THE HON’BLE SRI JUSTICE K.C. BHANU AND THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.924 of 2007 JUDGMENT: (per Hon’ble Sri Justice N.R.L. Nageswara Rao) The sole accused in S.C. No.1149 of 2006 on the file of the I Additional Sessions Judge, Karimnagar, who was convicted for the offence under Sections 302 and 411 of I.P.C., is the appellant herein. The case of the prosecution is that the deceased Mada Devender Reddy is known to the accused and on 13.9.2005, he left along with the company of the accused with a cash of Rs. 50,000/-. The accused and the deceased went to Bhulaxmi Lodge on 14.9.2005 and took a room for one day and stayed in Room No.105. Thereafter, they extended their stay for another day. At about 7.00 P.m., on 15.9.2005, P.Ws. 1 and 2 noticed the death of the deceased in the room when they have opened the room and on a complaint given by P.W.1, a case in Crime No. 427 of 2005 under Section 302 of I.P.C. was registered and investigated into. During the course of investigation, panchanama of the scene was conducted, inquest was held over the dead body of the deceased, incriminating articles were seized at the scene and photographs were also taken. The dead body was sent for post mortem examination. During the course of investigation on 10.10.2005, the accused was arrested at the house of his brother-in-law, P.W.13, where the accused gave voluntary confessional statement and in pursuance of the confession, a sum of RS.42,500/- was seized from his possession. He also narrated the events about the cause of the death of the deceased. As per the information given by the accused, the investigating officer has subsequently, examined P.Ws. 7 to 11 and the accused was sent for remand. According to the case of the prosecution, from the statements of P.Ws. 7 to 11 and also the seizure of the cash from the possession of the accused, it is clearly established that the accused stayed with the deceased and committed murder of the deceased and stolen the cash and therefore, he is liable for punishment under Sections 302 and 379 of I.P.C. Accordingly, charge sheet was filed. The case was taken on file as P.R.C. No.88 of 2006 by the Additional Judicial First Class Magistrate, Karimnagar, who committed the same to the Court of Sessions, which was made over to the I Additional Sessions Judge, Karimnagar. After appearance of the accused, charges under Sections 302 and 379 of I.P.C. were framed against the accused. The accused pleaded not guilty and claimed to be tried. On behalf of the prosecution, P.Ws. 1 to 19 were examined and Exs. P1 to P23 were marked. D1 to D3, contradictions were marked in the evidence of P.W.1. by the accused. M.Os. 1 to 10 were also marked. After considering the evidence on record, the learned Sessions Judge found the accused guilty of the offence and accordingly convicted and sentenced him. Aggrieved by the said judgment, the present appeal is filed. Heard Smt. Gayatri Reddy, Advocate for the appellant and also the learned Public Prosecutor. The points that arise for consideration are : 1. Whether the prosecution has proved that the accused has committed murder of the deceased for gain ? 2. Whether the prosecution proved that the accused was found in possession of the cash belonging to the deceased ? 3. Whether the conviction and sentence imposed by the learned Sessions Judge is legal and sustainable ? Points: There is no direct evidence about the commission of offence and the case of the prosecution rests on the circumstantial evidence and the accused and deceased moving together from 13.9.2005 till the death of the deceased. P.W.1 is said to be the Manager of the Bhoolaxmi Lodge at Karimnagar. P.W.2 is also said to be another employee of the said lodge. According to them on 14.9.2005, at about 10 A.M., the deceased Devender Reddy along with another person came and took a double room. They identified the other person as the accused, who was standing in the Court. Accordingly, room No.105 was allotted and stay was extended by another day at their request. In the evening at about 7.00 p.m., P.W.2 came to join duty and in order to handover the charge to him, both of them went to room No.105 and it was found locked from outside and they opened the door and found the deceased in a pool of blood. The accused was not present at that time. P.W.1 claimed to have given a complaint, Ex.P1 to the police. He also claimed to have identified the accused in the test identification parade. In the cross-examination, he has stated that number of customers will be visiting the lodge and that the reception counter is in the entrance and they maintain a register of visitors and occupants and there are no room boys. On 14.9.2005, when the accused and deceased came, the accused carried one brief case and another bag. He claimed to have handed over the register to the police. His statement is said to have been recorded by the police. He also admitted that he did not furnish the descriptive