THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.955 OF 2007 JUDGMENT: (Per Hon'ble Sri Justice N.R.L. Nageswara Rao) The accused in Sessions Case No.13 of 2006 on the file of III Additional District and Sessions Judge (Fast Track Court), Nizamabad, who were convicted for the offence punishable under Section 302 read with 34 of the Indian Penal Code, 1860 (for short, "I.P.C.") and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of six months each, are the appellants herein. 2. The case of the prosecution is that the first deceased, Padma (D1), is the daughter of PW.3 and sister of PW.2. The second deceased, Shirisha (D2), is the daughter of D1. PW.2 is a goldsmith and their family resides at Padkal Village. D1 was given in marriage to one Tirupathi of Boregaon Village and as there was failure of relationship between them, D1 was staying with PWs.2 and 3 since some time. Prior to 29.09.2005, A1 came to Padkal and wanted to marry D1. The parents of D1 asked him to divorce his first wife and then only they will give D1 in marriage to him. Thereafter, A1 eloped D1 and married her. For one year they have not visited the village Padkal. Subsequently, A1 started ill-treating D1 and eight days prior to the incident, D1 came to the village Padkal. On 24.09.2005, A1 came to Padkal village and asked PWs.2 and 3 to send his wife along with him. Then they insisted him to bring some elder along with him. Accordingly, on 29.09.2005, A1 brought A2 and both of them gave assurance that the deceased persons will be taken care of and A2 also gave a personal undertaking. Thereafter, both the deceased persons were sent to Laxmapoor village along with A1 and A2, where they resided. On the morning of 30.09.2005, A2 telephoned to PW.7 and informed about the death of the deceased persons. Then PW.7 in turn informed PW.2 and both of them went to Laxmapoor village and found the dead bodies of the deceased persons. The family members of the deceased persons also came from Padkal Village and thereafter, PW.2 lodged a complaint, which was registered as a case in Crime No.61 of 2005 under Section 302 read with 34 I.P.C. During the course of investigation, statements of the witnesses were recorded, inquest was held on the dead body of the deceased, panchanama of the scene was conducted and the dead body of the deceased was sent to post- mortem examination. On 01.10.2005, the accused were arrested at the house of A2 and their confessional statements were recorded. It was disclosed that A1 suspected the character of D1 and the investigation established that both the accused killed the deceased persons and therefore, they are liable for punishment under Section 302 read with 34 I.P.C. The case was taken on file as P.R.C.No.64 of 2005 by the Additional Judicial Magistrate of First Class, Armoor, and committed the same to the Court of Sessions, Nizamabad, and made over to the Court of III Additional District and Sessions Judge (Fast Track Court), Nizamabad. 3. After the appearance of the accused before the learned Sessions Judge, a charge under Section 302 read with 34 I.P.C. was framed, read over and explained to them in Telugu and they pleaded not guilty. 4. On behalf of the prosecution PWs.1 to 15 were examined and Exs.P1 to P16 were got marked besides case property M.O.1. 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. 6. The learned Sessions Judge, after appreciating the evidence on record, found the accused guilty of the offence for which they were charged and accordingly, convicted and sentenced them. Aggrieved by the same, the present Criminal Appeal is filed. 7. Since the accused have no capacity to defend themselves, Sri E. Venkata Reddy is appointed as legal aid counsel. Heard the legal aid counsel for the appellants and also the learned Public Prosecutor representing the state. 8. The points that arise for consideration are: 1) Whether the prosecution has proved that both the accused have committed the murder of the deceased persons? 2) Whether the conviction and sentence recorded by the learned Sessions Judge is legal and sustainable? 9. In support of the prosecution case, PW.1, who is said to be a local RMP doctor, is said to have gone to the house of A1 on a call given by the brother of A1 and found both the deceased persons not responding and found them dead. PW.2 is the brother, PW.3 is the mother and PW.4 is also the brother of D1. Their evidence goes to show that D1 was staying with them after the differences with her first husband and subsequently, she started living with A1 and a day prior to the incident, both the accused persons came to Padkal Village and the deceased persons were sent along with them and on the next day morning, they came to know about the death of the deceased persons in the house of A1. In the cross-examination, they were questioned about the divorce between D1 and her first husband and the absence of a legal marriage between A1 and D1. It was also suggested to them that A1 and A2 did not came on 29.09.2005 and the deceased persons were not taken away by the accused. The evidence of PW.5 is that he is the native of Laxmapoor and he knows both the accused and on the night, prior to noticing of the dead bodies, at about 09:00 PM, he saw both the accused by the side of his cattle shed and on the next day morning, he came to know about the death of the deceased persons. At that time, when he saw the accused, they were returning after consuming alcohol. The evidence of PW.6 is that A1 and A2 came at about 08:00 PM and took toddy and on the next day morning, he came to know about the death of the deceased persons and he went and saw the dead bodies in the house of A1. PW.7 is the native of Padkal Village and according to him, he received information from A2, at about 06:00 AM, about the death of the deceased persons and he informed the same to PW.2 and all of them went to the Village and PW.2 presented a report, where he was also examined by the police. He denied the suggestion that no telephone call was received by him and that he did not inform PW.2 about the death of the deceased persons. PW.8 is an MPTC member and according to her, the accused persons came to