* THE HONOURABLE SRI JUSTICE V. ESWARAIAH AND * THE HONOURABLE SRI JUSTICE G. KRISHNA MOHAN REDDY + CRIMINAL APPEAL No.868 of 2007 z % Dated 15-09-2011 # Pedda Tayanna, S/o. Chepala Savaranna, 35 Years, Occ: Fish Business, 6-1-13, Chinna Harijanwada, Gadwal. …. Petitioner. Vs. $ The State of A.P., Rep. by Public Prosecutor, High Court of A.P. Hyderabad. …. Respondent. ! Counsel for the Petitioner: Dr. K. Satyanarayana Rao ^ Counsel for the Respondent: The Public Prosecutor. <GIST: > HEAD NOTE: ? Cases referred 1) 2006 (2) ALD (Crl.) 872 (S.C.) 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. 868 OF 2007 Thursday, the Fifteenth day of September, Two Thousand and Eleven Between Pedda Tayanna 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. 224 of 2001 dated 9.2.2007 on the file of the learned III Addl. District Judge (Fast Track Court), Gadwal, Mahaboobnagar District. 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 the offences punishable under Sec.302 and 201 IPC whereas he was found guilty of committing those offences and sentenced to imprisonment for life under the first count and to undergo rigorous imprisonment for seven years under the second count. 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. The accused No.1 is the resident of Chinna Harijanwada, Gadwal, Mahaboobnagar district. Chepala Sridevi, the accused No.2 is the sister and Asha Rani, the Accused No.3 is a close relative of the accused No.1, they also hail from the same place. The defacto complainant in the case namely Mandapuram Pandu(PW- 1) is the resident of Pebbari, Mahaboobnagar District. His younger sister namely Smt. Harijan Padma, the deceased concerned in the case, was the wife of the Accused No.1. On 8.12.2000 at about 1200 hours the defacto complainant lodged a report with Gadwal Town Police Station in which it is informed and alleged as follows. The deceased was given in marriage to the accused No.1 on 31.12.1999 at Beechpally temple. They lead happy married life for some time and later Saroja and Laxmi, sisters of the accused No.1 encouraged the deceased to develop illegal contacts with Chinna Thayanna, younger brother of the Accused No.1. Further on suspicion, the Accused No.1 started harassing his wife and used to beat her unnecessarily, which was informed by the deceased to him (the defacto complainant) and her aunt Annamma and others, for which Smt. Annamma used to console the deceased and send her to Gadwal. Further on 8.12.2000 while the defacto complainant was at Hyderabad, his cousin brother Ganganna (PW-2) informed him over phone that on 7.12.2000 at about 5.30 p.m. the deceased committed suicide by setting herself ablaze. Thereby he went to Gadwal and found her dead body, with burn injuries. Then it was thought that the deceased committed suicide because of the harassment of the accused 1 to 3. Accordingly, the defacto complainant gave report in the Town Police Station, Gadwal. On receiving the report, HC 1187 of the Police Station, registered the case in Cr. No.108 of 2000 on his file and took up the investigation of the case. Further on a requisition given by the police, the Mandal Revenue Officer, Gadwal (PW-10), conducted inquest over the dead body in the presence of mediators. Then the dead body was sent to Area Hospital, Gadwal, where, on the requisition of the police, PW-11 Dr. B.Shiva Prasad, conducted autopsy over the dead body of the deceased and found that she died of asphyxia due to throttling and he also found post mortem injuries on the dead body. On receipt of medical opinion. PW-13 Sub- Inspector of Police, PW-13, altered the Section of law from 306 IPC to 302. Then the Inspector of Police, Gadwal took up the further investigation of the case. Further he arrested the accused 1 to 3 on 23.12.2000 at Dharurmet and on interrogation, the accused No.1 gave confession leading to the recovery of his burnt shirt – M.O-1 and later the accused No.1 was sent for remand. Further the investigation conducted revealed that the deceased infact developed illicit intimacy with the younger brother of the accused No.1, which was witnessed by the accused Nos. 2 and 3 and having come to know about it, the accused No.1 warned the deceased and beat her several times advising her to give up her illegal contacts with his younger brother, but inspite of that, the deceased continued her illicit intimacy with him and keeping that in mind, on 7.12.2000 at about 5.15 p.m. when the deceased was alone in the house, the accused No.1 with the assistance of Accused No.2 and 3 took the deceased into the kitchen room of the house and again questioned her as to why she did not stop her illegal intimacy with his younger brother and picked up a quarrel with her and then the accused No.1 caught hold of her neck and pushed her down while the accused Nos. 2 caught hold of her legs and the accused No.3 caught hold of her hands and then the accused No.1 throttled her to death. Further after killing the deceased, the accused Nos. 1 to 3 carried the dead body into the store room of their house and then the accused No.1 collected kerosene tin brought by the Accused Nos. 2 and 3 and set the dead body ablaze to screen the evidence of murder and in that process, the shirt of the Accused No.1 was partly burnt. Thus the accused Nos. 1 to 3 are liable for punishment for the offences covered by Secs.302 and 201 IPC. 5. As the accused Nos. 2 and 3 happened to be juveniles, the case against them was separated and was referred to the Court of VIII Metropolitan Magistrate (Juvenile Court), Hyderabad for necessary action and consequently, the Accused No.1 alone was tried before the trial court. 