*HONOURABLE SRI JUSTICE K.C. BHANU AND HONOURABLE SRI JUSTICE N.R.L. NAGESWARA RAO +CRIMINAL APPEAL No. 979 OF 2007 % 19.01.2011 # Raktha Mannem …Appellant/Accused Vs. $ State of A.P. rep.by Public Prosecutor, High Court of A.P.Hyderabad. …Respondent/Complainant ! Counsel for the Appellant : ^Counsel for the Respondent: <Gist: > Head Note: ?Cases referred: 1. 1971 (3) Supreme Court Cases 182 2. 2008 CRI.L.662 3. AIR 1991 SC 1463 4. (1999) 9 SCC 507 5. AIR 1996 SC 2791 6. AIR 1971 SC 708 7. AIR 1996 SC 2905 8. 1997 SC 2914 HONOURABLE SRI JUSTICE K.C. BHANU AND HONOURABLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 979 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice K.C. Bhanu) This Criminal Appeal, under section 374(2) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), is directed against the judgment, dated 22.06.2007, in Sessions Case No.40 of 2006 on the file of Sessions Judge, Mahabubnagar, whereunder and whereby the appellant/accused was convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, ‘IPC’) and sentenced to undergo life imprisonment and to pay fine of Rs.100/- in default to suffer simple imprisonment for one month. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: The accused is the father of Baby Megha Mala (hereinafter referred to as ‘the deceased’) who was aged about four years at the time of incident. The accused is having three daughters. The deceased is his second daughter. On 03.09.2005, accused visited Beechupalli Bridge along with the deceased to Anjaneya Swamy temple, at Rangapur sivar. When the accused reached Beechupalli Bridge of Krishna River, at about 14.30 hours, suddenly the accused lifted the deceased and threw into the river and as a result, she drowned in river water. The incident was witnessed by P.Ws.1 and 7, who were present at the scene attending repair of their D.C.M. Van. Immediately, they went and caught hold of the accused and handed over to the Police, Pebbair along with a complaint. The police made arrangements to find out the dead body, but it could not traced. At the time of incident, as there was heavy flow of water with 20 feet depth, there is every possibility of eating away the dead body of the deceased by the crocodiles moving in the river. On receipt of a complaint from PW-7, a case in Crime No. 98 of 2005 for the offence punishable under Section 302 IPC was registered and investigated into. During the course of investigation, statements of the witnesses were recorded and panchanama of the scene of occurrence was conducted. The accused was arrested on 03.09.2005 and sent to Court for judicial custody. After completion of the investigation, charge sheet was filed under Section 302 IPC against the accused. 3. The trial Court framed the following charge against the accused: “That you on or about the 3rd day of September, 2005 at about 02.30 P.M. at Krishna River beside Rangapur Village limits, (Beechupally), did commit murder by intentionally causing the death of your daughter R.Meghamala, aged 4 years by throwing into the Krishna river, and thereby you committed an offence punishable under Section 302 IPC, within the cognisance of the Court of Session.” When the above charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution examined PWs.1 to 8 and got marked Exs.P1 to P7. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. to explain the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same and did not adduce any oral or documentary evidence. 6. The learned Sessions Judge having accepted the evidence of P.Ws.1 and 7 and Ex.P.1, found the accused guilty of the offence punishable under Section 302 I.P.C. and accordingly convicted and sentenced him as stated above. Challenging the same, the present appeal is filed by the appellant/accused. 7. Heard Sri Vishnu Vardhan Reddy, learned counsel appearing for appellant as well as the learned counsel representing the Public Prosecutor. 8. The point that arises for consideration is:- Whether the prosecution has proved the charge under Section 302 IPC against the accused beyond all reasonable doubt? 9. The learned counsel appearing for the appellant contended that the evidence of PWs. 1 and 7, who are strangers to the accused, cannot be accepted in view of inconsistency in their evidence; that as the Sarpanch, Grampanchayat, Rajanagaram, who issued Ex.P.7; and the Sub Inspector of Police, who registered the case are not examined by the prosecution; an adverse inference can be drawn under Section 114(g) of the Evidence Act, 1872 (for short, ‘the Act’); that the evidence of P.W.1 would go to show that the accused was taken to Police Station by the passengers travelling in the R.T.C. bus; that whereas the evidence of P.W.7 goes to show that as if himself and P.W.1 took the deceased to the police station; that there is any amount of doubt with regard to the manner of lodging the complaint; that there is no evidence to show that the death of the deceased is homicidal as the corpus delicti has not been traced; that the evidence of P.W.3 who is the wife of the accused would go to show she had no daughter by name Megha Mala; that in these circumstances it is not safe to place an implicit reliance on the evidence of P.Ws.1 and 7; and hence, he prays to set aside the conviction and sentence imposed by the learned Sessions Judge. 