HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.491 OF 2007 Dated:29-09-2010 BETWEEN: K.Venkateswara Rao & Another …Appellants AND State of A.P., Rep. by Public Prosecutor, High Court, Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.491 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) Appellants-A.1 and A.2 in S.C.No.273 of 2006 on the file of Court of VIII Additional Sessions Judge, East Godavari, Rajahmundry were put on trial on the charge of murder of Dadi lakshmanswamy & Lakshmaji (hereinafter referred to as ‘deceased’), who is the husband of A.6, for the offence under Section 302 IPC. Whereas, A.3 to A.5 were put on trial of the offence under Section 302 r/w 120-B IPC and A.6 for the offence under Section 302 r/w 34 IPC. Of them, by judgment, dated 9.4.2007, the appellants herein-A.1 and A.2 were found guilty for the offence under Section 302 IPC and were sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- each, in default, to undergo simple imprisonment for one month; A.6 was found guilty for the offence under Section 302 r/w 120-B IPC and was sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- in default, to undergo simple imprisonment for one month; and A.3 to A.5 were acquitted of the charge under Section 302 r/w 120-B IPC or under Section 302 r/w 34 IPC. 2. The case of the prosecution is that P.W.1 is the daughter of the deceased and A.6; P.Ws.2 and 9 are the parents and P.W.3 is the maternal uncle of the deceased. P.W.6 is the cousin and P.W.14 is the legally wedded wife of the deceased. P.W.14 and the deceased were living separately since 11 or 12 years and subsequently, the deceased developed illicit intimacy with A.6 and they were living as husband and wife and were also blessed with a child-P.W.1. The deceased was an electrician and was cultivating Ac.2.50 cents of land. About two years prior to the incident, he leased out 40 cents of land to A.1 and it was agreed that A.1 had to cultivate the said land as lessee in lieu of discharge of debt of Rs.20,000/- due to A.1 by the deceased. After the lease period, A.1 did not deliver possession of the land to the deceased, for which, there was an altercation between them. With regard to that issue, A.1 and A.3 approached P.W.3 to settle the dispute as the deceased was not extending the lease period, and though P.W.3 tried to settle, the same did not work out. Thus accused bore grudge against the deceased. It is the further case of the prosecution that A.1 developed illicit intimacy with A.6. About one month prior to the incident i.e. on 6.7.2005, the deceased lodged a complaint against A.1 to A.3 alleging that they were threatening him to kill and requested for protection. On the date of the incident i.e. on 20/21.8.2005 in the night, while A.6 was sleeping, P.W.1 and the deceased were watching T.V. Meanwhile, as there was power failure, they also went for sleep. At about 1.30 a.m. when P.W.10, who is the neighbour of deceased woke up for attending nature calls, noticed A.1 and A.2 going towards the house of the deceased with a bag. Then in the midnight, A.6 woke up P.W.1 and informed her that the deceased was not responding to her call and doors were kept open. Then they immediately went to P.W.3 and informed him about the same. In the meanwhile, on hearing their cries, the neighbours i.e. P.Ws.4 to 8, 11 to 13 rushed to the scene and found the deceased dead in a pool of blood. On enquiry, A.6 informed them that the deceased was hacked by somebody and she was also beaten on her hands. On 21.8.2005 at about 10.00 a.m. on receipt of a report-Ex.P.2 from A.6, P.W.22, the then Sub-Inspector of Police registered a case in Crime No.94 of 2005 and issued FIR-Ex.P.21. Further investigation was taken over by P.W.23, the then Inspector of Police, who rushed to the scene of offence, prepared an observation report in the presence of P.Ws.19 and 21 and seized all the relevant material objects. Ex.P.11 is the panchanama. He further got the scene of offence photographed through P.W.18, prepared a rough sketch of the scene of offence, marked as Exs.P.22 and 23. He then held inquest over the dead body of the deceased. Ex.P.12 is the inquest report. Thereafter he forwarded the dead body for post-mortem examination. During the course of investigation, he examined and recorded the statements of P.Ws.1 to 3, 18, A.6 and others. He referred A.6 to Government Hospital for treatment. On 21.8.2005 at 9.30 p.m., on requisition, P.W.20, the Civil Assistant Surgeon, Government Hospital examined A.6 and issued wound certificate-Ex.P.16. P.W.20 further identified the signature of Dr.R.Madhavi who held autopsy on the dead body of the deceased and opined that the cause of death was due to injury on neck. Ex.P.17 is the post-mortem report. On 29.8.2005, at 12.00 Noon, A.1 and A.2 approached P.W.19-Panchayat Secretary and made an extra-judicial confession before him. Ex.P.14 is the statement of A.1 and A.2. Then at about 2.00 p.m., P.W.19 along with A.1 and A.2 visited P.W.23-Inspector of Police, presented a report Ex.P.13 along with Ex.P.14 and surrendered A.1 and A.2. During the course of investigation, at the instance of A.1 and A.2, two knives-M.Os.1 and 12 and clothes of A.1 and A.2 (M.Os.13 to 15) were seized under Ex.P.18 panchanama. Based on the confession of A.1 and A.2, A.3 to A.6 were also arrested and a cycle-M.O.17 was recovered from the possession of A.5 under Ex.P.19 panchanama. After completion of investigation and on receipt of relevant reports, P.W.23 laid the charge sheet against the accused. 