HONOURBLE SRI JUSTICE D.S.R. VARMA AND HONOURBLE SRI JUSTICE RAJA. ELANGO CRIMINAL APPEAL NoS. 1813, 1817 AND 1818 OF 2009 DATED 09TH APRIL, 2010. BETWEEN Smt. S.Triveni ……..A.1/Appellant in Crl.A.No. 1813 of 2009 Mahaboob Pasha and anr ………A.2 & A.3/Appellants in Crl.A. 1817 of 2009 H.Krishna Murthy ….A.5/Appellant in Crl.A.No. 1818 of 2009 and The State of Andhra Pradesh, Rep. By the Public Prosecutor, High Court of AP, Hyderabad …….Respondent in all the appeals. HONOURBLE SRI JUSTICE D.S.R. VARMA AND HONOURBLE SRI JUSTICE RAJA. ELANGO CRIMINAL APPEAL NoS. 1813, 1817 AND 1818 OF 2009 COMMON JUDGMENT:(Per Hon’ble Sri Justice D.S.R.VARMA) 1. These Criminal Appeals under Section 374 (2) Cr.P.C. are ﬁled against the judgment in S.C. No. 16 of 2007 wherein and whereby the learned II Additional District & Sessions Judge, (i) Convicted A.1 (Appellant in Criminal Appeal No. 1813 of 2009) for the oﬀences punishable under Sections 120B, 364 r/w 109 and 302 r/w 109 IPC and sentenced to undergo rigorous imprisonment for six months and to pay ﬁne of Rs.1000/-, in default to suﬀer simple imprisonment for one month for the oﬀence under Section 120B IPC; rigorous imprisonment for two years and to pay ﬁne of Rs.2,000/-, in default to suﬀer simple imprisonment for two months for the oﬀence under Section 364 r/w 109 IPC; and, further sentenced to undergo imprisonment for life and to pay ﬁne of Rs.5000/-, in default to suﬀer simple imprisonment for six months for the offence under Section 302 r/w 109 IPC (ii) Convicted A2 and A3 (Appellants in Criminal Appeal No. 1817 of 2009) for the oﬀences punishable under Sections 120B, 302, 419 and 364 IPC and sentenced to undergo rigorous imprisonment for six months and to pay ﬁne of Rs.1,000/- each, in default to suﬀer simple imprisonment for one month for the oﬀence punishable under Section 120B IPC; rigorous imprisonment for two years and to pay ﬁne of Rs.2000/- each, in default to suﬀer simple imprisonment for two months for the offence punishable under Section 364 IPC and sentenced to undergo imprisonment for life and to pay ﬁne of Rs.5,000/-, in default to suffer simple imprisonment for six months for the oﬀence punishable under Sections 302 r/w 109 IPC; and, further sentenced to undergo rigorous imprisonment for one year and to pay ﬁne of Rs.1,000/- each, in default to suﬀer simple imprisonment for one month for the offence punishable under Section 419 IPC. (iii) Convicted A5 (Appellant in Criminal Appeal No. 1818 of 2009) for the oﬀences punishable under Sections 419, 364 and 302 r/w 34 IPC and sentenced to undergo rigorous imprisonment for two years and to pay ﬁne of Rs.2000/- , in default to suﬀer simple imprisonment for two months for the oﬀence punishable under Section 364 IPC; imprisonment for life and to pay ﬁne of Rs.5,000/-, in default to suﬀer simple imprisonment for six months for the oﬀence punishable under Section 302 r/w 109 IPC; and, further to undergo rigorous imprisonment for one year and to pay ﬁne of Rs.1000/-, in default to suﬀer simple imprisonment for one month for the oﬀence punishable under Section 419 IPC, and directed that all the substantive sentences against the accused shall run concurrently. 2. Inasmuch as all the appeals arise out of one and the same crime and so also all the accused before the Court below and appellants in these appeals are one and the same, they are heard together and disposed of by this common judgment. 