10. On the other hand, learned counsel representing the Public Prosecutor contended that the evidence of PWs.1 and 7 is very clear, that it is the accused who threw the child into the Krishna River at Beechupalli Bridge in Mahabubnagar District; that though they are strangers, but they have taken the accused to the police station and set the criminal law into motion by lodging Ex.P-4 complaint; that non- examination of Sarpanch and Sub Inspector of Police, would not in any manner affect the main fabric of prosecution case; that the evidence of PWs. 1 and 7 is very clear that it is the accused who threw the deceased in to the river, that the learned Sessions Judge after an elaborate consideration of evidence on record, rightly found the accused guilty and there are no grounds to interfere with the said conviction and sentence. 11. According to the learned counsel for the appellant/accused, the case rests upon the circumstantial evidence and there is no direct evidence. In support of his contention he placed strong reliance in Bakhshish Singh V State of Punjab[1], wherein it is held thus: “The law relating to circumstantial evidence has been stated by this Court in numerous decisions. It is needless to refer to them as the law on the point is well-settled. In a case resting on circumstantial evidence, the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hupothesis of the guilt of the accused. Again those circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 12. He also relied on a decision reported in Eknath Vitthal Wakle V State of Maharashtra[2], wherein it is held thus: “In Sharad Birdhichand Sarda V. State of Maharashtra (AIR 1984 SC 1622), the Apex Court observed thus: (Para 152) i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; iii) the circumstances should be of a conclusive nature and tendency; iv) they should exclude every possible hypothesis except the one to be proved; and v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused”. The above two decisions have no application to the facts of the present case for the simple reason that those cases relied upon by the learned counsel for the appellant based on circumstantial evidence. Such is not a case here. In the present case, there is a direct evidence to show that the appellant had thrown one of his daughters into River Krishna. Whether direct evidence is acceptable or not, it has to be appreciated and evaluated to ascertain the truth. 13. No doubt the body of the deceased has not been traced. Corpus delicti has no reference to corpse. It means that before seeking to prove that the accused is the author of the crime, it must be established that the crime charged has been committed i.e. in murder case, that somebody is killed. The strongest proof of corpus delicti in murder is the body of the victim. In the absence of such evidence, direct evidence may also come from a person who saw slaying. The law as to the proof of corpus delicti has been laid down by the Hon’ble Apex Court in Sevaka Perumal Vs. State of Tamilnadu[3], wherein it was held thus (para 4): “In a trial for murder it is not absolute necessity or an essential ingredient to establish corpus delicti. The fact of death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. Take for instance that a murder was committed and the dead body was thrown into flowing tidal river or stream or burnt out. It is unlikely that the dead body may be recovered. If recovery of the dead body, therefore, is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead body is destroyed etc. and would afford a complete immunity to the guilty from being punished and would escape even when the offence of murder is proved. What, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum, of death was committed and it must be proved by direct or circumstantial evidence, although the dead body may not be traced.” 