6. On behalf of the prosecution, PWs 1 to 14 were examined and Exs. P-1 to P-8 were marked apart from marking M.Os. 1 to 4. On behalf of the accused neither oral nor documentary evidence was adduced whereas, the trial court on the consideration of the evidence recorded, found the accused No.1 guilty of committing the offences punishable under Sec.302 and Sec. 201 IPC and convicted and sentenced him as stated supra and aggrieved thereby, the present Criminal Appeal has been preferred. 7. Learned defence counsel assails the conviction and sentence of the accused on the ground that the prosecution mainly relies upon circumstantial evidence to prove the charges and in any case there is no evidence to the effect that the accused No.1 along with the accused Nos. 2 and 3 were in the house at the relevant point of time. Further, his contention is that even according to the prosecution, the deceased developed illicit intimacy with her brother-in-law i.e. the younger brother of accused No.1 and, therefore, the sister-in-law Chepala Sridevi and wife of Chenna Thayanna and also the accused No.1 harassed her by reason of which there was a possibility of the younger brother of the accused No.1 entering the house and killing the deceased. He has particularly referred to Ex.P-2, statement of PW-3 Smt. Konderu Jammulamma, resident of Chinna Harijanwada, which is to the effect that on 7.12.2000 at about 6.00 p.m. while she was in the house, she noticed some smoke coming out of the house of the accused Nos. 1 and 2 and, therefore, she rushed to the house and found Asha Rani (A-3) and Sridevi (A-2) standing there and then she opened the doors of the house and found the dead body in supine condition and in flames and then Asha Rani and Sridevi poured water to extinguish the flames and has contended that the circumstances amply prove that prior to 6.00 p.m. on that day, the alleged incident took place and the neighbours of the house got an opportunity to notice if any untoward was taking place within the house, but those persons were not examined to speak about it for which an adverse inference has to be drawn. It is further his contention that though it is according to the prosecution that the accused No.1 gave confession leading to the recovery of partly burnt shirt that statement was not marked before the trial court and, when that part is not established the second part i.e. recovery cannot be accepted to be true and correct and established. It is also his contention that as per the inquest report, the Mandal Revenue Officer examined witnesses at the time of inquest over the dead body and on the other hand, the Mandal Revenue Officer deposed that he did not record the statement of any witness, which throws suspicion about the prosecution version. It is also contended by him that according to the medical evidence, the deceased received post mortem burn injuries and it is also the medical evidence that when the burn injuries were ante mortem in nature, there would be redness over the corresponding margins which was not mentioned in the post mortem report for which an adverse inference has to be drawn against the prosecution version. 8. On the other hand, it is the contention of learned Public Prosecutor that there is no dispute about the prosecution version that the accused and the deceased were residing together and it is not the prosecution version or the plea of the defence that somebody else was residing in the house along with them. Further the accused No.1 has set up alibi to the effect that he was elsewhere at Alamatti Dam on the date of incident and it was also suggested to the main prosecution witnesses that some thief entered the house and caught hold of the neck of the deceased and pushed her on to kerosene lamp, as a result of which she received burn injuries but absolutely there is no basis to uphold the plea of alibi and also the said suggestion. Further when it is proved by circumstantial evidence including admission of the accused that the first of them and the deceased were residing in the house and it is nobody’s case that somebody else was also residing in the house, it is for the accused to explain as to how the incident took place and in the absence of any satisfactory explanation given by him, it has to concluded ultimately that he actually involved in killing the deceased independently or with the assistance of the accused Nos. 2 and 3 in support of which submission, reliance is sought to be placed on a decision of the Apex Court in Trimukh Maroti Krkan Vs. State of Maharashtra ([1]). It is further his contention that the evidence of PWs. 1 and 4 amply establishes that the accused No.1 used to harass and ill-treat the deceased attributing un-chastity against her and that circumstance coupled with the evidence of throttling her and causing the post mortem burn injuries amply establishes the complicity of the accused No.1 in the incident. According to him, the prosecution placed good evidence to uphold the conviction and sentence imposed against the accused No.1 and the trial court rightly appreciated the evidence and arrived at correct conclusion and there is no reason to interfere with the conviction and sentence recorded by the trial court. 