particulars of the other person, who accompanied the deceased. The evidence of P.W.2 is also in support of the evidence of P.W.1. The evidence of P.W.3, the wife of the deceased is that on 13.9.2005, her husband left with a cash of Rs.50,000/- along with the accused and on 14.9.2005 she was informed by Pratap Reddy that the accused and the deceased were going to Karimnagar on some work and on 15.9.2005, she was informed about the death of her husband at a lodge at Karimnagar and the loss of the cash. In her cross-examination, she stated that a sum of Rs.50,000/- was borrowed as loan and Rs.8,000/-was withdrawn from the bank. She also stated that the accused is having friendship with her husband and they have no business transactions. P.W.4 is the brother-in-law of the deceased and on 13.9.2005, he was informed by P.W. 3 that the deceased left Hanamkonda with cash of Rs.50,000/- for discharging the loan at Veenavanka bank. On 14.9.2005, one Pratap Reddy informed him that the deceased and accused went to Karimnagar and on 15.9.2005, he received information about the death of the deceased. P.W.5 claims that on 14.9.2005, the deceased and accused met him and they informed that they were going to Karimnagar and on the next day, he came to know about the death of the deceased. The evidence of P.W.6 is about taking the photographs of the scene of incident. The evidence of P.W.7 is that the accused was her husband and there was a divorce between them. One day in the night at about 2.00 A.M., the accused came to her house in an auto along with four persons and demanded her father to send her along with them, for which, her father did not agree. She also further stated that two years back, the accused came along with another person and asked her to be sent along with them. Subsequently, she came to know that the deceased was the person, who was brought by the accused. She did not agree to accompany them. The evidence of P.W.8 is that P.W.7 is his daughter and the accused came along with the deceased and requested P.W.7 to be sent along with them. The evidence of P.W.9 is that she was working as an Ayah in Gayathri Hostel at Srinivasanagar, Karimnagar and about 1½ year back, the accused came along with another person and stayed in her house and after seeing the photographs, she identified the other person as the deceased and the information about the death of the deceased is said to have been given by P.W.10. The evidence of P.W.10 is that she worked as an Ayah in Padmaja Hostel and the accused worked as driver at Karimnagar. She developed acquaintance with the accused and about one and half year back, prior to her giving evidence, at about 9.00 A.M., the accused came along with another person and on the request of the accused, she followed them in an auto upto the petrol bunk and thereafter another person and Kondal Reddy went to Bhulaxmi Lodge. Thereafter, she and the accused went to Bhulaxmi Lodge and she identified the other person as the deceased. As Kondal Reddy received a phone call, he left and as there was no need for her, she was asked to leave and she also left the place. The evidence of P.W.11 is that on 15.9.2005, when he was filling the petrol in the scooter, the accused, the deceased and P.W.10 came there and the accused requested him to drop the deceased at Bhulaxmi Lodge and accordingly, he took him there and dropped him there. The deceased invited him to his room and therefore, he followed him inside and found liquor bottles and the deceased offered the same. About fifteen minutes thereafter, the accused and P.W.10 came there and at that time he was also offered liquor. But as he received a phone call, he left the scene and at that time, P.W.10, the accused and the deceased were present. Subsequently, he came to know that the deceased was killed. P.Ws. 12 and 13 are the wife and husband and the accused is said to have confessed in their presence. The accused is the brother of P.W.12 and brother-in-law of P.W.13 and they did not support the case of the prosecution case and they were declared as hostile. P.W.14 is the person, in whose presence the police held inquest over the dead body of the deceased and recovered the case properties, M.Os. 1 to 4. The evidence of P.W.15 is about the confessional statement given by the accused in the presence of P.w.13. The evidence of P.W.16 is about conducting post mortem examination over the dead body of the deceased and noticing the injuries in Ex.P12, Post Mortem Certificate. He opined that the deceased died due to shock and haemorrhage. The evidence of P.W.17 is about registering complaint of P.W.1 and the evidence of P.W.18 is about the investigation done by him in the case. The evidence of P.W.19 is about the test identification parade conducted by her at the request of the police, where the accused was identified by the witnesses. The learned counsel for the appellant contends that there is no documentary evidence to prove that the accused has committed the