HONOURABLE SRI JUSTICE A. GOPAL REDDY AND HONOURABLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No. 396 OF 2007. DATED 10TH AUGUST, 2010. BETWEEN Thalla Krishna Murthy … Appellant And State of AP, rep. By its Public Prosecutor At Hyderabad …..Relspondent. HONOURABLE SRI JUSTICE A. GOPAL REDDY AND HONOURABLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No. 396 OF 2007. JUDGMENT: (Per Hon’ble Sri Justice K.C. Bhanu) 1. This Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure,1973 (Cr.P.C.) is directed against the judgment dated 14.3.2007 in S.C.NO. 305 of 2006 on the ﬁle of the learned V Additional District and Sessions Judge (III Fast Track Court) Nalgonda, at Miryalaguda, whereunder and whereby the appellant/sole accused was found guilty of the oﬀence punishable under Section 302 IPC., and accordingly convicted and sentenced to undergo imprisonment for life and to pay ﬁne of Rs.3,000/- in default to undergo rigorous imprisonment for one year. Further, the accused was found guilty of the oﬀence punishable under Section 392 IPC and accordingly convicted and sentenced to undergo rigorous imprisonment for ﬁve years and to pay a ﬁne of Rs.2,000/- , in default to undergo rigorous imprisonment for one year, and both the sentences were directed to run concurrently. 2. The prosecution case, as delineated by the witnesses examined on its behalf, may be stated as follows: 3. On 5.3.2006 at about 9 a.m. one Gutikonda Chandra Reddy, an agriculturist, of Pedaveedu village came to police station Mattampally and lodged a telugu written complaint stating that on 4.3.2006 at about 10 a.m. his elder daughter Talla Chandrakala (hereinafter referred to as ‘the deceased’) W/o Narayana Reddy, aged about 28 years, left the house for Huzurnagar and while leaving the house, she was wearing gold, pusthaltadu, and ear studs on her person and on the next day i.e. 5.3.2006 at about 6 a.m. one villager by name Vemula Pitchaiah S/o Ramaiah came and informed that his daughter was found dead. Immediately he rushed to the spot and found his daughter dead and the said gold ornaments were found missing and there were nail injuries on her neck and suspected one villager by name Pagipati Saidi Reddy, aged about 32 years who wanted to have illegal contacts with the deceased might have killed her daughter as she did not agree to fulfil his lust. 4. Basing on the complaint, the police registered a case and took up investigation and ﬁled charge sheet alleging that the appellant herein took the deceased to the nearby ﬁelds and there he managed to have sexual intercourse with her and when he was trying to enjoy with her, he found the gold ornaments on neck and ears, and had forcibly taken away the said ornaments weighing about 2.6 tulas worth Rs.20,000/-. During the course of investigation, the police examined 18 witnesses and collected material objects and there upon ﬁled charge sheet. 5. The learned Sessions Judge framed the following charges against the accused: “ That you on or about 04.03.2006 at about 9.00 to 9.30 PM murdered intentionally causing the death of the deceased Thatikonda Chandrakala W/o Narayana Reddy of Pedaveedu village near red gram yard of Bura Somulu by pressing her neck with hands and thereby committed an oﬀence punishable under Section 302 IPC and within my cognisance. That you on the aforesaid date time and place, committed theft of gold pusthela tradu, weighing about 2 tulas, gold pusthe weigh about 3 grams and a pair of gold ear studs weight about 3 grams all worth of Rs.20,000/- and committed theft voluntarily caused the death of the deceased Chandrakala and thereby committed an oﬀence punishable under Section 392 IPC and within my cognisance” 6. The accused pleased not guilty for the said charges framed against him and claimed to be tried. 7. To substantiate the case of the prosecution, it examined 18 witnesses as P.Ws. 1 to 18 and got marked Exs.P.1 to P.12 besides the case property M.Os. 1 to 6. On behalf of the defence, neither oral nor documentary evidence was adduced. 8. The trial Court, after considering the circumstantial evidence adduced by the prosecution, found the accused guilty of the aforesaid charges and accordingly convicted and sentenced him as stated supra. Challenging the same, the present criminal appeal is filed. 9. Now the points that arise for consideration are whether the prosecution proved the guilt of the accused beyond reasonable doubt for the charges levelled against him and whether the judgment of the trial Court is correct and proper. 