THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 375 of 2007 JUDGMENT: (per the Hon’ble Sri Justice K.C.Bhanu) 1. This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the judgment dated 09.02.2007 in Sessions Case No.185 of 2006 on the file of the III Additional Sessions Judge (Fast Track Court), Ranga Reddy district, whereunder and whereby the appellant/sole accused was convicted of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, ‘IPC’) and sentenced to undergo imprisonment for life. 2. The case of prosecution, in brief, may be stated as follows: P.W.1 is father, P.W.2 is mother and P.W.3 is paternal uncle, of one Tejaswin Raghava (hereinafter referred to as ‘the deceased’), who was aged 19 months at the time of the incident. The accused is another senior paternal uncle of the deceased. Mother of the accused died, while he was in young age. Later, his father married one Sushila, who is mother of P.Ws.1 and 3. She migrated to Hyderabad along with her two sons P.Ws. 1 and 3 for eking out livelihood, whereas the accused stayed back in his native Kaltepally village, Repalle, Guntur district. The accused remained unmarried while P.Ws.1 and 3 were got married about 5 years prior to the incident. About 4 years back, the accused was called by P.W.1 and showed him a work in a company at Bachupally. While he was working in the said company, his three fingers of right hand were crushed. Since then, he was staying with P.W.1 by doing trivial works in the house. He was getting Rs.450/- per month through E.S.I. Thereafter, marriage of accused was performed with one Girija Kumari, who is a handicapped woman, about one year prior to the incident. When she became pregnant, the accused approached P.W.1 and asked Rs.15,000/- for the expenses of the delivery of his wife and P.W.1 expressed his inability to adjust the said amount and suggested him to send her to their native place for the sake of delivery and to save the money. Subsequently, wife of the accused was taken to her native place by her relatives. So, the accused developed enmity towards family of P.W.1 and wanted to cause loss to the family. On 24.10.2005 at about 4.30 PM, the accused came to the house of P.Ws.1 and 2, took away the deceased and did not return him. At about 7.45 PM, P.W.2 telephoned P.W.1 and informed the same. On that, P.W.1 came to the house and searched for the accused and the deceased with the help of his friends. After searching till evening on the next day, P.W.1 went to the Dundigal police station and gave Ex.P1 report to police. On 25.10.2005 at about 6.00 PM, P.W.9-Inspector of Police, who received Ex.P1-report, registered a case against the accused in crime no.240 of 2005 for the offence under Section 364 IPC and issued Ex.P7-FIR. On 26.10.2005, the crime party brought the accused to police station and at the instance of the accused, the dead body of the deceased was recovered. Thereafter, P.W.9 altered the Section of law to Section 302 I.P.C. under Ex.P8-alteration memo. P.W.9 visited the scene of offence, prepared scene of observation report under Ex.P4 and seized M.Os.1 and 2 in the presence of P.W.7 and another. P.W.9 got photographed the scene of offence and the dead body of the deceased through P.W.6 under Ex.P2- photographs. On 26.10.2005, P.W.9 held inquest on the dead body of the deceased in the presence of P.W.7 and another, under Ex.P5-inquest report. On the same day, P.W.8-Civil Assistant Surgeon, Government Civil Hospital, Medak conducted autopsy on the dead body of the deceased and opined that the cause of death was asphyxia due to throttling and issued Ex.P6-postmortem certificate. After collecting required documents and completion of investigation, P.W.9 laid the charge sheet. 3. The trial court framed the following charges against the accused. “CHARGE NO.1: That you the accused on the 24th day of October, 2005 at 16.30 hours, kidnapped Tejaswin Raghava (aged 19 months) from the custody of his natural guardians (parents) and that thereby you committed an offence punishable U/Sec.364 of the Indian Penal Code and within my cognizance. CHARGE NO.2: That you, the accused, on the same date and time as mentioned in Charge No.1, after kidnapping the boy Tejaswin Raghava, took him to hillocks of Bachupally and throttled him to death and thrown his dead body there itself and thereby committed an offence punishable Under Section 302 r/w 34 of the Indian Penal Code and within my cognizance.” When the charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, prosecution examined P.Ws. 1 to 9 and got marked Exs.P1 to P8, besides case properties M.Os. 1 and 2. 5. After closure of prosecution side evidence, the accused was examined under Section 313 Cr.P.C. to explain the incriminating evidence found against him in the evidence of prosecution witnesses. The accused denied the same. No evidence, either oral or documentary, is adduced on behalf of accused. 6. The trial Court, upon appreciation of the evidence on record, found the accused guilty of the offence punishable under Section 302 I.P.C., accordingly convicted and sentenced him as above, while acquitting him of the offence punishable under Section 364 I.P.C.. Challenging the said conviction and sentence, the present Criminal Appeal is preferred by the appellant/accused. 7. Now, the point that arises for determination is whether the prosecution is able to bring home the guilt of the appellant/accused beyond all reasonable doubt and whether the conviction and sentence recorded by the learned Sessions Judge are liable to be set aside or modified ? 