IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FOURTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.867 OF 2007 Between: Varada Mallikarjuna ..... APPELLANT AND State of Andhra Pradesh ....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.867 OF 2007 JUDGMENT: (Per Hon'ble Sri Justice N.R.L. Nageswara Rao) The accused in Sessions Case No.257 of 2006 on the file of II Additional Sessions Judge, Kurnool at Adoni, who was convicted for the offence under Section 302 of the Indian Penal Code, 1860, (for short, "I.P.C."), and sentenced to undergo imprisonment for life and also to pay a fine of Rs.2,000/-, in default to undergo further imprisonment for six months, is the appellant herein. 2. The case of the prosecution is that PW.1 is the father of PW.2 and PW.2 is the wife of the accused. PW.10 is the brother of the accused. The deceased, namely, Siva Jyothi, Nethravathi and Veeresh, who are aged about 5, 3 and 1 ½ years respectively, are the children of the accused and PW.2. The accused originally belong to Devadurga Village, Raichur District, Karnataka State. After marriage, the accused shifted to Adoni and started living with PW.1 along with his wife, PW.2. The accused was running a Beedi Bunk near Srinivasa Bhavan at old bus stand, Adoni and he suffered loss. He requested PWs.1 and 2 to provide him financial assistance. PW.1 was working as an Attender at MPDO Office, Adoni, and promised to give him financial support after getting retirement benefits and he retired in the month of June, 2005 from service. PW.1 had no confidence in the conduct of the accused and deposited the money in the name of his wife and himself. The accused questioned the conduct of PW.1 and bore grudge against him and his family members. On 10.09.2005, the accused called his other daughter Sailaja to come along with the deceased persons, but she did not come. Thereafter, the accused left the house of PW.1 along with the deceased in the Auto of PW.4 and got down at Adoni bus stand and boarded the bus going towards Raichur. Thereafter, he got down near inter state Thungabhadra road bridge near Madhavaram Village. At that time there was heavy flow of water in the river. At about 06:15 PM, PW.6 was standing there and to his witnessing, the accused has thrown all the children into the river without any mercy. The accused left the scene and went towards Gilkesugur Village and thereafter, left to Srisailam and took shelter there. On 04.12.2005, PW.7 noticed the accused at Srisailam and asked him about the children and he informed her that he pushed all the children into Thungabhadra river. Thereafter, on 05.01.2006, PW.7 came to the village and informed the same to PW.1. Thereafter, PWs.1 and 3 went to Srisailam and enquired about the whereabouts of the accused. On 06.01.2006, the accused went to Devadurga and informed to PW.10 about he killing his children. On 13.01.2006, PWs.1 and 3 went to Hubli and apprehended the accused. Thereafter, he was produced before the police at Gantikeri Police Station and he was brought to Adoni. On a complaint given by PW.1, a case was registered and investigated into. On 16.01.2006, the investigating officer went to the bridge and conducted panchanama. On 02.02.2006 at about 10:00 AM, the photos of the deceased and accused were seized from PW.1 and thereafter, the accused was charged for an offence punishable under Section 302 I.P.C. The case was taken on file as P.R.C.No.20 of 2006 by the Judicial Magistrate of First Class, Adoni and committed the same to the Court of Sessions. 3. After the appearance of the accused before the learned Sessions Judge, a single charge for murder of all the children was framed, read over and explained to him and he pleaded not guilty. 4. On behalf of the prosecution, PWs.1 to 15 were examined and Exs.P1 to P19 were got marked. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. and he did not adduce any defence evidence. 6. After considering the evidence on record, the learned Sessions Judge found the accused guilty of murder of the three children and accordingly, convicted and sentenced him. Aggrieved by the same, the present Criminal Appeal is filed. 7. Since the accused has no means to engage an Advocate to defend himself, Dr. K. Satyanarayana Rao is appointed as legal aid counsel. Heard the legal aid counsel and also the learned Public Prosecutor. 8. The points that arise for consideration are: 1) Whether the accused has committed murder of the three children? 2) Whether the prosecution has proved beyond all reasonable doubt the guilt of the accused for the offence for which he stands charged? 3) Whether the conviction and sentence imposed by the learned Sessions Judge is legal and sustainable? 