IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD Friday, the Twenty Eighth day of October, Two Thousand and Eleven PRESENT HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE B.N. RAO NALLA CRIMINAL APPEAL No.1399 OF 2007 Between: A.Ramu and another … Appellants And The State of A.P. rep. by its Public Prosecutor, High Court of A.P., Hyderabad … Respondent This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE B.N. RAO NALLA CRIMINAL APPEAL No.1399 OF 2007 JUDGMENT: - (Per Hon’ble Sri Justice A.GOPAL REDDY) The appellants/A1 and A2, who were put on trial for the offences punishable under Sections 302, 302 r/w 34 and 201 IPC in Sessions Case No.132 of 2006 on the file of Sessions Judge, Vizianagaram were found guilty and A1 was convicted for the offence under Sections 302 and 201 IPC and was sentenced to suffer imprisonment for life and also to pay a fine of Rs.5,000/- in default to suffer imprisonment for six months for the offence under Section 302 IPC and he was further sentenced to suffer imprisonment for two years for the offence under Section 201 IPC; and A2 was found guilty for the offence under Section 201 IPC and was sentenced to undergo imprisonment for two years and also to pay fine of Rs.1,000/- in default to suffer simple imprisonment for three months by judgment, dated 09.10.2007, preferred this appeal challenging the conviction and sentence recorded against them. 2. The graveman of the charge against the accused is that on 15.10.2005 at about 11:00 PM near Dharmapuri Village, the accused in furtherance of their common intention caused the death of one Avala Bangarappadu @ Abaddam by pressing his neck and caused disappearance of the evidence by throwing the dead body in the fields of Sirugidi Apparao. 3. The prosecution story as unfolded during the course of trial is briefly stated as under:- P.W.2 is the mother and A1 and A2 are the first cousin brothers of the deceased. The deceased was an auto driver. About six months prior to the date of the incident, the deceased got a marriage proposal. But the said proposal failed and later that marriage proposal was fixed to A1 and he was married. On the date of the incident at about 11:00 AM, while P.W.1 and the deceased were at their house, A1 and A2 went there and took the deceased along with them. Then at about 11:00 AM when P.Ws.3 and 4 were present at Allupeta junction they saw the accused and the deceased going towards Vizianagaram side while A1 was driving the auto, the deceased and A2 were sitting on the back seat. Subsequently at 03:00 PM A1 returned and informed P.W.2 that the deceased got down from the auto in between. On 16.10.2005 at about 12:00 noon P.W.1 the panchayat secretary of Tatitooru was informed about the presence of an unidentified dead body in the casurine fields of Apparao-L.W.10, then he along with the Vice President of Panchayat went to the fields and found the dead body floating on rain water and reported the same to the police under Ex.P1. On the basis of Ex.P1, P.W.12 the then Head Constable, Bheemili Police Station registered the same as a case in crime No.310 of 2005 under Section 174 Cr.P.C. and issued F.I.R. under Ex.P15. He then went to the scene and found several auto drivers and relations of the deceased who identified the dead body. He then held inquest over the dead body in the presence of P.W.8 under Ex.P6. During the course of inquest, P.Ws.1, 2 and A1 were examined and their statements were recorded and then dead body was forwarded for postmortem examination. On 16.10.2005 on requisition P.W.15 the Civil Assistant Surgeon, Government Hospital, Bheemunipatnam held autopsy over the dead body of the deceased and issued Ex.P18 postmortem report opining that the cause of death was due to asphyxia due to suffocation in alcoholic intoxication. Subsequently, on 30.10.2005 at about 09:00 or 10:00 AM, A2 made an extra judicial confession before P.W.2 that A1 made the deceased to consume liquor and took him to Vizianagaram and caused his death by pressing his neck while A2 was driving the auto. Thereafter left the body at the fields. On the basis of the said information, P.W.2 went to the police station, lodged a report Ex.P2. On 20.10.2005 on the basis of the statement given by P.W.2, P.W.13 the then Sub-Inspector of police, altered the section of law to Section 302 r/w 34 IPC and issued altered F.I.R. under Ex.P16 and then on point of jurisdiction he sent the material objects and altered F.I.R. to Denkada police station. On 21.10.2005 on receiving the