THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No.1260 of 2007 Date of judgment: 27-07-2011 Between: Syed Valli Ahmad ..Appellant and State of A.P. rep. by Public Prosecutor, High Court of A.P. ..Respondent The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No.1260 of 2007 Judgment: (Per Honourable Sri Justice A.Gopal Reddy) 1. Syed Vali Ahmad—sole accused was tried for an offence under Sections 364, 302 and 201 IPC for abducting Shaik Karim Basha and murdering him on 08-09-2005 and then tried to screen the said offence in S.C.No.253 of 2006 on the file of VIII Additional District & Sessions Judge (FTC), Vijayawada. He was found guilty for the offence under Sections 302 and 364 IPC and sentenced to suffer life imprisonment and three years rigorous imprisonment respectively and to pay fine of Rs.200/- on each count, in default to suffer simple imprisonment for one month. Both the sentences are ordered to be run concurrently by a judgment dated 09-07-2007. 2. The prosecution story as unfolded during the course of trial may, briefly, be stated as under: Shaik Subhani—P.W.1 is the father of Shaik Karim Pasha (hereinafter referred to as “the deceased”). P.W.3 is the mother of the deceased. Accused is cousin brother of P.W.1. The deceased was studying 8th class in Krishnaveni Talent School, Patamata, Vijayawada. The accused, who is not financially well, hatched a plan to kidnap the deceased and demand for ransom from P.W.1. In that connection, he gathered information about the movements of the deceased from M.Kishore Kumar—P.W.4, who is studying in the same school. Uma Maheshwar Rao—P.W.2 is a friend of the accused working as driver with G.Goverdhana Rao—P.W.6, who supplies Qualis car on hire. On 28-08-2005, accused contacted P.W.6 for supply of Qualis car; later changed the programme and contacted P.W.6 for supply of car on 08-09-2005, as he wants to go to Eluru on that date. On 08-09-2005, morning he went to the house of P.W.2 to enquire about the vehicle. Then, P.W.2 promises that he will bring the car within half an hour and accordingly he took the car to the house of the accused at 7 A.M., where the accused gave a cup of milk by mixing sleeping pills and also boost to P.W.2 with an intention to make him fell asleep in order to carry out his plan. P.W.2 could not drive the car due to sedation. Then the accused took the steering of the vehicle and reached NTR Statute centre. When the deceased boy gets down from the bus, the accused asked the boy to board the car with an assurance to drop him at the school. The deceased boarded the car. The accused drove the car through Khaja toll gate and went to Chilakaluripeta where he purchased two bottles of liquor from the Bar and Restaurant of P.W.8 and eatables from the Buddy shop of P.W.14 and thereafter, he came to Vijayawada and filled the diesel worth Rs.500/- from the petrol bunk of P.W.9 and proceeded to Rajahmundry. In the meanwhile, P.W.2 woke up, felt hungry and told the same to the accused; then the accused stopped the vehicle on the roadside hotel, where P.W.2 ate chapatti and vomited, which was cleaned by P.W.20—hotel cleaner. When the deceased boy tried to shout, accused convinced him not to shout, but the deceased boy did not oblige; then the accused hit the boy with iron jockey on his head, then the boy felt unconscious. Thereafter, the accused purchased two gunny bags from the shop of P.W.10. The accused threatened P.W.2 also with dire consequences, so he (P.W.2) became silent. The accused stopped the car in front of electrical shop of P.W.13 and purchased adhesive tape, covered the face of the deceased boy with tape, as a result of which the deceased boy died. Then, the accused dumped the body of the deceased boy into the gunny bag; stopped the car at Kovvur and throw the gunny bag containing the dead body of the deceased into the river. Thereafter, he made a call to P.W.1 seeking ransom; on reaching Penamaluru he parked the vehicle in front of the house of P.W.2 and went to his house. On 09-09-2005 the accused made a phone call to the house of P.W.1 for demanding ransom; when P.W.3 —mother of the deceased lifted the phone, he cut the line. Later, he paid Rs.1,150/- to P.W.6 towards car rent. P.W.2 himself admitted in hospital due to ill health. P.W.1 lodged a report with Patamata police station for missing of his son. On which basis a case in Cr.No.295/2005 was registered under the head “boy