14. The entire case rests upon the evidence of PWs. 1 and 7, who are driver and cleaner of DCM Van respectively. The evidence of P.W-1 would go to show that, he saw the accused one and half years back at about 2.00 P.M. taking a five years baby and was coming on the Bridge; then he saw the said baby was in the River flowing in the water. He categorically stated that he did not see the accused throwing the baby into the water. It is his further evidence that when he asked the accused as to why he threw the baby into the water, the accused replied that the baby was his daughter; hence, he had thrown her into the river; meanwhile R.T.C bus came there and passengers of the bus took the accused to the Police Station. Except giving a suggestion that he was not present at the Bridge repairing the vehicle and the accused was not present at Beechupalli Bride, nothing has been elicited in the cross examination of P.W.1. No doubt, he has not seen the accused actually throwing of the baby into the Krishna River, but his evidence is clear that prior to throwing baby into river, he saw the accused and a child. Immediately after throwing, he saw the baby in the river flowing in the water. Thereafter immediately, he asked the accused as to why he threw the baby into the water. Therefore, the facts, which were within his knowledge, were spoken to by P.W-1. Further more, P.W-1 is totally a stranger to the accused. There is no impetus for PW-1 to speak false against a stranger. 15. PW-7 is a resident of Wadepalli. He knows the accused. According to him on the date of incident, he saw the accused at Beechupally Bridge, that the accused was bringing a child and he threw the child into the water; that accused told that child is his daughter and hence he threw the child into river. Himself and his driver caught hold of the accused and took him to the police station. The evidence of PWs-1 and 7 is found to be acceptable, then this evidence would come under the ambit and scope of Section 6 of the Indian Evidence Act, 1872 (for short, ‘the Act’) which reads as follows: “Relevancy of facts forming part of same transaction:- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.” The principle of law embodied in Section 6 of the Act is usually known as the rule of res gestae. The essence of the doctrine is that a fact which though not in issue, is so connected with the fact in issue “as to form part of the same transaction”, becomes relevant by itself. Illustration (a) of the Act reads as follows: “A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by- standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact” The evidence of PWs-1 and 7 would go to show that accused made the statement contemporaneously with the act or immediately after it. On this aspect it is relevant to refer to discussion in Sukhar Vs. State of Utter Pradesh[4] and in Gentela V. Vijayavardhan Rao V. State of A.P.[5] , wherein it is held thus: "the principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. This rule is, roughly speaking, in exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. " 16. P.W.7 lodged Ex.P.4 complaint. As seen from Ex.P.4, which is the earliest statement recorded by the Sub Inspector of Police, from PW-7, it would clearly go to show that on 03-09-2005 at about 2.30 P.M., one person was coming by walk on the Bridge from Kurnool side and was having a small child and he had thrown the small child into Krishna River; that immediately, PWs.7 and 1 ran towards him and caught hold of him and questioned him as to why he threw the child. He told him that she was his child and therefore, he had thrown her. Therefore, within one hour of the incident Ex.P.4 came into existence, which clearly go to show that it is the accused, who had thrown the child into the river, and the same was registered by the Sub Inspector of Police in Crime No. 98 of 2005 for the offence punishable under Section 302 IPC. In view of the fact that PWs.1 and 7 are totally strangers to the accused, the possibility of falsely implicating him into the case stating that he had thrown the child into the Krishna water can be ruled out. When the first information report was lodged promptly, there was no time for concoction and there was no reason for informant to inculpate the accused, then in such circumstances, the earliest version as stated in Ex.P.4 can be used for corroboration with the evidence of PW-7 in terms of Section 157 of the Act. From the evidence of PWs.1 and 7, it is very clear that it is the accused who had thrown the child from Beechupally Bridge into the Krishna River. From this evidence, it can be inferred that the accused is stranger to them. But, the accused was apprehended by them immediately after the incident and handed over to police. On this aspect, it is pertinent to refer to a decision reported in State of Utter Pradesh Vs. Rajju[6], wherein it is held thus: “It was urged before the learned Sessions Judge that as no identification proceedings were held in the case it could not be said that the accused were the persons who were actually arrested at the spot. The learned Sessions Judge rightly held that it was not necessary for the State to hold identification parade when according to the prosecution they were arrested at the spot. If the accused felt that the witnesses would not be able to identify them they should have requested for an identification parade.” 