THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1576 of 2007 JUDGEMENT: (Per Hon’ble Sri Justice Raja Elango) This appeal is filed under Section 374 (2) of the Code of Criminal Procedure, 1973, against the judgment, dated 12.10.2007, passed in S.C.No.240 of 2006, on the file of the Court of I Additional Sessions Judge, East Godavari at Rajahmundry, whereunder and whereby the appellant/accused was found guilty of the offence under Section 302 I.P.C., and was convicted therefor and sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/-, in default, to suffer simple imprisonment for two months. 2. The brief facts that are necessary for disposal of this case are as follows: The accused and Mr.Theeta Venkata Appa Rao @ Fittingu Appa Rao (hereinafter referred to as ‘the deceased’) were friends. On 19.10.2004 during morning hours the accused went to the house of the deceased and took him to the lorry union office located in quarry area and questioned the deceased why he gave false information against him to the police in connection with theft of parts of motor proclainer of Mr.Vattikuti Rajagopal @ Peddaraju (P.W.6), in the presence of Pothula Dhanaraju (P.W.7) and Goka Venkataramana (L.W.13 given up). In that context a quarrel took place between the accused and the deceased and the accused grew wild and tried to manhandle the deceased. Then P.W.7 and Goka Venkataramana intervened. From there, the accused, the deceased, P.W.7 and Goka Venkataramana went to the house of Jana Venkataswamy (P.W.8) in Rayudupakala area of Kolamuru Village and while consuming ID liquor, the accused again questioned the deceased with regard to giving of false information to the police against him and pushed down the deceased. Due to that the deceased fell on cement erect and sustained a bleeding injury on the back of his head. Then the accused, P.W.7 and Goka Venkata Ramana took the deceased to the clinic of Venadi Bhaskararao (P.W.4), who treated the deceased. Then the deceased refused for sutures for the injury and asserted that he will give a report to the police. P.W.7 and Goka Venkata Ramana chastised both the accused and the deceased and went away. Thereafter, the accused asked the deceased to be at the Almyrah Company of Bheemana Nageswara Rao (L.W.7 given up) pretending smooth, stating that he will also accompany him (the deceased) to the Police Station after informing to his wife and children. Accordingly, the accused went to his house, secured a big curved knife, came to the deceased, hacked him at about 1.00 p.m. near the Almyrah company and severed the head of the deceased from his body. This incident was witnessed by Smt.Kinthadi Simhachalam (P.W.2), Bheemana Venkatarao (P.W.3), Vanadi Bhaskara Rao (P.W.4), Kosagana Adhinarayana (P.W.10), Smt. Bojja Satyavathi, Smt.Karanam Buddamma, Duppada Sattibabu (P.W.11) and Smt.Pathivada Padma. The accused threatened the public gathered at the point of knife with dire consequences and picked up the head of the deceased. During the course of that hacking, the handle of the knife fell at the scene of offence. On the same day i.e., on 19.10.2004 itself at about 2.00 p.m., the accused holding the severed head and knife (M.O.4) (without handle (M.O.8)) went to III Town Police Station, Rajahmundry and surrendered himself before the police. On the way to the police station, the accused went to the pan shop of Boye Venkataramana (P.W.12) holding the severed head and knife and had a cool drink. The fruit vendor -Sri Yelugubani Chittibabu (P.W.13) who is having shop by the side of the shop of P.W.12 also witnessed the accused holding the severed head and knife. The accused on going to III Town Police Station reported the entire incident to the A.S.I of Police-Mr.G.Venkateswara Rao (L.W.29 died), who in turn informed the same to the In-charge Inspector of Police, Town i.e., Traffic Inspector, Rajahmundry - Sri N.Babji (P.W.17). P.W.17 secured the presence of mediators viz., Bavaraju Subba Rao (P.W.14), Vegi Satyanarayana (L.W.25) and Pinniti Vijayabhaskara Ramanarao (P.W.15), recorded the statement of the accused in their presence under Ex.P.13–mediators report, and seized the severed head and knife without handle (M.O.4). Based on the said mediators report-Ex.P.13, he registered F.I.R.-Ex.P.23 under Section 302 I.P.C on 19.10.2004. Smt. Theeta Malleswaramma (P.W.1) - mother of the deceased, Millim Appayamma (L.W.2), Smt.Teehi Janaki (L.W.3) - elder sister and paternal aunt of the deceased have identified the head as that of the deceased. He also got held inquest over the severed head at the Police Station in the presence of P.W.14 and L.W.25 and got prepared an inquest report-Ex.P.14. Then he seized the chappals (M.O.5) of the accused from his possession under the cover of the said mediators report-Ex.P.13. Likewise, he seized the blood stained T-shirt (M.O.6) and blood stained pant (M.O.7) of the accused in the presence of the said mediators. Thereafter, he got photographed the severed head of the deceased at the police station by a private photographer Sri Guttula Tirumala Rao (P.W.5) under Exs.P.4 and P.5. P.W.17 got affixed identity slips on