9. In order to dispose of the appeal, the following points have to be established: 1. Whether there is satisfactory circumstantial evidence in order to establish the guilt of the accused No.1 for the offences punishable under Sec.302 and 201 IPC? 2. Whether the conviction and sentence imposed by the trial court are sustainable in law? 10. POINT No. 1-A:- PW-1 is the defacto complainant, PW-2 Mandapor Ganganna, PW-3 Konderu Jamulama, PW-4 Mandappor Annamma, PW-5 Kondeti Doulamma and PW-6 Chavali Gangamma were examined to speak about the harassment of the deceased and also finding the dead body. PW-7 Jagirdhar Sheshagiri Chary was examined to speak about scene of offence panchanama, PW-8 Veerapaga Kurumurthy was examined as mediator with regards to the seizure of the burnt shirt of the accused No.1, PW-9 Perapogu Babu, photographer, was examined about the scene of offence. Further PW-10 Sri Pola Ramakrishnaiah was the Mandal Revenue Officer and PW-11 Dr. B.Shiva Prasad was the Medical Officer, who conducted inquest and post mortem examination over the dead body of the deceased respectively, PW-12 is the Head Constable of Gadwal Police Station, who registered the case and conducted a part of the investigation of the case, PW-13 is the Sub- Inspector of Police, Gadwal Police Station, who altered the section of law following the death of the deceased and PW-14 is the Inspector of Police, Gadwal, who conducted the remaining part of investigation of the case. 11. The proof of the charges levelled against the accused No.1 depends upon only circumstantial evidence because there is no direct evidence to do so. In Trimukh Maroti Krkan observed/held as follows : “10. In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.” Therefore, the charges levelled against the Accused No.1 are to be established on the basis of same analogy as laid down by the Apex Court. 12. There is absolutely no dispute about the scene of offence and, hence, there is no need to delve on this issue and discuss the corresponding evidence therefor. 13. With regard to the circumstances which according to the prosecution existed prior to the alleged incident, it is the evidence of PW-1 that the deceased and the accused No.1 lived together for about eight or nine months and the family of the accused No.1 ill-treated the deceased attributing un-chastity and the deceased used to inform him and also their aunt about it and on 8.12.2000 he went to the house of the accused No.1 and found the deceased dead. PW-2, deposed that the deceased and accused lived happily for ten months and on information he went to the house of the accused No.1 and found the dead body with burn injuries and opined that the accused was responsible for the death of the deceased. Further later he gave report to the police as in Ex.P-1. PW-4 deposed about the strained relationship of the accused No.1 with the deceased. PW-3 also examined in the same context, did not support the prosecution version and, therefore, she was declared as hostile witness of the prosecution. There is absolutely no reason to disbelieve the evidence of PWs 1 and 4 that the accused No.1 used to ill-treat the deceased attributing un-chastity against her. The behaviour of the accused No.1 towards the deceased coupled with the fact that he was residing in the house along with her is a relevant factor for establishing his involvement in the alleged offence. 14. It is the evidence of PW-12, the Head Constable of Gadwal Police Station that on 8.12.2000 at about 1200 hours, he received Ex.P-1 report from PW-1, on the basis of which he registered the case in Cr. No. 108 of 2000 under Sec.306 IPC on his file and gave requisition to the Mandal Revenue Officer to conduct inquest. The testimony of PW-11, the Civil Surgeon, Govt. Area Hospital, Gadwal, is to the effect that on 8.12.2000 he received a requisition from the police station, Gadwal, to conduct post mortem examination over the dead body of the deceased and on 9.12.2000, he along with Dr.Sundaree Devi conducted the said examination and found the following injuries: 1. Burn injuries over the whole body with superficial blebs with yellowish discolouration. 2. Third degree burn injuries exposing the forearm bone and muscles of left upper limb 3. Chest wall muscles on the left side exposed and also over to the axilla and burnt and all those injuries appear to be post mortem in nature. It is further his evidence that on internal examination, haemarrhagic contusion over the mid third of left terno mastoid was found and the Hyoid bone was fractured at the medion joint and left cornu with the presence of haemorrhagic spots over the pericchandrium and the cause of death was asphyxia due to throttling and the approximate time of death was 24 to 36 hours prior to the post mortem examination. He issued Ex.P-6 post mortem examination report. It is also his evidence in his cross examination that if the burn injuries were ante mortem in nature, there would be redness over the margins, which was not noted in the post mortem report. He denied that those injuries were only ante-mortem in nature. 