THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.A.No.724 of 2007 Date: 25.02.2011 Between: Vallepu Lingam … Appellant/ Accused AND State of A.P., rep.by Public Prosecutor, High Corut of A.P, at Hyderabad. … Respondent/ Complainant THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. Appeal No.724 of 2007 JUDGMENT (Per Hon’ble Sri Justice K.G. Shankar): The conviction of the sole accused for the offences under Sections 302 and 201 of the Indian Penal Code (‘IPC’ for short) by the learned IV Additional Sessions Judge, Siddipet, Medak District, through judgment dated 14.03.2007 is impugned in the present appeal. 2. The accused would appear to have engaged an advocate when he faced trial. However, when the appeal was laid, the accused claimed that he did not have means to engage a counsel. Consequently, Smt. Santhi Neelam was appointed as legal aid counsel to represent the accused. 3. Vallepu Pochaiah, who was 70 years old at the time of his death, is the deceased herein. He married twice or thrice. His first wife Yellavva gave birth to a son. After the demise of Yellavva, the deceased Pochaiah married Rajavva. Pochaiah begot three sons and three daughters, through his second marriage. PWs.1 and 2 are the children of Pochaiah, through his second wife, Rajavva. After the demise of Rajavva, the deceased Pochaiah took the younger sister of Rajavva by name Kanakavva into his hold. The evidence is contradictory regarding the jural relationship of the deceased and Kanakavva. It is not clear whether Pochaiah had married Kanavva after the death his second wife Rajavva (or) whether Pochanna took Kanakavva as his concubine, after the death of his second wife, Rajavva. Kanakavva gave birth to a son and a daughter, through Pochaiah. Kanakavva, however, has a son, who is the accused herein and two daughters through her earlier marriage. Thus, Kanakavva has a son (the accused) and two daughters other than the children (a son and a daughter), through the deceased Pochaiah. 4. It is the case of the prosecution that on the intervening night of 16/17th November, 2006, the accused murdered the deceased by strangulating him with a dhoti and later hanging the dead body of the deceased in the hut to project a picture that Pochaiah committed suicide by hanging himself. The prosecution was launched against the sole accused. Charges u/s.302 and 201 IPC were framed against the accused. The accused indeed pleaded not guilty for the said charges. The prosecution examined as many as 11 witnesses. PWs.1 and 2 are the son and the daughter of the deceased, through his second wife, Rajavva. PW.3 is the wife of PW.1. PW.5 is the husband of PW.2. PW.4 is a neighbour to the deceased. He claimed that he heard a quarrel between the deceased, Kanakavva, their son (the accused) and daughter. 5. It is the case of the prosecution that the death of the deceased was suspected to be a murder and not a suicide and that the suspicion was at the accused. Inquest was held over the dead body of the deceased. The dead body of the deceased was more or less in a standing position with legs resting on the ground, although the dhoti tied the neck of the deceased to a rafter in the hut. PW.6, who was the Sarpanch of Enagurthy Village, and others suspected that the accused was responsible for the death of the deceased. Consequently, Ex.P.1 report was scribed by PW.6 which was presented by PW.1 to police. An F.I.R. under Ex.P.9 was issued accordingly. The scene of offence was later examined by the police in the presence of PW.8 under Ex.P.3 cover of mediators report. Ex.P.4 is the rough sketch of the scene of offence. Ex.P.5 is the inquest report duly signed by PW.8 and another. 6. PW.10 apprehended the accused on 28.11.2006. The accused made a confessional statement in the presence of PWs.9 and 10 and showed cash of Rs.18,500/- at the rocky area near the village where from the accused recovered a plastic cover containing the cash of Rs.18,500/- in 500 rupee denomination. On the basis of the evidence, considering that the accused was guilty of the offence, case was laid against the sole accused. 7. As already pointed out, the trial Court believed the prosecution story and recorded a conviction. The point for consideration is whether the prosecution brought home the guilt of the accused beyond reasonable doubt. 8. This is a case of circumstantial evidence. No one witnessed the accused murdering the deceased. It is not even clear whether the death of the deceased was suicidal or homicidal. The question regarding the death of the deceased shall be referred to later. At the out set, the legal position relating to circumstantial evidence may briefly be stayed. In Sharad Birdhichand Sharda v. State of Maharashtra[1], the Supreme Court laid down five principles as to the appreciation of evidence of a case based on circumstantial evidence. The panchseal of Sharad’s case are: i) The circumstances from which the conclusion of the guilt to be drawn should be fully established and that it is not sufficient if the circumstances ‘may’ establish the guilt of the accused; ii) The facts so established should be consistent with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of the innocence of the accused; iii) The circumstances should be of an inclusive nature and tendency; iv) The circumstances should exclude every possible hypothesis except the one to be proved; and v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused. Unless these circumstances are established it cannot be said that the prosecution made out the guilt of the accused in respect of the circumstantial evidence. 