THE HON'BLE SRI JUSTICE D.S.R.VARMA And THE HON'BLE SRI JUSTICE R.KANTHA RAO 13th October 2009 CRIMINAL APPEAL NO.204 OF 2007 Between: Santhosh Sahoo, S/o.Gopal Sahoo, C/o.Budiya, 23 years, Dharmadaspur, Cuttack District, Orissa State (Working in Mounika Fast Food Centre), Chendrammampalli Village, Peddapuram Mandal, East Godavari District. …APPELLANT AND State, rep.by its Public Prosecutor, High Court of A.P., Hyderabad. …RESPONDENT THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL NO.204 OF 2007 ORAL JUDGMENT: (per the HON’BLE SRI JUSTICE D.S.R.VARMA) Heard the learned counsel appearing for the appellant as well as the learned Public Prosecutor, appearing for the respondent- State. 2. Appellant is the sole accused in the Sessions Case. 3. This Criminal Appeal is directed against the judgment, dated 24.10.2006, passed by the Principal Sessions Judge, East Godavari, Rajahmundry, convicting the accused for the offence punishable under Section 302 of the Indian Penal Code (for brevity “IPC”) and sentencing him to suffer imprisonment for life and to pay a fine of Rs.100/-, in default to suffer simple imprisonment for one month. 4. The case of the prosecution, in brief, is that P.W.2 is the owner of Mounika Fast Food Centre in which the accused and one Deepak Pathro (hereinafter referred to as “the deceased”) were working; that after business hours, the accused and the deceased used to stay in the same fast food centre; that, on the fateful day, there was some altercation between the accused and the deceased regarding the money belonging to the deceased; that, in that process, the accused wanted money from the deceased in order to meet his vices; that, some how, the accused, perhaps, having been provoked by the response by the deceased, killed the deceased by hitting with a stone, due to which he died instantaneously; that the said altercation was heard by P.W.2, who is staying nearby the Fast Food Centre; that, at about 2 am., on that night, he came and tried to peep inside from the opening of the shutter, but he could not see the persons nor could he understand the language of the accused and the deceased; that, admittedly, the accused and the deceased originally belong to the State of Orissa and they came down to Hyderabad in search of job and they were engaged by P.W.2; that, at about 2 am., on the date of occurrence, P.W.2 came to the fast food centre, having received the information from P.W.1, and found the deceased in a pool of blood and informed the police through Ex.P1-report, expressing his suspicion about the involvement of the accused in the offence and that after completion of all the necessary formalities, police laid the charge sheet. 5. When the charges under Sections 302 and 380 IPC were framed against the accused, read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried. 6. The trial Court, having considered the entire material, including the evidence, both oral and documentary, available on record, found the accused guilty of the offence punishable under Section 302 IPC and convicted and sentenced him, as stated supra, and acquitted him of the offence punishable under Section 380 IPC. Aggrieved by the same, the accused has preferred the present Criminal Appeal. 7. Learned counsel appearing for the accused contends that this is a case of circumstantial evidence, based mainly on the alleged extra-judicial confession made by the accused before P.W.2. He points out that instead of recoding the statement of the accused, P.W.8, who is the Panchayat Secretary, has recorded the statement of P.W.2, since P.W.8 does not know Hindi and upon translation and dictation of P.W.2, statement was recorded. Therefore, it cannot be treated as confessional statement made by the accused, inasmuch as, the accused do not know what was recorded. He further points out that despite the fact that P.W.2 was declared hostile, reliance was placed on his evidence in order to record the conviction. There is no other proof whatsoever, particularly, with regard to the recovery of material objects like purse etc. P.W.2 did not support the case of the prosecution insofar as the purse allegedly recovered from the accused. Therefore, according to the learned counsel, it is unsafe to record the finding that the accused alone is responsible for the said incident. 8. On the contrary, the learned Public Prosecutor contends that the evidence of P.W.2 need not be set aside totally, inasmuch as, he supported his original version and there is no deviation and his evidence is further supported by the evidence of P.W.3 and also the medical evidence of the Doctor, P.W.7, who conducted post-mortem over the dead body of the deceased. Hence, he prays to sustain the impugned judgment, rendered by the trial Court. 