THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL No.144 of 2007 % 27.12.2010 Between: Sirnapally Swamy ..... APPELLANT AND State of A.P. represented by Public Prosecutor High Court of A.P., Hyderbad. .....RESPONDENT ! Counsel for the Appellant: Smt Shanti Neelam ^ Counsel for the respondent : Public Prosecutor < Gist: > Head Note: ? CITATIONS: 1. AIR 1984 SC 1622 2. (1995) 3 SCC 574 THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL No.144 of 2007 JUDGMENT: (per Hon’ble Sri Justice K.C.Bhanu) This Criminal Appeal, filed under Section 374 (2) of the Code of Criminal Procedure, 1973, is directed against the judgment, dated 10.11.2006, passed in S.C.No.128 of 2006 on the file of IV Additional District and Sessions Judge (Fast Track Court-I) at Siddipet, whereunder and whereby the appellant-sole accused was found guilty of the offences punishable under Sections 302 and 379 IPC and accordingly, convicted and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for month for the offence punishable under Section 302 IPC, and also to suffer rigorous imprisonment for one year for the offence punishable under Section 379 IPC. Both the sentences were directed to run concurrently. 2. The brief facts of the case that are necessary for disposal of this Criminal Appeal may be stated as under: - P.W-1 is the son, P.W-2 is the daughter-in-law, P.W-3 is the husband, P.W-4 is the neighbour and P.W-5 is the nephew of the deceased. P.Ws.6 and 7 are the workers in Rama Pawn Brokers shop. P.Ws.8 and 9 are the panch witnesses. P.W-10 is the surety to the accused. P.W-11 is the mediator. P.W-12 is the photographer. P.W-13 is the Sub-Inspector of Police, who registered the crime. P.W-14 is the Investigating Officer and P.W-15 is the doctor who conducted post-mortem examination on the dead body of the deceased. The accused is a resident of Markook village of Mulugu Mandal. He was working as Helper in electricity works. While so, on 20.12.2005, in between 1 and 1.30 pm., the accused entered into the house of one Paindla Agamma (hereinafter referred to as “the deceased”) and after noticing that she was alone, he beat her with a pestle on her head and on her face and committed theft of gold gundlu and gold ganteelu from her and went away from that place. P.W-4 having found the deceased with injuries, went and informed the same to P.W-1-the son of the deceased, who was working in his agricultural land. Then, P.W-1 along with his wife and other relatives rushed to the house and found his mother dead with injuries and the gold jewels worn by her were also found missing. On the same day, he gave a report to the Sub-Inspector of Police, Mulugu, who, in turn registered the same as a case in Crime No.59 of 2005 for the offences punishable under Sections 302 and 379 IPC and took up the investigation. During the course of investigation, the Police recorded the statement of P.W-1, conducted the panchanama of the scene of occurrence, seized the blood stained earth, pestle and bed cover from the scene of offence, conducted inquest on the dead body of the deceased, sent the dead body of the deceased to post-mortem examination. Subsequently, on 23.12.2005, at about 10 hours, the accused was apprehended in his house and on interrogation, he admitted his guilt and led the police personnel and the mediators to the shop where the articles-M.Os.1 and 2 were pledged. After completion of the investigation, the charge sheet was filed against the accused for the offences punishable under Sections 302 and 379 IPC. 3. When the charges under Sections 302 and 379 I.P.C. were framed against the accused, read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried. 4. In order to substantiate the case, on behalf of the prosecution P.Ws.1 to 15 were examined and Exs.P-1 to P.11 were marked. On behalf of the accused, neither oral nor documentary evidence was adduced. 5. The trial Court accepting the evidence of P.Ws.5, 7, 10 and 11 coupled with the evidence of the Investigating Officer-P.W-14 found the accused guilty of the charges levelled against him, as the circumstantial evidence adduced by the prosecution established the guilty of the accused beyond all reasonable doubt and accordingly, convicted and sentenced him, as stated supra. 6. Now, the point for determination is whether the prosecution has proved the case beyond all reasonable doubt for the offences punishable under Sections 302 and 379 IPC against the accused. 