3. The case projected by the prosecution and narrated by the trial Court is as follows: 4. A1 is a resident of Adarsh Palace, Bangalore City and Correspondent of Oxford Educational Institutions, Bangalore. A2 and A3 are also residents of Bangalore City, A4 is the resident of Hilanahalli, Sira Taluk of Tumkur district and A5 is a resident of Hirayur, Chitradurga District of Karnataka State and A5 is the driver of Tata India Car No. KA.16.P.8181. The complainant Madiraju Venkatramana Raju, aged about 70 years, S/o Chengamaraju is a resident of Balasamudram Village, H/o Pandillapalle, Chowdepalli Mandal. The deceased, M.Nageswara Raju is the elder son of the complainant M. Venkaramana Raju. 5. On 08.07.2001 at 2.00 p.m. M. Venkatrama Raju, Retired Teacher, resident of Balasamudram village ﬁled a complaint that he is a retired teacher, that he has got two married sons namely M.Nageswara Raju (deceased) and L.W.8 M.Muralimohan Raju and one married daughter Lakshmamma. M.Murali mohan Raju is a Civil Engineer; residing at Bangalore and the deceased M.Nageswara Raju was doing cultivation at his village and also doing contract works at Bangalore. Since 2 ½ years the deceased M.Nageswara Raju had done contract works at Bouncewada Ring Road, Ramamurthy Nagar, Bangalore and later returned to his village about six months back and was attending to his agricultural operations. On 28.06.2001 at about 8.00 p.m. four persons, including the driver of Tata India car came to his house. One among them came to Balasamudram village thrice on the pretext of issuing Seri cultural loans. They took his elder son M.Nageswara Raju in the car to go to Chowdepalle. Since then the whereabouts of his elder son are not known. He has also learnt that one of them who is a Sericulture Oﬃcer visited Balasamudram village and took application from the villagers for the sanction of agricultural loans and issued receipts. The said persons also took the photos of the ryoths of mulberry plantation and he enquired with the oﬃcials of Sericulture Department about his elder son M.Nageswara Raju and conﬁrmed that no oﬃcial from Sericulture Department visited Balasamudram village. The car is having Karnataka registration number and it is metallic green colour. 6. The S.I. of Police, Chowedepalli P.S. (L.W.49) has registered the above complaint as ‘man missing’ and investigated into. On 29.09.2001 at 4.00 p.m. since the whereabouts of the missing person is not known and the missing person did not return home and the identity of the persons who took the missing person is not established, the section of law altered into Section 363 IPC and investigated into. During the investigation, it revealed that L.W. 8 M.Muralimohan Raju working as Deputy Divisional Engineer in Karnataka Road Development Corporation, Bangalore got married Triveni (A.1), the elder daughter of S.Narasaraju, Chairman of Oxford Educational Institutions, Bangalore during the month of August, 1989, blessed with one daughter by name Ujwala, aged about 11 years. The deceased M.Nageswara Raju married Janaki (L.W.2). A1 Triveni and L.W.2 Janaki are cousin sisters. Presently Triveni is working as Correspondent of Oxford Educational Institutions, Bangalore. Since the date of her marriage, she used to ill-treat her husband and his family members. Even if her husband talks with the ladies, she started suspecting his character. She is aggressive in sex and used to insult her husband on bed with regard to his sexual competency. M. Muralimohan Raju had suﬀered with depression, psoriasis and joint pains due to the behaviour of his wife Triveni. The relationship with A1 and her husband on one part was strained on account of her diﬀerent attitude and her misbehaviour, which was not liked, by the deceased and his wife Janaki. Therefore, the relationship between A1, the deceased M.Nageswara Raju and his wife and other family members was strained. A1 was in the habit of visiting clubs, attending parties with her male friends and used to return to her house late in the nights. A1 demanded the deceased M.Nageswara Raju to give her husband’s share of property, which was ﬂatly denied by the deceased M.Nageswara Raju and the deceased M.Nageswara Raju also found fault with A1 for going too close with one Sreedhar, who is her close male friend. The deceased brought to the notice of the relatives of A1 and her parents of A1’s erratic behaviour including the assault of the wife of the deceased M.Nageswara Raju and the kicking of A1 of her husband and in the panchayat when A1 behaved oddly, the deceased M.Nageswara Raju slapped A1, upon