* THE HONOURABLE SRI JUSTICE V. ESWARAIAH AND * THE HONOURABLE SRI JUSTICE G. KRISHNA MOHAN REDDY + CRIMINAL APPEAL No.1819 of 2007 % Dated 18-10-2011 # Yadagiri Santhosh s/o Chinnaiah Aged 27 Years, Occ: R/o: Raginedu village, Karimnagar District. . …. Petitioner. Vs. $ The State of A.P., Rep. by Public Prosecutor, High Court of A.P. Hyderabad. …. Respondent. ! Counsel for the Petitioner: Mr. Pottigari Sridhar Reddy ^ Counsel for the Respondent: The Public Prosecutor. <GIST: > HEAD NOTE: ? Cases referred HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRL. APPEAL NO. 1819 OF 2007 Tuesday, the Eighteenth day of October, Two Thousand and Eleven Between Yadagiri Santhosh Appellant AND The State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad Respondent THE COURT MADE THE FOLLOWING: ORDER: (per the Hon’ble Sri Justice G.Krishna Mohan Reddy) This appeal is directed against judgment of conviction and sentence imposed in Sessions Case No. 360 of 2007 dated 23.10.2007 on the file of the learned Sessions Judge, Karimnagar. 2. The appellant is the accused and the respondent is the complainant in the Sessions Case. For convenience sake, we refer them as arrayed in the Sessions Case. 3. The Accused was tried for offences punishable under Secs.302, 364, 366-A and 201 IPC whereas he was found guilty of committing the offences punishable under Secs.302, 364 and 201 IPC and acquitted of the offence punishable under Sec.366-A IPC and sentenced to suffer imprisonment for life and to pay a fine of Rs.500/- and in default of paying the fine to suffer simple imprisonment for fifteen days under the first count and to suffer rigorous imprisonment for five years and to pay a fine of Rs.1000/- and in default of paying the fine to suffer simple imprisonment for one month under the second count and further to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.500/- and in default of paying the fine, to suffer simple imprisonment for a period of fifteen days under the last count whereas, aggrieved by the same, the present appeal has been preferred. 4. Before going into the merits of the evidence recorded in the case, it is necessary to note briefly the prosecution case, which is as follows: 5. One Chamanthi @ Sravanthi, deceased (for short deceased) aged 16 years was the daughter of PW-1 and PW-3 (Thallapalli Parsharamulu and Thallapalli Shankaramma) of Raginedu village and she was studying Intermediate first year at Peddapalli. She used to go to the school by auto or bus along with PW-2 and PW-4 Earla Srilatha and Yadagiri Swaroopa. The accused being a resident of Raginedu, where the deceased was also residing, developed love for her but the mother of the deceased was reluctant of it and once scolded the deceased for having conversed with the accused and because of that the deceased was not meeting the accused and consequently, the accused developed a sense of vengeance and hatred towards the deceased. While so, on 5.9.2005, the deceased missed her bus to go to the village and then she boarded an auto and at the first instance she went to PW-6’s photo studio and took photographs and then went to Hindi Pandit college for payment of examination fee, as she intended to appear for Hindi Vidhwan examination. Later while she was returning from the college, the accused induced her to accompany him for a cordial talk and then abducted and took her in an auto to Garrepalli and from there to Sultanpur and from there to SRSP D-86 canal and from there to a segregated place and questioned as to whether she would marry him and on her refusal, the accused pushed her into D-6 canal as a result of which she washed away by heavy flow of water. The accused then silently went to the village and remained calm. Since the deceased did not return home and was not found inspite of searching for four or five days, the father of the deceased lodged a report with PW-12 Sub-Inspector of Police, Peddapalli Police Station who thereby registered the case in Cr.No. 183 of 2005 under the head “Girl Missing” and did some part of the investigation of the case. Further as there was no progress in the investigation of the case, the parents of the deceased filed writ petition to give necessary directions to the police, following which the police intensified the investigation. Further the accused on 15.8.2006 at about 8.30 p.m. having been afraid of the sitution, went to PW-8 Veeranna and PW-9 Thangeda Rajeshwar Rao at the Chowrastha of the village and made extra judicial confession before them about his love affair with the deceased, his developing hatred for her and throwing her in the canal resulting in her death and in turn PWs 8 and 9, went to the Police Station at Peddapalli and informed about the extra judicial confession of the accused to the police. Further PW-13, Inspector of Police took up the further investigation of the case and apprehended the accused who confessed about the incident and took the police and showed the scene of offence. 6. On behalf of the prosecution, PWs 1 to 13 were examined and Exs. P-1 to P-12 were marked. On behalf of the accused neither oral nor documentary evidence was adduced. 7. After the closure of the prosecution evidence, the accused was examined under Sec. 313 Cr. P.C. about incriminating evidence adduced which he denied. The plea of the accused is one of total denial of the charge. 8. Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the sole accused contends as follows: The learned Sessions Judge has convicted the accused mainly relying on the alleged extra judicial confession said to have been made by the accused before PWs 8 and 9 and others in a public place on 16.8.2006 and also on the basis of Exs. P-2 and P-3, love letters alleged to have been written by the deceased. Soon after giving the report, the accused was called and interrogated and then was released as no incriminating evidence was found by the police and there after his involvement in the matter was not suspected and hence, it is unnatural and unbelievable that in such situation he went and approached PW-8 and PW-9 and made the so called extra judicial confession to them and others in a public place after ten months of the incident. He further submits that Exs. P-2 and P-3 are not in the handwriting of the deceased and admittedly the said letters were also not addressed either to the accused or to anybody and they have not been sent to any Handwriting Expert along with her admitted handwritings contained in Exs. P-5 and P-6 notes for comparison and for ascertainment of her handwritings in Exs. P-2 and P-3 letters and, as such, there is no basis for the prosecution to establish that they were written by the deceased only. Further he submits that the accused studied upto 6th class only whereas the deceased was studying Intermediate first year and any love affair between the accused and the deceased was neither seen nor spelled out by anybody and PW2, a classmate of the deceased testified that one month before the disappearance of the deceased, she informed to her about her love affair with the accused but she did not inform about it to anybody and PWs 1 and 3 the parents of the deceased did not state anything about it to accept it as true and correct and in any case that is not sufficient to prove the charge. Further he submits that it is not in dispute that she went alone to the photographer PW6 Eerla Yesupadam @ Chinna who took her photographs and after getting the photographs, she went to the college and submitted her photographs and paid her examination fee for writing Hindi Widvan examination in between 11.00 a.m. and 12.00 noon on 5.9.2005, but thereafter, nobody saw where she had gone and her dead body was not traced at the canal. Further the alleged confession of the accused is not admissible in evidence and leaving that there is no basis to say that the police could visit the scene of offence. Further as the writ petition was filed before the High Court to expedite the investigation of the case, hurriedly a false case was foisted against the accused. 9. On the other hand, the learned Public Prosecutor has affirmed the conviction and sentence imposed by the trial Court claiming that the trial Court arrived at logical conclusions to do so on the basis of evidence adduced. 10. In order to dispose of the appeal, the following points are to be examined. 1. Whether the prosecution placed sufficient evidence to uphold the conviction and sentence imposed by the trial Court. 2. Whether the findings of the trial Court in that behalf are sustainable. POINT No.1 11. This is a case where only circumstantial evidence is available in order to establish the charge against the accused. Therefore, it is to be seen as to whether all relevant links are established to establish the charge in coming to conclusion that there is only one hypothesis that the murder was caused by the accused only. 12. The evidence of P.W.1 and P.W.3 discloses about the missing of the girl and giving necessary report to the police marked as Ex.P1 in that context. Neither the evidence of P.Ws.1 and 3 nor Ex.P1 report speaks about the complicity of the accused in the murder of the deceased. 13. Here it is relevant when the girl was last seen in the company of the accused or any other apart from the question of their love affair which may be one of several links to prove the charge. 14. P.W.5 the Principal of Vikas Junior College, Peddapalli where the deceased was studying deposed that the deceased stopped coming to the college from 5.9.2005. P.W.6 Photographer deposed that on 5.9.2005 at 11 a.m. the deceased visited his photo studio at Peddapalli and had taken photos and within 15 minutes therefrom she collected four photos and left the place and on 30.9.2005 the concerned police enquired him about the deceased. P.W.7 a Clerk in Hindi Pandit Training College, Peddapalli deposed that on 5.9.2005 in between 11 a.m. and 12.00 noon the deceased visited the college and submitted her photographs in connection with her Hindi examination to be held on 10.9.2005, but she did not appear for the examination. In fact, absolutely there is no evidence from any witness about seeing the deceased subsequently. Therefore, it is to be deemed that P.Ws.5, 6 and 7 are the last persons who saw the deceased on the said date respectively. 15. There is only the evidence of P.W.2 about the love affair between the girl and the accused and there is also evidence from her about the deceased writing some love letters which the prosecution also used to incriminate the accused in the case. 16. P.W.2 deposed that she studied Intermediate in Vikas Junior College at Peddapalli and she was a close friend of the deceased and while they were studying Intermediate 1st year and during the month of August, the deceased informed her that she was loving one Yadagiri Santosh who seems to be the accused. In her cross- examination she deposed that P.W.1 enquired with her about the deceased and then she informed P.W.1 that the deceased was loving Santosh but the same evidence is not found in the deposition of P.W.1. Further according to her till P.W.1 approached her she did not inform about it to anybody. It is something unnatural that P.W.2 did not inform anybody about that love affair between the deceased and the accused till that belated hour. For that reason and for the reason that her evidence was not corroborated by P.W.1 in that context and also further for the reason that it is only hearsay evidence about the love affair, which is not admissible in evidence being not connected with the death of the deceased to bring it within the ambit of section 32 of the Evidence Actr., that aspect cannot be taken into consideration. 