THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.Nos.480 and 1539 of 2007 Date of Judgment: 25-08-2010 Between: CT in Crl.A.No.480 of 2007 Pappula Kiran Kumar Reddy @ Amaram ..Appellant and The State of A.P. rep. by Public Prosecutor, High Court of A.P., Hyderabad ..Respondent THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.Nos.480 and 1539 of 2007 Common Judgment: (Per Honourable Sri Justice K.C.Bhanu) 1. These two appeals under Section 374(2) of the Code of Criminal Procedure (for brevity “Cr.P.C.”) are directed by A2 and A1 respectively against the judgment dated 11-04-2007 in S.C.No.164 of 2006 on the file of I Additional Sessions Judge, Ongole whereunder and whereby both the appellants were found guilty for the offences punishable under Sections 450, 302 and 392 of the Indian Penal Code, 1860 (for short ‘IPC’) and accordingly convicted and sentenced to suffer simple imprisonment for five years and to pay a fine of Rs.500/- each, in default to suffer simple imprisonment for one month each for the offence punishable under Section 450 IPC; further convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- each, in default to suffer simple imprisonment for one month each for the offence punishable under Section 302 IPC and further convicted and sentenced to suffer simple imprisonment for five years and to pay a fine of Rs.500/- each, in default to suffer simple imprisonment for one month each for the offence punishable under Section 392 IPC. All the sentences are directed to run concurrently. 2. The case of the prosecution briefly stated as under: Smt. Chaluvadi Lakshmi Kumari (hereinafter referred to as “deceased”) is a house-wife and her husband—P.W.2 is working as cashier in Canara Bank, Nellore; they were blessed with two children i.e. P.Ws.1 and 3. P.W.1 was studying 10th class and P.W.3 was studying Intermediate. P.Ws.1 and 3 used to go to School and College in the morning and come for lunch in between 12.30 P.M. and 1.00 P.M. and go back between 1.30 P.M. and 2.00 P.M. P.W.1 used to return back from School at 4 P.M. and P.W.3 used to return back from College by 8.00 P.M. P.W.2 used to go to bank by 10.00 A.M. and return back by 5 P.M. or 5.30 P.M. P.Ws.4 and 5 are their neighbours. Two days prior to the date of incident, a person aged in between 25 and 30 years went to the house of P.W.4 introducing himself as a plumber and came for repairing the taps. After completing the work at the house of P.W.4, the deceased called that person into her house for repairing the tap. About 6 P.M., P.W.3 returned back and saw him standing in front of their house. On his enquiry, that person informed that he was plumber sent by the house owner to repair the tap. On the date of incident i.e. 20-10-2005, both P.Ws.1 and 3 after having their lunch went to school and college respectively. When P.W.1 returned back to home from the school, found the almyrah kept open; then she went into the kitchen room and found the deceased lying in a pool of blood. Immediately she informed the same to P.W.4 and also called P.W.2. P.W.2 rushed to the house at 5 P.M. and found the deceased lying dead and further observed jewellery wore by the deceased and kept in the almyrah are missing. Thereafter, P.Ws.1 and 2 went to the police station and lodged a report—Ex.P1. On the basis of the said report, P.W.17, Assistant Sub-Inspector of Police, registered the same as a case in Cr.No.203 of 2005 and issued FIR—Ex.P32. P.W.13, Assistant Sub- Inspector of Police, in charge of Clues Team in the District Police Office, Ongole, took up investigation; visited the scene of offence; held scene of offence panchanama; seized the hair from the right hand of the dead body and bangle pieces and got the scene of offence photographed. Exs.P11 to 19 are the photographs. On a requisition, P.W.14—Finger Print Expert visited the scene of offence and developed the chance finger print. On 22-10-2005, P.W.20—Inspector of Police has taken up further investigation and held inquest over the dead body of the deceased in the presence of P.W.10. Ex.P7 is the inquest report. He further prepared an observation report and rough sketch—Ex.P39 and thereafter, send the dead body for postmortem examination. On a requisition, P.W.15—Civil Assistant Surgeon, Government Hospital, Ongole held autopsy over the dead body of the deceased and opined that the cause of death was due to shock and hemorrhage due to injury to vital organs. Ex.P30 is the postmortem report. On 23-10-2005, A1 went to the house of P.W.8 and requested him