.2 and the deceased together, deposed that one day the deceased and P.W.2 boarded in the auto of the accused; deceased herself hired the said auto and the mirchi bags were also put in the auto; then he left to his village. In the cross-examination he stated that he came in a tractor from Pushpanagar; P.W.5 was at Husnabad and he came to purchase vegetables; the deceased herself hired the auto by going at a distance. 14. P.W.8, who is working as male nurse in the Government Hospital, Husnabad, deposed that he noticed an auto bearing No.3966 in front of the hospital; as no body came forward to take the auto, he informed the same to the Civil Assistant Surgeon, who in turn asked him to inform the same to police accordingly, he went to the police station and informed the same to the police. He admitted in the cross- examination that the auto was lying in front of the hospital about two or three days. 15. P.W.9 is the panch witness to the scene of offence and inquest report—Ex.P2. P.W.11 is the panch witness to the seizure of M.Os.1 to 6 and rough sketch—Ex.P4. 16. P.W.12, who lives by running the auto on hire, deposed that one constable called him to the house of the accused; by the time he went to the house of the accused, one constable and Inspector were already present there; when he enquired, the accused stated that in the auto he found a bag which he kept in the cattle shed and by saying so, he brought out the bag and opened the same; from the bag, one red and yellow colour saree, one red stripes blouse, one green and yellow stripes bed sheet, one sky blue colour saree, one sky blue colour petty coat, one black colour blouse, one aluminium made utensil, one aluminium lid, one lid of a carriage made of steel, some riped mirchi, some raw mirchi were found, which were marked as M.Os.7 to 19. 17. P.W.15, the doctor who conducted post-mortem examination found the following ante mortem injuries. 1. Abrasion measuring 1 x 1 cm. Present over the lower part of right thigh red in colour. 2. Abrasion measuring 1 x 1 cm. Present over the upper part of the right leg red in colour. 3. Abrasion measuring 8 x 4 cm. Present over the front of the right elbow with variable sizes 2 x 1.5 cm. 2 x 1 cm. And red in colour. 4. Contusion measuring 3 x 1 cm. Present over the front of mid left chest. 5. Fishure fracture measuring 7 cm. Present over the left side of parietal region. On reflection scalp measuring 10 x 7 cm. Present over the left parietal region. The fracture extending into the base of the scull involving middle and arterial cranial forssae. Subdural and subarchonile hemorrhages present in all over the brain. According to him, injury No.5 is fatal injury, which can cause death and M.O.3 can cause injury No.5. He issued Ex.P9—postmortem examination report. In the cross-examination he stated that on observation of the stomach, it was found that the deceased might have taken food in the afternoon of 18th before 2 P.M.; he preserved the vaginal swabs and smear for detection of spermatozoa for serological examination. If the intercourse was there on the intervening night of 18/19, the life spermatozoa must be present in the swab and smear. 18. P.W.17 stated that on receipt of requisition from the Sub- Divisional Police Officer, Karimnagar to conduct Test Identification Parade, he issued summons to the P.Ws.2, 5 and 7 and conducted Test Identification Parade on 20-04-2002 and prepared Test Identification Proceedings—Ex.P12. 19. P.W.18, who is the Inspector of Police, Husnabad at the relevant point of time, stated that on receipt of information, he rushed to the scene of offence; held inquest over the dead body of the deceased and also recorded the statements of P.W.8 and others; arrested the accused in the presence of P.W.12 and one Ailaiah (L.W.30). He admitted in the cross-examination that P.W.2 has not given the details of auto number, but only stated that it is a diesel auto; P.W.2 did not state before him that the deceased tried to jump from the auto, but P.W.2 alone jumped from the auto along with her bag; both the deceased and P.W.2 are having one bag each with them, but no bags were recovered from the scene of offence; P.Ws.1 to 3 did not specifically stated that they saw the accused while traveling in auto; P.W.2 did not complain any injuries to her; he came to know through P.W.8 that auto was lying in the hospital on 20-04-2002. 20. P.W.19 deposed that he was present when the auto was seized on 22-03-2002 and Ex.P13 is the seizure panchanama. 21. P.W.20, who verified the investigation done by P.W.18 and filed the charge sheet, deposed that he forwarded the requisition of Inspector, Husnabad to FSL, Hyderabad for DNA profile. Ex.P20, dated 08-04-2002 and Ex.P21, dated 25-04-2002 are the FSL reports and Ex.P22, dated 01-04-2003is the DNA profile report. 