17. In addition to that, it is in the evidence of P.W.2 that Exs.P2 and P3-two love letters and Exs.P5 and P6-two handwritten documents are in the handwriting of the deceased. Ex.P4 note was not identified by P.W.2. According to P.W.12-Sub-Inspector of Police and the first investigating officer on 25.9.2005 P.W.1 attended the police station and handed over Exs.P2 to P6, which aspect was not spoken to by P.W.1. 18. Quite surprisingly, Ex.P2 and Ex.P3 do not provide to whom they were addressed or who is the person referred therein happened to be and when they were written. In addition to that, no steps were taken in order to ascertain scientifically as to whether they were in fact written by the deceased, by reason of which there is no good basis to uphold that in fact they were written by the deceased only, whereas in any case they are not sufficient to incriminate the accused in the matter. It is possible that they were created later for the purpose of the case. 19. Coming to the second ground of the accused giving extra judicial confession on the basis of which also the trial Court found the accused guilty of the charges, significantly according to P.Ws.8 and 9 that was given by the accused to them and another on the night of 15.8.2006 at about 9 p.m. at a chowrastha of their village namely Raginedu village. If that is true, it was given 11 months after the missing of the girl. 20. Section 21 of the Evidence Act deals with the question of proof of admissions against persons making them and by or on their behalf. The expression “confession” has not been defined in the Evidence Act. “A confession is an admission made at any time by a person charged with crime stating or suggesting the inference that he committed the crime” (Stephen in his Digest of the Law of Evidence, Art. 21). Section 24 of the Evidence Act deals with the question of irrelevancy of a confession made by an accused person in a criminal proceeding by inducement, threat or promise, whereas Section 28 of the Act deals with the question of admissibility of the confession made without inducement, threat or promise. By virtue of Section 25 of the Act any confession made to any police officer is not to be proved and by virtue of Section 26 of the Act, any confession made to any police officer by an accused person in police custody is also not to be proved against him. In other words, Sections 25 and 26 of the Act provide that confession made by an accused person in a criminal case before a police while in custody or otherwise is not admissible in evidence. Section 27 of the Act is an exception to that general rule as it enjoins that any confession made by an accused to a police officer leading to recovery of a material object in a criminal case is admissible in evidence. Section 29 of the Act deals with the question of relevancy of a confession not to become irrelevant because of a promise of secrecy etc. 21. Confessions are divided into judicial confessions and extra judicial confessions. Judicial confessions are those which are made before a Magistrate or Court in the due course of legal proceedings out of free will and with full knowledge of the nature and consequences of the confession. Extra judicial confessions are those which are made by a party elsewhere then before a Magistrate or before the Court and all voluntary confessions of that nature are receivable in evidence in a criminal proceeding. The evidence of extra judicial confession in the very nature of things is a weak peace of evidence. It is to be proved in the same way as other admissions or statements by the evidence of the persons to whom they were made or who heard them made or by the documents in which they were recorded are to be proved. If evidence with regards to extra judicial confession comes from the mouth of witnesses who appeared to be unbiased and which is not shattered can be accepted and can be a basis of conviction of an accused in a criminal case. There is no rule that extra judicial confession is not to be accepted if such witnesses give the substance of it, but when it is oral, it must be assessed carefully before it can be accepted. Further, usually extra judicial confessions are made by persons accused of committing crimes before close relatives or friends or associates or confidents with the intention of getting some help from them while facing grave circumstances consequently. 22. In fact, P.W.8 deposed in this context that on 15.8.2006 in the night at about 8.30 or 9.00 p.m. when he along with Thangeda Rajeshwar Rao, (P.W.9) Padala Sailu and Purella Anjaiah were at their village chowrastha, the accused came to them hurriedly and when asked, he told to them that he loved Chamanthi (deceased) for long time but she did not approve his love and he got a felling that if he was not able to get her, no other should also get her and on one day, when the deceased went to Hindi Pandit Training College, Peddapalli to pay her examination fee, he followed her and thereafter both travelled in an Auto to Garepally village near Sultanapoor and from their to Sultanapoor and in the outskirts of Sultanapoor, they got down from the Auto and went by foot to S.R.S.P. canal, where again he asked her to love him, but as she replied that their castes were different and that he was only a lorry cleaner then he pushed her into the canal and she was in the water for sometime and thereafter she drowned and died but when the police enquired him, he replied that he did not know anything about her and as the parents of the deceased filed petition before the Court, out of fear, he narrated about the incident to them and on the next day morning, he and T.Rajeshwar Rao (P.W.9) went to Peddapalli Police Station and informed about it to the police and the police examined them and recorded their statements. P.W.9 deposed similarly. 