to pledge his gold in bank. P.W.8 in turn pledged the same in Co- operative bank on 24-10-2005 on his account and obtained a loan of Rs.50,800/-. On 29-12-2005 the said loan was repaid by A1 and gold was released. On 08-01-2006, P.W.20 arrested A1 and A2 in the presence of P.Ws.11 and 12; seized M.Os.7 to 9 from A2 under a cover of Panchanama—Ex.P8; at the instance of A1 knife—M.O.15 was seized and at the instance of A2 blood stained jeans pant—M.O.16 was seized under a cover of Panchanama—Ex.P9; then P.W.20 lead to the house of P.W.7 where A1 pledged 4 bangles—M.O.10 and took Rs.13,000/- from him. M.O.10 and slip–Ex.P6 were seized from P.W.7 under a cover of panchanama—Ex.P10. During the course of investigation P.W.20 noticed healed injuries on the left thumb of A2, then he referred A2 to the hospital. P.W.16—Civil Assistant Surgeon examined A2 on 07-03- 2006 and issued wound certificated marked as Ex.P31. On 14-03-2006, P.W.19, I Additional Junior Civil Judge, Ongole conducted Test Identification Parade where P.W.2 identified A1. Ex.P38 is the Test Identification Parade Proceedings. On 22-03-2006, P.W.18—Special Mobile Magistrate, Ongole held Property Identification Proceedings—Ex.P34, where P.Ws.1 and 2 identified the jewellery as belonging to their mother. After receiving the relevant documents and on completion of investigation P.W.20 laid the charge sheet. 3. The charges levelled against the appellants/accused are: “The first charge levelled against the accused is that on 21-10- 2005 at 2.00 P.M. at Court Centre, near Central Café, Ongole they entered into the house of Chaluvadi Lakshmi Kumari (deceased), used as a human dwelling, thereby committed an offence punishable under Section 450 IPC. The second charge was that on the same day, same time and place, as mentioned in Charge No.1, did commit murder by intentionally causing the death of the deceased by stabbing her with a knife indiscriminately by closing the mouth, thereby committed an offence punishable under Section 302 IPC. The third charge was that on the same day, same time and place, as mentioned in Charge No.1, committed robbery of gold sarudu, 4 gold bangles from the body of the deceased, thereby committed an offence punishable under Section 392 IPC. The fourth charge was that on the same day, same time and place, as mentioned in Charge No.1, dishonestly converted the four gold bangles belonging to the deceased to their own use, which they legally not entitled to such possession, thereby committed an offence punishable under Section 404 IPC. The fifth charge was that on 08-01-2006 at 6.30 A.M. near Market yard, Ongole they dishonestly retained the stolen property viz., 2 gold bangles, two rows gold pearl chain with locket, gold sarudu, from the possession of A1 and gold necklace, one pair gold ear studs, one pair gold ear hangings from the possession of A2, thereby committed an offence punishable under Section 411 IPC.” 4. When the said charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 5. To substantiate its case, the prosecution examined P.Ws.1 to 20 and got marked Exs.P1 to P50 besides case properties—M.Os.1 to 20. Exs.X1 to X 6 were marked through Court. 6. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, they denied the same and when they called upon, they reported no evidence. 7. The trial court basing on the recoveries, M.Os.4 to 6 and 10 from the possession of the appellants/accused, draw a presumption under Section 114 of the Indian Evidence Act, 1872 (for short “the Act”); convicted and sentenced them accordingly as stated above. Challenging the same the present appeals are filed by A1 and A2. 8. Now, the point for determination in this appeal is “whether the prosecution is able to prove the charges levelled against them beyond all reasonable doubt.” 9. Learned senior counsel, Sri C.Padmanabha Reddy, appearing for the appellant/A2 in Crl.A.No.480 of 2007 contended that except recovery of M.Os.7 to 9 from the possession of appellant/A2, there is no other circumstance to indicate that he has committed robbery or murder of the deceased and that circumstance alone is not sufficient to draw a presumption that the appellant/A2 is the perpetrator of the crime; that there is no evidence to show that the appellant/A2 was having knowledge or reason to believe that M.Os.7 to 9 are stolen property; that even presumption under Section 114 of the Act is drawn, he cannot be convicted for the offence punishable under Section 302 IPC; that the finger prints allegedly found at the scene of occurrence when compared with the finger prints though tallied, the same has been disbelieved by the trial court on the ground that chance prints have not been sent to the Court immediately; that the chance prints have been kept with P.W.14 till the receipt of finger prints of A1 and A2 at later point of time and P.W.14 has not compared the chance prints with that of the admitted finger prints of the accused scientifically; therefore, the trial court has rightly disbelieved the evidence of P.W.14 and the trial Court also disbelieved identification of A2 by P.W.1; therefore, prays to set aside the convictions and sentences recorded against A2. 