HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2272 of 2004 AND CRIMINAL APPEAL No.2541 of 2004 AND CRIMINAL RC. No.2069 of 2004 CRIMINAL APPEAL No.2272 of 2004 Between: Bandaru Satyanarayana Murthy @ Nani --- Appellant And State of A.P., Rep. By its Public Prosecutor, --- Respondent. CRIMINAL APPEAL No.2541 of 2004 Between: N.Satyanarayana @ Sathi --- Appellant And State of A.P., Rep. By its Public Prosecutor, --- Respondent. CRIMINAL R.C. No.2069 of 2004 Between: J.Pulla Rao --- Petitioner/De facto Complainan And 1. Bandaru Satyanarayana Murthy & 2 others --- Respondents THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARA CRIMINAL APPEAL No.2272 of 2004 AND CRIMINAL APPEAL No.2541 of 2004 AND CRIMINAL R.C. No.2069 of 2004 JUDGMENT: A1 who is the appellant in Criminal Appeal No.2272 of 2004 and A2 who is the appellant in Criminal Appeal No.2541 of 2004 were convicted by the lower Court of the offence under Section 411 IPC and were sentenced to rigorous imprisonment for two years and pay fine of Rs.250/- each. Questioning their convictions and sentences, A1 and A2 filed the above two appeals. 2. A1 and A2 were charged by the lower Court with offences under Sections 302/34 and 380/34 IPC. After trial, while the lower Court finding them not guilty of the said charges, convicted them alternatively of the offence under Section 411 IPC. Questioning acquittal of A1 and A2 under the main charges, the de facto complainant-PW.1 filed Criminal Revision case No.2069 of 2004. The state did not file any appeal questioning the acquittal of A1 and A2 of the main charges. 3. The deceased J. Surya Kumari was wife of PW1. On 09.01.2003 at about 11.00 a.m. when PWs.2 and 6 who are workers of PW1 went to PW1’s house, they found his house bolted from outside and when they opened the outside bolt and entered into the house, they found dead body of the deceased lying on the floor inside the house. It was informed to PW1 by phone. In the meanwhile, PW2 who is daughter of the deceased and other relations gathered. The body was taken to Image Hospitals, Ameerpet, Hyderabad, from PW1’s house, and in the hospital, the Doctors confirmed her death. After returning to the house, PW1 gave Ex.P1-report to the police, on the basis of which the police issued Ex.P13-FIR and investigated into the case, and filed charge sheet against A1 and A2. After trial, the lower Court found A1 and A2 guilty under Section 411 IPC only. 4. As per the prosecution case and as per contents of Ex.P1-report, MOs.1 and 2 were missing on the dead body of the deceased. MO.1 is gold chain with Mangalasutram and MO.2 consists of a pair of gold bangles. It is the prosecution case that MOs.1 to 3 were recovered by the police from possession of A1 after his arrest on 18.01.2003 and that MOs.4 to 17 were seized from possession of A2 on the same day after his arrest. MO.18 consists of cash of Rs.550/- in two wads of Rs.350/- and Rs.200/- each and the said wads were said to have been seized by the police from possession of A1 and A2 separately. 5. It is contended by the appellants counsel that Ex.P1- report does not contain any allegation about missing of MOs.4 to 18 from PW.1’s house, and that they were implanted by the police with A1 and A2 in order to show their complicity for these offences. It is further contended for the appellants that evidence of PWs.1, 11 and 13 is inconsistent with regard to the recovery and identification of MOs.1 to 17. It is further contended that Ex.P14-Arrest Card relating to A1 does not find Column No.8 filled up with MO.3 as the article in possession of A1 at the time of his arrest. It is further contended that A1 and A2 were falsely implicated in this case by implanting MOs.1 to 17 with them and as if they were seized from their possession. It is contended for the revision petitioner that in view of recovery of MOs.1 to 17 from possession of A1 and A2, they should have been found guilty of the offence under Section 302 IPC because they would not have been in possession of those articles without they committing murder of the deceased. 