22. Admittedly, the entire case of the prosecution rests upon the circumstantial evidence and there are no eyewitnesses to the incident. 23. It is now fairly well settled that conviction can be based solely on circumstantial evidence, but it should be tested on the touchstone of law relating to circumstances laid by the Supreme Court in Padala Veera Reddy vs. State of A.P. (See 1990 Crl.L.J.605) 24. When the prosecution case rests upon circumstantial evidence, such evidence must satisfy the following four tests: "(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 25. The entire evidence adduced by the prosecution does not disclose that the accused owned an auto and he was driving the same on the date of offence. The prosecution failed to establish that the accused is an auto driver by profession by obtaining necessary details of the auto from RTO office with regard to ownership nor auto is owned by a person other than the accused, who hired the same to the accused; that the accused is eking out his livelihood by driving auto; that none of the auto drivers of the auto stand were examined to show that the accused is driving the auto from Husnabad to various other places, which is a primary step to connect the accused with the commission of offence. So also, the prosecution has miserably failed to explain the delay in examining the material witness, P.W.2; as per her (P.W.2) version, she has last seen the accused while kidnapping the deceased in an auto; she was present at the time of inquest, but not examined by the Investigating Officer. 26. Though P.W.5 deposed in the cross examination that P.W.2 identified the accused in the police station and also in the jail, whereas P.W.2 stated that she identified the accused in jail at Karimnagar. P.W.17, who conducted Test Identification Parade, stated that P.Ws.2, 5 and 7 identified the suspected as per the Test Identification Proceedings—Ex.P12. The evidence of P.Ws.5 and 7 clearly disclose that at about 9.30 or 10 P.M. in the night, P.W.2 and the deceased boarded the auto. On seeing the auto driver casually at one time preserving the impression of the driver in their minds till they were identified in the jail is improbable. The purpose of Test Identification Parade is to have corroboration to the evidence of the witness. The findings recorded by the lower Court that P.W.2 has ample opportunity to see the accused and she identified him in the Court; Test Identification Parade Proceedings support and corroborate the claim of P.W.2 cannot be accepted, for the simple reason that she was examined after arrest of the accused. Hence, identification is not trust worthy. 27. The learned Sessions Judge on considering Ex.P20—FSL report, where no spermatozoa was found on the saree, blouse and petty coat but in Ex.P21, two glass slides with dried smear on each marked as item No.1 and cotton swab marked as item No.2 and on examination human spermatozoa was detected on items 1 and 2; though in Ex.P21 the blood group of seminal stains could not be determined, observed as per the evidence of P.W.2, the prosecution has shown that the accused kidnapped the deceased to satisfy the lust and immediately on the next day the vaginal swabs containing a live spermatozoa were preserved, which was supported by the evidence of P.W.15; hence that the prosecution has made their attempt to establish that the accused satisfied his lust and had the sexual intercourse over the deceased. Mere making an attempt by the prosecution will not amount to proof. Suspicion however strong it may be cannot be treated as substantive legal proof to convict the accused. The prosecution has also made an attempt to confirm the DNA profile report—Ex.P22, which shows only a partial DNA profile has been yielded from the DNA sample of the source of exhibit A (said to e from the cotton swab/seminal stain found on petticoat of victim). Since DNA profile is essential from the source of this exhibit, no opinion is being furnished herein. Though P.W.2 was present at the time of inquest, she was examined four days after the incident; by that time the accused was already arrested and shown to P.W.2 at police station, which clearly goes to show the possibility of tutoring P.W.2 to implicate the accused. In view of the same, no credence can be given to the evidence of P.W.2, as she was a planted witness to support the case of the prosecution. 28. It is well settled that in cases of circumstantial evidence, every circumstance has to be established by clinching evidence and not by mere conjectures. (See RAMESH KUMAR