3. When the charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 23 and got marked Exs.P.1 to P.26 besides the case properties-M.Os.1 to 20. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same. When the accused were called upon to adduce evidence, they did not let in any evidence, but marked a portion in the 161 Cr.P.C. statement of P.W.14 as Ex.D.1. 6. The Trial Court on appreciation of oral and documentary evidence on record, concluded that the prosecution was able to establish the dispute between A.1 and the deceased in connection with the lease of land to an extent of Ac.0.40 cents owned by deceased; that there was illicit intimacy between A.1 and A.6; and that A.6, who was in the house along with the deceased has not offered any explanation as to how the deceased met with the homicidal death which improves the case of the prosecution that A.6 conspired with A.1 and A.2 to kill the deceased. Further the evidence of P.W.10, who is the neighbour of the deceased stated that he noticed A.1 and A.2 going towards the house of the deceased at 1.30 a.m.; that A.1 and A.2 made an extra-judicial confession before P.W.19 after one week of the incident on 29.8.2005 which was recorded by P.W.19 under Ex.P.14; that at the instance of the appellants M.Os.1,12, 13 and 15 were recorded which complete the chain of circumstances to prove the participation of A.1 and A.2 in the commission of the offence and accordingly found them guilty for the said charge and sentenced them to undergo imprisonment for life as aforementioned. 7. The point for determination is ‘whether the prosecution proved its case beyond all reasonable doubt for the charge under Section 302 I.P.C. against the appellants?’ 8. Sri C.Padmanabha Reddy, learned senior counsel appearing for the appellants contended that the entire evidence of the prosecution rests upon the circumstantial evidence namely, the evidence of P.W.10 who allegedly saw A.1 and A.2 in the night at 1.30 a.m. going to the house of the deceased and the evidence of P.W.19, who allegedly recorded the extra-judicial confessional statement of the appellants under Ex.P.14. Therefore, their evidence should be tested on the touch-stone of law relating to the circumstantial evidence laid down by the Supreme Court to convict the appellants. Admittedly, P.W.10 is having a poor vision who cannot see in the night and therefore, his noticing A.1 and A.2 in the night at 1.30 a.m. going to the house of the deceased is doubtful and he is a planted witness. Further at the earliest point of time, he has not stated before the police about his witnessing A.1 and A.2 going to the house of deceased on that night and that the said omission by him has also been admitted by the investigating officer- P.W.23 and therefore, it is unsafe to rely upon the evidence of P.W.10 to convict the appellants for the offence under Section 302 IPC. With regard to the evidence of P.W.19, it is contended that he is a panch witness to the observation report-Ex.P.11 and also to the inquest report-Ex.P.12 and when there is no suspicion against the appellants at the time of inquest, the appellants approaching P.W.19 and their making a confession before him and his recording the alleged confession under Ex.P.14 is doubtful. Further the signatures of the appellants do not appear on the alleged confession statement-Ex.P.14. Therefore, if the evidence of P.W.10, P.W.19 and the so-called confessional statement of appellants under Ex.P.14 are eschewed from consideration, there is no other evidence to connect the appellants with the commission of offence and therefore, it is unsafe to convict the appellants solely basing on their evidence in the absence of any corroboration and the learned senior counsel prays to set aside the convictions and sentences recorded against the appellants. 9. On the other hand, the learned counsel representing the Public Prosecutor sought to sustain the convictions and sentences recorded against the appellants contending that the prosecution is able to establish the motive of the appellants to do away with the life of the deceased i.e. the dispute between the deceased and A.1 over the lease of land of deceased and the illicit intimacy between A.1 and A.6. The evidence of P.W.19, who is the Village Revenue Officer before whom the appellants made extra-judicial confession can be taken in corroboration of prosecution evidence to convict the appellants, and the trial Court, upon considering the material on record, rightly convicted and sentenced the appellants and there are no grounds to interfere with the convictions and sentences recorded by the lower Court. 