IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE 16TH DAY OF JUNE, TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL Nos.111 and 163 of 2007 Between: Palnate Venkati and four others … Appellants And State OF Andhra Pradesh, represented 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 K.C.BHANU CRIMINAL APPEAL Nos.111 AND 163 OF 2007 COMMON JUDGMENT: - (Per Hon’ble Sri Justice A.Gopal Reddy) A2 to A5 and A1 in Sessions Case No.319 of 2006 filed the above appeals questioning the conviction and sentence recorded against them by II Additional Sessions Judge, (Fast Track Court), Adilabad vide judgment dated 23.01.2007, whereby A1 is sentenced to under Rigorous Imprisonment for life and to pay a fine of Rs.5,000/- for the offence punishable under Section 302 of the Indian Penal Code, 1960 (for brief, “IPC”). A1 to A5 are convicted and sentenced to undergo imprisonment for three years for the offence punishable under Sections 148 and 201 r/w 149 IPC and also to pay a fine of Rs.2,000/- each. 2. Since both the appeals arise out of the same judgment, they are being disposed of by this common judgment. 3. The substance of the charge levelled against the accused is that on 19.04.2005, they being members of an unlawful assembly with a common object to kill Palnate Raibai @ Nirmala Bai, wife of A1 and caused her death, at the outskirts of Patnapur village of Jainoor Mandal and also thrown the dead body in the nearest forest area to screen the evidence. 4. The prosecution story as unfolded during the course of trial is briefly stated as under:- The deceased-Raibai @ Nirmala Bai is the daughter of P.Ws.1 and 2 and they performed the marriage of the deceased with A1 five months prior to the incident. A2 to A4 are the brothers of A1 and A5 is the wife of A3. At the time of marriage on 14.12.2004, P.Ws.1 and 2 gave hand watch, gold ring and other house hold articles to A1, who was working in Millitary. After the marriage, the deceased used to reside at the house of accused in Patnapur village of Jainoor Mandal and the house of the parents of the deceased is adjacent to the house of the accused. A1 went to Haryana and joined his duty. While so, on 20.03.2005 A1 came back to his house at Patnapur village and thereafter he harassed the deceased on pretty issues by insulting her. P.W.2 heard the discussion in between the accused 1 to 4 at about 10 p.m., in which A2 to A4 had stated to A1 that they will perform another marriage to him and thereby he will get an amount of Rs.2 to 3 lakhs and asked A1 to ignore his marriage and accordingly they have decided to eliminate the deceased. On 19.04.2005 as per the plan A1 went to the field and told his wife to come to the fields. After one hour A2 to A5 also went there. After the deceased went to the fields, A2 to A5 caught hold of her and started beating her. A2 and A3 caught hold of her left and right hands respectively. A4 fisted on the stomach and A5 caught hold of her hair. Then A1 beat her with an iron rod on her head and neck and poured an insecticide poison (Timmit) forcibly in her mouth. Deceased fell down and died on the spot. Later A1 to A5 had concealed the dead body of the deceased under a heap of dry cotton plants and came to the village and spread rumors that the deceased was missing. On the same night they went to the fields and shifted the body of the deceased and thrown it in the nearest forest area. P.Ws.1 and 2 and A1 together searched for the deceased on 19.04.2005, but they could not trace her. On the next day, the dead body of the deceased was found nearby the forest area adjacent to the field of A2. When P.W.1 lodged a complaint to the police under Ex.P1 at 4.15 p.m., P.W.9 Sub-Inspector of police registered a case in crime No.19 of 2005 under Section 304-B r/w 34 IPC and issued Ex.P19- F.I.R. P.W.9 examined P.W.1 in the police station and recorded his statement and handed over the C.D.File to the C.D.P.O. through Circle Inspector of Police for further investigation. P.W.11, the Deputy Superintendent of Police, Utnoor, who took up the investigation, visited the scene of offence. On the requisition given by P.W.9, P.W.8, the Mandal Revenue Officer, conducted inquest and prepared Ex.P12 inquest report. Thereafter the dead body of the deceased was sent for post mortem examination. The photographs of the deceased was taken by P.W.5 under Exs.P2 to P6 with corresponding negatives under Ex.P7 to P11. P.W.10 who conducted post-mortem over the dead body of the deceased on the requisition given by P.W.11, prepared post mortem certificate under Ex.P20. P.W.11 prepared rough sketch under Ex.P23 to the scene of offence and forwarded the viscera and blood stained clothes of the deceased seized at the scene of offence to F.S.L., Hyderabad. P.W.11 arrested the accused and recorded the confessional panchanama of the accused in the presence of P.W.7 and L.W.14 under Exs.P14 to P18-confessional statements. On the basis of the confession of the accused, M.O.1-iron road was seized and after completion of the investigation and after receipt of the relevant reports, P.W.11 filed charge sheet before the Judicial First Class Magistrate at Utnoor. 