which A1 developed hatredness towards the deceased M.Nageswara Raju and his wife and was hatching plans. About six months, A1 Triveni stayed in the house of her parents and later joined with her husband at the intervention of elders. Since then also no change in her attitude and she went to the extent of suspecting her husband having illicit intimacy with L.W.2 Janaki, wife of the deceased M.Nageswara Raju. 7. On 07.07.2001 at about 8,00 p.m. L.W.8 M.Muralimohan Raju, husband of A1 while he was in his house, found A1 making a local phone call from STD booth, though there is functioning of phone in his house. On that he got suspicion and veriﬁed the telephone bills of his residence and conﬁrmed that A1 hatched plans to do away with his life and also her illicit contracts with poojaries and astrologers, which came to the notice of A1 and since then she strict to do away with the life of her elder brother in law M.Nageswara Raju and ruin their entire family. 8. A1 through her friend and close associate one Venkatesh originally conspired with A2 and A3 by luring them with a sum of Rs.2,50,000/- amount and to do away the deceased M.Nageswara Raju for about six months prior to June, 2001. To accomplish the common intention of A1 to A3, A4 lured by A2 and A3 and later A2 to A4 took A5 into their fold. The accused A2 to A5 in a well hatched plan, came to the residence of the deceased M.Nageswara Raju in Balasamudram village in India car bearing registration No. KA.16P.8181 posing as Central Sericulture Oﬃcers by pasting Central Sericulture sticker on the car in order to make believe the villagers that they are Central Sericulture Oﬃcers and pretended till evening and visited the house of the deceased M.Nageswara Raju and added him to accompany them to Chowdepally to help them in their oﬃcial work and kidnapped him in the car by deceitful methods with the intention to kill the deceased M.Nageswara Raju and to accomplish their objectives. 9. During the course of investigation, on 19.12.2001 at 9.45 a.m. at the main gate of CPWD Quarters, situated in H.S.R. layout, Agara, Bangalore City in the presence of mediators Govinda Gowdu, N.Maheshkumar and S.V.Krishna Reddy (L.Ws. 34 to 36) while both the accused were coming on a scooter from inside of CPWD quarters, on interrogation, they deposed their names and addresses as A2 and A3 and they have also confessed that they visited Balasamudram village on the night of 28.06.2001 at 8.00 p.m. by posing themselves as Sericulture Oﬃcers and issued sericulture loans to the ryoths and took the deceased M.Nageswara Raju in the car in order to kill him on the pretext of going to Chowdepalle and took him to Neelagiri garden situated near Thyamagundlu village of Bangalore Rural District and on the same night killed the deceased M.Nageswara Raju by beating him with an iron rod and stones. The confessional statements of A2 and A3 were recorded in the presence of mediators Govinda Gowdu, N.Maheshkumar and S.V.Krishna Reddy (L.Ws. 34 to 36) and they also added that they will show the place where they committed the murder. In pursuance of the confessional statements of A2 and A3, they led the police and mediators Govinda Gowdu, N.Maheshkumar and S.V.Krishna Reddy (L.Ws.34 to 36) to the scene of offence, which is situated in Neelagiri garden near Thyamagundlu village, where they killed the deceased. The scene of oﬀence description has duly drafted and an observation mahazar at 5.30 p.m. on 19.12.2001 duly attested by the panchayatdars Govinda Gowdu, N.Maheshkumar and S.V.Krishna Reddy (L.Ws. 34 to 36). On 19.12.2001 at 7.45 p.m. basing on the confessional statements of A2 and A3, L.W.19 the then S.I. of police, Chowdepalli P.S. arrested them, earthing the scene of oﬀence, and altered the section of law into Secs. 120(b), 419, 364, 302,404, 201 r/w. 34 IPC. After observing all formalities by L.W.50 the then Inspector of Police, Punganur circle sent the A2 and A3 for remand to the Court. 