10. The learned Counsel appearing for the appellant/accused contended that there is no evidence except the solitary testimony of P.W.5 who said that the accused was last seen in the company of the deceased, a day prior to the death of the deceased, which cannot be inferred that the accused is the assailant of the deceased; that even if the evidence of P.W.5 is to be accepted, that will not lead to any irresistible conclusion, that the accused committed the oﬀence and none else; that immediately after recovery of M.Os. 1 and 2 they were not shown to P.W.1 to identify them that they were the ornaments worn by the deceased, that proper test identiﬁcation in respect of the said property was not conducted and that gold ornaments similar to MO.1 and MO.2 are available everywhere for use by the women folk of the village, that by mere recovery of M.Os. 1 to 3 at the instance of accused, it cannot be said that the accused is the assailant of the deceased; that except the alleged extra judicial confessional statement, there is no other evidence to show that the accused is the assailant of the deceased, that the alleged seizure of the material objects pursuant to the confessional statement of the accused, is doubtful and therefore he prayed for setting aside the convictions and sentences imposed against the appellant/accused. 11. On the other hand, the learned Additional Public Prosecutor contended that the deceased was last seen alive in the company of the accused at about 9.00 P.M. a day prior to her death and on the next date in the early hours, the dead body of the deceased was noticed by P.W.4 in the ﬁelds of P.W.3 and, therefore, it can be inferred that the accused was the assailant of the deceased; that recovery of M.Os. 1 to 3 at the behest of the accused coupled with other circumstances would lead to an irresistible conclusion that the crime is committed by the accused, that the trial Court after elaborate consideration of evidence on record rightly convicted and sentenced the accused and there are no grounds to interfere with the same. 12. P.W.1, who is the father of the victim suspected that Saidi Reddy killed his daughter, but he did not speak anything against the appellant except that the appellant is his villager. In the cross examination, he admitted that there was a panchayat regarding dispute between one Saidi Reddy and his daughter. He also admits that what is stated in Ex.P.1 is correct. 13. P.W.2 also states that he suspects one Saidi Reddy for the said murder. She also admits that the said Saidi Reddy who is cited as LW.10, and LW.11 who is his friend, were involved in a theft case earlier and she also admits that both were taken by police on suspicion of murder of the deceased. L.Ws. 10 and 11 were examined as PWs 7 and 8. 14. The evidence of P.Ws. 3 and 4 is not relevant as they did not speak anything about the appellant. P.W.5 is a person who says that a day prior to the death news of the deceased, she came to his friend’s house by name B. Rama Rao and in the meanwhile the accused/appellant came, and they both left together towards the house of Saidi Reddy i.e. L.W.10. He also admitted in cross examination that LW.10 Saidi Reddy and deceased Chandrakala are having illicit contacts and there is a rumour in that regard. P.W.6 turned hostile. P.W.7 who is Saidi Reddy, the initial suspect, says that the appellant came to his house on the previous day. No further incriminating statements against the accused are made by him. The evidence of PW.8 is only with regard to his acquaintance with PW.7 and he was also detained in Police Station along with PW.7 initially. PWs. 9 to 12 were sought to be examined to speak about certain incriminating circumstances against the accused. But they did not support the case of prosecution. 15. PW.14 is a panch witness for the scene of oﬀence, inquest and seizure of clothes on the body of the deceased. PW.15 is a panch witness who says that the appellant confessed before him about the commission of oﬀence and that led to the recovery of MOs 1 to 3. Mos. 1 to 3 were recovered from underneath a stone lying in the open ﬁeld and that place was accessible to all, as admitted by witnesses in cross examination, especially by a witness who is a government servant. 16. P.W.14 is one of the inquest mediators who was present when P.W.18 held inquest over the dead body of the deceased under Ex.P.8. 17. P.W.16 is the doctor, who conducted the post-mortem examination on the dead body of the deceased and found the following injuries: “01. Face is swollen cyanosed conjunctiva haemorrabbge present. Bleeding from nose. 02. Bruises present around the neck. (a) Bruise on left mandible ovel in shape me assuring 1 inch x ½ inch. (b) Bruise three in number on left side of neck between hyoid and thyroid region measuring ¼ inch x ½ x ½ with cresent marks and nail marks. (c) Bruise three in number on right side of neck between hyoid and thyroid region measuring ½ inch and ½ inch with cresenting mark. The injuries could be possible by pressure applied by palm. 03. Abrasions on left palm base of thumb ½ inch x ½ x ¼ inches. 04. Abrasion on dorsum of right palm measuring ½ inch x ½ inch x ¼ inch. 05. Abrasion on dorsum of left foot at ankle region measuring ½ inch x ½ inch. 18. He opined that the above injuries are ante- mortem in nature caused by blunt object. The cause of the death was due to asphyxia, due to throttling of neck. He issued Post Mortem Examination report, which was marked as Ex.P.11. Therefore, from the evidence of P.Ws. 14 and 16 and recitals in Exs.P.8 and P.11, homicidal death of the deceased is established beyond reasonable doubt. 