IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FIRST DAY OF JANUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL No.1044 of 2007 Between: Kethavath Narsing and another ..... APPELLANTS AND The State of A.P.represented by Public Prosecutor. ....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.1044 OF 2007 JUDGMENT: (Per Hon'ble Sri Justice N.R.L. Nageswara Rao) A.1 & A.2 in Sessions Case No.372 of 2006 on the file of III Additional District and Sessions Judge (Fast Track Court), Medak, who were convicted of the offences punishable under Sections 302 and 379 of the Indian Penal Code, 1860 (for short, "IPC") and sentenced to undergo life imprisonment and to pay a fine of Rs.500/- in default to undergo simple imprisonment for a period of six months for the offence punishable under Section 302 IPC, and to undergo rigorous imprisonment for a period of three years for the offence punishable under Section 379 IPC, are the appellants herein. 2. The case of the prosecution is that P.W.1 is the husband, and P.W.2 is the father-in-law, of the deceased Mogulamma (hereinafter referred to as ‘the deceased’), who are the residents of Raheemguda. On the date of the incident, the deceased along with P.W.2 went to sell leaf plates (Istharakulu) at Doulthabad. At about 6.00 or 6.30 A.M., they reached Faizabad Cross Roads and the deceased went to hotel of P.W.4 and had tea, and at about 8.00 A.M., P.W.2 left by bus and thereafter the deceased left to her Village. At about 1.00 P.M., P.W.2 returned back and found the deceased missing. Then he along with others made search and found the dead body of the deceased in the sugar cane fields of Yerrolla Padmaiah. The gold ornaments of the deceased were also found missing. Thereafter, at about 10.00 A.M., P.W.1 lodged a complaint, which was registered as case in Crime No.88 of 1996 by the Sub Inspector of Police, Kowdipalli police station, and investigated into. During the course of investigation, panchanama of the scene of occurrence and inquest over the dead body of the deceased, were conducted, and thereafter, the dead body was sent to postmortem examination. On 15.07.2006 at about 12.00 noon, the accused were said to have gone to P.W.5 and gave extra judicial confession and P.W.5 in turn produced the accused before P.W.9 and gave Ex.P.2 complaint. Thereafter, P.W.11-Circle Inspector of Police took up investigation and recorded the confessional statements of the accused in the presence of P.W.8 and recovered M.O.1 at the instance of A.1 and M.Os.2 and 3 at the instance of A.2. Thereafter, the accused were sent to remand. After receiving relevant documents and completion of investigation, the accused were charged for the offences punishable under Sections 302 and 379 I.P.C. 3. The case was taken on file as P.R.C.No.46 of 2006 by the Judicial Magistrate of First Class, Narsapur, and committed the same to the Court of Sessions, and subsequently, after numbering the case, it was made over to the Court of III Additional District & Sessions Judge (Fast Track Court), Medak. 4. After the appearance of the accused before the learned Sessions Judge, charges for the offences punishable under Sections 302 and 379 I.P.C. were framed. When the charges were read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried. 5. To substantiate the charges, the prosecution examined PWs.1 to 11 and got marked Exs.P-1 to P-14, besides case properties M.Os.1 to 3. 6. After closure of the prosecution evidence, the accused were examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) to explain the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same and they did not adduce any defence evidence. 7. After considering the evidence on record, the learned Sessions Judge convicted the accused of the offences for which they were charged and accordingly, sentenced them as stated above after hearing the accused. Aggrieved by the same, the present criminal appeal is filed by A.1 and A.2. 8. Heard Sri C.Padmanabha Reddy, learned Senior Counsel for the appellants as well as the learned counsel representing the Public Prosecutor. 9. The points that arise for consideration are: 1) Whether the prosecution has proved that the appellants/A.1 and A.2 have committed the murder of the deceased and committed theft of the belongings of the deceased. 2) Whether the convictions and sentences imposed by the learned Sessions Judge against the appellants/A.1 and A.2 are legal and sustainable? 