altered F.I.R. P.W.16 the Assistant Sub-Inspector of Police, Denkada Police Station registered the case in crime No.74 of 2005 and sent the original altered F.I.R. to Judicial Magistrate of First Class, Vizianagaram. P.W.16 Inspector of Police, Bhopapuram took up further investigation. On 23.10.2005 A1 and A2 made an extra judicial confession before P.W.9 the then Panchayat Secretary Jonnada. He recorded their statements under Exs.P7 and P8 respectively and handed over them in the police station before P.W.14. P.W.14 informed the same to P.W.16, then P.W.16 visited the Denkada Police Station and arrested the accused in the presence of P.W.9. During the course of investigation in pursuance of their statements they lead them to the scene of offence where two buttons under M.O.4 were seized under Ex.P11 panchanama and he further prepared the rough sketch of the scene under Ex.P22. They further lead them to the agricultural godown near Rajapulove junction at their instance an auto bearing No.AP 35T 9648 was recovered. On verification a watch under M.O.3 from the auto was seized under Ex.P12 panchanama. Thereafter they were sent for remand. During the course of investigation P.W.16 examined and recorded the statements of witnesses P.Ws.6, 7 and others. On 21.10.2005 on receiving the F.I.R., material objects and C.D. from Bheemili Poice Station, he verified the shirt of deceased and found 2nd and 3rd buttons of the shirt were missing and found the buttons of the shirts and seized buttons tallied. Further investigation was taken over by P.W.17 the Inspector of Police, Bhogapuram circle who on 29.01.2006 conducted Test Identification of the watch recovered from the auto. P.W.2 identified the same in the presence of P.W.10 under Ex.P13 panchanama. On 02.11.2005 P.W.11 the Scientific Officer, R.F.S.L., Visakhapatnam, received a letter of advice asking for analyzing whether it contained any poisonous substance. He analysed the same and opined that he found ethyl alcohol. After receiving relevant documents and on completion of investigation P.W.17 filed the charge sheet. 4. In support of its case, the prosecution got examined P.Ws.1 to 17 and got marked Ex.P1 to P22 and M.Os.1 to 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. on the incriminating evidence produced against them. No oral or documentary evidence has been adduced on behalf of the accused. 5. The learned Sessions Judge on appreciation of the oral and documentary evidence found the accused guilty of the charges framed against them and sentenced them to imprisonment as aforementioned. 6. Smt.Vasundhara Reddy, learned counsel for the appellants contends that the entire case of the prosecution rests upon the circumstantial evidence. Therefore, the prosecution is under obligation to establish each circumstance beyond reasonable doubt. There is a time gap of more than 24 hours between the deceased last seen with the company of the accused and noticing the dead body. The medical evidence has not been corroborated with the ocular evidence of the witness. The so called extra judicial confession made by the accused before P.W.9, who worked as a Panchayat Secretary of Jonnada and incharge of Modavalasa, is being concocted to suit the convenience of the investigating agency and the same cannot be taken as a basis to convict the accused. Therefore, they are entitled for acquittal. 7. Per contra, learned Additional Public Prosecutor would contend that the mother of the deceased, who was examined as P.W.2 and her evidence discloses that both the accused took the deceased from the house on 15.10.2005 and on the next day the dead body was found in the fields. A2 confessed before P.W.2 about their commission of the offence on which basis the section of law was altered in the F.I.R. under Exs.P16 and P17. The same has been corroborated with the evidence of P.W.9 before whom the accused made a confession. Further, on the basis of the confession made by the accused, the wristwatch of the deceased was recovered from the auto, which was concealed. P.Ws.3 and 4 who have also last seen the deceased going along with the accused in the auto-M.O.5 belongs to A1. Therefore, the prosecution is able to bring home the guilt of the accused beyond reasonable doubt and the conviction and sentence recorded by the trial court needs no interference. 