9. To substantiate its case, the prosecution examined P.Ws.1 to 10 and got marked Exs.P-1 to P-28, apart from MOs.1 to 6. On behalf of defence, no oral or documentary evidence was let in. 10. The only point that arises for consideration, in this Criminal Appeal, is whether the trial Court has rightly appreciated the evidence, available on record, while passing the impugned judgment, recording the conviction under Section 302 IPC and awarding the consequential sentence? 11. This is a case of circumstantial evidence. The important witnesses are P.Ws.1, 2, 3, 7 and 8. 12. Firstly, it is necessary to look into the evidence of P.W.2. It is the case of P.W.2 that he is the owner of Fast Food Centre, where the accused and the deceased were working and that they were staying in the same fast food centre after the business hours. He further deposed that, on that night, at about 2 am., he was informed by P.W.1 about the altercation that was going on between the accused and the deceased in his fast food centre. Immediately, he rushed to the fast food centre and found the deceased lying dead with an injury on head and he also noticed a stone by the side of the deceased. But, he could not find the accused. 13. In view of the above evidence and even as per the evidence of P.W.2, it is obvious that the accused and the deceased were staying together in the same fast food centre after business hours and nobody else. He was present immediately after the death of the deceased. In normal course, he ought to have found the accused also along with the deceased in the fast food centre. There was no possibility for any other person to gain entry into the said fast food centre. The immediate absence of the accused, particularly, at about 2 am., in the night, would be conspicuous and raises a doubt against the accused. 14. The material aspect that is to be considered from the evidence of P.W.2 is that he stated before the trial Court that, after some time, the accused came to him, admitted his guilt and requested him to save him. Upon such pleading, P.W.2 took him to P.W.8 and informed him about the confession made by the accused. Since P.W.8 is not conversant to the language of the accused, P.W.2 himself translated to P.W.8 about what was stated by the accused and the same was recorded by P.W.8. 15. It is the contention of the learned counsel appearing for the accused that the said statement cannot be treated as a confessional statement made by the accused. We cannot agree with this contention. 16. The evidence of P.W.1 is to the effect that he was the immediate neighbour of the fast food centre of P.W.2. He heard some altercation from the fast food centre of P.W.2. He went to the fast food centre along with his wife and tried to peep into the same as to what was happening. Despite his trial, he could not see what was happening, nor could identify the persons, who were discussing in high voice. But, he deposed that he could not understand what the inmates of the fast food centre were discussing about, inasmuch as, he does not know the language. 17. It is obvious that P.W.1 could not understand the language of both the accused and the deceased, who hail from the State of Orissa, and, perhaps, they were talking in their Mother Tongue. Since P.W.1 do not know their language, he could not understand what was the subject matter, which the accused and the deceased were talking about. He further deposed that immediately, he asked his wife to go away and went to the house of P.W.2, situate at a distance of two furlongs, and informed him about the altercation that was seriously going on in his fast food centre. P.W.2 immediately rushed to his fast food centre along with P.W.1 and found the deceased dead with a stone injury on his head and in a pool of blood. 18. In this regard, it is to be noticed that the initial extra- judicial confession was made before P.W.2 but not before P.W.8. It is not essential that such extra-judicial confession should be reduced into writing. Further, P.W.2 took him to P.W.8, who is the responsible officer, and informed him about the confession made by the accused. Recording of statement made by the accused, by P.W.8, as was transcribed by P.W.2, is not material, but, however, a doubt arises as to whether the statement recorded by P.W.8 is in consonance with the statement made by the accused or not? 19. Further, it is to be noticed that there is no variation as regards the confession made by the accused, between the statement recorded by P.W.8 or the testimony of P.W.2. In other words, the evidence of P.W.2 and the contents of the statement recorded by P.W.8 are one and the same. 20. When such confession is common, as spoken by P.W.2 and as recorded by P.W.8, in Ex.P-23, there cannot be any doubt regarding the deposition of P.W.2 and the deposition of P.W.8 vis- à-vis Ex.P-23. 