23. P.W.8 in his cross-examination deposed that the accused was a relative of him and he denied that the accused was not related to him and he gave false evidence against the accused, but he did not explain as to how he was related to the accused actually, by reason of which it is doubtful that he was related to the accused. Further, P.W.8 also deposed that prior to 15.8.2006 the accused bet him but then the accused did not make any confession. If at all the accused wanted to make any confession, it would have been done by him at the outset itself. Further, P.W.8 deposed that about 15 or 20 days prior to 15.8.2006 he came to know through newspaper that PW-1 presented a petition in the matter before the Hon’ble High Court and later three or four times, the accused met him. But there is no good ground to accept that the accused came to know about the filing of the writ petition before this court. In any case that cannot be taken as a ground which prompted the accused to meet P.W.8 for giving the extra judicial confession without facing any grave situation in the matter. 24. Further, P.W.9 deposed that he did not reveal to anybody else about the extra judicial confession of the accused, which appears to be somewhat unnatural. 25. P.W.12 the first investigating officer deposed that on seeing Ex.P4, he made enquiries about the love affair between the accused and the deceased and came to know about it on 12.9.2005, by reason of which on the same day, he summoned the accused to the police station and enquired him about the matter, but as he did not reveal anything positive, he sent him away. The prosecution record does not speak that the police got suspicion about the involvement of the accused in killing the girl or missing of the girl till 15.8.2006, on which date he is alleged to have made the extra judicial confession before P.Ws.8 and 9 and another. In other words, it proves that the police got no doubt about his involvement as such till that day. There is also no basis to say that the police made any attempt to arrest him for any reason prior to that. Therefore, it is quite unnatural that suddenly and without any threat of facing any grave situation in the matter, he preferred to give the extra judicial confession before the said persons after a lapse of such a long period of time. Also, if at all such extra judicial confession was made by the accused, it would have been made in a secret place. Therefore, it is quite unnatural that the accused went and met P.Ws.8 and 9 and another at a chowrastha of their village and had chosen to give the statement before them. 26. In view of the discrepancies pointed out, the evidence of P.Ws.8 and 9 is not worthy of acceptance. On the overall assessment of the evidence adduced, it is clear to us that a false story of giving of extra judicial confession was created by the police taking necessary help from P.Ws.8 and 9 at a belated stage. 27. In fact, P.W.12 admitted in his cross-examination that P.W.1 filed a writ petition before the High Court adding him as one of parties and he appeared before the High Court in that matter and filed counter on 20.7.2006 and also appeared before the High Court on 17.8.2006 i.e. one day after the arrest of the accused in the case. He denied suggestion that to avoid pressure or passing of strictures against him by the High Court, he created a false story of extra judicial confession of the accused. However, the fact that on the said dates he appeared before the High Court in the said writ petition and the question of making of the extra judicial confession by the accused before P.Ws.8 and 9 and another is proved to be false, it must be inferred that only because of pressure from the High Court to expedite the matter that the same story was created. 28. Further, with regards to the arrest of the accused, P.W.13 the second investigating officer deposed that on 16.8.2006 he arrested the accused and interrogated him in the presence of mediators and then the accused led them to the scene of offence situated in the outskirts of Sultanpur and at D-86 OT-12-L East Godavari district. In view of Section 27 of the Evidence Act, unless there was recovery of a material object concerned in the case, any confession made by the accused with regards to the scene of offence is not admissible in evidence. Leaving that apart, there is no good basis to say that the police approached the said place. Further, it is quite surprising that no dead body was recovered in connection with this case. Consequently, there is also no good basis to say that the girl had fallen into the said canal and died. It seems that the police created those aspects hurriedly for the reasons already stated. 29. The trial Court just basing upon assumptions and without any legal evidence accepted the so-called love letters of the girl and also the so-called extra judicial confessions. Assumption is not legal evidence which can be used to establish any fact in issue. When the letters were not addressed to anybody and there is also no basis to skull out therefrom