6. At the outset, it may be noted that there is no direct evidence of any of the accused committing murder of the deceased. There is also no evidence to show that any of the accused i.e. A1 or A2 was found at or around the scene of offence on the date of offence at the relevant point of time. A1 is distantly related to the deceased. PW.1 and A1 hail from one and the same village. It is evidence of PW.1 that A1 used to approach the deceased for loans. Except the said allegation, there is absolutely no other direct or circumstantial evidence to show that A1 or A2 had any complicity in murder of the deceased. As per illustration (a) of Section 114 of the Evidence Act, recovery of stolen property like MOs.1 to 17 may lead to the presumption that the person who is in possession of the same was either a thief or receiver of the stolen property in respect of those articles, in case the recovery is at a proximate time after the offence. The lower Court basing on the said presumption, came to the conclusion that A1 and A2 are receivers of stolen properties MOs.1 to 17 with the knowledge of the same being stolen properties. In these appeals, it is to be seen whether the prosecution has proved whether MOs.1 to 17 are stolen properties and whether the prosecution has proved recovery of those stolen properties from possession of A1 and A2. It is evidence of PW.1 that he narrated the police as to what he had seen and observed in the house and that the police then asked him to give report and that accordingly, he got a report prepared and handed over the same to the police as per Ex.P1. He says that he found missing of mangalasutram with gold chain from neck of his wife and also missing of gold bangles from both hands of his wife. In Ex.P1, PW1 stated the said fact. Those articles are MOs.1 and 2. It is further evidence of PW.1 that on verification of almirah on advice of the police, he found missing of cash of Rs.9,000/- kept underneath the pillow, and missing of gold chain with locket, 7 gold finger rings and 7 pairs of ear tops and studs from almirah. It is contended by the Additional Public Prosecutor that sequence of events narrated by PW.1 in his evidence denotes that after giving Ex.P1 report to the police, on advice of the police, PW.1 verified the almirah and found missing of cash and MOs.3 to 17. Therefore, absence of mentioning about missing of MOs. 3 to 17 and cash by PW.1 in Ex.P1 cannot assume any importance, since PW.1 found out the same only after giving of Ex.P1-report. Therefore, I have no hesitation to agree with finding of the lower Court that apart from MOs.1 and 2, MOs.3 to 18 are also part of the stolen properties in this case. 7. With regard to recovery of MOs.1 to 18 is concerned, there is evidence of PWs.11 and 13 in support of the prosecution case. PW.11 was working as Senior Assistant in Mandal Revenue Office at Shaikpet. He and another functioned as mediators on the request of the police in this case. PW.13 is the then Inspector of Police, Banjara Hills Police Station. According to PW.13, the police party consisting of Sub-Inspector and staff deputed by him apprehended A1 at Rethifile Bus Station, Secunderabad, on 18.01.2003. After production of A1 by the Police party before him, PW13 interrogated A1 in the Police Station in the presence of PW11 and another. The alleged confessional statement of A1 is inadmissible in evidence under Sections 25 and 26 of the Indian Evidence Act, except to the extent saved by Section 27 of the Indian Evidence Act. It is evidence of PWs 11 and 13 that MO.3 was seized from possession of A1 during interrogation. Though PW1 described Mo.3 as chain with Mangalasutram, in cross-examination, he corrected the same as chain with Sai Baba locket. It is their evidence that A1 lead the police party and the mediators to his house in Indira Gandhi Nagar, opposite to IDPL colony. Ex.P10 is admissible portion of Panchanama prepared in the Police Station. It is their further evidence that A1 lead the Police party and the mediators to his house and handed over Mos.1 and 2 to the Police and they were seized by PW13 under the cover of Ex.P11-seizure report. In the Police Station, PW13 also seized cash of Rs.350/- from A1 and it is part of Mo.18 cash. It is further evidence of PWs 11 and 13 that A1 lead all of them to A2’s house in the same locality and that the Police apprehended A2 at his house and interrogated him. The alleged statement of A2 which is in the nature of confession, is inadmissible in evidence. It is further evidence of PWs 11 and 13 that A2 took out Rs.200/- from his pocket and gave the same to PW13 and also handed over seven gold rings and seven pairs of gold ear studs Mos.4 to 17 and that they were seized by PW13 under the cover of mediators report. Ex.P12 is admissible portion of the said mediators report relating to seizure. Cash of Rs.200/- seized from A2 is part of Mo.18 cash. 8. The appellants’ counsel pointed out certain discrepancies in timings and contended that the entire recovery under Exs.P10 to P12 is false and cooked up. PW1 in cross– examination deposed that he had seen Mos.1 to 18 on 18.01.2003 in the Police Station and that PW13 showed Mos.1 to 18 to him. It is pointed out that