9. In support of the prosecution case, PW.1, father-in-law of the accused and father of PW.2, deposed that the accused and PW.2 were living with him at Adoni. The accused was not running the Beedi bunk properly. He retired from service on 30.06.2005 and the accused was quarrelling with him and PW.2 with regard to money and the accused asked him to give money from his retirement benefits. The accused also once thrown on ground his son, who was aged about 1 ½ year. He promised the accused that after getting the retirement benefits, he would give them to the accused. But, initially he got some amount and he kept them in bank in the name of his wife and himself. He told to the accused to wait till he gets the total retirement benefits. The accused, therefore, bore grudge and before he received the total retirement benefits, on 10.09.2005, the accused has taken away his two daughters and son, who are the deceased, informing PW.2 and also his wife that he is taking them to show Vinayaka Nimajjanam procession and thereafter, the accused did not return along with the children. Thereafter, he and PW.3 went in search of the children and they could not find them. On 06.01.2006, PW.7 informed him, his wife and PW.3 that she has seen the accused at Srisailam and the accused is said to have given voluntary confession to her that he has thrown all the children into Thungabhadra river. On the information given by her, PWs.1 and 3 have gone in search of the accused and found the accused in Hubli and brought him and a complaint, Ex.P1, was lodged. In cross-examination, he stated that he allowed the accused to stay with him, as he had no sons. No panchayat was conducted about the quarrels between the accused and PW.2. He has not given any complaint to the police after 10.09.2005. He was not present when the accused has taken the three children with him. The evidence of PW.2, wife of the accused and the mother of the deceased children, is about the differences between the accused and PW.1 with regard to finances and the ill-treatment to her. According to her, on Vinayaka Nimmajjanam day, the accused has taken away the three children at about 04:00 PM, on the pretext of showing them Vinayaka Nimajjanam and thereafter, the accused never returned with the children to the house. She informed the same to PWs.1 and 3 and some time later, one Vimalamma came and informed about the tracing of the accused at Srisailam and she enquired from him about the children and the accused informed that he killed the children. Thereafter, her father and his brother went in search of the accused. In the cross-examination, it was suggested to her that the said Vimalamma is related to her and she denied the suggestion that accused has not taken away the deceased children with him on the date as alleged by her. The differences with regard to the financial matters is also denied by her in the cross-examination. PW.3 is the brother PW.1 and he also spoke about the conduct of the accused in ill-treating his wife, PW.2, and relationship with PW.1. The demand for money by the accused from PW.1 is also spoken by him. According to him, the accused has taken the children on the date of Vinayaka Nimajjanam and thereafter, the accused did not return along with the children. PW.1 informed him about the facts and three days thereafter, the brother of the accused telephoned from Devadurga and informed that the accused has thrown his children in the river. Immediately they went to the village of the accused in a taxi. He was not found. Thereafter, they made searches and on information given by PW.7, they went to Srisailam and thereafter, to Hubli and apprehended the accused. Police arrested the accused and PW.1 gave the complaint, Ex.P1. In the cross-examination, he stated that he was residing separately from PW.1 and he was running a mess. On the date of Nimajjanam, he was at his mess. He also admitted that after receiving the information from the brother of the accused, who is evidently PW.10, no complaint was given to the police by him or PW.1 or PW.2. He also stated that no complaint was given to the police when the children have not returned after the accused had taken them. The evidence of PW.4 is that he is an Auto Rikshaw driver bearing No.AP-15U-7669 and he identified the accused. On 10.09.2005, the accused along with the three children boarded his auto at Karvanpet junction on Vinayaka Nimajjanam day at about 04:00 PM and he dropped them at Adoni bus stand and the accused paid him fare of Rs.10/-. In cross-examination, it was elicited that several persons will be travelling in the auto and on the day of Vinayaka Nimajjanam no vehicle will be allowed. He denied the suggestion that the accused did not board his auto along with the children and that he is speaking falsehood. The evidence of PW.5 is that he made some searches in the river Thungabhadra for the dead bodies, but they could not be found. The evidence of