9. In Balwinder Singh v. State of Panjab[2] and a host of other cases, the Supreme Court repeatedly pointed out that before a person could be convicted on the basis of circumstantial evidence, the circumstances in question must be satisfactorily established that the proved circumstances must bring home the offence to the accused beyond reasonable doubt. It is the view of the Supreme Court that if the above-mentioned circumstances could be explained by any reasonable hypothesis, the accused must have the benefit of the hypothesis. In Ram Das v. State of Maharashtra[3], it was pointed out that where circumstances are susceptible to equally plausible inferences, the Court should accept the inference, which favours to the accused. 10. In Vidya Sagar v. State of Uttar Pradesh[4], the Supreme Court observed that when a case rests entirely on the circumstantial evidence, such evidence must satisfy three tests, viz., i) the circumstances from which an inference of guilt is to be drawn must be cogently and firmly established; ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused and iii) the circumstances taken collectively should form a change 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. It, therefore, is to be examined whether the guilt of the accused can be established through the circumstantial evidence. 11. PW.4 is a resident of Enagurthy village. His evidence is that on the date preceding the date of the death of the deceased (i.e., 16.11.2006) Kanakavva, her son and daughter were present in the house of the deceased and that PW.4 heard a quarrel between Kanakavva, her children and the deceased. PW.4 did not state what was the reason for the quarrel nor did PW.4 state who was quarrelling with whom. It may be noticed that PW.4 was aware that the deceased had three wives. He, however, did not know the names of the wives of the deceased nor did he know how many children the deceased had, let alone their names. If this confessed admission on the part of the PW.4 is read with his evidence that the deceased had a quarrel with his wife, son and daughter at about 9 p.m. on the date of preceding the date of his death, it does not show that the deceased had quarrel with the accused. The quarrel could have been between the deceased on the one side and any of his five sons, as the deceased had one son through his first wife Yellavva, three sons through the second wife Rajavva and one son through his third wife/concubine Kanakavva. On the other hand, the accused is not his son. The accused is the son of his third wife/concubine through a former marriage of her (Kanakavva). Consequently, from the evidence of PW.4, it cannot be culled out that PW.4 referred to a quarrel between the deceased and the accused. It could be even a quarrel between the deceased and the son of the deceased through Kanakavva. The chain of incidence, thus, does not even commence from the evidence of PW.4, let alone the unbroken continuation of the chain. 12. The evidence of PWs.1 to 3 and 5, indeed, is not direct evidence. Their case is that the deceased sold Ac.2.50 cents of land at Rs.2,15,000/-, that he gave Rs.25,000/- to each of his four sons, that the deceased retained Rs.65,000/- with him, that the deceased refused to partake the balance with the accused and that the accused who bore grudge against the deceased on that count had caused the death of the deceased. The origin of the motive for the murder of the deceased attributed to the accused is the sale of property by the deceased. 13. In Ex.P.1 complaint, PW.1 stated that the deceased sold Ac.2.00 cents of land at Rs.2,00,000/- and that after distributing Rs.25,000/- to his sons through his first wife and second wife. The deceased retained Rs.65,000/-. Thus, in his evidence, PW.1 claimed that the deceased sold Ac.2.50 cents of land while as a complainant of Ex.P.1, he claimed that the deceased sold Ac.2.00 cents of land only. As PW.1 he claimed that the deceased received Rs.2,15,000/- as sale price. As the complainant, he asserted that the deceased received only Rs.2,00,000/-. As PW.1, his claim is that the deceased gave away Rs.25,000/- to each of his four sons born through Yellavva and Rajavva. It may be noticed that the admitted case of the prosecution is that the deceased begot a son and a daughter to Kanakavva as well. However, according to PW.1 and others, it is not the son of Kanakavva born to the deceased who raised the dispute, but it is the accused, who is not the son of the deceased that questioned the propriety of the deceased in not making over shares of the sale proceeds to him and to his utirin brother. 14. In any event, the origin of the dispute is the sale of Ac.2.00 cents or Ac.2.50 cents by the deceased. Who was the vendee of these properties? When did the deceased sell the properties? When did the deceased distribute the sale proceeds to his sons born through his first and second wives? These are the points unanswered by the prosecution. PWs.1 and 2 are the children of the deceased through his second wife Rajavva. PWs.3 and 5 are their spouses. PWs.1 to 3 and 5 would not state the details answering the above questions. Their simple story is that the deceased sold Ac.2.00 cents/Ac.2.50 cents of land at Rs.2,00,000/- or Rs.2,15,000/- and that while he partook Rs.25,000/- with each of his four sons born through his first and second wives, he retained the balance. Thus far, the witnesses go and not beyond. As rightly submitted by Smt. Santhi Neelam, learned counsel for the accused, the very motive as attributed by the prosecution to the accused thus is not established clinchingly, much less beyond reasonable doubt. Where the very motive is not made out in clear and unequivocal terms, we are afraid that the whole series of circumstances become inoperative and non-suggestive of the guilt of the accused. 