8. In view of the above submission, the point that arises for consideration in this appeal is:- Whether the circumstantial evidence adduced by the prosecution is complete and is incapable of any explanation of any other evidence except the guilt of the accused beyond reasonable doubt to convict them for the offences charged or not? P O I N T :- 9. The entire case of the prosecution rests upon the evidence of P.Ws.2, 3, 4, 9, P.W.15, the Doctor, who conducted the post mortem examination, and P.W.16, the Investigating Officer. P.W.1, who lodged the report under Ex.P1, deposed that on 16.10.2005 one Chevveti Gurrayya, Talayari came to him while he was in his house and informed him that he found one unknown male dead body in the causrina field of Apparao. He then informed the same to the Bheemili Police station by telephone and also sent a report under Ex.P1. P.W.2, the mother of the deceased and the paternal aunt of both the accused, deposed that there was a proposal to fix marriage between the deceased and Sooramma, D/o.Allaboina Sanyasi, but the said proposal failed and later the first accused married the said Sooramma. On Saturday i.e., on 15.10.2005 at about 11:00 A.M., while herself and her son were in their house, both the accused came and called the deceased and took him away by an auto. The accused returned to the house at about 03:00 AM on the following Sunday, but the deceased did not return. The accused houses are nearby. When she asked about her son, A1 replied that the deceased left them getting down from the auto on a road. On the next day, at about 02:00 PM some auto people came and informed her that they found the dead body of the deceased in a casurina field near Maharajupeta and she went to the spot and found the dead body and she identified it as that of her son. Later herself and her son-in-law went to the police station at Bheemili and gave a report to the police. Police obtained her thumb impression on the statement Ex.P2. In the cross-examination she stated that the distance between their village and the place where the dead body was found is about 15 Kms. By the time she reached the scene of offence, already some policemen were there and the dead body was taken out. She left the place at 05:00 PM on the same day. One day before the death of the deceased he went to Krishnamrajupeta to visit the house of his would be father-in-law for collecting thrash. All their family members went to the scene of offence along with Nodagala Sadhu and Allu Appanna. The accused 1 and 2 also accompanied them to the scene of offence. They went to the spot by the auto of the first accused and other autos. Four or five days after seeing the dead body in the field, the police again examined her. Her son-in-law Soori wrote the statement given to the police under Ex.P2 who belongs to Allupeta village. 10. P.W.3 deposed that on one Saturday prior to the death of the deceased, himself and Allu Appanna were at Allupeta junction at about 11:00 AM and they found the accused and the deceased proceeding towards Vizianagaram side by an auto being driven by the first accused while the deceased and the second accused were sitting on the back seat of the auto. In the cross-examination he deposed that himself and Appanna went to their lands as there was plucking out of groundnut crops and while returning they sat at the junction and then they saw the accused and the deceased going by an auto. P.W.4 also deposed that while himself and P.W.3 were at Allupeta junction at about 11:00 AM, they saw the accused and the deceased going in an auto towards Vizianagaram side. The other witnesses P.Ws.5 to 7 turned hostile and did not support the case of the prosecution. 11. P.W.8, who signed the inquest report Ex.P6 along with others deposed that the mother of the deceased and their relatives came to the spot and identified the deceased and opined that the deceased would have died having fallen in the water or having consumed liquor and consuming water or because somebody caused him the injuries. 12. P.W.9 is an important witness before whom the accused made a confession deposed that he worked as a Village Revenue Officer, Jonnada. Previously he was incharge of the post of Panchayat Secretary, Modavalasa for one year prior to the incident. The accused used to park their autos near the panchayat office, Modavalasa and used to come to their office for caste certificate and other certificates. He got good acquaintance with the accused for the said reason. On 23.10.2005 at about 10:00 AM while he was at the panchayat office both the accused came and confessed before him that about one week before they committed a murder and they wanted to surrender before the concerned