8. The learned counsel appearing for the appellant contended that, except the solitary evidence of P.W.2, there are no other circumstances to indicate that the accused alone and none else, is the perpetrator of the crime; that, taking the boy by the accused is not an incriminating circumstance because the accused was in the habit of taking the deceased boy outside for playing with him; that the dead body of the deceased was noticed by P.W.5, and therefore the recovery of the dead body at the instance of the accused, is valueless. He also contended that, at best, the act of the accused gives rise to a suspicion that this crime might have been committed by him, but, suspicion, however strong, cannot take the place of legal proof, and hence, he prays to set aside the conviction and sentence against the appellant/accused. 9. On the other hand, the learned Additional Public Prosecutor contended that, the evidence of P.W.2 is very clear that it is the accused who took the deceased boy from the house under the guise of playing with him and therefore it is his duty to return the boy to P.W.2; that thereafter the deceased was not traced; that, after arrest of the accused, he took the police and mediators to backside of the Telugu University and showed the dead body, and therefore, the place where the dead body of the deceased was kept, is exclusively within the knowledge of the accused; that, the only inference that can be drawn from the above circumstances is that the accused alone is the assailant of the deceased and none else; that, the trial Court rightly convicted and sentenced the accused, and there are no grounds to interfere with the same. Hence, he prayed to dismiss the Criminal Appeal. 10. P.W.9 is the investigating officer, who held inquest on the dead body of the deceased on 26.10.2005 in the presence of P.W.7 and others, under Ex.P5-inquest report. The inquest mediators opined that the deceased was throttled to death. 11. P.W.8 is the Doctor who conducted postmortem examination on the dead body of the deceased and found the following injuries. 1.Maggots crawling over the anterior aspect of the neck and the face; 2. Tongue in between the teeth; 3. Bleeding from both the ears; 4. Bruises present over the anterior aspect of the neck and left side of the neck and oval in shape 1 ½ cm x 1 cm width; 5. Contusion present over the thyroid cortlega; 6. Contusion present over trachea; 7. Inward comprehensive fracture of the hyoid bone present; 8. Bruises present over the superficial facia and deep fasia on the neck. The Doctor opined that cause of death of the deceased was ‘asphyxia due to throttling’ within 48 hours prior to his examination. He issued Ex.P6-postmortem certificate. Nothing has been elicited to discredit his testimony. Practically, his evidence remained unchallenged. From the above evidence, homicidal nature of death of the deceased is established. Now, it has to be seen whether the accused is the assailant of the deceased. 12. There is no direct evidence to substantiate the case of prosecution. The entire case rests upon circumstantial evidence. When a case rests upon circumstantial evidence, the law is well settled that the following tests have to be satisfied by the prosecution as laid down by the Apex Court in a decision in Padala Veera Reddy v. State of Andhra Pradesh & others[1]: 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 the 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. Bearing the above principles in mind, it has to be seen that whether the circumstances adduced by the prosecution are sufficient to infer that the accused alone was responsible for causing the death of the deceased. 13. It is not in dispute that, at the time of the incident, P.W.1, along with his wife-P.W.2, was residing in Devendernagar Colony of Bachupalli village. The deceased boy, aged about 19 months at the time of the incident, is the second son of P.Ws. 1 and 2. It is also not in dispute that, the accused is the elder brother of P.W.1 and as on the date of the incident, he was also residing adjacent to the house of P.W.1 along with his family. It is also not in dispute that just prior to the incident, wife of the accused was pregnant and she was taken to her native place for the purpose of delivery. Motive for the incident is that the accused had a quarrel with P.W.1 as the latter refused to give Rs.15,000/- towards the expenses for his wife’s delivery, expressing his inability. There was every reason for the accused to question his brother-P.W.1 with regard to advancing of the amount for the purpose of meeting the expenses for the delivery of his wife. 14. Admittedly, P.W.1 was not present at the time of the incident. His evidence would go to show that, at about 7.45 PM on 24.10.2005, his wife-P.W.2 informed him through telephone that the accused did not return home with the child and whereabouts of the accused are not known to her, and on that, he returned back to the house and searched for the boy, and that, as the boy was not traced, on the next day evening, he lodged Ex.P1- complaint. The evidence of P.W.2 would go to show that on the date of the incident, at about 4.30 PM, the accused came to her house and took away her son and did not return. Her evidence would also go to show that she telephoned to her husband-P.W.1 at about 7.45 PM that the accused did not return along with the child, and on that, P.W.1 searched for the accused and also for the boy. She also stated that the accused bore grudge against them for not admitting his wife in the hospital at Hyderabad for the sake of delivery. 