15. The suspicion of PW.1 supported by PWs.2, 3 and 5 is primarily on account of the body position of the deceased when it was found. From the evidence of PW.4, it would appear that he came to know about the death of the deceased at the outset on the information of one of the daughters of the deceased. It is not clear whether this daughter of the deceased was the daughter through his wife Kanakavva, or one of the daughters of Kanakavva, through her earlier marriage or one of the sisters of PWs.1 and 2. It was merely stated by PW.4 that one of the daughters of the deceased informed him about the death of her father. Later, PWs.1 to 3 and 5 came to know about the death of her father. 16. It was found that the dead body of the deceased was hanging from a rafter. However, the feet of the deceased were on the floor so much so it appeared as if there was no possibility for the deceased to commit suicide by hanging himself. PW.11 conducted autopsy over the dead body of the deceased. Ex.P.10 is the post- mortem report. PW.11 opined that the death of the deceased was due to asphyxia on account of strangulation and the death was approximately between 14 hours to 20 hours prior to the post-mortem examination. 17. PW.2 deposed that there were injuries on the face of the deceased. The case of PWs.1 and 2 would appear to be that the deceased was beaten by the accused, as the deceased refused to exceed to the demand of the deceased to partake the sale proceeds with the accused and the son of Kanakavva through the deceased and that the deceased subsequently was hanged by the accused. It is the case of PWs.1 to 3 and 5 that this is the reason why injuries were found on the face of the deceased. However, PW.11 admitted that injuries are possible in the case of hanging or in the case of strangulation. From the medical evidence of PW.11 coupled with Ex.P.10, it is not clear that the injuries on the person of the deceased were inflicted by the accused. Consequently, it is not even clear that the death of the deceased was suicidal or homicidal. 18. One of the important questions is whether the very death of the deceased was homicidal or suicidal. As already pointed out, the suspicion of PWs.1 to 3 and 5 was since the feet of the dead body of the deceased in a standing position, were touching the floor. We are afraid that it is for PW.11 as the Doctor to state that the death was not due to hanging. However, PW.11 deposed that the death of the deceased was on account of asphyxia due to strangulation. It, therefore, is clear from the medical evidence that the death of the deceased was on account of hanging. Indeed, hanging could be suicidal or homicidal. At the same time, there is no evidence directly linking the accused with the death of the deceased. It is not even clear from the evidence of PW.4 that it is the accused who has quarrelled with the deceased regarding the share in the income of the sale of the property. It is also true that even the sale of the property by the deceased is not made out by PWs.1 to 3 and 5 to assume that disputes arise between the deceased and the accused regarding the partaking of the sale proceeds. Thus, neither the motive is established, nor is it established that the death of the deceased was homicidal. The other circumstances pointing out the guilt of the accused is the alleged confession of the accused. PW.10, Investigating Officer, arrested the accused on 28.11.2006 at Enagurthy bus stand. He allegedly interrogated the accused in the presence of PW.9 and another mediator. The case of the prosecution is that the accused attempted murdering the deceased on account of the grouse that the deceased did not share the sale proceeds of the property with the accused while he partook the same with his sons through his first and the second wives. It may be recalled that the very sale of the property by the deceased has not been established by the prosecution. That apart, according to the prosecution case, the deceased retained about Rs.65,000/- with him after he gave away Rs.25,000/- to each of his four sons. The mathematical calculation, however, does not agree with the case of the prosecution. The deceased had one son through his first wife and three sons through his second wife. He had another son through his third wife/concubine. Thus, the deceased had either four sons or five sons if the son of the deceased through Kanakavva is included. If each of the sons takes Rs.25,000/-, the four sons would take Rs.1,00,000/- and the five sons would take Rs.1,25,000/-. The value of the property sold, however, was either Rs.2,00,000/- or Rs.2,15,000/-. In either case, the deceased must be in position of more than Rs.65,000/- with him according to mathematical calculation. 19. This is only one side of the coin. The other part of the prosecution story is that the accused produced MO.2 consisting of Rs.18,500/- in the shape of 500 rupee denominations. It is not the case of the prosecution that the accused took all the money available with the deceased, that he spent part of the same and concealed only part of the property taken by the accused from the deceased after the accused murdered the deceased. The prosecution failed to explain why only Rs.18,500/- could be produced by the accused. What happened to the balance of money, which should have been available with the deceased? No explanation is offered by the prosecution why the accused could produce only MO.2 in a sum of Rs.18,500/-. At any rate, the question is whether the alleged contention by the accused has been established. 