missing”. Thereafter, P.W.2 went to the police station on 15-09-2005 and lodged a report—Ex.P2. Basing on Ex.P2 —report, the S.I. of police altered section of law from caption “boy missing” to Sections 364, 302 and 201 IPC and issued Ex.P10— alteration memo and Ex.P11—altered FIR forwarded the copies to all concerned. B.Siva Ramakrishna—P.W.24, who took up investigation; examined P.W.2; visited the scene of offence at NTR Statute; prepared rough sketch—Ex.P12; surprised the house of the accused along with mediators; arrested the accused and recorded his confessional statement. On the confession, he seized M.Os.1 and 2—pant and shirt of the accused at his house and he also seized jockey rod—M.O.3, red colour nylon rope—M.O.4; blood stained mat—M.O.5 and sent the material objects to RFSL, Vijayawada for DNA and chemical examination. After receipt of relevant reports including DNA test laid the charge sheet for the offence referred to above. 3. On committal, the learned Sessions Judge framed three charges against the accused for the offences punishable under Sections 364, 302 and 201 and explained to him in Telugu, to which he pleaded not guilty and claimed to be tried. 4. To bring home the guilt of the accused the prosecution examined as many as 24 witnesses—P.Ws.1 to 24 got marked Exs.P1 to P17 and exhibited M.Os.1 to 5. 5. After closure of the prosecution evidence when the accused was examined under Section 313 Cr.P.C. about the incriminating circumstances and evidence made against him, he denied the same, but no evidence has been let in except marking Ex.D1—portion of 164 Cr.P.C. statement of P.W.2. 6. The learned Sessions Judge on appreciation of oral and documentary evidence found the accused guilty of the charge and sentenced him to imprisonment as aforementioned. 7. The accused was provided legal aid in preferring the appeal by High Court Legal Services Committee. 8. Sri D.Parameshwar Rao, learned counsel for the appellant contends that there is no legally acceptable evidence that the deceased boy travelled in the car of the deceased or the boy was taken by the accused on 08-09-2005. The prosecution miserably failed to prove the motive nor able to establish that the accused demanded any amount from P.W.1. P.W.5 witnessing the deceased being taken in the car by the accused belongs to P.W.6 is also doubtful. Even according to P.W.2, he accompanied the accused in a car on 08-09- 2005 and incident as such was happened on 09-09-2005, where as Ex.P2—report was lodged with the police on 15-09-2005. Therefore, there is delay of six days in lodging the report, which has not been properly explained by the prosecution. P.W.5 only speaks about accused taking the deceased child. It is highly unbelievable that obtaining material objects on 15-10-2005 and sending the same to 13-10-2005. Therefore, the entire case is foisted against the accused. 9. We have heard the learned counsel representing the Public Prosecutor and gone through the entire record. 10. The entire case of the prosecution rests upon circumstantial evidence, as there are no direct witnesses to the incident nor the body was recovered. Though corpus delicti need not be proved, conviction can be recorded in the absence of dead body. (See RAMJEE RAI & Ors. v. STATE OF BIHAR 2006 (8) Supreme 75). It is now fairly well settled that conviction can be based solely on circumstantial evidence, but it should be tested on the touchstone of law relating to circumstantial evidence and such evidence must satisfy the four tests laid down by the Supreme Court in Padala Veera Reddy vs. State of A.P.[1], which are as follows: "(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) The circumstances, taken cumulatively, should form a chain 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; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 11. In the light of settled principles, we have to scrutinize the prosecution evidence carefully. 12. P.W.1, father of the deceased gave a report on 09-09-2005 stating that on 08-09-2005 his deceased son—Karim Basha, aged about 13 years went to the school as usual but did not return back; on enquiry with M.Kishore Kumar—P.W.4, friend of the deceased, he came to know that while going to school, the deceased got down from the bus along with him (P.W.4) near NTR State in the morning but did not attend the school. On 09-09-2005 when again he enquired in the school, the Head Master informed that the deceased did not attend the school after going through the attendance register; then he presented the report. On which basis, A.Kotinagulu, Assistant Sub-Inspector of Police— P.W.22 registered the crime under the head “boy missing”. He also stated that accused is the son of his mother’s sister. The accused house is at a distance of 100 yards from his house. He stated in the cross-examination that there are no disputes between him and the accused. 