19. Now, it has to be seen, whether the accused is the assailant of the deceased or not. 20. The entire prosecution case rests upon the circumstantial evidence. There are no direct witnesses to the incident. In a case that rests upon circumstantial evidence, prosecution has to establish all the links in the chain of circumstances cogently and clinchingly, so that there would not be escape from the conclusion that within all human probability the crime was committed by the accused and none else. On this aspect, it is pertinent to refer a decision reported in Padala Veera Reddy Vs. State of A.P[1]. , wherein at para 10, it was held as follows: (1) The circumstances, from which an inference of guilt is sought to be drawn, must be cogently and firmly established. (2) Those circumstances should be of a deﬁnite tendency unerringly pointing towards guilt of the accused; (3) 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 none else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 21. Bearing the above principles in mind, it has to be seen whether the prosecution is able to prove the guilt of the accused. 22. The deceased was the resident of Peddaveedu village and she was married to one Narayana Reddy, a resident of Huzurnagar about fourteen years back. Since last 3 or 4 years, the deceased was staying with her parents in Pedaveedu village along with her son and daughter by doing agricultural work and her husband was working as a mechanic and moving village to village for eking out his livelihood and now and then, he used to visit his in-laws village. One day prior to receiving the information about the death of the deceased, she left the house in the morning at about 8.00 A.M by informing her parents that she would visit the house of her sister at Huzurnagar and on the next day morning i.e. on 5.3.2006 at about 7.00 a.m. P.W.4 came and informed P.Ws. 1 and 2 about lying of the dead body of the deceased in the red-gram yard of one Bura Somulu- P.W.3 at the outskirts of Pedaveedu village. Then P.W.1 Chandra Reddy rushed there and after witnessing the dead body of the deceased, went to the Police Station, Mattampally and lodged a written complaint, which is marked as Ex.P.1, dated 5.3.2006. P.W.17 received the complaint and registered a case in Crime No. 25 of 2006 for the oﬀences punishable under Sections 302 and 392 IPC and issued FIR. P.W.18 took up further investigation and held inquest over the dead body of the deceased and observed the scene of oﬀence and got the scene of oﬀence photographed through P.W.13. After the inquest, he sent the dead body of the deceased to post-mortem. P.Ws. 1 and 2 who are parents of the deceased Chandrakala did not speak anything against the accused and did not speak about the motive of the accused to commit murder of the deceased. On the other hand, their evidence is clear that after death of the deceased, by suspecting P.Ws. 7 and 8 to be the assailants of the deceased, they were taken into custody by the police and detained in the police station for nearly one month. Therefore, the evidence of P.Ws. 1 and 2 is not helpful to the case of prosecution. P.W.3 is having agricultural land in the village. As on the date of incident, red gram crop was existing in his land. On the fateful day, he found the dead body of the deceased in the red-gram ﬁeld. Except the same, he did not state anything. P.Ws. 9 to 12 made certain incriminating statements against the accused and they did not support the case of prosecution and their Section 161(3) Cr.P.C. statements were marked as Exs.P.3 to P.6. After cross examination by the Public Prosecutor nothing has been elicited to connect the accused with the crime. Similarly P.Ws.11 to 13 speak about the extra judicial confessional statement said to have been made by the accused, which also did not support the case of the prosecution. So the entire case rests upon the evidence of P.Ws.5, 15 and 18. 23. The evidence of P.W.5 would go to show that he was present at the house of his friend B.Rama Rao at about 9.00 PM on 4.3.2006, a day prior to the death of the deceased. At that time, the accused came to the house of B.Rama Rao. The deceased was also very much present in the house of B. Rama Rao by that time. Then both the accused and deceased together left the house of B.Rama Rao towards the house of P.W.7 Saidireddy. On the next day morning, he came to know the death of the deceased. Except the said oral evidence, his presence on 4.3.2006 in the house of B.Rama Rao has not been explained. He claimed to be there in the house of B. Rama Rao, but for what reason he went there is not explained. 24. The evidence of P.W. 7 would go to show that one day prior to the death of the deceased, himself and P.W.8 went to their lease hold land for watering the ﬁeld and they slept in their agricultural land and on the next day morning he came to know about the death of the deceased. 