HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO Crl.A.Nos.1403 of 2007 & 1591 of 2009 Date of Judgment: 23-06-2011 CT in Crl.A.No.1403 of 2007 Between: 1. Lakhavath Veera Naik ..Appellant/A4 And The State of A.P. rep.by Public Prosecutor, High Court Buildings, Hyderabad, A.P. ..Respondent The Court made the following Common Judgment: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO Crl.A.Nos.1403 of 2007 & 1591 of 2009 COMMON JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) 1. Since both the Criminal Appeals arise out of the same judgment, they are being disposed of by this common judgment. 2. The appellants/Accused Nos.1, 3 and 4 along with Accused No.2-Tappati Lakshmaiah faced trial in S.C.No.624 of 2006 on the file of I Additional Sessions Judge, Karimnagar. A-1 and A-2 were tried for the offence under Section 302 read with 34 IPC, whereas A-3 and A-4 were tried for the offence under Section 302 read with 109 IPC. A-1 to A-4 were also tried for the offence under Section 201 read with 34 IPC. By judgment dated 04.04.2007, A1 was convicted for the offence under Section 302 read with 34 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/-; A3 and A4 were convicted for the offence under Section 302 read with 109 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/-; A1, A3 and A4 were further convicted for the offence under Section 201 read with 34 IPC and sentenced to suffer Rigorous Imprisonment for a period of three years and to pay a fine of Rs.1,000/-; and A2 was acquitted for the charges framed against him. Aggrieved thereby, A-3 and A-4 preferred Criminal Appeal No.1403 of 2007, whereas A-1 preferred Criminal Appeal No.1591 of 2009. 3. The gravaman of the charges against the accused are that the accused and the deceased were residents of Akkannapet village of Husnabad Mandal, Karimnagar District; that on 08.11.2005, the accused caused the death of the deceased by throttling; and that during the course of same transaction, they did cause certain evidence of the said offence to disappear by hanging the dead body to a rafter in the hut. 4. The prosecution story as unfolded during the course of trial may, briefly, be stated as under:- The deceased and A-1 is the husband and wife. Previously, they lived at Akkannapet village of Husnabad Mandal, Karimnagar District and subsequently, left Akkannapet village and temporarily settled at Mankammathota of Karimangar District. They were eking out their livelihood by attending labour work. A-2 is a Mason with whom A-1 developed illegal intimacy, as she used to attend labour work under him. In that regard, PWs.6 and 7 held panchayats, wherein A-1 was asked to change her attitude, but she did not adhere to the words of elders and went away with A-2. She was traced after a period of 15 days and counseled. Thereafter, the deceased used to admonish his wife/A-1 to change her attitude. Then, A-1 informed A-2 to A-4 that her husband became obstacle and not letting her to continue the relationship with A-2. Thereupon, A1 to A4 decided to do away with the life of the deceased. They hatched a plan and in that process, on the night of 07.11.2005, A- 2 to A-4 and the deceased consumed I.D. liquor in the hut of the deceased and later, A-1 with the help of A-2 throttled the deceased and hanged the dead body to a rafter in the hut with a saree with an intention of screening the evidence. On the information given through phone call by PW.7 to PW.1, who is the father of the deceased about the death of the deceased, PW.1 along with his relatives came to Karimnagar and after seeing the dead body of his son hanging in the hut lodged a report-Ex.P1 at 1200 hours. On the basis of the said report, PW.10 registered a case in Crime No.402 of 2005 of P.S.Karimnagar II Town under Section 174 Cr.P.C., issued Ex.P13- FIR, forwarded the original FIR to the M.R.O. and the copies of it to all the concerned; visited the scene of offence; examined Lavudya Punamma, Lavudya Mohan (LWs.2, 3) and PW.2 and recorded their statements; obtained the photographs of the dead body; drew the rough sketch of the scene of offence under Ex.P14; prepared the crime detail form under Ex.P6; conducted inquest over the dead body in the presence of PW.5 and Banoth Anju—LW.8 and sent the dead body to the Government Hospital for Post Mortem Examination. PW.9, Civil Assistant Surgeon, Government Civil Hospital, Karimnagar conducted Post Mortem Examination and issued report under Ex.P10. On 19.11.2005, PW.11 received the Post Mortem Examination report and gave a letter of advice under Ex.P16 for forwarding the material objects to the Forensic Science Laboratory. After receipt of the report from the Forensic Science Laboratory of Kakatiya Medical College, PW.9 issued final opinion under Ex.P12 stating that the cause of the death was due to throttling. On the basis of the final opinion issued by PW.9, PW.11 altered the section of law from 174 Cr.P.C. to 302 IPC. On 23.01.2006, A-1 to A-4 were arrested at Ramnagar Labour Adda, Karimnagar and sent for judicial custody. After completion of investigation and receiving all the medical reports, PW.12 filed the charge sheet against the accused. 