5. On committal, the learned Sessions Judge, framed charge under Sections 148, 302 r/w 149, 498-A and 201 IPC against A1 to A5 and the same were read over to the accused. A1 to A5 denied the same and claimed to be tried. 6. In order to prove the charge against the accused, prosecution examined P.Ws.1 to 11 and 23 documents were exhibited under Exs.P1 to P23. After closer of the prosecution evidence, the accused was examined under Section 313 of Cr.P.C., for which they denied the incriminating circumstances put to them. The accused did not choose to adduce any evidence on their behalf. 7. The learned Sessions Judge after appreciation of the oral and documentary evidence found that A1 is guilty of the offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life with fine of Rs.5,000/- in default Simple Imprisonment for five months. A1 to A5 were convicted and sentenced to undergo imprisonment for three years for the offences punishable under Sections 148, 201 r/w 149 IPC and also to pay a fine of Rs.2,000/- each and all the sentences imposed against A1 to A5 were directed to run concurrently. 8. Questioning the same, A2 to A5 filed Crl.A.No.111 of 2007 and A1 filed Crl.A.No.163 of 2007. 9. Sri Nazeer Khan, learned counsel for the appellants in both the appeals contended that the entire prosecution case is based on circumstantial evidence. The parents of the deceased, P.Ws.1 and 2, deposed that the deceased was last seen in the company of the accused, while going to the fields in the morning on 19.04.2005 and the dead body was found on 20.04.2005 at 2 p.m. As there is a considerable time gap between the persons last seen together and the proximate time of crime, the circumstance of last seen together theory propounded by the prosecution cannot be taken into account, to fasten the guilt on the accused. The recovery of M.O.1 is on the basis of the confession of A1 while he was in police custody, which actually belongs to one Veerappa, the brother of P.W.1 as per the evidence of P.W.7. Therefore, the mere recovery of M.O.1, cannot be a circumstance to prove the guilt of the accused. Admittedly, the accused also lodged a complaint with the police about the missing of the deceased and P.Ws.1, 2 and the accused together searched for the deceased and in the absence of any suspicious circumstance, the accused cannot be held responsible for the death of the deceased. Further, except the confessional statement of A2 to A5 while they were in custody, there is no other evidence about their involvement of the crime. Moreover, the confessional statement is hit by Section 24 of the Indian Evidence Act, 1872 and therefore, the conviction and sentence imposed against them is liable to be set aside. 10. Learned Public Prosecutor fairly conceded that except the confessional statement against A2 to A5, there is no other worth evidence to convict them for the offence, but sustained the conviction of A1 contending that when P.Ws.1 and 2, who are the father and mother of the deceased and whose house is adjacent to the house of the accused, stated that the accused took the deceased along with him to the fields on 19.04.2005, but he alone has returned, it is for the accused to explain the whereabouts of the deceased. 11. In the light of the above submissions, the point that arises for consideration is, whether the prosecution is able to bring home the guilt of the accused for which they were charged, beyond reasonable doubt? POINT:- 12. P.W.1, father of the deceased, who lodged the complaint with the police under Ex.P1 on 20.04.2005, stated that on 19.04.2005 accused took her daughter to the fields and later informed that she is not seen and on 20.04.2005 at about 2 hours he searched for his daughter and found the dead body in the fields of the accused and he suspected that the accused would have killed his daughter for additional dowry. There are injuries on the body of the deceased. P.Ws.1 and 2 were examined to prove the marriage of the deceased with A1 five months prior to her death and the deceased died four months after the marriage. P.W.1 stated that A1 came to the village from his duty one month prior to her death and started living together happily and just eight days prior to the death, some disputes arose between the deceased and the accused. Accused quarrelled with the daughter that she was not good looking and she has brought less dowry. If he had married another women he could get more dowry to a tune of Rs.3,00,000/-. On hearing the conversation, he told the Carobar of the village i.e., P.W.3 to inform the accused not to harass his daughter and not to demand for dowry. On the next day at about 11 a.m., the accused No.1, who took his daughter along with him to the fields, returned alone. When the accused was questioned about his daughter, he said that she had not accompanied him to the fields and he does not know where she has gone. Then he along with other villagers started searching for the deceased for about two days and on the third day they found the dead body of his daughter in the fields of the accused. On the previous day, though they searched for the dead body, it was not found in the fields. They noticed the bleeding injuries on the left shoulder, on the back of neck, on her mouth and also on her legs. Thereafter, he