13. P.W.2, who is an important witness to the prosecution case, stated that he is the driver of the vehicle owned by Goverdhan Rao— P.W.6; accused is also a car driver. On 21-08-2005, the accused asked him to arrange a car on 28-08-2005 but in the meantime, he went to Hyderabad. The accused telephoned to him stating that he did not want car on 28- 08-2005 and required on 08-09-2005. On 07-09-2005, he kept Qualis car in his house in order to take the same to the accused on 08-09- 2005. In the early morning of 08-09-2005 the accused came to his house; then he told that he would bring the vehicle before 7 A.M. Accordingly, he took the vehicle to the house of the accused, where the accused offered him a glass of milk mixed with boost; taking part of the same, he tasted it as bitter; when he quested, the accused informed that he mixed boost. While he was driving he felt drowsiness and reeling sensation. When he questioned the accused about the same, the accused told that due to lack of sleep he might be reeling sensation. Immediately, he stopped the car at Penamaluru center. Then, the accused drove the car and stopped near NTR Statute. In the meantime, city bus No.10 came; he saw two boys got down from the said bus wearing uniform—cement colour shirt and blue colour pant. The accused called the deceased boy by name Karim; then the boy came to the accused; the other boy went to the school; the accused asked the deceased to get into the car, for which first the boy refused but at the request of the accused the boy boarded the car. The deceased boy sat in front seat and himself sat in the back seat. When the car was proceeding without stopping at the school, the deceased boy asked why the car was not stopped; then the accused told that he would purchase a pen fro him. When he questioned why he is going to Guntur side, the accused told that his relatives would get into the car on that route. He became drowsy and woke up near Gundugolanu after crossing Eluru. When he informed the accused that he was hungry, the accused stopped the car at Gundugolanu Centre, where they have taken Tiffin. When he returned, the deceased was on the backside seat by tiding legs and hands. Again he felt drowsiness. When he woke up he found the car was near Rajahmundry; he heard the cries of the boy; accused came back door of the car and beat the boy with jockey on his head, then the boy stopped crying. The accused locked the door and took him to a hotel. On taking Tiffin he vomited at hotel, the same was cleaned by server. Then the accused purchased two gunny bags and kept them back side. The accused informed him that the deceased might have died and wanted to keep the body in gunny bag and both of them kept the dead body of the deceased boy in the gunny bag. After some distance the accused stopped the car and went to the shop and purchased blue colour tape and fixed the tape from the head to bottom. When he expressed fear, the accused revealed that he mixed sleeping tables in the milk and also threatened him that he would kill if he reveals to any body. The accused stopped the car in the middle of the bridge opened the back door lifted the gunny bag contained the body of the deceased and threw it into the river Godavari and informed that he threw the gunny bag in to the river and threatened not to reveal. Thereafter the accused stopped the car at Dommeru Centre leaving him at the car in order to make phone call. He again went to sleep and woke up when the car was stopped in his house. In the morning the inmates woke up him. He found bloodstains on the mat; he took the vehicle to the house of P.W.6. Later, he got admitted in Government Hospital. He did not disclose the said incident to P.W.6 and he was in the hospital for two days. He went to Kasumuru Dargha after discharge from the hospital. After return to house, his father told him that Patamata Police came for him he went to police station. In the cross-examination he admitted there was no blood on the seats; vehicles