5. On committal, the learned Sessions Judge framed charges under Sections 302 read with 34 IPC and 201 read with 34 IPC against A-1 and A-2 and charges under Sections 302 read with 109 IPC and 201 read with 34 IPC against A-3 and A-4 and when the same were read over to the accused in Telugu, they denied the same and claimed to be tried. 6. In order to substantiate its case, the prosecution got examined P.Ws.1 to 14 and marked Exs.P1 to P17, besides the case properties M.Os.1 to 4. On behalf of the defence relevant portion from 164 Cr.P.C. statement of PW6 was marked as Ex.D1. Ex.X1- photograph was marked through Court. 7. After closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C., in which they denied the incriminating evidence put to them. 8. After hearing the arguments on both sides and on appreciation of oral and documentary evidence, the learned Sessions Judge rendered the impugned judgment as stated supra. 9. Being aggrieved by the conviction and sentence recorded against the appellants they preferred the present appeals through the counsel engaged by the Legal Services Authority. 10. Sri Bathula Raja Kiran, learned counsel appearing for the appellants submitted that the entire case of the prosecution rests upon circumstantial evidence. In view of material contradictions in the evidence of the witnesses, the chain of circumstances could not be completed. The extra judicial confession said to have been made before PWs.6 and 7 two months after the incident could not be relied upon by any means since they have not disclosed about the said confession when they were examined under 164 Cr.P.C. The theory of deceased last seen in the company of the appellants cannot be applied in the present case in view of evidence of P.W.6. The involvement of the appellants in the commission of offence is also doubtful. Further, the hyoid bone forwarded to the Forensic Scientific Department was, in fact, missing as per the evidence of P.W.4. In view of the same, it is unsafe to convict the appellants on the insufficient evidence adduced by the prosecution. The cause of death as per the postmortem report also is not substantiated. 11. On the other hand, learned Additional Public Prosecutor contended that in the court below the prosecution is able to establish the illicit intimacy between A1 and A2. P.Ws.6 and 7 are independent witnesses before whom A1 confessed about the commission of offence. The motive could establish illicit intimacy between the wife of the deceased—A1 and A2 and in that regard a Panchayat was held where the deceased admonished his wife—A1; to remove the obstacle the accused hatched a plan and executed the same. The evidence of the doctor—P.W.9, who conducted autopsy over the dead body of the deceased, also establishes that the cause of death was due to throttling. As the deceased was in the company of the accused and together consumed ID liquor, it is for the accused to explain the cause of death. 12. We have considered the rival submissions of the learned counsels for the parties and perused the entire evidence on record. 13. P.W.1, who is the father of the deceased and who sets the criminal law into motion by presenting the complaint—Ex.P1 is not an eyewitness to the incident. He stated that marriage between the deceased and A1 was performed about 10 or 12 years back and they were blessed with two sons and daughter. His son (deceased) and A1 lived at Karimnagar by raising a hut at Mankammathota and doing cooli work. A2 is a Mason under whom A1 was working. The deceased was pulling rickshaw. A1 developed illicit intimacy with A2 and in that connection, a Panchayat was held at Mankammathota of Karimnagar where P.Ws.6 and 7 acted as mediators on behalf of the deceased and A4, who is junior paternal uncle of A1, acted as mediator on behalf of A1. In the said Panchayat it was resolved that it is not desirable to continue A1 and deceased at Mankammathota and he (P.W.1) had taken A1 and deceased along with children where they stayed for about one month amicably and thereafter, both of them again went to Mankammathota. One month thereafter, (P.W.1) received a message from P.W.6 that his son died in the hut by committing suicide; he along with his wife and their Thanda people came to Karimnagar, saw the dead body and noticed burn wounds with beedis on the throat of his son and he presented Ex.P1—report. 14. P.W.2, who was the resident of Mankammathota and whose sister was given to the younger brother of the deceased, corroborated about the Panchayat in connection with illegal intimacy of A1 with A2. After return from Chintakunta, the deceased and A1 raised a hut by the side of his hut and lived happily two or three months and thereafter, the deceased in his hut hanging to the roof with saree touching the feet with a half bending of the knee; he informed the same to P.W.3 at 10 A.M. He suspected that A1 to A4 are responsible for the death of the deceased. 