M.Os.4 to 7 with the signatures of the said mediators. He also obtained signature of the accused on the statement given by him under Ex.P.13, which was registered by him (P.W.17) as F.I.R under Section 302 I.P.C as in Ex.P.23. The accused led the mediators - P.W.14, P.W.15 and Vegi Satyanarayana (L.W.25) to the scene of offence, where the trunk was available. P.W.17 observed the trunk in the presence of the said mediators and during the course of scene of observation seized wooden handle (M.O.8) of knife M.O.4, blood stained hair of the deceased, blood stained road pieces and control road pieces (M.Os.8 to 11 respectively) and got drafted scene of observation report as in Ex.P.18. Thereafter, P.W.17 held inquest over the trunk of the dead body in the presence of the said mediators, P.W.1 and L.W.3 and prepared an inquest report on the trunk as in Ex.P.15. M.O.1-blood stained shirt, M.O.2-blood stained pant and M.O.3- blood stained chappals of the deceased were identified by P.W.1. P.W.17 served summons to the inquestdars and mediators, prepared a rough sketch of the scene of offence, got photographed the trunk of the dead body without head by P.W.5 under Exs.P.6 and P.7 and sent the severed head and trunk to the District Headquarters Hospital, Rajahmundry for conducting post mortem examination. P.W.16-Dr.K.Seetaramaraju conducted post mortem over the head and trunk, preserved material and gave a preliminary opinion under Ex.P.19. On receipt of Regional Forensic Science Laboratory Report with regard to the blood samples etc., under Ex.P.20 and DNA test report under Ex.P.21, he gave his opinion regarding cause of death of the deceased under Ex.P.22. P.W.19-Sri L.Ankayya - Inspector of Police on returning from leave on 22.10.2004 took up investigation from P.W.17. He sent the material objects, which were seized from the possession of the accused to the Regional Forensic Science Laboratory, Vijayawada with a letter of advice under Ex.P.25 along with other material collected by P.W.16 during the course of autopsy. Thereafter, he sent the material preserved by P.W.16 for DNA test to the Regional Forensic Science Laboratory, Hyderabad with a letter of advice – Ex.P.26. On receipt of reports under Exs.P.20 and P.21, P.W.16-doctor gave a final opinion regarding the cause of death of the deceased under Ex.P.22. After completion of investigation and receipt of all the reports, P.W.19 laid charge sheet. 3. To substantiate its case, the prosecution examined P.Ws.1 to 19 and got marked Exs.P.1 to P.26, besides case properties M.Os.1 to 11. No oral or documentary evidence was adduced on behalf of the accused. 4. On the basis of the evidence adduced by the prosecution, the learned Sessions Judge found the accused guilty of the offence under Section 302 I.P.C and accordingly convicted and sentenced him as stated supra. Challenging the said conviction and sentence, the appellant/accused preferred this appeal. 5. The main contention advanced by the learned counsel for the appellant is that Ex.P.13 recorded by the mediators cannot be called as an F.I.R and the same is not admissible in law. He further contended that the prosecution miserably failed to prove the motive of the accused by adducing admissible evidence and that except P.Ws.12 and 13 no other persons witnessed the accused holding the severed head of the deceased from the place of occurrence. 6. The learned Public Prosecutor, in contra, submitted that the prosecution proved the case beyond all reasonable doubts and that the investigation was initiated based on the statement given by the accused only and therefore, the impugned judgment does not suffer from any illegality. 7. P.W.1, who is the mother of the deceased, deposed regarding the friendship of the accused and the deceased and the visiting of the accused to their house. She also deposed regarding the dispute between the accused and the deceased in connection with the theft of parts of a proclainer. She further deposed that on the date of occurrence between 9.00 to 10.00 a.m, the accused came to their house and took the deceased to accompany him to lorry office; that after 1.00 p.m., P.W.2 came to her house and informed that the accused murdered her son and proceedings towards police station; that on the said information, herself, her daughter-in-law, son-in-law and co-sister rushed to the police station and saw the accused holding the severed head of the deceased and knife and that they identified the severed head as that of the deceased and subsequently, themselves, the accused and the police went to the place of occurrence and identified the trunk as that of the deceased. 8. P.W.2 did not support the case of the prosecution and turned hostile. In the same way, P.Ws.3 and 4 also not supported the case of the prosecution and turned hostile. 9. P.W.5, who is the photographer, deposed that on the request made by the Investigating Officer, he went to III Town Police Station on 19.10.2004 and took photographs of the severed head of the deceased under Exs.P.4 and P.5. Thereafter, he went to the scene of occurrence and photographed the trunk under Exs.P.6 and P.7. 