10. The learned counsel appearing for the appellant/A1 in Crl.A.No.1539 of 2007 while adopting the arguments advanced by the learned senior counsel contended that mere recovery of golden ornaments fromA1 cannot be a ground to draw an inference that the accused have committed the murder of the deceased and, therefore, prays to set aside the convictions and sentences recorded against the appellant/A1. 11. The deceased is no other than the wife of P.W.2. P.W.2 is working as cashier in Canara Bank; P.Ws.1 and 3 are the children of the deceased and P.W.2. On 21-10-2005, P.W.1 left the house at 8 A.M. and returned to home at 1 P.M. She took her lunch and again went to the school. After attending the school, she returned home at 4.30 P.M. It is at that time entrance door was kept open; she went to the bed room and noticed that the almyrah was open; while entering into the kitchen room, she called her mother; when she entered into the kitchen, she found her mother is lying in a pool of blood; immediately she informed the same to the neighbours and later telephoned to his father—P.W.2, who in turn rushed to the house at 5 P.M.; on verifying the almyrah they found golden ornaments were missing; then she (P.W.1) scribed Ex.P1 report and lodged the same to the police, who registered a case. On coming to know about registration of the case, P.W.20—Investigating Officer visited the scene of offence, deputed his staff; observed the scene; sent a requisition to the Inspector of Clues Team. As large number of people gathered in the house of the deceased, he could not conduct any investigation; therefore, on the next day he secured the presence of mediators and held inquest over the dead body from 7 a.m. to 10 a.m. and inquest panchs opined that the deceased died as a result of injuries sustained by her; the Inspector of Police also observed scene of occurrence; seized the incriminating articles from the house in the kitchen room and after inquest, dead body was subjected to postmortem examination. 12. The doctor, P.W.15 who conducted autopsy over the dead body of the deceased found the following injuries: External injuries: 1. A cut injury 1 x ½ cm. in size on upper part of the pinne of right ear. Edges clear. 2. A cut injury 2 x ½ cm. in size in front of the right ear. Edges clear. 3. A cut injury 1 x ½ cm. in size in front of the injury No.2. Edges clear. 4. A cut injury 1 x ½ cm. in size lateral to right eyebrow. Edges clear. 5. Two cut injuries 2 x ½ cm. in size each below the lower jaw on right side. Edges clear. 6. A elliptical shaped cut injury 3 x1 cm. in size below the chin. Edges clear. 7. A cut injury 2 x ½ cm. in size on right side of neck in the middle. Edges clear. 8. A cut injury 1x ½ cm. in size on left side of the neck in the middle. Edges clear. 9. Two cut injuries 2 x ½ cm. in size each above the left eyebrow. Edges clear. 10. A cut injury 2 x ½ cm. in size in the right palm. Edges clear. 11. A cut injury 1 x ½ cm. in size on the dorsum of right palm. Edges clear. All the above cut injuries are skin deep in ante mortem in nature. 12. An abrasion 3 x 2 cm. in size on left cheek. 13. A stab injury on lower part of the neck in the middle above the sternum 3 x 1 cm in size. The edges are clear on left side and blunt on right side. Wedge shaped. The surrounding skin edematous. The injury is extended downward from medial to lateral on right side, enters the Thoracic cavity upto 6 cms. Internal Injuries: Skull – no fracture. Membranes – intact. Brain - soft and pale. Hyoid bone – intact. Ribs - no fracture. Heart and great vessels –empty. Right lung – Upper lobe injured, soft and pale. The injury is correspond to injury No.13. Left lung – soft and pale. Free blood present and clots present in the Thoracic cavity about 400 ml. Stomach – filled with semi digested food. Intestine – filled with gas. Liver, spleen and kidneys – soft and pale. Bladder – empty. Uterus – normal. Cavity – empty. Spine – no fracture.” The doctor opined that the deceased would appear to have been died due to shock and hemorrhage due to injury to vital organs about 24 to 36 hours prior to issuance of Ex.B30. There was no cross-examination. Therefore, the evidence of the doctor and recitals in Ex.P30 remains unchallenged. Hence, homicidal death of the deceased was proved beyond all reasonable doubt. 