IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY EIGHTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL No.871 of 2007 Between: Dupaki Bhasker ..... APPELLANT AND State of A.P.Rep.by its P.P. ....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.871 of 2007 JUDGMENT: (Per Hon'ble Sri Justice N.R.L. Nageswara Rao) Accused No.1 in Sessions Case No.322 of 2005 on the file of III Additional Metropolitan Sessions Judge, Hyderabad, who was convicted for the offence under Section 302 I.P.C., and sentenced to undergo life imprisonment and to pay fine of Rs.100/-, in default to suffer simple imprisonment for ten days, and further convicted for the offence under Section 376 I.P.C., and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.100/- in default to suffer simple imprisonment for ten days, has filed this appeal. 2. The case of the prosecution is that the deceased-Vangala Madhavi was the daughter of P.W.2 and the sister of P.W.3. The deceased said to have married to one Parameshwar and thereafter due to failure of the marriage she was living with P.W.2. P.W.3 also another daughter of P.W.2 and she is also staying with her. On 07.01.2005, the Railway Police, have noticed the dead body of a woman on the railway track between Warangal and Chintapally Stations. A case was registered on a complaint of P.W.1 vide Crime No.4 of 2005 and inquest was held by the Railway police. During the course of investigation, the dead body of the deceased was sent for M.G.M. Hospital, Warangal. On 10.01.2005, the deceased was identified by the family members and on receipt of post mortem examination report, the Section of law was altered from 174 Cr.P.C. to 302 I.P.C. and the Sub-Inspector of Railway Police, has sent the copies of altered First Information Report to officers concerned. Thereafter, on 22.02.2005, on reliable information, A.1 was arrested and his confessional statement was recorded and recovered M.Os.1 to 3 from his possession and he narrated about the incident. A.2 to A.4 were also arrested and sent for remand. The investigation and the post mortem examination report disclosed that the death was due to head injury, and also, the vaginal swabs and vaginal smears showing spermatozoa, indicating intercourse. During the course of investigation, it was disclosed that on 06.01.2005 A.1 along with A.4 went to the house of the deceased and took her in the auto accompanied by P.W.16, dropped her at bus stand and took the deceased towards Kasibugga. A.1 and A.4 consumed alcohol and proceeded towards Dharmaram. A.1 and A.4 have given mirchi to the deceased and Kobbari Bondas mixed with sleeping pills. The deceased became semi-conscious, A.4 stopped the auto as desired by A.1 and went away. Thereafter, A.1 had sex with the deceased and thereafter killed her. With the assistance of A.2 and A.3 the dead body was shifted to Railway track, to create a scene as if the deceased committed suicide. The cause of committing the crime is that A.1 is said to have been in love with P.W.3, the sister of the deceased, and wanted to marry her. As the deceased has not agreed for the same, the offence id said to have been committed. After completion of the investigation, charge sheet was filed against all the accused under Sections 201, 302, 379 and 376 read with Section 34 of the I.P.C., and the case was taken on file by the II Metropolitan Magistrate for Railways, Secunderabad, in P.R.C.No.13 of 2005 and committed the same to the Court of Sessions 3. After appearance of the accused before the learned Sessions Judge, when the charges under Sections 302, 201, 376 and 379 read with 34 I.P.C were framed, read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined PWs.1 to 17 and got marked Exs.P-1 to P-18, besides case properties M.Os.1 to 3. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. and they did not adduce any defence evidence, except marking Ex.D-1 Section 161 Cr.P.C. statement of P.W.16. 6. After considering the evidence on record, the learned Sessions Judge, acquitted A.2 to A.4 for the offences with which they were charged, but convicted A.1 for the offences under Sections 302 and 376 I.P.C. Aggrieved by the said judgment, the present appeal is filed by A.1. 7. Since the appellant-Accused No.1 has no capacity to defend the case,Ms.Naseeb Afshan, has been appointed as legal aid counsel. 8. Heard the legal aid counsel appearing for the appellant-accused No.1 and also the learned Public Prosecutor representing the State. 8. The points that arise for consideration are: 1. Whether the prosecution has proved that the accused has caused the death of the deceased and committed rape on her; 2. Whether the conviction and sentence imposed by the learned Sessions Judge is legal and sustainable? 9. POINT NOs.1 and 2: In support of the prosecution case, P.W.1, who is said to be working as Deputy Station Superintendent in Railway Station, Warangal, deposed that on 07.01.2005 at 10.30 A.M., he received information about finding of the dead body of a female and he sent Ex.P.1 message to the police. The evidence of P.W.2 is that the deceased was her daughter and the she was living with her after deserting her husband. At the time of desertion, her husband gave Rs.50,000/- to the deceased and her daughter towards maintenance. Six months prior to the incident, A.1 has taken the money from the deceased, for giving it to his cousin brother and a document was also executed to that effect, and later A.1 did not repay the said amount. According to P.W.2, the deceased has got acquaintance with A.1 and his bother Prabhakar through the sister of Prabhakar. A.1 used to visit their house and developed