7. Learned counsel appearing for the appellant- accused contended that even if the entire circumstantial evidence adduced by the prosecution is taken as true and correct, at best, it can only raise a suspicion which cannot be a basis for convicting the accused; that except the evidence of P.W.5, who saw the accused moving near the house of the accused, there is no other evidence to show that the accused was going into or coming out of the house of the deceased prior to or after the alleged incident. Therefore, from the said circumstance, it cannot be said that the accused is the perpetrator and none else. She further contended that the recovery of M.Os.1 and 2 cannot be taken as a link in view of the fact that there was a time gap between the commission of the offence and the recovery of M.Os.1 and 2 from the deceased, and in such circumstance, the presumption that the accused, who was found in possession of the theft articles, is the person who committed the murder of the deceased cannot be drawn. She also contended that Ex.P-2-receipt which contains the signature of the accused cannot be used as evidence inasmuch as P.W-10 who accompanied the accused for the purpose of giving surety did not sign on Ex.P-2 and therefore, no reliance can be placed upon Ex.P-2 so as to infer that M.Os.1 and 2 were pledged with P.W-6 and hence, she prays to set aside the conviction and sentence imposed on the accused by the Court below. 8. On the other hand, learned counsel representing learned Public Prosecutor, contended that P.W-5 saw the accused moving near the house of the deceased and immediately, after the incident, P.W-4 noticed the dead body of the deceased and hence, there is no scope or possibility for any other person to enter into the house of the deceased; that P.W-5 has no grouse or enmity against the accused so as to implicate him falsely; that soon after the occurrence, M.Os.1 and 2, which belonged to the deceased, were seized from the shop of the P.W-6 in the presence of P.W-11 and others; and that the accused has not denied or disputed about the pledging of M.Os.1 and 2 by him with P.W-6. As such, these circumstances linked with the other circumstantial evidence that P.W-5 found the accused moving near the house of the deceased immediately after the incident would clearly go to show that it is the accused and none else who committed the murder of the deceased; and that after elaborate consideration of evidence on record, the trial Court rightly found the accused guilty of the charges levelled against him and accordingly, convicted him and hence, there are no grounds to interfere with the impugned judgment. 9. The entire case of the prosecution rests upon the circumstantial evidence as there is no direct evidence to show about the complicity of the accused in the commission of the said offence. When the case rests upon circumstances, the following principles have to be followed for convicting the accused in view of the decision reported in Sharad Birdhichand Sarda vs. State of Maharashtra[1]. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made : "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) 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. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) 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.” 10. In Gulab Chand Vs. State of Madhya Pradesh[2], the Supreme Court at para 4 observed as under:- “We have considered the judgment passed by the learned Sessions Judge and also by the High Court and we have been taken through the evidences adduced in this case. It has been established in the instant case that the appellant Gulab Chand was taken into custody on 27-4-1979 by the police and when the police searched his house with the key supplied by the accused, a musical instrument called Banjo was found in his room and from inside the said instrument, the police seized gold Tabij (Article 10), two pairs of Jhumkas (Article 11), Shringaridan (Article 9), silver bangles (Article 7), one brass Bungari (Article 21) and currency notes worth Rs.1200. It has also been established in this case that on the information given by the said accused, the police seized certain silver ornaments from PW 12, Balram, from his shop at Jabalpur and it has been established that the accused sold the said ornaments to Balram and signed in the register maintained by Balram in proof of selling the said ornaments. It has also been established by cogent evidence that the said ornaments belonged to the deceased. It may be stated that on 29-5-1979 a test identification parade was held in which the recovered ornaments were duly identified as belonging to the deceased by Durgaprasad and other witnesses. It is true that simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery. But culpability for the aforesaid offences will depend on the facts and circumstances of the case and the nature of evidence adduced. It has been indicated by this Court in Sanwat Khan v. State of Rajasthan1 that no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances. It has also been indicated that where only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder. A note of caution has been given by this Court by indicating that suspicion should not take the place of proof. It appears that the High Court in passing the impugned judgment has taken note of the said decision of this Court. But as rightly indicated by the High Court, the said decision is not applicable in the facts and circumstances of the present case. The High Court has placed reliance on the other decision of this Court rendered in Tulsiram Kanu v. State2. In the said decision, this Court has indicated that the presumption permitted to be drawn under Section 114, Illustration (a) of the Evidence Act has to be read along with