her house and informed that they have killed the wife and the daughter of A1 by placing a pillow on their faces and one of them caught hold of their legs and it was during the night time they came and sought her help. She informed them that on the next day the news will be spread in the village and she cannot do anything. She claims to have been examined by the police. The evidence of PW.9 is about her presence at the time of conducting inquest over the dead body of the deceased persons and pachanama of the scene in the house of A1. He claimed to have signed on the reports. The evidence of PW.10 is also about his presence at the time of conducting inquest over the dead body of the deceased persons and panchanama of the scene and also signing on them. According to him, there was swelling on the throat of the deceased and symptoms of squeezing. The evidence of PW.11 is about the confession given by the accused and production and seizure of MO.1 in pursuance of confession of A1. The evidence of PW.12 is also to the same effect. The evidence of PW.13 is about conducting post-mortem examination over the dead body of the deceased persons and finding the following injuries: “D1: 1. Contusion on right side upper part of the neck 1” x ½”. 2. Contusion on left upper front of neck 2” x 1”. 3. Deep nail cuts 4 in No. on left side below the jaw bone measuring ½”. 4. Contusion on left medical side of left collar bone. 5. Contusion on the forehead. D2: 1. Contusion on the upper lip. 2. Contusion on the left side of nostril. 3. Contusion on the right side front of the neck. 4. Contusion on the left side of the neck.” and issued the post-mortem examination certificates Exs.P7 and P8, opining that the death of the deceased persons was due to asphyxia as a result of strangulation and suffocation. The evidence of PWs.14 and 15 is about the investigation done by them in this case. 10. Learned counsel for the appellants contends that there is no proof of relationship between the accused and the deceased persons. There is no proof that the accused have taken away the deceased persons to the house of A1 and that the deceased persons died in the house of A1. He further contends that there is no proof that the death of the deceased persons was due to smothering and the evidence of the prosecution witnesses is conflicting. It is also contended by him that in the absence of conclusive circumstances, no conviction can be based on the circumstantial evidence. 11. On the other hand, learned Public Prosecutor supported the conviction against the appellants depending on the circumstantial evidence and also the positive fact that the deceased persons died in the house of A1 after they were taken away by the accused. 12. Evidently, in this case, there is no direct evidence about the commission of the offence. It is to be noted that for all the circumstances are appearing against the accused. It is a case of total denial and there is no explanation of the accused for any of the circumstances pointing at him. The fact that D1 and A1 lived together is proved from the evidence of PWs.2, 3 and 4, who are the nearest relatives of D1. If really there is no relationship of any nature between D1 and A1, there is no reason for them to speak against the accused. Merely because that there was no valid divorce between D1 and her first husband, is no ground to discredit the relationship between A1 and D1. Furthermore, when once the relationship between A1 and D1 is believed, then the other circumstances, which goes to show are that on 29.09.2005 both the accused came and took away the deceased persons from the house of PW.2 at Padkal. The deceased persons died at Laxmapoor village is not in dispute. If really, the D1 has no interest at Laxmapoor village, which is the village of A1, there is no reason for her to go all the way from her parents place and reach Laxmapoor and die in the house, which is said to be belonging to A1. The evidence on record clearly goes to show that the accused have taken the deceased persons on the evening of 29.09.2005 on the pretext of looking after them properly. This is a strong circumstance against the accused, as against their plea of total denial. We have no hesitation in holding the prosecution case that on 29.09.2005, the deceased persons were taken away by the accused. It is proved without any ambiguity and beyond all reasonable doubt. 13. The next question is whether the deceased persons died in the house of A1 or in the house of somebody else. The contention of the learned counsel for the appellants is that the police has not seized the records with regard to the ownership of the house, where the deceased persons died and in the absence of such evidence, it cannot be presumed that the deceased died in the house of A1. So far as this contention is concerned, we do not find any reason to accept the contention of the learned counsel for the appellants for the reason that because the Gram Panchayat records are not seized, it cannot be presumed that A1 was not staying in the house where the deceased persons died. 14. So far as occupation of the house, which is the place of incident, and the living is concerned, the villagers are the best persons to speak about the fact. In fact, PW.1, who is a resident doctor, specifically stated that on the call given by the brother of A1, he has gone to the house of A1 and found the deceased persons dead. Added to that, PW.6, who is also a resident of Laxmapoor village and from whom the toddy was purchased by the accused, clearly stated that the dead bodies of the deceased persons were found in the house of A1. So also, PW.9, who is a beedi roller and native of Laxmapoor village, clearly stated that the dead bodies of the deceased persons were found in the house of A1. Panchanama was conducted at the house of A1, which is the place of incident. In view of the evidence of so many villagers belonging to Laxmapoor village, identifying the place where the dead bodies of the deceased persons are found is the house of A1, denial of the same by A1 is therefore, a falsity and there is no reason to disbelieve the evidence of all the above persons. Added to that, evidence of PWs.9 and 10 supporting the inquest reports and panchanama of the scene, also establishes that the scene of offence as the house of A1. Furthermore, in pursuance of the confession, the pillow used in the commission of offence is said to have been seized from the house of A1 and it clearly goes to show that the house is in occupation of A1. 