10. On 01.07.2001 at 3.00 p.m. L.W.27 K.S. Kesavamurthy of Niduvanda, Sompara Hobli, Nelamangala Taluk of Karnataka State appeared before L.W. 47 A.S.I. of Thyamagundla P.S. lodged a report, regarding lying of an unknown male dead body with bleeding injuries and registered as Cr.No. 38/2001 under Section 302 IPC of Thyamagundla P.S. During the course of investigation, on 01.07.2001 between 3.30 p.m. to 5.30 p.m. L.W. 48 circle Inspector of Nelamangala held inquest over the dead body of the deceased in the presence of L.Ws. 29 to 31 N.G.Nanjundaiah, Naganna and Raju and sent the unknown dead body for autopsy. On 21.12.2001 at 1.30 P.M. L.W.2 Janaki, wife of the deceased M.Nageswara Raju duly identiﬁed the Cheppals, wrist watch and clothes etc., of unknown dead body of deceased concerned in Thyamagunlu P.S. in Cr.No. 38/2001 under Section 302 IPC belonging to her husband and also conﬁrmed the identity of deceased as M.Nageswara Raju concerned in this case. 11. During the course of further investigation, on 28.12.2001 at 5.30 a.m. at Cuddapah Lodge on MBT Road, Punganur, where A3 occupied a room No. 115 on 06.06.2001 containing in the lodge register on 28.12.2001 at 6.35 a.m. seized the petrol bunk bill register containing ﬁlling of 20 liters of diesel to Tata India car KA-16P.8181 on 28.06.2001 evening at T.N.Nagi Reddy & Company Petrol Bunk on MBT Road, Punganur under the cover of separate mahazar duly attested by L.Ws. 37 and 38 B.Sathyanarayana and Y.Chandrasekhar. In pursuance of the confessional statements of A2 and A3, on 28.12.2001 at 5.05 p.m. at Hirayur P.S. of Chitradurga District, Karnataka State Tata India Car No.KA.16P.8181 which is the crime vehicle used for committing the oﬀence in this case was seized under a cover of separate panchanama in the presence of L.Ws. 39 and 40 R.Mohammed Raﬁ and Abdul Sathar @ Basha. On 31.05.2002 at 3.00 p.m. at Punganur Circle Oﬃce, A4 was arrested on his appearance in Circle Oﬃce before L.W. 15 the then Inspector of Police, Punganur Circle. When interrogated A4 in the presence of L.Ws. 41 and 42 K.Nagaraj and T.Nagaraja in which he admitted of having committed the oﬀence and also seized one gold ring relating to the deceased M.Nageswara Raju under the cover of a separate mahazar duly attested by L.Ws. 41 and 42 K.Nagaraj and T.Nagaraja and sent A4 to remand. L.W.43 Dr.B.Y.Prveen Kumar, Medical Oﬃcer of Primary Health Center, Thyamagundlu of Karnataka conducted P.M. examination over the dead body of the deceased M.Nageswara Raju, and opined that death has occurred due to “neurogenic shock”. The then Principal Junior Civil Judge, Madanapalle (L.W.44) conducted test identiﬁcation parade with L.Ws. 2 to 7 M.Janaki, K.Bommaraju, G.Krishnamurthy, K.Narayanaraju, T.Krishnappa and K.Muralidhar, in which they identiﬁed A2 and A3 who have participated in the commission of oﬀence vide proceedings, dt. 22.12.2001. The I Additional Junior Civil Judge, Madanapalle (L.W. 45) conducted test identiﬁcation parade, in which L.Ws. 2,3 and 5 M.Janaki, K.Bommaraju and K.Narayanaraju duly identiﬁed A4 vide proceedings, dt. 10.06.2002. During the course of investigation, they seized material objects, sent to the Assistant Director of R.F.S.L., Tirupathi for chemical analysis, which were duly acknowledged vide APFSL File No. TPT/SER/33/2003, dt. 09.12.2003. 12. Though the charges are read over the accused, they pleaded not guilty. 13. To substantiate the charges, the prosecution examined P.Ws. 1 to 40 and got marked Exs.P.1 to P.118, besides the case properties M.Os. 1 to 25. Neither oral nor documentary evidence was adduced on behalf of the State. 14. It is necessary and proper to state in brief about the evidence adduced by the prosecution witnesses, which runs as follows: 01. P.W.1 M.Venkatrama Raju is the defacto complainant and father of the deceased M.Nageswara Raju and father in law of A1. He examined to speak about the missing of his son M.Nageswara Raju and later conﬁrming about the kidnapping of his son, etc. 02. P.W.2 M,Janaki, is the widow of the deceased M.Nageswara Raju. She would speak about the kidnapping of her husband by four persons and also suspected her co-sister Triveni is responsible for kidnapping of her husband, identifying A2 to A4 in test identiﬁcation parade and also identiﬁcation of the cloths, watch and chappals, etc., belonging to her husband in Thyamagundlu P.S. of Karnataka State and so also about the enmity of A1 towards her family and her husband. 