10. P.W.6, who is carrying on quarry business and possessing proclainers, deposed that he does not know the deceased and that he lodged a compliant regarding the missing of some parts of the proclainer. Apart from that he has not implicated the accused in the case. 11. P.Ws.7 to 11 did not support the case of the prosecution and turned hostile. 12. P.W.12, who is running a pan shop near Gokavaram Bus Stand in the name and style of Venkateswara Killi Shop, deposed that on the date of occurrence at about 2.00 p.m., the accused came to his shop holding a severed head and knife and had cool drink and then he left the shop. His evidence was supported by the evidence of P.W.13, who is the neighbouring shop owner of P.W.12, since he also deposed that he witnessed the accused holding the severed head and knife. 13. P.W.14, who worked as Village Administrative Officer of Rajahmundry at the relevant time, and who acted as mediator deposed that on 19.10.2004 at about 2.00 p.m., he was called to Rajahmundry III Town Police Station; that on entering into the police station, he noticed a person with a severed head in one hand and knife without handle in another hand and that he also noticed two other mediators in the police station. He also deposed that he recorded the statement given by the accused under mediators report and the same was attested by the Municipal employees as well as the accused. He also deposed about the recovery of the material objects from the accused. 14. P.W.15, who is working as Junior Assistant in Municipal Corporation, Rajahmundry, deposed that on the request made by III Town Police, he was present in the police station, participated in recording the statement of the accused by the Village Administrative Officer and attested the mediators report. He further deposed that in the said police station he noticed a person with a severed head in one hand and knife without handle in another hand. 15. P.W.16, who is the Civil Assistant Surgeon, District Hospital, Rajahmundry, conducted autopsy over the two parts of the body of the deceased i.e., head and trunk, and found the following injuries: “Head: 1. Laceration on the back of the head in the occipital area on the right side above the occipital protuberance, vertical 1 ½ inch length x 1 inch width deep into the brain matter covered with blood clots spindle shaped with irregular edges. 2. Laceration on the back of the head in the occipital area below the occipital protuberance extending on the left behind the ear oblique down wards to the right, below and behind the right ear. Spindle shaped with irregular edges measuring above 7 inches length x 3 inches width x 3 inches deep into the brain covered with blood clots with a injury triangular in shape just below and behind the right ear deep into brain. 3. Laceration on the back of the head on the neck. 2 inches below the external injuries 2 extending from middle to the right side of the neck. Spindle shaped measuring 6 inches length x 1 inch in width and deep into the neck. Semi circular on right side of neck severing the structures of that area covered with blood clots with irregular and margins. 4. Laceration on the back of the head in occipital area on the left side behind the left ear, vertical 1 ½ inch length and 1 inch width deep into the brain covered with blood clots with irregular edges. 5. Decapitation of the head from the rest of the body on the neck at the level of 6th cervical vertebrae on the back and below the thyroid cartilage on the front, encircling the neck about 14 inches circumference exposing the severed structures of that area covered with blood clots with irregular edges and margins, including all the structures of the neck, below the external injury No.4. Body without Head: 1. Deception of the head from the rest of the body on the neck at the level of 6th cervical vertebra on the back and below the thyroid cartilage on the front, encircling the neck about 14 inches circumference covered with blood clots with irregular edges and margin exposing the severed structures of that area including skin, muscles vessels, bone, nerves oesophagus and trachea. 2. Laceration on the left forearm in the upper 1/3 on the back Transverse 3 inches long x ½ inch width and ½ inch deep spindle shaped with irregular edges and margins covered with blood clots. 3. Contusion to left shoulder top 2 inches x 2 inches. 4. Abrasion to left shoulder top 1 inch x 1 inch over external injury No.3.” He opined that the death was due to the injuries sustained by the deceased especially decapitation on the neck at 6th cervical vertebra level resulting in instantaneous death. The head as well as the body recovered were subjected to DNA test to establish that the same belongs to one and the same person, and the same was certified by the Officer, who conducted DNA test. After receipt of the DNA report, the said witness gave his final opinion. 