21. The cumulative effect of the evidence of P.Ws.1 and 2 is to the effect that the accused was present in the fast food centre even after the arrival of P.W.1 to the fast food centre. The disappearance of the accused and the death of the deceased took place after he left to the house of P.W.2 to fetch him. Therefore, the absence of the accused, in the fast food centre, who alone had the occasion and opportunity to stay in the fast food centre along with the deceased, becomes very relevant and conspicuous. 22. Added to the above, P.W.3 stated that, at about 2 am., on that night, he saw the accused running away towards the temple. He did not say anything about the altercation or any other thing. The time mentioned by P.W.3 about the accused leaving the fast food centre and the time narrated by P.Ws.1 and 2 in their deposition are absolutely matching with each other. 23. The cumulative effect of the testimony of these three witnesses is that the accused and the deceased alone were staying in that fast food centre and there was an altercation, at about 2 am., on that night, regarding some money and, during that altercation, the accused threw a stone on the head of the deceased, causing his death and run away. There was no possibility for any other person to enter into the fast food centre and that P.W.1 had actually heard the accused and the deceased shouting at each other and tried to peep into the fast food centre, of course, failed in his attempt. 24. Since the gravity of altercation between the accused and the deceased was so severe, P.W.1 rushed, at that odd hour, to the house of P.W.2, informed him and fetches him to the fast food centre. During that time, it was P.W.3, who saw the accused going away of the fast food centre. 25. From the above events, it is evident that there was no possibility for any one to enter into the fast food centre, where only the accused and the deceased were staying and nobody else. Further, just prior to the death of the deceased, there was an altercation of high degree between the accused and the deceased. 26. Merely because P.W.2 did not properly identify the purse-M.O.2, there is no need for the Court below to declare him hostile. All other aspects, what he deposed, were corroborated by the testimony of P.Ws.1 and 3. We cannot ignore the fact that P.W.2, in fact, identified M.O.1-stone, which was used by the accused. 27. As per the evidence of the Doctor, P.W.7, the following are the injuries found on the body of the deceased. 1) A laceration of 3 cm x 1.5 cm bone deep on the outer side of right orbit vertical. 2) Laceration of lobe or right ear cutting half of it. 3) A contused laceration of 2.5 cm x 0.75 cm on the right mastoid behind ear. 4) A graze of 5 cm x 4 cm on the right side of face above the outer side right orbit. 5) A contusion of 8 cm x 6 cm on the left parietal area of vertex of skull. 6) A fissured fracture of 17 cm on the left parietal bone at its prominent area, starting 7 cm above the right ear running forward and downwards to the base of skull, fracture line extending to base of skull involving shphenoid bone on right side. 7) Meningeal haemorrhages present. 28. The Doctor opined that the cause of the death of the deceased was owing to the head injuries. 29. The above are the circumstances under which the deceased was subjected to death and it is irresistible for us to arrive at a conclusion that there is absolutely no possibility to any one other than the accused to cause injuries on the head of the deceased in a premises belonging to P.W.2. 30. The circumstances, as could be seen from the above events, and the evidence on record are obvious that there is no weak link in the entire chain of circumstances and the same is capable of fastening the liability for the offence punishable under Section 302 IPC on the accused alone and none else. 31. In view of the above, we are of the view that the trial Court has rightly appreciated the evidence, available on record, and accordingly, the impugned judgment, passed by the trial Court, convicting and sentencing him, as stated supra, is liable to be sustained and the same is, accordingly, confirmed. 32. In the result, the Criminal Appeal is dismissed. ____________________ JUSTICE D.S.R.VARMA ____________________ JUSTICE R.KANTHA RAO 13TH OCTOBER 2009 RRB