THE HON'BLE SRI JUSTICE A.GOPAL REDDY AND THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL Nos.459 and 720 of 2007 COMMON JUDGMENT: (Per the Hon’ble Sri Justice K. C. Bhanu) These two Criminal Appeals filed by accused Nos.2 and 1 respectively under Section 374 (2) of the Code of Criminal Procedure, 1973 are directed against the judgment dated 20.02.2007, passed by the learned II Additional Sessions Judge, (Fast Track Court), Parvathipuram, in S.C.No.135 of 2006, whereunder and whereby accused Nos.1 and 2 were found guilty of the offences punishable under Section 302 read with Section 34 I.P.C. and Section 201 read with Section 34 I.P.C., convicted therefor under Section 235(2) Cr.P.C., and each of them is sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for three months for the offence under Section 302 read with Section 34 I.P.C., and were further sentenced to undergo rigorous imprisonment for seven years and also to pay a fine of Rs.500/-, in default to suffer simple imprisonment for three months for the offence under Section 201 read with Section 34 I.P.C., and both the sentences were directed to run concurrently. 2. The case of the prosecution is that the accused and Ajjada Raja Rao (hereinafter called ‘the deceased’) are residents of Pedatumbai Village, Jiyyammavalasa Mandal, Vizianagaram District. About two years prior to the date of the incident, accused No.1 approached the deceased proposing to give his daughter – Vijayalakshmi in marriage to the son of the deceased, for which the deceased and his wife did not agree and therefore, accused No.1 bore grudge against the deceased. That on the date of incident i.e., 15.05.2006 at 6.30 a.m., the deceased went to his lands along with his son – Siva (P.W.3). The land of accused No.2 is also situated in the same area and on that day a proclainer was engaged to level the land of accused No.2. Accused No.1 was also present there to help accused No.2. P.W.6 – J. Purushotham Naidu is the driver of the proclainer and one Nani is the cleaner. That the deceased is said to have informed the driver and cleaner about the boundaries of his land so that they may not be encroached upon the lands of neithbourer. P.W.3 returned home after some time. At about 1.00 p.m. the accused sent the deceased to Maruvada Village to fetch arrack from Chandrayya. That the deceased returned with arrack an hour later. While P.W.6 and Nani sat for lunch under one iridi tree, the accused and deceased started consuming arrack. After finishing lunch, P.W.6 and Nani returned to the proclainer and were attending to their work. That at about 3.30 p.m. accused No.2 came to the proclainer at first and then accused No.1 followed him. At that time P.W.6 and Nani saw some flames at the spot where they took lunch earlier. After some time accused Nos.1 and 2 went to the spot and came back and asked P.W.6 and Nani also to come there. On going there they found the partly burnt dead body of the deceased lying there. On P.W.6 questioning the accused as to how it happened, they gave unconvincing and unsatisfactory reply. That the work of P.W.6 and his cleaner was continued till 6.00 p.m. and at the time of departure accused No.1 warned P.W.6 and Nani not to inform anybody about the incident. 3. It is the further case of the prosecution that on the intervening night of 15/16.05.2006, accused No.2 said to have made an extra judicial confession to P.Ws.4 and 5 that he along with accused No.1 strangulated the deceased with a towel and set fire to the dead body at the spot with hay. On intimation of P.W.4 and P.W.5, P.W.1 who is the son of the deceased informed the village secretary – P.W.7 about the death of his father who in turn got the said fact verified by the village Talari - P.W.8 and advised P.W.1 to give a report to the Police. Accordingly, P.W.1 lodged a report Ex.P-1 with Jiyyammavalasa Police Station on 16.05.2006 at 8.00 a.m. which is registered as F.I.R.No.12 of 2006 - Ex.P-9 for the offences under Sections 302 and 201 read with Section 34 I.P.C. P.W.11 – S.I. of Police, Jiyyammavalasa is the investigating officer who conducted inquest under Ex.P-6 and recorded statements of witnesses under Section 162 Cr.P.C. and prepared rough sketch of the scene of offence – Ex.P-10. He also seized M.Os.1 to 9 i.e., knife, steel spoon, empty Berkley cigarettes packet, ash of grass, burnt sticks, controlled earth, green and red colour burnt pieces of lungi, half burnt banian pieces and half burnt towel pieces, under observation-cum-seizure report – Ex.P-5 in the presence of P.W.7 and D. Mohan Rao. After conducting