03. P.W.3 K.Bommaraju and P.W.4 G.Krishnamurthy and P.W.5 K.Narayana Raju would speak that A3 came to their village Balasamudram on three or four occasions along with others posing themselves as Sericulture Department oﬃcials and taken the photos of some farmers as if they want to arrange loans from Sericulture Department and A2 to A5 came to the house of P.W.1 and taken away the deceased in Tata Indica car. Further they would speak that they identiﬁed A2 to A4 in test identiﬁcation parade at Sub Jail, Madanapalle etc. 04. P.W.6 K.Muralidhar is examined mainly to speak that A3 and the deceased M.Nageswara Raju travelled in his auto and A3 posing himself as Sericulture Department Oﬃcer and also promised him to provide sericulture loan, giving one application duly taken his photo etc. 05. P.W. 7 M.Venkataramana Raju and P.W.8 K.Subramanyam Raju would speak that the former is the member of Sri Krishnadevaraya Education Trust, Bangalore and dispute between A1 and her husband and with the deceased M.Nageswara Raju and her family members and that they along with others tried to settle the dispute amicably, but in vain. 06. P.W.9 K.Sreenath stated to be the then Manager of Cuddapah Lodge, Punganur and he would speak A3 stayed in Cuddapah Lodge, Punganur on 06.06.2001 at 9.00 p.m. and also C.I. of police, Punganur brought A3 to his lodge and seized the lodge register under the cover of panchanama. 07. P.W.10 V.Narayanaraju and P.W.21 B.Satyanarayana stated to be the sales men in T.N.Nagi Reddy and Company will speak that A3 and A4 ﬁlled 20 liters of diesel to their Tata Indica Car KA.16P.8181 at his petrol bunk, which car pressed into service for kidnapping of the deceased M.Nageswara Raju from his house and so also subsequently C.I. has secured the records. 08. P.W.11 N.Subramanyam would speak that A2 to A5 visited his hotel on 28.06.2001 night, had dinner and one of the person accompanied the deceased M.Nageswara Raju paid hotel bill etc. 09. P.W.12 B.Roshan sahib would speak about the friendship between A2 to A4 etc. facts. 10. P.W.13 R.Imran and P.W.14 Nawaz Muneer Sait will speak the fact of their witnessing A4 and A5 coming in the car at vegetable market Hiriyur and two days later A5 enquired for A4 at his dabha hotel, etc 11. P.W.15 C.Sreenivas, P.C. 7037, Srerampuram P.S., Bangalore City and P.W.23 T.Nagaraju will speak the arrest of A4 and recorded his confessional statement on 31.05.2001 and seizure of one gold ring belonging to the deceased M.Nageswara Raju etc.,. 12. P.W.16 E.Prakash Reddy says A1 having contacts with him about character of A2 and A3, arranged vehicle to them for their travel and on 28.06.2001 at about 1.30 p.m. L.Ws. 23 and 24 being the police came to his house, veriﬁed the complexity of A2 and A3 about their parking the scooter at his house etc. 13. P.W.17 N.S.Kesavamurthy is examined to speak that he lodged complaint in Thyamagundlu P.S. about the information received by him from the cattle grazers regarding laying of an unidentiﬁed male dead body with bleeding injuries on 01.07.2001 at 3.00 p.m. and his presence at the time of seizure of items 1 to 8 at the scene and attesting the same etc.,. 14. P.W.18 Srikumar would speak that he has ﬁrstly noticed the dead body of an unknown male person with injuries at Neelagiri gardens. 15. P.W.19 N.G.Nanjunadaiah, who is the mediator for the inquest held over the unidentiﬁed male dead body at Neelagiri garden. 16. P.W. 20 N.G.Puttaraja, who is the mediator for the inquest held over the dead body of unidentified of male etc. 17. P.W.22 Dr.B.Y. Praveenkumar, Medical Oﬃcer would speak about the autopsy held by him over the unidentiﬁed dead body of a male and opined that the deceased would died of neurogenic shock. 