25. The deceased was last seen in the company of the accused. The last seen alive theory by itself alone is suﬃcient to infer that the accused alone has caused the death of the deceased because the dead body of the deceased was found on the next day i.e. on 5.3.2006 at about 7.00 AM. The last seen theory that the accused in the company of the deceased may be a gravely an incriminating circumstance provided that it is closely proximate to time of death. That circumstance alone could lead to the conclusion that the accused was the assailant of the deceased. 26. The other circumstantial evidence available on record against the accused is recovery of Mos 1 to 3 on 20.4.2006 pursuant to the confessional statement made him, which is marked at Ex.P.9 (Admissible portion). He confessed that he had hidden MOs. 1 to 3. Then the accused lead the panchas and police nearby agricultural lands of Boora Saidulu and in their presence, the accused had took out one plastic cover kept underneath a stone near babul tree and well. The same have been recovered and seized by the police under a seizure panchanama, which is marked as Ex.10. P.W.15 is the panch witness for recovery of Mos. 1 to 3 and he has no reason to speak falsehood. P.W.18 who is the Circle Inspector of police states that in pursuance of the confessional statement made by the accused, M.Os. 1 to 3 were picked up by the accused from the scene near the well located in the ﬁeld of Boora Saidulu. With regard to the seizure of M.Os. 1 to 3 as shown by the accused pursuant to his confessional statement made to P.W.18, there is no reason to disbelieve his evidence with regard to the seizure of M.Os. 1 to 3 as disclosed by the accused. M.Os. 1 to 3 were identiﬁed by P.Ws. 1 and 2. They have stated that while leaving the house, the deceased was wearing gold ornaments of Pusthela thadu, pusthelu, ear studs—M.Os. 1 to 3. These are the gold ornaments generally worn by the women folk. P.Ws. 1 and 2, parents of the deceased also identiﬁed the said gold ornaments as that of their daughter. There is no diﬃculty in believing their evidence that M.Os. 1 to 3 belong to the deceased. Even the accused did not claim that M.Os. 1 to 3 belong to him. As the possessions of the stolen articles were found with the accused, presumption under Section 114(a) of the Indian Evidence Act, 1872 can be drawn, according to which, the accused who is in possession of the stolen goods soon after the theft, is either a thief or has received the goods knowing them to be stolen, unless he accounts for such possession. As there is no explanation by the accused with regard to the possession of Mos. 1 to 3, the presumption is either the accused is thief or receiver of stolen property. The evidence of P.Ws. 1 and 2 is very clear that M.Os. 1 to 3, gold ornaments were worn by the deceased while leaving the house, a day prior to her death. 27. In view of the above, we have no hesitation to hold that there is absolutely no circumstantial evidence which would lead to an irresistible conclusion that the crime was committed by the accused and none else. So also the investigation would go to show that the police as well as P.Ws. 1 and 2 suspected P.Ws. 7 and 8 could be the assailants of the deceased. As stated earlier, the last seen circumstance, does not by itself suﬃcient to infer that the accused is the assailant of the deceased. Therefore, we have no hesitation to hold that the prosecution has failed to bring home guilty of the accused for the oﬀence under Section 302 IPC beyond reasonable doubt. Similarly in respect of the oﬀence under Section 392 IPC, there is no presumption under law that simply because the accused was found in possession of the stolen articles, it would lead to a conclusion that the accused is the assailant of the deceased. But in view of the fact that the accused was found to be in the possession of MOs. 1 to 3 and he has not accounted for the same and not claiming, presumption under Section 114(a) of the Act can be drawn to hold that he has committed the oﬀence under Section 411 IPC. In view of the above, the conviction and sentence under Sections 302 and 392 IPC are set aside. However, we ﬁnd the accused/appellant guilty of the offence punishable under Section 411 IPC. 28. Accordingly the conviction and sentence recorded against the appellant/sole accused for the oﬀence punishable under Sections 302 and 392 IPC in S.C.No.305 of 2006 by the learned V Additional District & Sessions Judge (III Fast Tract Court) Nalgonda are set aside. However we ﬁnd the appellant/sole accused guilty of the oﬀence punishable under Section 411 IPC and accordingly convict and sentence him to under Rigorous Imprisonment for a period of two years and to pay a ﬁne of Rs.1,000/- in default to undergo Simple Imprisonment for one month. The period of detention already undergone during the investigation, trial and after conviction shall be given set oﬀ under Section 428 Cr.P.C. The balance of ﬁne amount paid by the accused shall be refunded to him, after keeping the ﬁne of amount of Rs.1,000/- as ordered by this Court. 29. The Criminal Appeal is partly allowed to the extent indicated above. ----------------------------------- JUSTICE A GOPAL REDDY ------------------------------ JUSTICE K.C. BHANU 10T H AUGUST, 2010. Msnr. [1] AIR 1990 Supreme Court 79