20. PW.9 is a member of Mandal Parishad Territorial Constituency (MPTC). He was a resident of Enagurthy. PW.9 admitted that he acted as a mediator for police on an earlier occasion also. It would appear that PW.9 is a stock mediator of police or is at least an accommodative witness. Be that as it may, the evidence of PW.9 cannot be thrown out merely because it is the evidence of a stock mediator. The evidence of a stock mediator deserves to be scrutinized with circumspection. The evidence of such a witness, however, cannot straightway be thrown out without examining the same for corroborations or contradictions. 21. PW.9 deposed that the accused confessed that the deceased abused the accused so much so the accused beat and killed the deceased. He also pointed out that the accused offered to show MO.2, which he had concealed. 22. PW.10, on the other hand, admitted that MO.2 was seized more or less from a public place as it was an area adjacent to the road. More importantly, PW.10 deposed that he apprehended the accused and interrogated the accused and that the accused thereafter made the alleged confessional statement. Thus, the statement made by the accused was a statement made by him while he was in police custody. Such a statement is hit by Section 26 of the Indian Evidence Act. As such, the alleged confession of the accused under Ex.P.6 has become inadmissible. The recovery of MO.2 at the instance of the accused, therefore, has no effect on the question of the guilt of the accused in the evidence. 23. Ex.P.6 is the confessional report of the accused. In Ex.P.6, the accused allegedly stated that he was not residing with the accused and had been residing at Singaram village since about 10 years to 12 years prior to the incident and that the accused along with his mother and sisters went to the house of the deceased about 10 days prior to the death of the deceased. Subsequent alleged confession is that when harsh words exchanged between the accused and the deceased at about 2.30 a.m. on the date of the death of the deceased, the accused strangulated the deceased with a dhoti. Even according to the Ex.P.6 it would appear to be a case of murder committed in a fit of anger. Assuming that the story of the confession is true, the accused would fall within the exceptions u/s.300 IPC and would become punishable u/s.304 IPC only. 24. Curiously, PW.1 who lodged the complaint would not say that the accused was living away from the deceased and if so, since when. PW.2 also stated that the accused has been residing separately since about seven years or eight years. She also did not state that the accused has been away from Enagurthy village. PWs.3 to 5 also did not claim that the accused was residing away from village Enagurthy. PW.5 merely stated that the accused along with his sister and mother went to the house of the deceased and demanded money and that PW.5, husband of PW.2 assured that he would resolve the dispute and would make the deceased pay a share of the sale proceeds to the accused as well. Thus, it is the case of PW.5 that he promised to resolve the dispute between the accused and the deceased. If this story of PW.5 is true, the very motive of the accused to murder the deceased would not arise, since the accused had a promise from PW.5, the brother-in-law at least by courtesy, that the demand of the accused would be considered, perhaps, favourably by the deceased. There would not have been any reason for the accused, therefore, to cause the murder of the deceased. The alleged confession of the accused, which did not tally with the evidence of PW.5, runs contrary to the evidence of PWs.1 to 5. The alleged confession, barring for the contention that the accused murdered the deceased by strangulating him with a dhoti is not in consonance with the case of the prosecution. The confession under Ex.P.6, even on merits, does not warrant a conviction. At any rate, the confession made in police custody is hit by Section 26 of the Evidence Act and cannot the basis of a conviction. 25. The learned counsel for the accused submitted that motive which place a dominant role in the present case in the absence of direct evidence has not been established and that confusion became confounded, as there was no consistency as to how Ex.P.1, complaint was drafted. PW.1 in his evidence stated in the cross examination that the Sub-Inspector of Police scribed Ex.P.1 report. In the chief examination, PW.1 deposed as if he scribed Ex.P.1 report. It may be noticed that Ex.P.1 bears the thumb impression of PW.1. PW.1 thus admittedly is not even a signatory, but is a marksperson. The question of PW.1 scribing the report under Ex.P.1 therefore, would not arise. If so, who prepared Ex.P.1 is the question. 26. As already pointed out, in the cross-examination, PW.1 stated that the Sub-Inspector of Police scribed Ex.P.1. The prosecution did not choose to examine the Sub-Inspector of Police, who registered Ex.P.1 as FIR. It is, therefore, not possible to know who scribed Ex.P.1. If the Sub-Inspector of Police scribed Ex.P.1, the defence lost the chance of confronting the Sub-Inspector of Police as to the mode in which Ex.P.1 was drafted, viz., whether Ex.P.1 was scribed to the dictation of PW.1 or was it prepared otherwise. It, however, perhaps, does not warrant an acquittal on the ground that the prosecution failed to show as to who drafted Ex.P.1 complaint. At the same time, it would show that all latchets relating to the case have not been explained before the trial Court. 27. The learned counsel for the accused inter alia contended that the non-examination of Kanakavva, the third wife/concubine of the deceased