18. P.W.24 S.K.Bhaskar Raju also would speak about the medication made by them between the couple of A1 and her husband and instructed them to live amicably etc.,. 19. P.W.25 Abdul Sattar is the mahazardar for the seizure of Tata Indica car by Hirayur Police. 20. P.W.26 Govinda Gowda would speak as mediator for arrest of A2 and A3 and recording of their detailed confessional statements and leading them to the place of murder of the deceased M.NageswaraRaju etc.,. 21. P.W.27 Dodda Ramaiah who has said to have registered a case in Cr.No. 38/2001 of Thyamagundlu under Section 302 IPC on receiving complaint from P.W.17 of his noticing the unidentiﬁed male dead body at Neelagiri garden. 22. P.W.28 Krishnappa, C.I. of Police, Nelamangala of Bangalore Rural District conducted investigation after regtistering of the Cr.No.38/2001 under Section 302 IPC and got conducted postmortem and transferred the ﬁle to the Circle Oﬃce, Punganur on point of jurisdiction. 23. P.W.29 M.V.Vijayakumar, P.C.1675 of Thyamagundlu P.S. would speak that he has escorted the dead body of the deceased M.Nageswara Raju from scene to the mortuary and being present at the time of conducting P.M. examination over the dead body of the deceased. 24. P.W.30 S.Sathya Prsad is Telecom Engineer in Mobi Link, Bangalore. 25. P.W.31 S.K.Yusuf, the then Principal Junior Civil Judge, Madanapalle who conducted test identification parade in this case. 26. P.W.32 M.Muralimohan Raju, who is the husband of A1 and he would speak about the strained relationship with A1 and moving A1 with her male friends and A1 in the company of one Sreedhar of U.S.A. and made several phone calls to her male friends and also local calls from the S.T.D. booth out side of his house, tapping the phone numbers of his wife etc., facts. 27. P.W.33 R.Vaisali and P.W.34 K.Ramesh would speak about A1 used their phone on the pretext of their (A1’s) phone got repairs. 28. P.W.35 Dr.M.Sivakumar, Homeopathy Hospital, Kondamarri who has examined the deceased M.Nageswara Raju and also given blood reports that it is of B group. 29. P.W.36 P.Ramachandra Naidu, the then Inspector of Police, Punganur Circle is the ﬁrst investigating officer. 30. P.W.37 E.Kenyappa, Tahsildar, Nalamangal Taluk would speak about the conducting of inquest in his presence over the dead body of the deceased. 31. P.W.38 R.T.Krishnappa, the then Tahsildar, Padmanabha Nagar of Bangalore in whose presence the dead body of the deceased was exhumed. 32. P.W.39 D.S.N.Reddy, then the Inspector of Police, Punganur Circle is the 2nd investigating officer. 33. P.W.40 N.Krishna Prasad, the then Inspector of Police, Punganur Circle is the 3rd Investigating oﬃcer, who ﬁled the charge sheet after completion of entire investigation. 15. The learned Sessions Judge after framing charges, conducted full-ﬂedged trial and examined 40 witnesses on behalf of the prosecution and marked Exs. P 1 to P.118 besides marking M.Os. 1 to 25. After perusal of the evidence adduced both oral and documentary, the learned Sessions Judge convicted and sentenced the accused as stated supra. 16. The evidence adduced by the prosecution witnesses and the case portrait by the prosecution in the trial Court is as follows: “ On 28.06.2001, A1 to A3 and H.S. Umesh @ Gunda Raj (A4) conspired and in pursuance of their conspiracy, A-2, A-3, A-5 and A-4 pretended to be the oﬃcials of Central Sericulture and cheated the villagers of Balasamudram including the deceased. On 28.06.2001, at about 8.00 p.m., A2, A3, A5 and A4 kidnapped the deceased and on the abetment of A1; A2, A3 and A4 took the deceased M.Nageshwara Raju to Neelagiri Thopu near Thyamalugundlu village on the Bangalore Highway. A2 and A3 caught hold of the hands of the deceased and A4 beat the deceased with stones. A2 and A3 also beat the deceased with stones and caused his death. A5 was the driver of the Tata Indica Car