inquest, he sent the dead body for postmortem through corpse constable. P.W.10 - Civil Assistant Surgeon, Area Hospital, Parvathipuram, conducted autopsy on 16.05.2006 at 4.00 p.m. and issued postmortem certificate – Ex.P-8 opining that the cause of death is asphyxia due to strangulation and that the burns on the body of the deceased are postmortem in nature. P.W.11 arrested both the accused at about 5.45 p.m. at Pedatumbai bus stand on 19.05.2006. P.W.12- the C.I. of Police, Elwinpet Police Station verified the investigation done by P.W.11 and sent a requisition to the Additional Judicial First Class Magistrate, Bobbili to record the statements of P.Ws.4 to 6 and Nani under Section 164 Cr.P.C. After receiving postmortem certificate and after completion of the investigation, the C.I. of Police, Parvathipuram who was incharge of Elwinpet Circle, filed the charge sheet on 30.06.2006. 4. The charges levelled against the accused read as under: Firstly:- That you A1 and A2 on the 15th day of May, 2006 at about 1 p.m. at Pedatumbai Village, Jiyyammavalasa Mandal in furtherance of common intention of you both did commit murder of Ajjada Raja Rao of Kondadora (S.T.) by strangulating the deceased with a towel and that you thereby committed an offence punishable under Section 302 read with Section 34 I.P.C. Secondly:- That you A1 and A2 at about 3.30 p.m. at the same place in furtherance of common intention of you both knowing that certain offence punishable with Section 302 I.P.C. has been committed did cause certain evidence of the said offence to disappear set fire to the dead body of the said Ajjada Raja Rao with the intention of screening the said offender from legal punishment and thereby you both committed an offence punishable under Section 201 read with Section 34 I.P.C. 5. When the said charges were read over and explained to the accused, they pleaded not guilty and claimed to be tried. 6. To substantiate the case of prosecution, P.Ws.1 to 12 were examined and Exs.P-1 to P-10 were marked, besides the case properties M.Os.1 to 9. After closure of the prosecution side evidence, the accused were examined under Section 313 Cr.P.C. to explain the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same. In defence, accused No.2 was examined as D.W.1 and Exs.D-1 and D-2 were marked. 7. The trial Court, after consideration of the evidence on record, found that the accused were guilty of the offences for which they were charged with and accordingly they were convicted and sentenced as stated above. Challenging the same, the present appeals are filed by the accused. 8. The learned counsel for accused No.1 contended that there is no direct evidence to show that accused No.1 has participated in commission of the offence; that there was no motive for accused No.1 to commit the murder of the deceased; that the earliest report said to have been given by P.W.1 – son of the deceased to P.W.7 was suppressed and Ex.P-1 was brought into existence after due deliberations; that evidence of prosecution witnesses is not reliable and trustworthy and cannot be accepted; that the evidence would give raise to a suspicion that the offence might have been committed by the accused, but suspicion alone cannot take place of proof to convict the accused. Therefore, he prays to set aside the convictions and sentences recorded against accused No.1. 9 . The learned counsel for accused No.2 contended that the conduct of P.W.6 is highly improbable since after seeing the dead body he did not raise any cries nor rushed to the village to inform about the same but he went to his work; that when P.W.1 has admittedly given a written report to the village secretary that has been suppressed by the prosecution deliberately; that the cleaner of the proclainer was not examined; that when it is the case of the prosecution that both the accused along with the deceased consumed arrack, no arrack bottle was seized; that the contents of the stomach have not been sent to the Chemical Examiner for ascertain any alcoholic substance present in the same; that the statement of accused No.2 before P.Ws.4 and 5 does not amount to extra judicial confession and that there is absolutely no motive for accused No.2 to commit the murder of the deceased. Therefore, he prays to set aside the convictions and sentences recorded against accused No.2. 