15. When it is according to the medical evidence, that the deceased received ante mortem injuries and also post mortem burns, there was no need to mention that, if the burn injuries were ante mortem in nature there would be redness over the corresponding margins. In any case, nothing was elicited from the medical evidence, which is in favour of the defence. Thereby it is established that her death was caused by means of axphyxia due to throttling and after her death, the post mortem burns were caused to the dead body. 15. Coming to the inquest over the dead body, it is the evidence of PW-10, the Mandal Revenue Officer that on 8.12.2000 from 12.20 p.m. to 4.30 p.m. he conducted that over the dead body of the deceased on the requisition of the police and examined witnesses without recording their statements and accordingly, Ex.P-4, inquest report, was prepared. PW-7 corroborated the evidence of PW-10. 16. Ex.P-4 reveals that inquest over the dead body was conducted in the presence of PW-7 and others and witnesses were examined on the basis of which it was opined that the deceased died of receiving injuries and later her dead body was burnt. When the Mandal Revenue Officer examined the witnesses, he should have recorded their statements. However, when it is his evidence that basing upon the oral statements given by the witnesses such opinion was arrived at, the omission need not be taken very seriously. Even otherwise, when according to the Mandal Revenue Officer, the statements were not recorded no adverse inference can be drawn against the prosecution version. 17. Regarding the seizure of the burnt shirt of the accused No.1, it is the evidence of PW-8 and PW-13 that on 23.7.2000 at about 2.30 p.m. the shirt of the accused was seized at the house of the accused No.1 when it was handed over by the accused No.1 to the second of them. The shirt was marked as MO-1 and the corresponding seizure report was marked as Ex.P-5. Ex.P-5 reveals that the shirt was seized following the corresponding confession made by the accused No.1. By virtue of Sec. 27 of the Evidence Act, such confession of the accused leading to the recovery of material object is admissible in evidence. This is an exception to the general rule that confession made by an accused to police, in a criminal case, is inadmissible in evidence. There are two parts. The first part relates to the giving of confession and the second part relates to the seizure of the material object following the confession. The confession is the essence of the question of seizure. Both the parts are inseparable and if the first part is not proved, it cannot be said that the second part is proved and vice versa. Therefore, the evidence to the effect that the shirt of the accused, MO-1 was seized from the house of the accused cannot be said to have been proved and hence, cannot be taken into consideration. 18. It is suggested to PWs 1 and 2 that on the date of alleged incident, the accused No.1 was at Alamatti Dam and it was also suggested to them that on the relevant date, some thief entered the house of the accused No.1 and caught hold of the deceased and threw her on to kerosene lamp, as a result of which she received burn injuries. PW-1 is not a person to speak on those aspects, because he was a resident of Pebbair village and he was not at the place of incident when she died which is not disputed. In any case, there is absolutely no basis to say that the accused No.1 was at Alamatti dam when the alleged incident took place. There is also no basis to uphold the suggestion that some thief entered into house and caused the mischief. When such pleas are taken, the accused should have taken steps for the examination of witnesses, who could speak about those aspects, but it was not done. 19. Further Ex.P-2, statement of PW-3 recorded under Sec. 161 Cr. P.C. shows that on 7.12.2000, Thursday, when she was in the newly constructed house of Chepala Savaranna i.e. the father of the accused No.1, at 6.00 a.m., she noticed some smoke coming out of the house of the accused No.1 and then she rushed to the house and found Asha Rani, grand daughter of Savaranna and his younger daughter Sridevi, standing there and upon opening the door, he found the dead body in supine condition and being in flames and then Asharani (A-3) and Sridevi (A-2) poured water and extinguished the flames. PW-3 deposed that she did not state to the police accordingly whereas the Investigating Officer asserted that PW-3 stated before him accordingly. 20. Her statement can be made use of for the benefit of the accused No.1 if any. It is pertinent to note here that as per the statement (Ex.P-2) PW.3 noticed about the emanation of smoke from the house at about 06-00 p.m. It is also pertinent to note here that as per the statement she found Asha Rani (A-3) and Sridevi (A-2) outside the house of the accused and then he entered the house and found the dead body in flames. If that is true, PW.3 should have taken necessary steps for reporting the matter to the police for necessary action. 21. Ex.P-2 asserts that A-2 and A-3 were present outside the house by 06-00 p.m. on the relevant day and further it asserts that sometime prior to that the deceased was killed and the dead body was set ablaze. Nobody else saw the incident as it took place within the four walls of the house. Therefore, only the inmates of the house can best explain about how the incident took place. In such circumstances, when no outsiders got any opportunity to witness as to what transpired in the house it is suffice if the prosecution is able to establish that so and so persons were residing in the house normally and there is no basis to come to a conclusion in spite of making all necessary endeavours that there was a possibility of a third person entering the house and causing the murder of the deceased. Thereby the inmates of the house