police through him. He recorded their separate statements in his office under Ex.P7 and P8 respectively, read over the contents of the statement and obtained their signatures and handed over the accused to the Assistant Sub-Inspector of Police, Denkada Police Station. Later Inspector of Police came there. One Poornachandra Rao (not examined) also acted as a mediator and the Inspector of Police arrested the accused and interrogated them. On the confession made by them under Exs.P9 and P10, the police visited the scene of offence and recovered the material objects. In the cross-examination, it is admitted that in Ex.P7 it is mentioned on 23.10.2005 at 10:30 AM below the statement. Some information is noted below the statement covered by Ex.P8. On the first and second pages of Exs.P7 and P8, no signatures of the accused were found. He did not see the accused signing on the first and second pages of Exs.P7 and P8, he only saw the accused signing on the last page of the same. 13. P.W.10, who is a witness to the arrest of the accused, did not support the case of the prosecution and turned hostile. P.W.11, Scientific Officer, RFSL, deposed about examining the viscera and issuing of report under Ex.P14. 14. P.W.12 deposed about presentation of report by P.W.1, registration of F.I.R. under Ex.P15; inspecting the dead body; conducting inquest over the dead body of the deceased; examination of witnesses. P.W.13, the Sub-inspector of Police, deposed about presentation of report by P.W.2; alteration of section of law; examination of witnesses. But whereas P.W.2 stated that her son-in-law wrote her statement given to the Police. P.W.14, who is the Assistant Sub- Inspector of Police of Bheemili Police Station, deposed about receiving of altered F.I.R. and the statement of P.W.2; sending the original and altered F.I.R. to the Judicial Magistrate of First Class, Vizianagaram. 15. P.W.15, the Doctor, deposed about conducting post mortem examination; presence of nose, closure of eyes and mouth, tongue was inside and the entire body was swollen. Caynosis was present. He found the following internal appearance: Internal appearance:- Hyboid bone normal, thyroid and cricoid was normal, thorasic cavity congested, trachea and bronchi congested, ribs were normal, lungs congested, pleura congested, periocardiam normal, heart was normal and preserved for chemical examination, Aoita, patent, diaphram was normal, liver was congested and preserved, spleen was normal, stomach was congested and preserved, intestines bloted and preserved, pancreas were normal, kidneys were normal and preserved, urinary bladder, fluid present, scalp and skull bones were normal, and meninges congested, cerebrum and cerebellum were congested, ponds and medulla normal, spinal cord and vertebral column were normal and base of the skull was normal. Viscera sent to RFSL for examination and opinion. A report was given by the RFSL to the effect that Ethile alcohol were found in the viscera and no poisonous substance was found therein. He opined that the cause of death was due to asphyxia due to suffocation in alcoholic intoxication state. He further deposed that on the questionnaire given by the investigating officer to answer as in Ex.P21, he gave a finding that asphyxia could be happened due to pressing of the neck in elbow bend and also pressing the face against muddy field bund. In the cross-examination he deposed that in the case of asphyxia some times the right cavity of the heart fully contain dark coloured imperfectly clotted blood. In every case of asphyxial death there may not be possibility of left cavity of the heart and left sorti would be empty. Asphyxia may be caused due to suffocation, dworning, strangulation and hanging. In the case of hanging there will be ligature mark above the thoriod cartilage. In the case of suffocation eyes will be opened and eyeball will be prominent between 24 to 48 hours. When the head of a normal person is pressed against any substance there will be a possibility of formation of nail stratches on the back side. He further explained, in case of a person under the influence of alcoholic intoxication the force of a defence used by him will be less and there may not be possibility of formation of nail stratches when he is pressed to death against any substance. As per the preliminary notes of post mortem examination the death was due to asphyxia due to suffocation whereas as per the final report given by him the death was due to asphyxia in intoxicated state and he opined that it is a case of homicidal death. 