13. Now, it is has to be seen whether the accused are the assailants of the deceased or not. 14. P.Ws.1 and 3 did not identify the accused as the assailants of their mother. Admittedly, they were not present. Their evidence would go to show that when they came to house, they found their mother lying in a pool of blood in the kitchen and almyrah in the bed room was kept open and some golden ornamental were missing. Their evidence is not much relevant for the purpose of deciding, whether the appellants/accused are the assailants of the deceased. The other evidence available on record is the evidence of P.W.2. P.W.2 is working as cashier in Canara Bank. He identified A2 is the person whom he saw previously. He also identified A1 on 14-03-2006 when the identification parade was conducted by the Magistrate in the District Jail premises, Ongole. The trial court disbelieved the identification parade conducted by the Magistrate, with regard to identification of A1 by P.W.2. Therefore, identification of A1 by P.W.2 cannot be accepted. It cannot be said that it is an incriminating circumstance against A1. Therefore, his evidence is not helpful to the case of the prosecution except to identify M.Os.4 to 10 as belonging to his wife. He is the best person to identify gold ornaments worn by his wife. 15. P.W.18 is the Special Mobile Magistrate, Ongole, who conducted identification parade of the property M.Os.4 to 10. Police supplied similar articles M.Os.1 to 10 before him; he mixed along with other ornaments and kept them on the table. P.W.2 correctly identified M.Os.4 to 10. Nothing has been elicited to discredit the testimony of P.W.18 and the proceedings under Ex.P34. Therefore, the evidence of P.Ws.3, 4 and 6 is not much relevant. There are no other circumstance to indicate that accused were present in the house of the deceased on the fateful day of the incident immediately or after or prior to the incident. 16. As rightly contended by the learned senior counsel, the only circumstance relied upon by the trial court is arrest of A2 on 08-01- 2006 and in pursuance of his statement, recovery of M.Os.7 to 9 and similarly arrest of A1 on the same day and recovery of M.Os.4 to 6 and 10 at his instance, is the basis for conviction. 17. On this aspect, it is pertinent to refer to the decision rendered by the Supreme Court in LIMBAJI v. STATE OF MAHARASHTRA[1], wherein it is held as under: “6 (c). Whether the presumption could be further stretched to find the appellants guilty of gravest offence of murder is what remains to be considered. It is in this arena, we find divergent views of this Court, as already noticed. In Sanwath Khan's case, the three-Judge Bench of this Court did not consider it proper to extend the presumption beyond theft (of which the accused were charged) in the absence of any other incriminating circumstances excepting possession of the articles belonging to the deceased soon after the crime. However, we need not dilate further on this aspect as we are of the view that in the peculiar circumstances of the case, it would be unsafe to hold the accused guilty of murder, assuming that murder and robbery had taken place as a part of the same transaction. The reason is this. Going by the prosecution case, the deceased Babu Rao was hit by a heavy stone lying on the spot. The medical evidence also confirmed that the fatal injuries would have been inflicted by a heavy stone like article No. 1. It is not the case of the prosecution that the appellants carried any weapon with them or that the injuries were inflicted with that weapon. There is every possibility that one of the accused picked up the stone at that moment and decided to hit the deceased in order to silence or immobilise the victim. If the idea was to murder him and take away the ornaments from his person, there was really no need to forcibly snatch the ear-rings before putting an end to the victim. It seems to us that there was no pre- mediated plan to kill the deceased. True, common intention could spring up any moment and all the three accused might have decided to kill him