15. P.W.3 is the younger brother of P.W.1. While corroborating the evidence of P.W.1 he stated that one and half month thereafter A1 and the deceased returned to Karimnagar. A4 brought twenty liters of ID liquor to the hut of the deceased and together consumed the same and went to second show cinema. He did not notice when they returned from cinema; next day morning when he went to labour adda (the place where all the labour gather together for getting work), P.W.2 came there and informed about the death of the deceased. In the cross-examination he stated that A1 and the deceased are not in the habit of sending any amount to P.W.1 for his maintenance and A1 is not in the habit of visiting the house of P.W.1 even on the festivals and she was responsible for not sending the amount to P.W.1 towards maintenance. 16. P.W.5, who acted as mediator to the inquest panchanama, stated that the dead body of the deceased was made to stand with the help of saree on the support of chin and the legs are in half bend position towards the ground. The deceased testicles are twisted and he signed Ex.P5—Inquest Panchanama. 17. P.Ws.6 and 7 are crucial witnesses to the case of the prosecution. P.W.6 stated that the deceased is his close relative and huts of the deceased and A1, P.W.2, Lavudya Mohan—L.W.3 and P.W.6 are located side by side at one place at Mankammathota. On the date of incident, A4 brought 10 liters of ID liquor, which was consumed by A3, A4, deceased and the son of A3 and they also ate chicken. Thereafter, A3, her husband and son went to Chintakunta. A4 and the deceased went to second show cinema and after cinema the deceased alone returned to the hut; at about 5 or 6 A.M. in the early morning, A4 came to the hut of the deceased; thereafter, at 6.30 A.M. he left to attend the work. On the same day evening he came to know about the death of the deceased. Two months thereafter, A1 met him at Bhagyanagar labour adda and informed that herself, her mother and A2 killed the deceased by throttling and arranged his dead body as if he committed suicide. He was not examined by police and he stated the said fact to the Magistrate. Six months prior to the death of the deceased he conducted a Panchayat and A1 and A2 caught hold near Court at Karimnagar. 18. P.W.7 who is a rickshaw puller and whose hut is half kilometer from the hut of the deceased deposed that younger brother of A1 beat the deceased questioning as to why he beat his sister and whether he witnessed any illegal thing. The deceased also informed the same to him and thereafter shown the photographs of A1 and A2 given by P.W.6; he called the elders and held Panchayat in Karimnagar. He stated that two months after the incident, P.W.6 approached him and informed that A1 confessed to him (P.W.6) that herself (A1) and other accused—A2 to A4 killed the deceased. At that stage he was declared hostile. He stated before the Magistrate that 10 days after his arrival, P.W.6 came to him and informed that A1 confessed that she killed her husband and that P.W.6 brought A1 to him and again she confessed before him that A1 to A4 killed the deceased by throttling and hanged to the hut and requested him to help as in Ex.P8. He was examined by police 10 days after the death of the deceased. 19. P.W.9, the doctor who conducted autopsy over the dead body of the deceased issued Ex.P10—post mortem report and after receipt of expert opinion of Forensic Department under Ex.P11, he issued Ex.P13 final opinion stating that the cause of death was by throttling. The external injuries find by him can be caused by blunt object or by struggling when two or three persons attempted for throttling. To a question put by Court he stated that hyoid bone was preserved by him and forwarded to Forensic Department which was also received by Kakatiya Medical College. 20. P.W.10, who is the Assistant Sub-Inspector of Police, Karimnagar, II Town Police Station, deposed that he registered a case in Cr.No.402/2003 under Section 174 Cr.P.C. initially and issued Ex.P13—FIR and forwarded the same to all concerned; he prepared crime details form—Ex.P6 and rough sketch under Ex.P14. 21. P.W.11, the Sub-Inspector of Police, II Town Police Station, Karimnagar deposed that he took up investigation on receipt of final report from the doctor and altered section of law from 174 Cr.P.C. to 302 IPC and issued Ex.P17—altered FIR. 22. P.W.12, the Investigating Officer stated that he examined P.Ws.6 to 8 and Kuntam Kamala, Bandari Gangamma (L.Ws.12 and 13) and recorded their statements. P.Ws.6 and 7 stated before him that A1 confessed about commission of offence before them; he gave a requisition to record their statements under Section 164 Cr.P.C. which was recorded by P.W.13—Magistrate. He admitted P.W.6 did not state that A3, her husband and son consumed liquor along with A4 and the deceased; thereafter A3, her husband and son went away to their village; A4 and the deceased went to cinema and deceased alone returned in the mid night and on the next day morning about 5.30 A.M., A4 came to the hut of the deceased. P.W.7 did not state before him that P.W.6 came to him and informed that A1 approached him (P.W.6) and confessed about the offence and thereafter, P.W.6 brought A1 to him and at that time she (A1) confessed about the offence. P.W.7 also did not state before him that A1 approached him and confessed the offence two months after the death and stated before him that 10 days thereafter A1 approached him and confessed. 