lodged the complaint under Ex.P1. He admitted in the cross-examination that A4 has been residing in Nandappa village of Chandrapur District Maharashtra for the past 15 years. All the brothers of A1 are separated from the family. A1’s father was owning about 5 acres of land. A1, A2 and their mother are residing in one house. He also admitted that there was a Jatara at a temple in Patnapur village adjacent to their lands and it was performed during the period of the missing of his daughter and that was the last day of Jatara and he also admitted that A2 was on Hanuman Deeksha by wearing saffron colour dress during that period along with other people. He admitted that the accused had also searched for the daughter as she was missing and they searched only for one day and subsequently they fled away. A1 also gave a complaint to the police about the missing of the deceased. Except A1 and A5, all other accused went to Jatara. P.W.2 also stated in the same lines. In the cross-examination she admitted that all the accused 1 to 4 are living separately for the past 15 years. The house of A2 is situated opposite to their house. On the previous night, the accused was staying at the house of A3. The dead body of the deceased was found in the forest nearby the land of A2 and that there was a panchayat conducted by the elders when a report was given by A2 saying that P.W.3 beaten A2. P.W.1 with four others conducted the panchayat. P.W.3, the carobar of the village, stated that after the marriage A1 went to join his duty and after obtaining the leave from his department, he came to the village in the month of March 2005. Four or five days thereafter, there were some disputes between A1 and his wife and he was told that P.Ws.1 and 2 invited A1, but he did not go there. On 19.04.2005 while he was about to go to Utnoor on the way he met P.W.2 and she told him that she heard the conversation of the accused on the previous night in which the accused had talked about performing another marriage to A1. He further deposed that P.W.2 also told him that A1 and A2 and his daughter had gone to the house of A3 on the previous night, which fact has not been stated by P.W.2. On coming to know that the deceased gone away from the house, where some people stated that she went to the fields and others stated that she went to the forest, then the villagers including the accused started searching for Nirmala Bai at all possible places, but she was not found there. On 20.04.2005, some villagers came and told him that the dead body of the deceased was found in the jungle area at a distance 10 yards from the lands of the accused. Prior to that A1 came to him requesting to prepare a report about missing of his wife and accordingly, he prepared a report and gave it to him and he presented the same to the police. On receiving of information, he went to the fields and found the dead body of the deceased. He found injuries on the back of her neck and her left hand was broken and there was injury to her legs and mouth. He stated to the police that A1 only might have killed the deceased. 13. P.W.5, who is the photographer, deposed about taking photographs of the dead body of the deceased and also the scene of offence under Exs.P2 to P6 with corresponding negatives under Exs.P7 to P11. P.W.6, who is the inquest panchayatdar, deposed about the police conducting inquest over the dead body of the deceased and panchananama at the scene of offence and that he signed on Ex.P12 inquest report and Ex.P13 scene of observation report. In the cross-examination, he admitted that P.W.3 is his son-in- law. P.W.7 deposed that he was called by the police to the house of A1 and in his presence, A1 stated that he along with his wife went to the fields and after some time he had beaten his wife with an instrument used for plucking cotton i.e., M.O.1 and killed her. He further stated that after killing his wife, he had kept her under a heap of cotton plants and after the villagers started searching for the dead body of his wife, during night time he along with A4 had taken out the dead body from their fields and kept it in the nearby forest adjacent to his lands and later A1 had shown M.O.1 and the same was recovered. The confessional statement is recorded under Ex.P14. Later he questioned A2 about the involvement of the actual persons. He had stated that all the accused were there. A3 also stated that they have only beaten the deceased and A4 stated that he has shifted the dead body from the fields to the forest and A5 also stated that she was also there along with the accused and Exs.P15 to P18 are the confessional statements of A2 to A5. He admitted in the cross-examination that M.O.1 belong to Veerappa, the brother of P.W.1, but it was taken by A1 from Veerappa about 2 or 3 days ago. He also admitted that father of A1 to A4 passed away and the mother is residing with A2 after the brothers have partitioned the properties about 15 years ago. P.W.8, the Mandal Revenue Officer, who conducted the inquest over the dead body of the deceased, prepared Ex.P12 inquest report. 