were plying on the bride on Kovvur, he stated before the police that he found a male person and female person in the car when he woke up at Gundugolanu. Those two persons have not enquired him about the keeping the deceased boy tied in the car. He heard the cries of the deceased boy when he reached Rajahmundry. The deceased called the accused as ‘Babai’ (junior paternal uncle). He did not state before the police that accused bet him on his wrist. He do not remember whether he stated before the police that accused stopped the car at the outskirts of Rajahmundry and hit the deceased with iron jockey rod but stated before the Magistrate accused after cleaning the blood stains with the a cloth in the car throw the same in river Godavari. He stated before the Magistrate that he also cleaned the bloodstains. 14. P.W.3, who is the mother of the deceased and wife of P.W.1, stated that when P.W.1 went to the house of P.W.4 to enquire about their son, a phone call was received and that person enquired about P.W.1; when she wanted his identity, he cut the phone. On the next day, a stranger enquired about P.W.1 on phone. He was the same person who phoned earlier. 15. P.W.4 is the student who accompanied the deceased in the bus on the date of incident i.e. 08-09-2005. The said boy stated that after getting down from the bus, he went ahead of the deceased to meet his friend. The deceased was coming far behind him; then he went to the school; on return to house P.W.1, father of the deceased, enquired about the deceased. He identified the accused, who is residing in front of his house and enquired him four or five times about timings to go to the school and also return timings. 16. P.W.5 who is running hotel in the High School Centre stated that on 08-09-2005 when he started at Penamaluru to go to Vijayawada to purchase provisions, P.W.4 and the deceased boarded the bus and got down at NTR Statue Centre. In the meantime, accused came in a car. He saw the while deceased was taken by the accused in the car bearing No.AP16Y 2175. The deceased boy is his friend’s son. 17. P.W.6, who is the owner of the vehicle, stated that accused is a friend of P.W.2, who informed him that accused require a car for hire on 08-09-2005; he told P.W.2 call him (accused) on phone. On 07- 09-2005, the accused telephoned to him and requested the Qualis car for hire on 08-09-2005, as he wants to go to Eluru. He told the accused the rent for the Qualis car is Rs.1200/- per day. Accused promised that he would pay hire charges after return to Vijayawada. Then he handed over the vehicle to P.W.2. On 09-09-2005, P.W.2 brought the vehicle to his house; on seeing P.W.2 he concluded the condition of P.W.2 was not good; when enquired about the reason, P.W.2 informed that accused gave a glass of milk stating boost was mixed in the milk. P.W.2 vomited before him. As the hire charges are not paid by the accused, himself and P.W.2 went to the house of the accused and demanded to pay the hire charges and also questioned about the condition of P.W.2; for which accused gave evasive reply. Then he went to Penamaluru police station along with P.W.2 on Qualis car and gave oral report against the accused and then police sent P.W.2 to the hospital. 18. P.W.7 speaks of passing the vehicle in question through toll gate at 10.55 A.M. on 08-09-2005. He admitted before coming to the Court he got the statement refreshed from the police. He stated thousands of vehicles pass through the tole gate, so it is not possible to remember the vehicle number that passed through the tole gate about two years ago on a particular day. 19. P.W.8 who is a cashier in Balaji Bar and Restaurant stated that Qualis driver came to the bar and purchased half bottle Menshion house Brandy on 08-09-2005. He admitted that after the incident he is seeing the accused for the first time in the court, whom he identified as driver of the vehicle. 