10. POINT NOS.1 & 2: In support of the prosecution case, P.W.1 deposed that the deceased was his wife and P.W.2 is father-in-law of the deceased. According to him, on the date of the incident, the deceased and P.W.2 went to the bus stop to sell the meals plate leaves and P.W.2 returned at 1.00 P.M., but the deceased did not come to the house; that when he enquired about the deceased, P.W.2 informed that the deceased had already returned by 8.00 AM after he boarded the bus; that, till evening, P.Ws,. 1 and 2 searched for the deceased, but could not trace her, and on the next day morning, they found the dead body in the Sugar cane fields of Yerrolla Padmaiah and that the deceased was strangulated with a towel. It is the further evidence of P.W.1 that they also found loss of M.Os.1 to 3 belonging to the deceased. He gave Ex.P.1- complaint to the police. The evidence of P.W.2 is also in the same lines as that of P.W.1. He deposed that on the date of incident the deceased accompanied him and thereafter he left by bus and the deceased returned back to her Village from Doulthabad and not found at the house, and they noticed the dead body of the deceased. 11. The evidence of P.W.3 is about receiving information from P.Ws.1 and 2 with regard to the occurrence of the incident. The evidence of P.W.4 is about P.W.2 and the deceased going to his hotel and taking tea. 12. The evidence of P.W.5- Panchayat Secretary at Faizabad is that he did not know P.Ws. 1 to 3 and the deceased; that he knew P.W.4 and the accused; that, on 15.07.2006, at about 9.00 A.M., when he was in the Panchayat Office, the accused came and confessed about the crime and about committing of theft of the articles; that, since police dogs are said to be in search of the suspects, they(A.1 and A.2) sought his help to rescue them; that, he went to Police Station along with the accused and handed over the accused to the Police and lodged Ex.P.2 complaint. In the cross examination, he stated that on the date of the incident he was not informed about the incident. 13. The evidence of P.W.6 is about his presence at the time of observation of the scene of occurrence and holding of inquest over the dead body of the deceased. The evidence of P.W.7 is about taking of the photographs of the scene of occurrence and dead body, which are marked as Exs.P6 and P7. 14. The evidence of P.W.8 is that in his presence the accused gave voluntarily confessional statement, and in pursuance of the confession of A.1, M.O.1 was seized from the possession of A.1; and in pursuance of confession of A.2, M.Os.2 and 3 were seized from the possession of A.2. In the cross examination he stated that twenty days after the incident, the confession was given. He denied the suggestion that no panchanama was conducted in his presence. 15. The evidence of P.W.10-Doctor is about conducting of postmortem examination and issuing of Ex.P.13-postmortem examination report. 16. The evidence of P.W.9 is about receipt of complaint from P.W.1 and registering it as a case and issuing First Information Report. In the cross examination, he stated that the descriptive particulars of M.Os.1 and 2 were not mentioned in Ex.P1. The evidence of P.W.11 is about investigation done by him in this case. 17. The learned senior counsel appearing for the appellants contended that except the extra judicial confession said to have been given to P.W.5, there is no other evidence to establish the guilt of the accused, and the factum of recovery of M.Os.1 to 3 from the possession of A.1 and A.2 is not believable. According to him, there is no reason as to why P.W.5-Panchayat Secretary did not record the statements of the accused when such a confession was given, and that the recovery was also not effected in the presence of P.W.5, and that the lower Court erred in wholly relying on the evidence of P.W.5 and convicting and sentencing the appellants. 18. On the other hand, learned counsel representing the Public Prosecutor contended that there is no reason for P.W.1 to speak falsehood against the accused; that if extra judicial confession is believed and the recovery establishes the guilt of the accused and therefore, the lower Court rightly convicted the accused and there are no grounds to interfere with the same. 19. Evidently, when the case rests on extra judicial confession, it is the duty of the prosecution to prove that the person to whom the confession was given is independent and has no ill-will against the accused. The information from the accused when such information, which was received by him stated in the Court or before police shall be in the language of the accused persons. As seen from the evidence of P.W.5, both the accused are said to