10. It is not in dispute that there are no direct eyewitnesses to the incident and the wife of the deceased, who was with him at the time of the incident, is also a co-accused. The entire case rests upon the circumstantial evidence. When a case rests upon circumstantial evidence, the following circumstances have to be proved by the prosecution in view of the law laid down by the Apex Court in a decision reported in Padala veera Reddy v. State of A.P.[1]: “(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 the 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.” Bearing the above principles in mind, it is to be seen whether the appellants are the assailants of the deceased or not. 11. P.W.1-child witness is the daughter of the deceased and A.6. She deposed that on the date of incident in the night, while her mother (A.6) was sleeping, herself and deceased were watching T.V. and after sometime, as there was power failure, they too slept at 11.00 or 12.00 in the night. Sometime thereafter, her mother-A.6 woke her up and informed that the deceased was not responding to her calls. She also tried to wake up the deceased, but he did not respond. She noticed that the doors of the house were kept open. They tried to switch the electrical lights, but the lights were not burnt. Out of fear, herself and her mother went to the house of Babji-P.W.3. Immediately, P.W.3 came to their house. She did not see the deceased on that night in the lights. P.W.3, whose house is situated opposite to the house of the deceased deposed that on 20.8.2005 (early hours of 21.8.2005) at about 1.30 a.m., A.6 and P.W.1 knocked his doors and when opened the doors, he found A.6 weeping. On the information given by A.6, he went to the pial of the house of the deceased and noticed the lights were off and it was dark. When he asked A.6 about the darkness, she replied that there was failure of power-supply. Then he asked one of the persons gathered there to go inside the house of the deceased and verify. When he put on the switches, the lights were on. He went inside the house and found the deceased on the bed in a pool of blood. When he questioned A.6 as to what had happened, she replied that she does not know anything and she did not see the incident. She also stated that she was sleeping by the side of the deceased on the same bed. He deposed that A.6 was having illegal intimacy with A.1 for the last three years. In the absence of deceased, A.1 was frequently visiting the house of the deceased. A.2 was also visiting occasionally the house of the deceased in his absence. He admitted in the cross-examination that he did not state before the police that he had personal knowledge about the illegal intimacy between A.1 and A.6. 12. P.Ws.4,5, 11 to 13,15 and 16 did not support the case of the prosecution and therefore, they were declared hostile. P.W.10 is an important witness basing on whose evidence, the trial Court convicted the appellants. He deposed that on the date of incident at about 1.30 a.m. he came out of the house to answer calls of nature and noticed A.1 and A.2 going from the side of his house wall, and that he had seen them going to the house of the deceased. Earlier, he saw A1 and A.2 going to the house of the deceased regarding the agricultural work. He noticed a bag with A.1 and A.2. Sometime thereafter, he heard the cries from the house of the deceased. He saw the deceased through window of his bedroom along with other villagers and found him dead in pool of blood. He noticed chilli powder at the entrance of his house. At the time of cross-examination, he identified A.2 as A.1 and A.1 as A.2, but again he identified them correctly. On the date of offence, he woke up at 4.00 a.m. He admitted that he is a diabetic and deaf, that his eye-sight is poor and he can see the objects and persons upto a distance of five feet only and not more than that, but he can see the distant objects in day light. When re-examined by the prosecution, he stated that during the night time also, if there are lights, he can see the objects to a distance of about 15 feet. P.W.19 is the Village Revenue Officer, who worked earlier as Panchayat Secretary. On 21.8.2005, as per the instructions of M.R.O., Korukonda Mandal, he went to the scene of offence along with his Junior Assistant, that in his presence, the observation report-Ex.P.11 was prepared by the police and inquest was conducted between 2.00 p.m. to 4.00 p.m. and Ex.P.12-inquest report contains his signature. On 29.8.2005 at about 12.00 Noon, A.1 and A.2 came to him while he was in panchayat office of Srirangapatnam and confessed the offence. He recorded the statements of A.1 and A.2 and forwarded the same to the police. Ex.P.13 is the letter addressed by him to the Station House Officer, Korukonda and Ex.P.14 is the confessional statement recorded by him. He is the scribe of Ex.P.14. Later, A.1 and A.2 went to the police station. He followed them. The investigating officer enquired about the confession under Ex.P.14 and again he recorded the confessional statements of A.1 and A.2. Ex.P.15 is confession statement of A.1 and A.2 recorded in the police station. He admitted that he did not obtain the signatures of A.1 and A.2 in Ex.P.14. P.W.23 is the investigating officer who investigated into the crime. He deposed about the preparation of scene of observation report, rough sketch and sending A.6 to the