PW.6 is that on the date of Vinayaka Nimajjanam at about 06:00 PM, he was near the Thungabhadra bridge at Madhavaram Village and he has seen a person from some distance and that person throwing the children into the river from over the bridge. He did nothing after witnessing the same and the person who has thrown the children has gone away. He did not identify the accused or know about the particulars of the three children, who were thrown into the river. The evidence of PW.7 is that she knows the accused, the deceased children and PWs.1 and 2. In the first week of January she went to Srisailam and she has seen the accused there; enquired him about the children and the accused told her that he has thrown his three children into Thungabhadra river. Thereafter, she returned to Adoni and informed the facts to PWs.1 and 3. In cross-examination, it was elicited that she did not inform to any one over phone immediately from Srisailam and she also did not gave any complaint to the police. The evidence of PW.8 is that at the instructions of the Circle Inspector of Police, Gantigeri, he brought the accused to Adoni and handed over to III Town Police Station, Adoni. The evidence of PW.9 is that he is the Panchayat Secretary at Mandikeri, Adoni and identified the accused. He stated that on 15.01.2006, the accused gave a voluntary confessional statement and thereafter, the accused took them to the bridge, in which he has thrown his three children. Panchanama of the scene of offence was conducted. The evidence of PW.10, brother of the accused, is that the relationship between the accused and PW.2 is normal and the accused was living at Adoni. He came to know that three children of the accused were not found and fifteen days after Vinayaka Nimaganam, the accused alone came to him and when he enquired about his three children, he replied that he need not bother about his children and thereafter, the accused did not come to him. Since he did not support other particulars of the prosecution case about the accused giving information about the killing of the deceased, he was declared as hostile. The evidence of PWs.11 to 14 is about the investigation done by them in this case. The evidence of PW.15 is that he is the Manager of Srisaila Jagadguru Yathra Nivasam, at Srisailam and that the accused stayed in the mattam for a week and thereafter, left to Hubli. 10. Learned counsel for the appellant contends that there is absolutely no evidence on the side of the prosecution to prove the guilt of the accused and that in this case the circumstantial evidence is not conclusive and pointing to the guilt of the accused alone and as such the learned Sessions Judge erred in convicting the accused. 11. On the other hand, the learned Public Prosecutor contends that the accused has taken away his children; that they were not returned again and there is sufficient circumstantial evidence apart from the direct evidence of PW.4, taking the accused and his children in his auto rickshaw on the date of the offence; PW.6, seeing the person throwing the children into the river, and PWs.7 and 10 and therefore, there cannot be any doubt about the fact that the accused alone is the person, who is responsible for the murder of the deceased children. 12. Learned counsel for the appellant relied upon a decision in Bakshish Singh v. The State of Punjab[1], wherein it was held that the solitary incriminating evidence in showing the place, where the dead body of the deceased was thrown, is not sufficient to convict the accused. So far as the tracing of the dead bodies is concerned though a feeble attempt was made by the accused, the learned Public Prosecutor relied on the decisions of the Honourable Supreme Court in Sevaka Perumal v. State of Tamil Nadu[2], State of Karnataka v. M. V. Mahesh[3] and Ramchandra v. State of Uttar Pradesh[4] and contended that mere fact that the dead body was not traced is no ground to give benefit of doubt to the accused, when other circumstances and facts are conclusive. 13. In this case, we do not find any direct evidence about the factum of murder of the deceased. Though PW.6, who was said to be present at the scene of offence, could not identify the accused, the factum of murder has been established by his evidence to the effect that a person has taken three children had thrown them into the river. Therefore, an act of murder has been committed near the river by a person. That fact cannot be disputed from the evidence of PW.6, whose evidence has not been discredited in the cross-examination of the witness. Added to that, it has to be noted that the accused is the father of the deceased children. It is he who has taken the children from the custody of the mother and from the house. The evidence of PW.1 clearly goes to show that the accused has taken the children with