20. P.W.9 who is a cashier of petrol bunk at Benz Circle, Vijayawada stated that Qualis car bearing No.AP16Y 2175 came and filled oil for Rs.500/-. The accused was the person who gave money for oil. In the cross-examination he stated that he has no previous acquaintance with the accused and he saw the accused prior to identification in Court 5 or 6 days after the incident when police brought him to the petrol bunk. 21. P.W.10 who is gunny bags business stated that on 08-09- 2005 evening two persons came to his shop and purchased two gunny bags. He identified the accused who paid the price of Rs.20/- for two gunny bags. He admitted that there was no test identification conducted by the police after the incident. He has no acquaintance with the accused prior to the said date. He was examined by The police examined him on 15-09-2005 at 6 P.M. 22. P.W.12 who is running STD booth stated that he could not identify the person who attended the STD booth on 08-09-2005. P.W.13 who is running electrical shop on the main road of Rajahmundry from where insulation tape said to have been purchased by the accused also stated that he couldn’t identify the person who purchased tape from his shop. 23. Similarly, P.W.14, who is running cool drink shop from whom two plastic glasses and eatables were purchased by the accused, stated that he could not identify the purchaser. 24. P.W.15 who is working as cleaner in a hotel stated that a person got down from white car—AP16Y 2175 and asked one plate idly and ate. He stated that the person who collected idly plate is the accused. He admitted that he has no previous acquaintance with the accused prior to 08-09-2005; generally he could not remember the time and identity of each customer come to the hostel. 25. P.W.16 who is the Medical Shop owner stated that he knows accused who used to purchase Alprazolam 25 mg. daily two tablets in the month of August, 2005 and might have purchased 20 tablets on the ground that they were required for her mother. 26. P.W.17 is the panch witness to the recovery Panchanama. M.O.1 is the pant and M.O.5 is the shirt of the accused, which were recovered from the house of the accused under Ex.P5—mediator name. He stated that he is the scribe of Ex.P5; himself and another signed on the said mediatornama. M.O.3 is the jockey rod, M.O.4—red colour nylon rope. Bloodstains found inside the vehicle. The samples of which were taken including vomiting substance for analysis purpose. He saw the bloodstain marks and vomiting substance by standing outside the car. He do not know when clue team police came to Vennala travels. Whereas P.W.24 stated he secured the bloodstains found inside the Qualis car with the help of Clue Team. 27. P.W.18, the doctor who examined P.W.2 and issued Ex.P7 — wound certificate on 12-09-2005 stated that he examined P.W.2 on 08-09-2005 but not as mentioned in certificate that 09-09-2005 at 11.15 P.M., and stomach contents were preserved for chemical analysis and no poisonous contents found as per Ex.P7. On 09-09- 2005, P.W.2 was first seen by him but denied correction of certificate from 08-09-2005 to 09-09-2005. 28. The Junior Civil Judge who recorded the statement of P.W.2 under Section 164 Cr.P.C. marked as Ex.P.3 was examined as P.W.19. In the said statement P.W.2 stated that when he took his car to office, the owner—P.W.6 asked why he was dull whether he consumed alcohol. On seeing the car, his owner—P.W.6 asked why the car was having such damage, then he told him the entire matter except the fact of killing the boy by the accused; P.W.6 brought him to the house of accused, took him and handed over to the police. P.W.6 dropped him in the house and went away in the car. Thereafter, P.W.2 admitted in the hospital and he was in the hospital for two days. After discharge from the hospital, he left for Tirupathi to discharge his vow and after return back to his house, his father told that police are searching for him and advised to go to police station and met them. Then, he went to the police station, prepared the report and gave it to the police. 29. P.W.22 is the Assistant Sub-Inspector of Police, Patama police station who registered the crime under the head “boy missing”. 30. P.W.23, Sub-Inspector of Police, who took up investigation, stated that on 15-09-2005 P.W.2 came to the police station and gave a report. Then he altered the section of law from caption “boy missing” to Sections 364, 302 and 201 IPC and issued altered FIR—Ex.P11 along with alteration Memo—Ex.P10 and issued the copies to all concerned. He stated that Ex.P9-FIR was sent along with alteration memo and denied that he suppressed one FIR and in that place Ex.P11 FIR was substituted. 31. P.W.24 is the Inspector of Police, Patamata Police Station who investigated into the crime. He deposed that on receiving altered FIR—Ex.P11 he seized M.Os.1 and 2 and sent them to RFSL, Vijayawada. He admitted that he did not take steps for conducting test identification of accused