hospital. He deposed that on 29.8.2005 at 2.00 p.m., P.W.19 came to the police station, presented a report and surrendered A.1 and A.2 along with their confessional statements recorded by Panchayat Secretary. In the presence of mediators, he recorded confessional statement of A.1 and A.2 under Ex.P.15. On the basis of their confession, he along with mediators and staff proceeded to Srirangapatnam near Kapavaram Cheruvu and seized two weapons i.e. two curved knives i.e. M.Os.11 and 12 under Ex.P.18-mediators’ report. He also seized the clothes produced by A.1 and A.2 and sent them for Regional Forensic Science Laboratory. He admitted in the cross-examination that P.W.10 did not state before him that he had seen A.1 and A.2 at 1.30 a.m. going from the side of his house towards the house of the deceased. 13 The alleged confessional statement recorded by P.W.19 under Ex.P.14 runs into five pages. The entire confessional statement precisely deals with the appellants obtaining the land of deceased Ac.0.40 cents on lease on payment of Rs.20,000/-, A.1 going to the house of the deceased frequently and that his having illegal relationship with A.6 etc. It is there in the statement that as there was no yield for the lease period, the appellants asked the deceased to permit them to raise the crop for one more year for which, the deceased refused to and that when they requested for refund of the money, he refused to pay back the amount. Then, A.1, his father Appalaraju, his junior paternal uncle (Koyidala Thrimurthulu), his younger brother Siva and his friend Pentakota Sreenu hatched a plan to kill the deceased. In the statement he explained as to how they executed the plan. In the said statement, it is recorded that ‘Koyidala Sivaji (A.2) also informed, when questioned, that he also committed the offence and adopted the confessional statement of his elder brother Venkateswararao (A.1)’. 14. A Constitutional Bench of the Supreme Court in Haricharan Kurmi v. State of Bihar[2] held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case, where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the Court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the Court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. It was further held that the confession has no doubt to be regarded as amounting to evidence in a general way because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by S.3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. 15. The extra-judicial confession should be in the words as spoken to by the accused. If the extra-judicial confession of two persons is to be recorded, the same should be recorded separately and their signatures have to be obtained on the so-called extra- judicial confession. In the present case, P.W.19 has not obtained the signatures of the appellants on Ex.P.14, the so-called extra-judicial confession, which runs like a charge sheet against the accused from the motive part to till the date of execution of the plan. Therefore, there is any amount of suspicion about P.W.19 recording the alleged confessional statement of the appellants, who stood as panch witness to the scene of observation report-Ex.P.11 and inquest report-Ex.P.12. His services appear to have been pressed into service by the police. Further the prosecution failed to establish that as to why the accused reposed confidence in P.W.19 to make an extra-judicial confession eight days after the incident that too when they were not shown as accused in the crime registered nor were suspected. Therefore, the evidence of P.W.19 to the extent of his recording the extra-judicial confession of appellants cannot form basis for convicting the appellants. As already noticed, P.W.10 at the earliest point of time, has not stated to the police about his witnessing A.1 and A.2 going at 1.30 a.m. towards the house of the deceased. Further his eye-sight is poor as he can see the objects and persons only upto a distance of five feet and not more than that. Therefore, his observing A.1 and A.2 at 1.30 a.m. going towards the house of the deceased is highly improbable. In view of the above, if the evidence of P.Ws.10 and 19 is eschewed from consideration, as rightly contended by the learned senior counsel appearing for the appellants, there is no other evidence to connect the appellants with the commission of the offence. In our considered view, the learned Sessions Judge fell in error in accepting the evidence of P.Ws.10 and 19 and the so-called extra-judicial confession-Ex.P.14 for basing the conviction of the appellants. 16. In the result, the appeal is allowed. The convictions and sentences recorded against the appellants-accused 1 and 2 for the offence punishable under Section 302 IPC, by VIII Additional Sessions Judge, East Godavari at Rajahmundry, vide judgment, dated 9.4.2007, in Sessions Case No.273 of 2006, are set aside and they are acquitted of the said charge. They shall be set at liberty forthwith if not required in any other crime. The fine amount, if any, paid by the appellants-accused 1 and 2 shall be refunded to them. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J SEPTEMBER 29, 2010 Tsr. [1] AIR 1990 SC 79 [2] AIR 1964 SC 1184