acquaintance with her second daughter. P.W.3 and A.1 was visiting the house in her absence. Though A.1 intends to marry P.W.3, she and the deceased did not agree for the same. Therefore, A.1 and his brother Prabhakar threatened them in this regard. On the date of the incident, at about 5.30 P.M., P.W.16 came to her house and called her for collecting of money from A.1 and asked the deceased to bring the documents. In the mean time, A.1 along with A.4 came in an auto and the deceased along with P.W.16 left in the said auto along with the documents. Thereafter, the deceased did not return and on Saturday morning, she saw the news in the papers and approached the police and identified the dead body of her daughter. By the time she reached the Dharmaram Railway Station, the dead body was shifted to Gandhi Hospital, Warangal. In the cross- examination, she stated that on Friday evening she went to the house of P.W.16, but she was not there. She denied the suggestion that the deceased was having acquaintance with one Subash, after deserting her husband. She denied the suggestion that A.1 did not take money and there was no proposal to marry P.W.3. 10. P.W.3, who is another daughter of P.W.2 and sister of the deceased, also supported the version of P.W.2 about A.1 an A.4 coming and taking away the deceased and also the proposal to marry her. She has got three children through her husband Prakash and she was not divorced. P.W.3 does not support the prosecution case, and she was declared hostile. P.Ws.5, 6 and 7 is also not supported the prosecution case and they were also declared hostile. The evidence of P.W.8 is about taking of the photos at the scene of the offence. The evidence of P.W.9 is in support of the inquest to prove the inquest, but he did not support the prosecution case and did not say the particulars of the dead body and was declared hostile. The evidence of P.W.10 is about gathering of public after noticing the dead body near their Village and he was present at the time of inquest under Ex.P.9. The evidence of P.W.11-Doctor is about conducting the post mortem examination over the dead body of the deceased and he found the following injuries: “1.Contusion present over fronto-parietal region of the head 9top of the head) measuring 8 x 5 cms, on the reflexion of scalp; Depression comminuted fracture present underlying contusion over both parietal and frontal bones, measuring 10 x 8 cms; sub-dural haemotoma present over both hemispheres of the brain 15 x 12 x 0.25 cms; 2. Crushed runover railway decapitation of head from C7 vertebrae with absence of neck structures; 3. Crushed run over Raileay amputations of both upper limps from shoulder and elbow joints; 4. Post-mortem lacerations with abrasions present at places with fracture of both bones of the right leg in its lower 1/3.” He also deposed that the samples of vaginal swabs and vaginal smears were also collected and as per the Forensic Laboratory Report, the death was due to head injury and there was consequential intercourse taken place before committing the murder of the deceased. P.W.12 deposed that on 07.01.2005 he received Ex.P.1 and issued First Information Report and conducted inquest. The evidence of P.W.13 is conducting inquest over the dead body of the deceased and noticing the injuries and also identifying of the dead body by P.Ws.2 and 3. He also stated that he conducted observation panchanama at a distance of 100 yards from the place of the dead body and traced chappals and broken bangles, and the same was seized under the cover of panchanama. The evidence of P.W.14 is about taking up of investigation and verifying the investigating done by P.Ws.12 an 13 and altering the Section of law to that of 302 I.P.C. He also spoke about apprehension of A.1 to A.4 and producing them before Circle Inspector, Warangal. The evidence of P.W.15 is that of supporting the confessional statement of the accused and he did not support the prosecution case and was declared hostile. The evidence of P.W.16 is that on 06.01.2005 at about 6.00 P.M. she along with the deceased and A.1 and A.4 boarded the auto and she got down at the bus stand, Warangal and the auto went towards Narsampet side. According to her, while she was discussing with the deceased, A.1 and A.4 came there. The evidence of P.W.17 is about the investigation done by him in this case and apprehension of the accused and seizure of M.Os.1 to 3. 11. Learned counsel appearing for the appellant-A.1 strongly contended that absolutely there is no evidence to connect the appellant herein with any of the charges for which he was found guilty by the Sessions Judge. The theory of last seen in the company of P.W.16 along with A.1 and A.4, even, if believed to be true, there is no proof or the circumstances to conclude that the accused has committed murder of the deceased. There is no proof as to the time of death also. According to the learned counsel, the learned Sessions Judge erred in relying upon the confessional statement and also by mere presence of spermatozoa, for coming to a conclusion that the deceased was subjected to rape and accordingly, convicted the accused. 12. Learned Public Prosecutor contends that it is for the accused to explain as to whether the deceased was taken in the auto after 6.30 P.M. when she accompanied the accused. 