theft and that the evidence of P.Ws.1 and 2 that the accused and the deceased came and stayed in room No.105 on 14.9.2005 is also not supported by any documentary evidence or register maintained by the owners of the lodge and therefore the first circumstance is not satisfactorily proved by the prosecution. If such circumstance of the accused and deceased living in the lodge is not established by the prosecution, then the entire prosecution case has to collapse according to her. On the other hand, the learned Public Prosecutor contends that there is sufficient material to hold that from 13.9.2005 till the date of the death of the deceased, the accused and the deceased were alone in company; that the recovery of cash is proved by acceptable evidence; that it is very difficult to believe that a huge amount of Rs.42,500/- could have been planted by any police officer and as such the conviction and sentence imposed by the learned Sessions Judge is legal and sustainable. It is true that P.Ws. 1 and 2 may not be able to produce the particulars of the occupants register. It is also true that they may not be able to identify the persons visiting every day to their lodge. But, the fact remains that the death of the deceased was in room No.105 of the lodge maintained by P.Ws. 1 and 2, which is also clear from the inquest report and also from the complaint. Further more the deceased was Devender Reddy is not being disputed by anybody. Therefore, the question before the Court is as to whether the deceased joined in the lodge along with the accused or if there is any possibility of somebody else being the offender. The evidence of the wife of the deceased clearly goes to show that on 13.9.2005, the accused and the deceased went together. In fact, the evidence of P.W.5 also clearly goes to show that on 14.9.2005, the accused and the deceased were found together at Karimnagar. Added to that there is evidence of none other than the wife of the accused and also P.Ws.8,9 and 10, which clearly goes to show that the accused brought the deceased to them and they had also some conversation with them and one night, they stayed in the house of P.W.9 and that could be probably on the night of 14.9.2005. Added to that the important evidence is that shortly prior the murder of the deceased, the accused was found in the company of the deceased. The evidence of P.W.10, who is said to have gone to the hotel on the request of the accused clearly goes to show that she was at the hotel till about noon and she has left the place subsequently. The evidence of P.W.11, who is also an independent witness clearly goes to show that the accused, the deceased and P.W.10 were at the lodge at about 12.00 noon and first he left the scene. The evidence of P.W.10 clearly goes to show that she also left the scene. From the evidence of this witness, it is clear that about 12.00 noon on 15.9.2005, the accused and the deceased alone were at the lodge and it was in Room No.105 of Bhulaxmi Lodge. Evidently, after this time only, the murder is said to have taken place. The accused has not given any explanation as to when and where he has gone from the scene of offence. The fact that the room was bolted from outside clearly goes to show that it was bolted by the person who has gone outside from the room. Therefore, the circumstantial evidence and the evidence of the impartial witnesses clearly goes to show that it was the accused and the deceased alone, who was together till the death of the deceased, and therefore, the only inference which can be drawn by any person is that the accused himself is the person, who has committed the murder. Further more, after 15.9.2005, the accused has absconded for a longer time till he was arrested by the police. This is also another circumstance adding to the false plea taken by the accused. Further more, the recovery, though not supported by the relatives of the accused, is clearly spoken by P.W.15 in his evidence, who is an independent witness. Hence, we have no hesitation in holding that there is no possibility or need for the police officers to plant such a huge sum. It is also reasonable to accept that identification of cash is very difficult and except the circumstance that the accused was found in possession of huge cash beyond his means of possession, there is no explanation forthcoming from the accused. Therefore, the only inference is that the accused has been in possession of the cash, which was stolen by him after the commission of the offence. There is no other view possible, except the guilt of the accused and there are strong circumstances supporting the prosecution case adding to the false pleas raised by the appellant. Therefore, the conviction and sentence imposed by the learned Sessions Judge is legal and sustainable and it does not call for any interference. Accordingly, the appeal is dismissed. ______________ K.C. BHANU,J Date: 30th December, 2010 __________________________ N.R.L. NAGESWARA RAO,J pnb