16. P.W.16, the Inspector of Police, who investigated the crime, deposed about surrender of the accused before the Assistant Sub-Inspector of Police; receiving of Exs.P7 and P8 confessional statements from the Assistant Sub-Inspector of Police; recording of confessional statements of the accused Nos.1 And 2 separately and interrogated them under Exs.P9 and P10 respectively; visited the scene of offence; prepared rough sketch of the scene of offence under Ex.P22; recovery of material objects; sending the material objects and the viscera for chemical examination. P.W.17, Inspector of Police, deposed about conducting of test identification parade; receiving of final opinion from the medical officer and filing of the charge sheet. 17. From the above, it is clear that the entire case rests upon circumstantial evidence. When a case rests upon circumstantial evidence, the prosecution must establish all the links in the chain of circumstances, so that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. On this aspect, it is pertinent to refer to a decision reported in Padala Veera Reddy v. State of A.P.[1] wherein at para 10 it was held as follows:- “(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.” 18. In the case on hand, the evidence of P.W2 is unnatural. when P.W.2 know that both the accused took the deceased at 11:00 AM on the previous day and she also went along A1 and A2 in the auto of A1 to the spot where the dead body was found, she has not suspected A1 and A2 in commission of the crime nor stated the same to the police on the date when the dead body was found. Even when A2 made a confession about the commission of the offence by A1, no steps were taken by the police to arrest A2. The so called confessional statements made under Exs.P7 and P8 are verbatim. Both A1 and A2 stated that after post mortem of the dead body also they came back to the house along with all. The mother of the deceased and other relatives suspected them. They hide themselves in the surrounding topes with a fear that they will inform to the police and also hide the auto beside the godowns of market yard of Rajapulova junction on the Sunday night i.e., on 16.10.2005. A1 told A2 to inform P.W.2 about their committing offence and thereby A2 informed the same to P.W.2, who inturn reported the matter to the Bheemili Police and thereby they got fear. How A1 and A2 came to know about P.W.2 lodging a complaint with the Bheemili police station is not known to the accused. The said confessional statements as admitted by P.W.9 were not signed on the first and second pages, but only signed on the last page, which obviously was pressed into service to suit the case of the prosecution. 19. P.W.15, the Doctor, deposed in his evidence that the cause of death was due to asphyxia due to suffocation in alcoholic intoxication stage and also admitted that in case of suffocation eyes will be opened and eye ball will be prominent between 24 to 48 hours. He admitted that in case of drowning there is a possibility of congestion of face, lividity in colour and in some cases it may be pale and frothy and some times blood stained fluid may be seen at the corners of the mouth, nostrils, lips and ears are livid. It is not certain about the death of the deceased due to the pressing the neck forcibly as stated in the confessional statement of A1 that he forcibly made him to fall down on the feet and press his head forcibly by keeping his face on the field bund and at about 11:30 hours he died. But the evidence of P.W.6, who has not supported the case of the prosecution, in the cross-examination is that both the accused and the deceased came to his house along with brandy bottles and made the deceased to consume brandy and after 10:30 PM they left the house, which is contrary to the confessional statement of A1. 20. For the reasons aforementioned, we are of the opinion that the prosecution failed to establish the link in the chain of circumstances leading to the death of the deceased and the motive for A1 killing the deceased and cause of death due to pressing the neck by A1, which resulted in the death of the deceased. Therefore, the accused are entitled for benefit of doubt. The conviction and sentence recorded against them for the offence with which they were convicted is set aside. 21. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed against the appellants/A1 and A2 for the offences under Sections 302 and 201 IPC against A1 and under Section 201 IPC against A2