16. P.W.17, who is working as Inspector of Police, deposed that on 19.10.2004 he received information from the A.S.I of Police, III Town Police Station stating that one person came to the police station with a severed head and knife. Then he immediately rushed to the Police Station and saw the accused as stated above. He summoned P.Ws.14 and 15 to act as mediators and the statement of the accused was reduced into writing by P.W.14 - Village Administrative Officer and the same was registered as F.I.R. On the basis of the said F.I.R, he commenced investigation, examined the witnesses, conducted inquest over the dead body of the deceased and thereafter, sent the dead body for post mortem examination. He also got photographed the severed head as well as the trunk of the dead body through a photographer and prepared rough sketch of the scene observation report. 17. P.W.19, the Inspector of Police, who took up charge from P.W.17, verified the investigation done by P.W.17 and after completion of investigation and receipt of relevant reports, filed charge sheet. 18. From the above evidence, it is clear that the accused committed the crime, reached the police station along with the severed head and knife and confessed regarding the commission of offence before the A.S.I of Police, who in turn, informed the same to his Superior Officer i.e., P.W.17. Then, P.W.17 secured the presence of mediators and in their presence recorded the statement of the accused and based on the said statement, proceeded to investigate the matter. Even though the said statement was registered as an F.I.R, learned counsel for the appellant contends that the same cannot be relied as first information. It is true that even a complaint given by a person other than the accused can be registered as an F.I.R, but the same is not a substantive piece of evidence and cannot be relied upon. The said document can be relied on for the purpose of corroboration or contradiction. Hence, the said contention advanced of the learned counsel for the appellant is not merit acceptance. 19. Further, even though Ex.P.13 report received by the Investigating Officer is called as first information, it is certainly in the nature of extra judicial confession, because at the time of giving statement by the accused, no case was registered against him and the law was not set on motion. Immediately after the commission of the crime even though the accused came to the police station, certainly he was not under police custody. Therefore, Ex.P.13 statement given by the accused can be treated as an extra judicial confession. The said statement treated as extra judicial confession comes within the purview of the decisions laid down by the Apex Court. In view of the fact that the said statement was given in the presence of P.W.14 prior to the registration of the crime, we are of the view that the said statement can also be relied upon. 20. Further, the evidence of P.Ws.12 and 13, who categorically stated that they saw the accused holding severed head in one hand and knife in another hand, coupled with the evidence of P.Ws.14 and 15. Further, the said act of the accused squarely falls under Section 8 of the Evidence Act, 1872, which reads as follows: “8. Motive, preparation and previous or subsequent conduct.- Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.” 21. So, the subsequent conduct of the accused is more relevant to decide the issue. Further, on the basis of the statement given by the accused, the trunk was also traced out by the Investigating Officer. Of course, it cannot be called as a discovery under Section 27 of the Evidence Act, 1872 but at the same time, the head produced by the accused and the body traced were subjected to DNA test and the DNA test report proves that the head and the body belongs to one and the same person. 22. Coming to motive, the motive as stated by the learned counsel for the appellant always takes its back seat when the prosecution proves the offence clinchingly. It is always not possible for the prosecution to establish the motive between the accused and the deceased. The action of a person based on motive differs from person to person and small thing, which can be a motive for one person may not be a motive for another person. So failure on the part of the prosecution to prove the motive cannot be a ground to reject the case of the prosecution. 23. Further, in the present case, when the accused was asked to explain the incriminating circumstances, he has no answer to explain anything. Certainly, it is well within the knowledge of the accused and the necessity to bring the severed head to the police station along with the knife was also not explained. 24. In the circumstances, we are of the opinion that the prosecution established the case beyond all reasonable doubts. Further, it clinchingly pointing towards the accused regarding the commission of the crime. Hence, the judgment under appeal does not suffer from any perversity or infirmity and there is no need to interfere with the findings recorded by the learned Sessions Judge. Therefore, we are not inclined to interfere with judgment under appeal. 25. In the result, the appeal is dismissed confirming the judgment dated 12.10.2007 passed by the I Additional Sessions Judge, East Godavari, in S.C.No.240 of 2007. _____________________ A.GOPAL REDDY, J ____________________ RAJA ELANGO, J Dt.12.07.2011 va