14. P.W.9 the Sub Inspector of police deposed that on 20.04.2005 at 4.15 p.m. he registered the crime on the basis of the report submitted by P.W.1 and issued Ex.P19-F.I.R. He admitted that A1 came to the police station and gave a report saying that his wife was found missing. But he has not registered any case and did not issue any F.I.R. 15. P.W.10, who conducted the post mortem examination on the dead body of the deceased found the following injuries: 1. Lacerted injury of 5 X 2 inches bone deep. Bone also is fractured. Injury is found on the right parital region of the head. 2. Right shoulder joint fractured. External right shoulder injury anteriorly, around shoulder on the regions rils in the axtilla fratured injury up to right lung. 3. Skull fractured corresponding to wound N.1. Meringies normal, Brain liquification started. 4. Neck structural normal, Mouth opend, tongue protruded half out. 5. Ribs in the right axtile fracture. Plua right axitle tread. 6. Lacertated injury to right lung corresponding injury No.2. Heart empty normal shape liquification started. 7. Stomach extended on section black thick material atticlied to muen memhance of distended black material present. 8. Uteruse normal. He issued Ex.P20 post mortem report and after receipt of Ex.P21 F.S.L.Report, he issued final opinion under Ex.P22 opining that the cause of death is shock and haemorage due to head injury and other injuries. 16. P.W.11, who took over the investigation and conducted the investigation, deposed that on 28.04.2005 he arrested A1 to A5 at their house and recorded their confessional statements in the presence of P.W.7 and L.W.14 under Exs.P14 to P18 and basing upon the confessional statement, he seized M.O.1. He admitted in the cross- examination as per the investigation and as per the confession of A1, the offence was committed in the field of the accused by A1 and later the dead body was shifted to forest area. A1 stated that he has beaten the victim with iron stick. A2 caught hold of the left hand of the victim. A3 caught hold of the right hand of the victim and bent to its backside. A4 fisted the victim in the stomach, A5 caught hold of tuft of hair of the victim and put some timid powder in her mouth in the field. 17. The evidence of P.Ws.11 and 7 clearly discloses that A2 to A5, who were implicated, were charged for the offences on the confessional statements made by A1, while he was under police custody. Therefore, the same is hit by Section 24 of the Indian Evidence Act, 1872 and the same cannot be taken into consideration for convicting the accused/A2 to A5 for the charges levelled against them. Therefore, they are entitled to be acquitted. 18. Coming to the evidence against A1, the only evidence of P.Ws.1 and 2 is that on 19.04.2005 at about 11 a.m., A1 took the deceased along with him to the fields, but he returned alone. He questioned about the daughter, he said that she has not accompanied him to the fields and he does not know her whereabouts and later he searched for the deceased for about two days. But on the third day, they found the dead body which is contrary to the case set up by the prosecution. According to the prosecution, the deceased was found on the next day at 2 p.m. Further, the evidence of P.Ws.1 to 3 also shows that P.Ws.1 and 2 along with the villagers and the accused searched for the deceased. It is a normal conduct for any human being that when the deceased was found missing, and if the parents of the deceased have seen the accused taking the deceased to the fields, but returned alone, normally they will lodge a complaint to the police suspecting the accused is responsible for the missing of the deceased. But whereas the version of the P.W.3 about the statement made by P.W.2 is different. According to him, P.W.2 informed about the conspiracy of A2 to A5 to perform another marriage to A1. P.W.2 also told him that A1, A2 and his daughter has gone to the house of A3 on the previous night, whereas P.W.4 stated that P.Ws.1 and 2 told her that their daughter Raibai was found missing and they along with the villagers and the husband searched for her. According to the evidence of P.W.1, they have searched for two days, but on the third day the deceased dead body was found. Therefore, the time gap between the missing of the deceased and the tracing of the dead body, is nearly more than two days according to P.W.1. In such view of the matter, when P.Ws.1 and 2 have not lodged any complaint suspecting the accused responsible for the missing, their evidence that the accused took the deceased along with him to the fields is unbelievable and cannot be taken into consideration to convict the accused for the offence under Section 302 IPC. 19. In the result, both the criminal appeals are allowed. The conviction and sentence recorded against the appellants (A1 to A5) for the offences punishable under Sections 148 and 201 r/w 149 IPC and the conviction and sentence recorded against appellant (A1) for the offence punishable under Section 302 of IPC by the II Additional Sessions Judge, (FTC), Adilabad in S.C.No.319 of 2006 dated 23.01.2007, are set side and they are set at liberty forthwith, if they are not required in any other case. The fine amount, if any, paid by the appellants shall be returned to them forthwith. _______________ A.GOPAL REDDY, J ___________ K.C.BHANU, J 14th June 2010 lmv