the “important time factor”. If the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months had expired in the interval, the presumption cannot be permitted to be drawn having regard to the circumstances of the case. In the instant case, it has been established that immediately on the next day of the murder, the accused Gulab Chand had sold some of the ornaments belonging to the deceased and within 3- 4 days, the recovery of the said stolen articles was made from his house at the instance of the accused. Such close proximity of the recovery, which has been indicated by this Court as an “important time factor”, should not be lost sight of in deciding the present case. It may be indicated here that in a later decision of this Court in Earabhadrappa v. State of Karnataka3, this Court has held that the nature of the presumption and Illustration (a) under Section 114 of the Evidence Act must depend upon the nature of evidence adduced. No fixed time-limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not, calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been absconding during that period. In our view, it has been rightly held by the High Court that the accused was not affluent enough to possess the said ornaments and from the nature of the evidence adduced in this case and from the recovery of the said articles from his possession and his dealing with the ornaments of the deceased immediately after the murder and robbery a reasonable inference of the commission of the said offence can be drawn against the appellant. Excepting an assertion that the ornaments belonged to the family of the accused which claim has been rightly discarded, no plausible explanation for lawful possession of the said ornaments immediately after the murder has been given by the accused. In the facts of this case, it appears to us that murder and robbery have been proved to have been integral parts of the same transaction and therefore the presumption arising under Illustration (a) of Section 114 Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her ornaments. We therefore, do not find any reason to interfere with the impugned decision of the High Court and accordingly this appeal fails and is dismissed. 11. Keeping the above principles in mind, it is to be seen whether the accused is the assailant of the deceased and if all the circumstances are taken together as true and correct, whether they unerringly point the guilty towards the accused so as to convict him for the offence punishable under Section 302 IPC. 12. The case of the prosecution appears to be murder for gain because there are no prior disputes between the accused and the deceased or the family of the deceased. P.Ws.1 to 3, admittedly, were not present at the time of the alleged occurrence. On coming to know about the death of the deceased from P.W-4, they rushed to the house and found the deceased with injuries. It is not in dispute that the deceased died as a result of the injuries sustained by her. 13. P.W-15, who conducted post-mortem examination on the dead body of the deceased, found the following ante-mortem injuries on her person: - “1. Lacerated wound over left cheek with fracture left maxilla measuring 2 x 1 x 1 inches. 2. Lacerated wound over left ear lobe ¼ x ¼ x ¼ inches. 3. Lacerated wound over left parital region of scalp with sub cutenaous heamatome with sub-dural heamatoma left hemisphere 3 x 1 x 1 inches. 4. Lacerated wound over right ear lobe ¼ x ¼ x ¼ inches.” 14. He issued Ex.P-11-post-mortem report opining that the cause of death was due to Carano cerebral injury. Therefore, the homicidal death of the deceased is established from the evidence of P.W-15 and the recitals in Ex.P-11, which remained unchallenged. 15. The case of the prosecution solely relies upon the evidence of P.W-5 who is said to have seen the accused moving near the house of the deceased. The alleged incident has taken place on 20.12.2005 between 1 and 1.30 pm. According to P.W-5, his cattle shed is situated behind the house of the deceased. He deposed that at about 1.30 pm., while he was present in the cattle shed, he noticed the accused proceeding near the house of the deceased and when he questioned the accused as to why he came there at that point of time, the accused replied that he came to know whether the power supply is available or not and saying so he proceeded towards Metti gadda and went away. He further deposed that immediately thereafter, P.W-4 informed that her maternal aunt, who is the deceased, was lying on the cot. Then, himself and others went to the house and found the deceased with bleeding injuries on the head and her ears were cut. In cross-examination, he stated that he knows the father of the accused, who was a helper and was a resident of Markuk village and therefore, he knows the accused. According to him, the distance between his cattle shed and the house of the deceased is 8 yards. He deposed that in between 1-30 to 2 pm he was in the cattle shed by untying the bulls from the cart; that except one washer-woman, there are no other persons present in the surrounding houses; that