instantaneously, for whatever reason it be. While that possibility cannot be ruled out, the possibility of one of the accused suddenly getting the idea of killing the deceased and in furtherance thereof picking up the stone lying at the spot and hitting the deceased cannot also be ruled out. Thus two possibilities confront us. When there is reasonable scope for two possibilities and the Court is not in a position to know the actual details of the occurrence it is not safe to extend the presumption under Section 114 so as to find the appellants guilty of the offence of murder with the aid of S. 34, IPC. While drawing the presumption under Section 114 on the basis of recent possession of belongings of the victim with the accused, the Court must adopt a cautious approach and have an assurance from all angles that the accused not merely committed theft or robbery but also killed the victim.” 18. From the above decision, it is clear that the time gap between the occurrence and the recovery of the stolen property has to be so proximate, so as to connect both the accused with the crime. Then presumption can be drawn that after committing the murder, they committed theft of ornaments from the deceased person. 19. Bearing the above principle in mind, it has to be seen whether recovery of articles soon after the incident can give rise to draw a presumption that the accused have committed the offence of murder. 20. The evidence of P.W.8 would go to show that on 23-10-2005 A1 came to him along with two bangles, necklace, gold nanutadu and pustala chain and gave those items and requested to pledge them; then he pledged those articles in the bank of P.W.9 for Rs.50,800/- and handed over the cash. On 29-12-2005, A1 again came to him and paid Rs.52,800/- and got the pledged gold jewels redeemed. 21. The evidence of P.W.9 discloses that on 24-10-2005 P.W.8 pledged gold jewels and obtained Rs.50,800/- and he identified the gold jewels—M.Os.4 to 8. The descriptive particulars of M.Os.4 to 8 were tallied with the gold jewels as mentioned in Ex.X4, which was maintained by the bank. 22. From the evidence of P.W.8 it is clear that A1 alone came on 23-10-2005 and gave gold ornaments to him for pledging in the bank. P.W.8 in turn pledged golden ornaments in the State Citizen Co- operative Society, Kukatpally, Hyderabad. Similarly, at the instance of A1, M.O.10 was recovered. The evidence of P.W.7 is clear that A1 came to his house and pledged four bangles; he gave Rs.13,000/-; he could not identify the second person who came along with A1. Therefore, from the evidence of P.Ws.7 and 8, it is clear that A1 has pledged M.Os.4 to 6 and 10 and obtained some money. M.Os.4 to 6 were identified by P.W.2 as belonging to him, when he was examined in the court as well as in the identification of the property when they were mixed with other articles before the concerned Magistrate. 23. From the above evidence, it is clear that M.Os.4 to 10 belonging to the deceased, and P.W.2 is the best person to identify the ornaments of his wife and, therefore, rightly he identified the same. Because of long time gap and in the absence of any other circumstance, it cannot be presumed that A1 was one of the assailants of the deceased. Therefore, presumption cannot be drawn because, the time gap between the date of offence and recovery of M.Os.4 to 6 and 10 is so long and no inference can be drawn. By drawing inference, the trial court found the accused guilty of the offence punishable under Sections 305, 302, and 392 IPC which cannot be sustainable because, there is no other evidence to show that A1 committed robbery along with other person or that he committed house trespass with an intention to commit the offence. Similarly, there is no evidence to show that A1 and A2 while committing theft caused severe injuries to the deceased resulting her instantaneous death. In the absence of any other evidence, presumption cannot be drawn in view of long proximity of time. 24. Insofar as A2 is concerned, M.Os.7 to 9 were recovered in the presence of P.Ws.11 and 12 on 08-01-2006. Therefore, the evidence of P.W.20 coupled with P.Ws.11 and 12 would go to show that M.Os.7 to 9 were recovered at the instance of accused on 08-01-2006. M.Os.7 and 8 along with other ornaments were pledged in the bank of P.W.9 when they were allegedly given to P.W.8. Therefore, he was not in possession of stolen articles. Even prior to recovery, M.Os.7 and 8 were already pledged in the bank. Therefore, there is nothing to show that A2 had knowledge or