17. There is every possibility for the police not to trace the dead body, in view of the fact that there is a heavy flow of water in Krishna River in the month of September. As seen from the evidence of PW-4, who is the Work Inspector, it would clearly go to show that water flowing in the Krishna River at Beechupally Bridge was about 20 feet and in the month of September, there would be heavy flow of water. This evidence of PW-4 remained unchallenged. Similarly, there is every possibility for the crocodiles to eat the child, because PW-6, who is an employee in Fisheries Department, has categorically stated that there are Crocodiles moving near the Bridge at Beechupally in the Krishna River and that they have received complaints from the villagers about the moving of the Crocodiles in the Krishna River at Bheechupally Bridge. Therefore, either the body of the child must have been washed away in the current waters or the Crocodiles must have eaten the dead body of deceased. For that reason, there is every scope for non-tracing the dead body of the deceased from the scene of occurrence. From the evidence of PWs. 1 and 7, it is very clear that the accused had thrown the dead body, and therefore non-tracing of dead body is not a circumstance to doubt the case of the prosecution. 18. It is vehemently contended by the learned counsel for the appellant that the evidence of PW-1 is quite contradictory to the evidence of PW-7, in view of the fact that PW-1 stated that the passengers of RTC bus had taken the accused to the police station. Whereas PW-7 stated that he himself had taken the accused to the police station. But, as seen from the evidence of PW-7 coupled with the evidence of P.W.8 Investigating Officer, it is clear that it is PW-7, who took the accused to the police station and lodged EX.P.4 complaint. Because, P.W-1 was testifying about the fact before the Court after a lapse of two years, some inconsistencies or variations are bound to occur even in case of truthful witnesses. Therefore, on that sole ground, it cannot be said that the evidence of PWs. 1 and 7 has to be disbelieved or no reliance can be placed on their evidence. 19. With regard to the non-examination of Sarpanch, who issued Ex.P.7, and the Sub Inspector of Police, who registered the case, is concerned, the withholding or suppression of evidence must be a deliberate or malevolent act on the part of the prosecution so as to conceal the material evidence. There cannot be any dispute that suppression or withholding of useful evidence naturally leads to an inference that the evidence if produced would go against the party, who withholds it. The rule can be seen in the well known masum maxim ‘praesumuntur contra spoliatorem’. If a man wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be adopted. Before such adverse inference is to be drawn, it must be shown that those witnesses are material witnesses who would unfold the prosecution case on material particulars. On this aspect it is pertinent to refer to the decision reported in Behari Prasad V. State of Bihar[7], wherein it is held thus: “It however, appears to us that the entire diary should not have been allowed to be exhibited by the learned Additional Sessions Judge. In the facts of the case, it appears to us that the involvement of the accused in committing the murder has been clearly established by the evidence of the eye-witnesses. Such evidences are in conformity with the case made out in F. I. R. and also with the medical evidence. Hence, for non-examination of Investigating Officer, the prosecution case should not fail. We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straight jacket formula should be laid down that non- examination of Investigating Officer per se vitiates a criminal trial.” non- examination of Investigating Officer and in Harpaul Singh Vs. Devinder Singh[8], wherein it held thus: “No doubt, Randeep Rana would have been a material witness. But merely because he was not examined by the prosecution a criminal court is not to lean to draw the adverse inference that if he was examined he would have given a contrary version. The illustration (g) in Section 114 of the Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non- examination of a witness even if it is a material witness. We do not see any justification, in this case, in drawing such an adverse inference due to non-examination of Randeep Rana. [vide State of Karnataka v. Moin Patel, 1996 SCC (Cri) 632 : (1996 AIR SCW 1411)].” 20. The accused and P.W.3 were having four female children and their names were specifically stated in the report including the name of the deceased. Even assuming for a moment that the contents in Ex.P- 7, have not been proved as the person who issued the same is not examined, but the evidence of PWs. 1 and 7, would go to show that the accused threw the child into