13. Evidently, the specific case of the prosecution is that A.1 is said to have borrowed a sum of Rs.50,000/- from the deceased and on the date of the incident, P.W.16 is said to have made a discussion with regard to the payment of the said amount, and the deceased said to have been left with the documents. To prove the above borrowing or the existence of the documents, P.W.16 did not say anything about the prosecution case and she did not say that there was any talk of repayment of the money by A.1 and consequently P.W.16 having a conversion with the deceased. Evidently, the deceased is a married woman and her sister P.W.3, who is also a married woman, having children. The motive for commission of the offence is said to be that the deceased was objecting for the marriage of P.W.3 by A.1. Evidently, P.Ws.2 and 3 are living away from their husbands, having children, and P.W.3 said to have left the company of her husband only a few months prior to the commission of this offence. I such circumstances, A.1 making a proposal to marry P.W.3 even without there being a divorce with her husband appears to be too remote cause for commission of the murder of the deceased by the accused. 14. In order to establish the guilt of the accused, it is not sufficient for the prosecution to show that the deceased went in the company of A.1. If that is to be true, even P.W.16 also went in the company of A.1 and A.4 and she got down at the bus stand. If the prosecution case of P.W.16 taking the deceased for different purpose is to be accepted, there is no reason as to why P.W.16 got down at the bus stand. The theory of the prosecution that the deceased was given cool drink with sleeping pills and she became unconscious is also not supported by medical evidence, since there is no evidence of stomach of the deceased containing any medicine. Therefore, according to her, the only circumstance, the deceased going in the company of A.1 is not conclusive. Furthermore, as rightly contended by her when A.4 is not found guilty of the offence on the same evidence, the same yardstick has to be applied to A.1 also and the learned Sessions Judge erred in accepting the circumstances to A.1 only. Furthermore, it is the specific case of the prosecution that A.4 said to have taken the deceased and A.1 to Dharmaram gate and left there, for which also there is absolutely no evidence. The deceased said to have subjected to rape and the scene of offence where the rape said to have committed is not clearly identified and, therefore, such finding attributed against A.1 is also cannot be said to be correct. Further more, absolutely there is no evidence or information about when the murder is said to have been committed and the accused and whether the deceased were found near the scene of offence. It is to be noted that the scene of offence is very near the Railway track and there were movement of the people and no one has witnessed the said incident. The offence of rape is said to have been committed on a heap of stones and there is no observation at that place and no incriminating material was seized at that place. Further more, the mere fact that a married woman was found to be having subjected to intercourse does not mean that it is an act of rape. In order to constitute an act of rape, there should be a force and unwillingness on the part of the victim. In this case, there is absolutely no proof of injuries on the body of the deceased, or any resistance on the part of the deceased. Further more, the learned Sessions Judge has relied on the evidence of P.W.17 about the recovery of M.Os.1 to 3 to show that the confessional statement is a circumstance against the accused. But, it is to be noted that while relying on the confessional statements, the learned Sessions Judge found the accused not guilty of the offence under Section 379 I.P.C. If that being so, the accused found to have in possession of the stolen articles of the deceased cannot be accepted. Added to that, the postmortem report shows that there is a silver ankle and also a nose stub on the body of the deceased and they were not lost. In the statement of P.W.2, there is nothing to show that the deceased left the house wearing M.Os.1 to 3 on her body. In view of the above circumstances, when the proof of possession of the property being obtained under the theft or the receiver of the stolen property is not established, the learned Sessions Judge has wrongly relied upon the confessional statement and the evidence of P.W.17 as the incriminating circumstances. Therefore, the material on record and the circumstantial evidence are not clinching and there are no suspicious circumstances to come to a conclusion that the appellant / A.1 alone is present and committed the offence. In fact, it is the plea of the accused that the deceased was having intimacy with one Subhash and if the observations at the scene on the dead body of the deceased are noticed as per Ex.P.10, on the hand of the deceased the name of Subhash is found and thereby disclosing the intimacy of the deceased with Subhah or with anybody, as pleaded by the learned counsel for the appellant / A-1 can be said to be correct. Therefore, for the above reasons, the conviction and sentenced imposed by the learned Sessions Judge for the offences under Section 302 and 376 I.P.C. are not based on sufficient evidence. 15. In the result, the convictions and sentences recorded in judgment dated 25.07.2006 in Sessions Case No.322 of 2006 on the file of III Additional Metropolitan Sessions Judge, Hyderabad, against the appellant / A.1 for the offences punishable under Section 302 and 376 I.P.C. are set aside. The appellant / A.1 is found not guilty of the said charges and accordingly acquitted. The appellant / A.1 shall be released forthwith, if he is not required in any other case. 16. Accordingly, the Criminal Appeal is allowed. _______________ K.C. BHANU, J ____________________________ N.R.L.NAGESWARA RAO, J DECEMBER 28, 2010. YVL