15. Admittedly, the deceased was aged about 19 months as on the date of the incident. It is the accused that took the boy with him on the pretext of playing with him and thereafter the accused did not return him. House of the accused was located adjacent to the house of P.Ws. 1 and 2. The accused was absconding from the scene of occurrence immediately after the incident. P.W.2 is the natural witness to have custody of the boy of 19 months’ old. She was in the habit of giving milk to the boy only once in a day on the advice of the Doctor. Except suggesting that the accused was falsely implicated, nothing has been elicited to discredit the testimony of P.W.2. There was no scope or possibility for any other person to take the deceased boy from the custody of P.W.2. Unless there is strong motive or ill-will entertained by P.W.2 to implicate the accused falsely, she would not have stated that the accused took the boy. There is nothing on record to show that there was previous grouse or ill-will entertained by P.W.2 to implicate the accused falsely. 16. It is the case of the accused that due to property disputes, he was falsely implicated. Father of accused, P.W.1 and another brother was having 4 cents of land at their native place. Except that property, no other property is owned by their family. Such is the case, it cannot be said that there were disputes with regard to the property. 17. P.W.3 is another brother of the accused. According to him, after coming to know through P.W.1 about the taking away of the deceased boy by the accused, he went to the locality where P.W.1 was residing and searched for the boy after 8.00 PM, but they did not find the boy, and that, on the next day morning, a neighbourer of P.W1 informed about tracing of the dead body of the deceased on the back side of Telugu University. P.W.4 is the neighbourer of P.W.1. He came to know about the accused taking away the deceased boy from P.Ws. 1 and 2. Therefore, the evidence of P.Ws. 3 and 4 is not much helpful to the case of the prosecution. 18. P.W.5 is also resident of the same locality of P.W.1. He stated that, he noticed the dead body of the deceased at about 8.00 AM on 26.10.2005 and informed about the same to P.Ws. 1 and 2. 19. Another important circumstance is the evidence of P.Ws.7 and 9. P.W.9 is the investigating officer who arrested the accused. It is the evidence of P.W.7 that the accused gave confessional statement as in Ex.P3 and in pursuance of the confessional statement, he led the police and mediators P.W.7 and another, to the back side of Telugu University and showed the dead body of the child. Unless the accused is the perpetrator of the crime, he would not have pointed out the place where the dead body was lying. The place of keeping the dead body would be exclusively within the knowledge of the accused, and therefore, he took P.Ws.7, 9 and others to the scene of occurrence. 20. It is contended by the learned counsel for the appellant that P.W.5 already knew about the place where the dead body of the deceased boy was lying and so the question of the accused leading the prosecution witnesses to the scene of occurrence does not arise. But, there is no evidence on record to suggest that P.W.5 noticed the dead body before the accused had shown the place of occurrence to the police and above witnesses. He might be knowing about the finding of the dead body after the accused had shown the dead body to the police and later he went to the house of P.W.1 and informed the same. But, that does not mean that in the first instance, P.W.5 noticed the dead body. Of course, that aspect of the case has been disbelieved by the trial Court. 21. The strong circumstance is that the accused took the deceased boy from P.W.2, and so, thereafter it is his duty to hand over the child to P.Ws.1 and 2. There is motive for the accused to commit murder of the deceased because he might have entertained grudge against the parents of the deceased P.Ws. 1 and 2, because they did not provide the amount of Rs.15,000/- to the accused towards expenses to be incurred for delivery of his wife in the Hospital. Another circumstance is that the accused was absconding because house of the accused was found to be locked when P.Ws.1, 2 and 3 went there. In view of the foregoing discussion, we have no hesitation to hold that the prosecution established the chain of circumstances and that there was no scope or possibility for any other person to commit murder of the deceased. The trial Court, after considering the evidence on record, rightly found the accused guilty, and the findings are based upon proper appreciation of the evidence on record. None of the findings is shown to be illegal or improper. The Criminal Appeal is devoid of merit and is liable to be dismissed. 22. In the result, the Criminal Appeal is dismissed confirming the judgment 09.02.2007 in Sessions Case No.185 of 2006 on the file of the III Additional Sessions Judge (Fast Track Court), Ranga Reddy district. -------------------------------- (A.GOPAL REDDY, J.) 26.07.2010 DRK ----------------------- (K.C.BHANU, J.) THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 375 OF 2007 (per the Hon’ble Sri Justice K.C.Bhanu) 26.07.2010 THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 375 OF 2007 Date: 26.07.2010 Between: Bandreddy Venkateswara Rao …Appellant And The State of A.P. rep. by the Public Prosecutor, High Court of A.P., Hyderabad …Respondent [1] AIR 1990 Supreme Court 79