while he was tying the bulls, he noticed the accused alone was going. He also stated that on coming to know through P.W-2 that the deceased died, he along with other villagers went there. According to him, the deceased died in between 1-30 to 2 pm. He was present there till 3.30 pm. So, the case of P.W-5 is to be accepted as true and correct, he could be in a position to see the accused from his cattle shed. According to P.W-5, his cattle shed him lies behind the house of the deceased. Men may lie, but not the circumstances. In Ex.P-5-rough sketch of the scene of occurrence, prepared by the Investigating Officer-P.W-13, also the house of P.W-5 was not shown as immediately lying behind the house of the deceased. Similarly, in Ex.P-4-scene of offence panchanama, which was prepared by the Police in the presence of P.Ws.8 and 9 also, neither the house of P.W-5 nor his cattle shed was shown as located behind the house of the deceased. When P.W-5 himself admitted that his house is located behind the house of the deceased, it may not be possible for any person to witness what was happening in front of the house of the deceased. Therefore, the evidence of P.W-5 appears to be suspicious with regard to his seeing the accused and questioning him as to why he came there at that point of time. Therefore, no implicit reliance can be placed upon the evidence of P.W-5 in view of the fact that neither his cattle shed nor his house are located behind the house of the deceased, as per Ex.P-4 or Ex.P-5, which are the scene of occurrence panchanama and rough sketch of the scene, respectively. Baring this evidence, there is no other evidence to show that the accused was moving near the house of the deceased just before or immediately after the death of the deceased. Similarly, there is no evidence to show that the accused entered into the house or coming out from the house of the deceased prior to or immediately after the incident. When such is the case, the sole circumstance of the accused moving on the road near the house of the accused at the relevant time of the alleged incident cannot be taken so as to infer that in all probability the crime was committed by the accused and none else. 16. According to the doctor, who conducted post- mortem on the dead body of the deceased, the death of the deceased had taken place within 24 hours., i.e., the death must have taken place after 9 am on 20.12.2005. The evidence that the death of the deceased took place in between 1 pm and 1.30 pm on 20.12.2005 cannot be conclusively accepted. 17. Further, P.W-5 deposed that after answering the questions asked by him, the accused went away towards Matti gadda. Therefore, if really, the accused is the perpetrator of the crime, definitely he would not have answered the questions raised by P.W-5, as he will be in a protuberate state of mind at that point of time because the alleged incident has taken place in between 1-30 to 2 pm. In such an event, the circumstances with regard to the accused moving near the house of the deceased as spoken to by P.W-5 cannot be said to be cogent and convincing and therefore, no reliance can be placed upon the evidence of P.W-5. 18. As regards M.Os.1 and 2, the evidence of P.Ws.1 to 3 that they belonged to the deceased remained unchallenged. 19. Now, it is to be seen whether M.Os.1 and 2 are pledged by the accused with P.W-6, for convicting him for the offence punishable under Section 379 IPC. 20. The evidence of P.W-6 would go to show that on the date of the occurrence, the accused came to his shop and wanted to pledge the gold gundlu and one pair of gold studs, but as he does not know the accused he insisted to produce a surety for him. Then, the accused brought P.W- 10 along with him, who assured that he knew the accused and requested to allow the accused to pledge the gold items and that accordingly, he pledged the gold ornaments weighing about 16.200 grams, worth Rs.15,000/-, and gave a sum of Rs.11,000/- to the accused. Thereafter, he gave a receipt to him and obtained the signature of the accused on the duplicate receipt, which is marked as Ex.P- 2. The signature on Ex.P-2 or the contents of Ex.P-2 are not denied or disputed even by the accused, but P.W-6 did not state that M.Os.1 ad 2 are the articles that were pledged with him on 201.2.2005 under Ex.P-2. Therefore, his evidence is not clear as to whether the articles which were committed theft from the deceased are the self-same articles that were pledged with P.W-6. But, P.W-7 is a person working in the shop along with P.W-6. He corroborated P.W-6 in all aspects. He identified M.Os.1 ad 2 as the items which were pledged by the accused and subsequently seized by the Police. However, it is not suggested to him that the recitals in Ex.P-2 are not true and correct. Similarly, it is not denied that the accused has not signed on Ex.P-2. The evidence of P.Ws.8 and 9 who were the mediators present at the time of the inquest over the dead body of the deceased and observation of the scene of occurrence remained unchallenged. Their evidence would go to show that the deceased died as a result of head