him and it is also corroborated by further information received by PW.2 about the fact. Therefore, when the accused has taken the children with him and when they are no other than the children born to him, all fingers point at him. When the children have not returned to the house along with him and when he did not give any information to anybody about the children, his vague defence that he has not taken the children cannot be accepted in view of the positive evidence of PW.2, who has stated that the children were taken by the accused alone. So also, the positive evidence of PW.4, taking the deceased children in his auto rikshaw along with the accused, is another circumstance that prior to the death of the deceased children, they were found in the custody of the accused alone. Further, the evidence of PW.4 is that, he clearly identified the accused and in the cross- examination, his capacity of identifying and knowing the accused is not seriously disputed. The circumstances sought to be canvassed in the cross-examination that on Nimajjanam day autos will not be allowed to ply, cannot be taken into consideration, since even though there may be some ban, still there will be some facilities available. Therefore, the evidence of PW.4 cannot be discarded on that point. Therefore, the first two circumstances that were established by the prosecution are that the accused had taken the children from the custody of the mother and he travelled with the children in the auto of PW.4. Evidently, thereafter, the accused did not return to the house nor children were seen along with him for a long time. Added to that, evidently from the evidence of PW.10, fifteen days after the accused has taken the children from the custody of the mother, the accused is said to have come to his house without children. Therefore, after fifteen days the children are not in the custody of the accused and the circumstances that PW.6 has seen the children being thrown into the river only points to the culpability of the accused and nothing else. Furthermore, the accused has left the village and he did not return for about four months, till he was brought from Hubli by PWs.1 and 3. Added to that, there is extra judicial confession made by the accused to PW.7 at Srisailam that he has killed the children. PW.7 is evidently a disinterested witness and she has no axe to grind against the accused nor any interest to speak in favour of the prosecution. Naturally, she being in the neighbourhood of PWs.1 and 2 and when the children are not traced, there will be anxiety for her to enquire from the accused when she has seen him at Srisailam. Therefore, there is nothing strange in her conduct in questioning the accused about missing of the children. Therefore, the substance of accusation of the commission of the offence by the accused from the circumstances is conclusive. We do not find any justifiable ground to come to a different conclusion that except the accused no other person would have committed the crime. 14. Though there was a suggestion to PWs.1 and 2 that no complaint was immediately given and, therefore, their evidence is false, the conduct of the accused on this aspect is not plausible, but pointing at him rather than the failure of PWs.1 and 2. He has left house and did not return for six months after taking the children. He did not bother to inform any body. If he has got any suspicion against PW.1 and 2, he should have made his attempts to trace the children. The contention of the learned counsel for the appellant that PW.3 informed that he got information from PW.10 three days after the children were taken, but PWs.1 and 3 did not act, cannot be taken as a solid circumstance in favour of the accused, since PW.10 did not support that version and the time fixed by PW.3 can be given a lenience of error. Therefore, from all the circumstances we have no hesitation in holding that the circumstantial evidence is completely pointing to the guilt of the accused and on the other hand, he has taken a false plea about not taking the children and missing of the children from his custody. It is an additional circumstance in favour of the prosecution. Therefore, for all the above reasons we hold that the conviction and sentence imposed by the learned Sessions Judge does not call for any interference. 15. Accordingly, the Criminal Appeal is dismissed confirming the Judgment, dated 03.11.2006, made in Sessions Case No.257 of 2006, on the file of II Additional Sessions Judge, Kurnool at Adoni. ______________ K.C.BHANU, J ____________________________ N.R.L.NAGESWARA RAO, J December 24, 2010 MD THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.867 OF 2007 (per Hon'ble Sri Justice N.R.L. Nageswara Rao) December 24, 2010 [1] 1971 Crl.L.J. 1452 [2] AIR 1991 SC 1463 [3] 2003 (3) SCC 353 [4] AIR 1957 SC 381