have given extra judicial confession before him. Evidently, the evidence of P.W.5 does not show as to the narration of the individual statements of the accused independently. Though P.W.5 is said to have taken the accused persons to the police station and he himself gave the complaint to the police, there is no reason as to why he did not record the statements of the accused persons in writing, and it is also not known as to why the signature of the accused were not taken. Even on Ex.P.2, which is said to be the report given to the police by P.W.5, the signatures of the accused were not taken. The reason for the accused to approach P.W.5 is the Police dogs entered into their house to trace the suspects. But, P.W.9 or P.W.11, the Investigating Officers, have not stated the said fact. In the absence of such evidence from the Investigating Officers, the reason allegedly given by the accused in approaching P.W.5 and seeking his protection, appears to be remote. 20. Further more, if really the accused had given confession and the accused were produced by P.W.5 before the police, then the police would have recorded the confessional statements and recovered the property in the presence of P.W.5. There is nothing on record to show that he was present at the time of confession recorded by the police officials. Added to that, the confession is said to have been given twenty days after the incident and from the evidence of P.W.5 he did not even informed about the incident in the Village till the accused approached him. Therefore, this type of evidence of P.W.5 is very weak and cannot be accepted. 21. Further more, it is the specific case of the prosecution that after the accused gave extra judicial confession, P.W.5 brought the accused along with Ex.P.2 report before P.W.9. But, P.W.9 even did not speak about the accused being produced by P.W.5. Even the evidence of P.W.11 is also silent on this aspect. If really P.W.9 received the complaint Ex.P.2 along with the accused, it should have been mentioned by him and noted on Ex.P.2. Therefore, for all the above reasons, we find that the uncorroborated testimony of P.W.5 about the extra judicial confession cannot be a basis for conviction when it suffers from serious infirmities and improbabilities. Therefore, we hold that the learned Sessions Judge erred in basing the conviction for the offence of murder of the deceased on the sole testimony of P.W.5 relying on the extra judicial confession. Accordingly, the conviction and sentence recorded by the trial court for the offence punishable under Section 302 I.P.C. are liable to be set aside. 22. So far as the recovery of the property is concerned, the accused were found in possession of M.Os.1 to 3 and it is difficult to believe that after twenty days the accused could have been traced by the police by themselves and planted M.Os.1 to 3. In the First Information Report, the articles of the deceased were mentioned. Though there were no descriptive particulars, however, M.Os.1 to 3 were identified by P.Ws.1 and 2. We find no reason to discard the testimony of P.W.11 about the recovery of the properties, which is also supported by the evidence of P.W.8, though some infirmities are sought to be brought on record, which are trivial, in the evidence of P.Ws.8 and 11. Therefore, the accused were found in possession of the stolen property, knowing them to be stolen property, after the death of the deceased for which there is no explanation. Hence, it can be only an offence under Section 411 I.P.C. and the conviction of the offence under Section 379 I.P.C. cannot be sustained. 23. In the result, the convictions and sentences recorded in judgment dated 06.08.2007 in Sessions Case No.372 of 2006 on the file of the III Additional District & Sessions Judge (Fast Track Court) Medak, recorded against the appellants /A.1 and A.2 for the offences punishable under Sections 302 and 379 IPC are set aside. The appellants/A.1 and A.2 are found not guilty of the charges under Sections 302 and 379 I.P.C. and they are acquitted of the said charges. Instead the appellants/A.1 and A.2 are found guilty of the offence punishable under Section 411 I.P.C., accordingly, convicted and sentenced to undergo rigorous imprisonment for a period of three years. The remand period underwent by the appellants/A.1 and A.2 during the investigation and trial and after conviction shall be given set off under Section 428 Cr.P.C.. 24. Accordingly, the appeal is allowed in part. _______________ K.C. BHANU, J ____________________________ N.R.L.NAGESWARA RAO, J JANUARY 21, 2011. YVL