23. P.W.13, the Magistrate who recorded the statement of P.Ws.6 and 7 under Section 164 Cr.P.C. deposed P.W.7 stated before him as in Ex.P8 and P.W.6 stated before him as in Ex.D1. In Ex.P8, P.W.7 stated that 10days after his return P.W.6 told to him that deceased was killed by A1. P.W.6 brought A1 to him, she told herself, mason (A2), her mother (A3) and her paternal uncle (A4) together throttled the deceased and hanged him with sari in the hut. 24. It is well settled that when the case rests upon circumstantial evidence the same 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. It is also settled principle of law that motive by itself is not sufficient to prove the guilt of the accused. 25. When the case rests upon circumstantial evidence, such evidence must satisfy the following tests: (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. (See PADALA VEERA REDDY v. STATE OF A.P. AIR 1990 SC 79) 26. The extra-judicial confession made by a co-accused could be admitted in evidence only as a corroborative piece of evidence, in the absence of any substantive evidence against these accused persons, the extra-judicial confession allegedly made by the co- accused loses its significance and there cannot be any conviction based on such extra-judicial confession. 27. The Supreme Court in STATE OF RAJASTHAN v. RAJA RAM[1] held that an extrajudicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extrajudicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extrajudicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. 28. The learned Sessions Judge was of the view that prosecution could able to establish the fact that there is an illicit intimacy between A1 and A2, but there is no evidence that A1 to A4 hatched a plan to kill the deceased as he was coming in the way causing objection for the continuous illicit intimacy between A1 and A2. 29. The evidence of P.Ws.1 to 3 discloses that A1 developed illicit intimacy with A2 and in that connection a Panchayat was held; in the process, deceased shifted his family to from Karimnagar to Chintakunta village and after 1½ months time they came back to Karimnagar and residing at Mankammathota. As per the evidence of P.W.3, A4 brought 20 liters of gudamba (ID liquor) to the hut of A1 and the deceased; deceased and A4 consumed the same and went to second show cinema and he did not notice when they return; on the next day morning he saw the deceased. Whereas the evidence of P.W.6 discloses that a day prior to the incident A4 brought 10 liters of gudamba (ID liquor) which was consumed by A3, A4, deceased and the son of A3. Thereafter, A3, her husband and son left for their village, A4 and the deceased went to cinema; after cinema deceased alone returned to hut; about 5 or 6 A.M., A4 came to the hut of the deceased. The said fact has not been stated before the Investigating Officer—P.W.12 when he was examined. P.W.3 admitted that he did not state before the police when examined, on the date of incident A4 came to the hut of the deceased with gudamba and deceased and A4 consumed the same and went to watch second show cinema. Similarly, the so-called confession made by A1 before P.W.6 who in turn informed the same to P.W.7 that A1 approached and confessed about the offence, P.W.6 brought A1 to him and at that time she confessed. The so-called alleged confession made to P.Ws.6 and 7 if any, is two months after the incident. But curiously P.W.7 stated in his statement recorded under Section 161 Cr.P.C. on 06-01-2006 (Ex.P7) that 15 days after the death of Kishan (deceased) one-day the wife of kishan (A1) came to him and admitted that she committed mistake and requested him not to tell any one. The statement was recorded by the Magistrate under Section 164 Cr.P.C. on 25-02-2006 whereas the incident has taken place on 08-11-2005 by that time they received the postmortem report under Ex.P10 and also expert opinion under Ex.P11 etc. Similarly, P.W.6 also did not state before the police about consuming gudamba by A4 and deceased, which fact has been first time stated before the Magistrate when examined under Section 164 Cr.P.C. after three months of the incident. 30. From the above evidence, the prosecution has miserably failed to prove the presence of the accused with the deceased on the date of incident in the hut and together consumed gudamba (ID liquor). The so-called extra judicial confession made by A1 to P.Ws.6 and 7 cannot be believed as it was made two months after the incident and the said fact has not been disclosed by them to anybody till they were examined by P.W.12, who stated that on examining P.Ws.6 to 8 and Kuntam Kamala, Bandari Gangamma (L.Ws.12 and 13), P.Ws.6 and 7 stated that A1 confessed about commission of offence. Therefore, he gave a requisition to the Magistrate to record their statement, but admitted in the cross-examination about the omissions and P.Ws.6 and 7 did not state before him as stated by them in Exs.P8 and 9 except as in Ex.P7. 31. No doubt, murder of the deceased is diabolical in conception and cruel in execution but the real and pivotal issue is whether the totality of the circumstances unerringly establishes that all the accused or any of them are