15. Therefore, for the above reasons, the evidence of the villagers about the occupation of the house by A1, where the offence is said to have been committed, is beyond doubt. The fact remains that on 29.09.2005, the deceased persons were brought by A1 and evidently, he would have kept them in his house only and not elsewhere. It is not the plea of the accused that on the night of 29.09.2005, they were not in the village. On the other hand, both the accused have taken drinks on the same day night, as can be seen from the evidence of PW.6, and also were noticed on the same day night at about 09:00 PM by PW.5 near his house. Therefore, all these circumstance clearly goes to show that both the accused were in the village on the date of incident and the necessary irresistible conclusion that can be drawn is that A1 lived in the house with the deceased persons on the date of incident and by the next day morning, deceased persons were found dead. There is no other scope for commission of offence by outsiders and the explanation given by the accused is a falsity. 16. Learned counsel for the appellants contends that from the evidence of PW.15, there is a discrepancy with regard to the length of the pillow. It is not correct since in the initial stage, he stated that the pillow is of 6” length, whereas after referring to Ex.P6, he has corrected himself and specifically stated as per the measurements mentioned in Ex.P6. Therefore, from the circumstances and the positive evidence available on record, the deceased persons were brought to the house of A1 from Padkal village and they were found dead within few hours after reaching Laxmapoor village in the house of A1. The presence of A1 on the date of incident is also beyond doubt. 17. The question before the Court is whether the complicity of A2 is said to have been established or not. Evidently, A2 only came as an elder and on the date of incident, he only accompanied A1 to bring the deceased persons to Laxmapoor village and probably due to the friendship, he might have shared the toddy along with A1 at about 09:30 PM. But, that itself is not a circumstance to hold that he has also participated in the commission of the offence since there is no other evidence. The confession said to have been given by him is also a very weak piece of evidence and there is no recovery in pursuance of his confession, except recovery at the confession of A1. Furthermore, the conduct of A2 in allegedly informing over phone to PW.7 in the early hours about the death of the deceased persons shows that he has no complicity in the commission of offence. Therefore, we are of the view that A2 is entitled for reasonable benefit of doubt, since there is no proof that he stayed in the house of A1 on that day night. Added to the circumstances and the false pleas taken by the accused, the independent evidence of PW.8, who is a lady and also MPTC member, according to whom, both the accused have come to her and the commission of offence was explained by A1, cannot be brushed aside. Evidently, in villages MPTC member is a responsible person and when the matter is known in the village, the person to be approached first for any help is such a person in office and therefore, there is nothing strange in her evidence when she says that after the incident the accused came and gave a confession about the incident. Though the confession said to have been given to her also refers to A2, since there is no independent corroboration on the part of A2, such part of the statement can be ignored. So far as A1 is concerned, the extra-judicial confession given to her can be relied upon, since she has no interest at all in implicating A1 and for speaking falsehood against him even remotely. 18. Learned counsel for the appellants also contends that the police have shown the arrest of accused on 01.10.2005, whereas the evidence on record shows on 30.09.2005 and that when PW.2 and others went to Laxmapoor village, A1 was tied to a tree and therefore, it falsifies the recovery. Whatever may be the date of arrest or other particulars shown by the Investigating Officer, the fact remains that at the time of incident, A1 alone was in the house and the crime could not have been committed by anybody else. There is absolutely no reason to draw any inference that somebody else has killed the deceased persons in the house of A1. 19. Therefore, for all the above reasons, we find that the conviction and sentence recorded against A1 is legal and sustainable and does not call for any interference. So far as A2 is concerned, he is entitled for reasonable benefit of doubt. 20. In the result, the conviction and sentence recorded in Judgment, dated 22.12.2006, in Sessions Case No.13 of 2006, on the file of the III Additional District and Sessions Judge (Fast Track Court), Nizamabad, against appellant No.1/A1 for the charge under Section 302 read with 34 I.P.C., are confirmed, but the conviction and sentence imposed against appellant No.2/A2, are set aside. Appellant No.2/A2 is found not guilty of the charge under Section 302 read with 34 I.P.C. and accordingly, he is acquitted of the said charge. Appellant No.2/A2 shall be released forthwith, if he is not required to be detained in any other crime. The fine amount, if any, paid by appellant No.2/A2 shall be refunded to him. 21. Accordingly, the Criminal Appeal is partly allowed, to the extent indicated above. _______________ K.C.BHANU, J ____________________________ N.R.L.NAGESWARA RAO, J January 18, 2011 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE EIGHTEENTH DAY OF JANUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.955 OF 2007 Between: Medicherla Chinna Gangadhar and another ..... APPELLANTS AND State of Andhra Pradesh ....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.955 OF 2007 January 18, 2011