as per evidence of PWs 11 and 13, Ex-P10 took place in the Police Station at about 2:45 PM under which the Police are stated to have seized MO.3 and part of MO.18 from A1 and that MOs.1 and 2 were stated to have been seized from A1 at his house under Ex.P11 at about 5:00 P.M and that MOs.4 to 17 and part of MO.18 cash were stated to have been seized from A2 at his house at about 5:45 PM under Ex.P12 and that therefore, PW1’s above piece of evidence of seeing MOs.1 to 18 in the Police Station between 2:00 and 2:30 PM on the same day falsifies the recoveries. It is evidence of PW13 that PW1 identified Mos.1 to 17 gold ornaments in the Police Station. At this stage, it is contended by the appellants’ counsel that there is no valid identification of MOs.1 to 17 by PW1 during investigation in accordance with Rule 35 of the Criminal Rules of Practice. The said Rule is only an enabling provision and failure to invoke the said provision during investigation will not in any way fatal to the prosecution case. The articles MOs.1 to 17 belonged to PW1 and his family members and they have been with his family from the beginning till they were missing on the date of offence. It is not as if the police seized some more valuable articles from A1 and A2 pertaining to several other crimes and several other persons, out of which PW1 was expected to identify his articles. Therefore, it may not be incumbent for the Investigating Agency to invoke Rule 35 of the Criminal Rules of Practice in this case for identification of MOs.1 to 17. PW13 deposed that on 19.01.2003, he verified confessional statements of A1 and A2 and that he got identified stolen properties recovered from A1 and A2 by PW1 at the Police Station itself. If both the sentences are read in the context of PW13’s evidence, it suggests that verification of confessional statements of A1 and A2 by PW13 as well as getting identification of stolen properties by PW1 took place on 19.01.2003 only. Identification of MOs.1 to 17 by PW1 in the Police Station on 18.01.2003, between 2:00 and 2:30 PM is physically impossible because it was just few minutes prior to it A1 was brought to the Police Station by the police party around 1:45 PM. On total consideration of evidence of PWs 1, 11 and 13 and Exs. P10 to P12, I am of the opinion that date of identification of MOs.1 to 17 given by PW1 in his cross- examination as 18.1.2003, is a mistake for 19.01.2003. PW1 was giving the said date out of remembrance and not after noting the same at any place. He did not sign on any document on 18.01.2003 as if he identified Mos.1 to 17 between 2:00 and 2:30 PM on that day. Therefore, the appellants cannot contend that the date of identification given by PW1 in cross- examination falsifies total recovery of MOs.1 to 17 under Exs.P10 to P12. PW13 recovered Mos.1 to 17 in the presence of respectable mediators including PW11, who are Government servants working in Revenue Department. 9. The contention of the appellants’ counsel that Ex.P14 -Arrest card of A1 does not contain possession of A1 with MO.3 and part of MO.18 cash in column 8 in Ex.P14 remained blank. Column 8 of Arrest card- Ex.P14 relates to properties physically found with the accused and which were seized by the Police and for which the Police gave receipt to the accused. A reading of the said column denotes that it relates to personal property which was seized by the Police at the time of his arrest and it cannot be in relation to case property or stolen property which was seized by the Police from his possession. Since A1 was not possessing any personal property with him and since no personal property of A1 was seized by the Police at the time of his arrest, column 8 of Ex.P14 was left blank. It cannot be a circumstance either in favour of A1 or against the prosecution case. 10. On scrutiny of entire evidence on record, I am of the opinion that the lower Court rightly found A1 and A2 guilty under Section 411 I.P.C. and there are no grounds in both the appeals to come to a different conclusion. Further, since the entire prosecution evidence to the extent of admissible portions does not reveal complicity for A1 and A2 for the offence under Section 302 I.P.C., the lower Court rightly found them not guilty of the said offence. Trial of the lower Court is not in any way vitiated. 11. In the result, both the Criminal Appeals as well as the Criminal Revision Case are dismissed. _______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:14.09.2011 KSM/ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.2272 of 2004 AND CRIMINAL APPEAL No.2541 of 2004 AND CRIMINAL RC. No.2069 of 2004 Dt:14.09.2011 KSM/ysk