10. On the other hand, the learned Additional Public Prosecutor contended that the fact of the death of the deceased was due to strangulation is not seriously disputed; that at the time of the incident only accused Nos.1 and 2 and the deceased were present at the scene of occurrence; that there was no scope or possibility for any third person to cause death of the deceased; that the evidence of P.W.6 is very clear that deceased was in the company of both the accused for quite some time, and when he returned to the work, half an hour thereafter both the accused came there and at that time he saw flames and when he enquired the accused, he came to know about the incident and therefore, the crime must have been committed by the accused and none else; that with an intention to screen the offence, they set fire to the body of the deceased; that the Doctor found postmortem injuries on the dead body; that the trial Court, upon elaborate consideration of the evidence on record, rightly convicted and sentenced the accused, and there are no grounds to interfere with the convictions and sentences recorded by the trial Court against both the accused. 11. P.W.11 is the investigating officer, who held inquest on the dead body of the deceased in the presence of mediators under Ex.P- 6. There is no dispute about the scene of occurrence. The scene of occurrence is located at the lands in survey No.189, which is at a distance of two kilometers from Pedatumbai Village, where the dead body was found lying. Ex.P-5 is the observation report and Ex.P-10 is the rough sketch. Ex.P-7 are the photographs along with negatives of the dead body of the deceased. Even the accused are not seriously disputing about the place of occurrence. 12. P.W.10 is the Doctor, who conducted autopsy on the dead body of the deceased and found black charring of the skin present over the following areas – both legs 36%, abdomen 9%, chest 9%, right hand 18% and left hand 5%. The said burns were postmortem in nature. He found small contusion in front of the neck and on the cut section altered colouration of tissue underneath the contusion i.e., reddish brown in colour. Almost all the internal organs were congested. He opined that the deceased died as a result of the strangulation and issued Ex.P-8 postmortem report. Except suggesting that he did not conduct autopsy on the dead body of the deceased, nothing has been elicited to disprove the evidence of P.W.10 and the contents of Ex.P-8. From the above, the homicidal nature of death of the deceased is established. 13. There is no direct evidence to substantiate the case of prosecution. The entire case rests upon the circumstantial evidence. When a case rests upon circumstantial evidence, the law is well settled that the following tests have to be satisfied by the prosecution as laid down by the Apex Court in a decision in Padala Veera Reddy v. State of Andhra Pradesh & others[1]: 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. Bearing the above principles in mind, it has to be seen that whether the circumstances adduced by the prosecution are sufficient to infer that the accused alone were responsible for causing the death of the deceased beyond all reasonable doubt. 14. With regard to the motive, the learned counsel for the accused contended that there was absolutely no motive for the accused to commit the murder of the deceased. Motive in a crime is not an integral part of the crime. It is only an aid in assessment of criminality. If the prosecution has come forward with a definite motive, it can be taken into consideration for assessing the criminality. Absence of motive or nonproof of motive by itself is not a ground to acquit the accused if there is other acceptable evidence available on record. P.Ws.1 to 3 stated that two years prior to the incident, accused No.1 offered to give his daughter in marriage to P.W.1 – son of the deceased, but the parents of P.W.1 did not agree for the same and later the marriage of P.W.1 was performed with another girl and for the marriage, accused No.1 was not invited and therefore, accused No.1 bore grudge against the family of the deceased. But, that incident had happened long prior to the incident. Therefore, the motive as spoken to by P.Ws.1 to 3 cannot be accepted. 15. The deceased was having lands in Pedatumbai Village. On the date of the incident at about 6.30 a.m. the deceased and P.W.3 went to the lands for ploughing, at about 11.00 a.m. on the same day P.W.3 returned to the home. It is not in dispute before this Court that accused No.2 was having lands adjacent to the lands of the deceased. On 15.05.2006, accused No.2 engaged proclainer to level his land. P.W.6, who was the driver of the proclainer, along with cleaner, was levelling the land with the help of a JCB proclainer. At about 1.00 p.m., P.W.6 and the cleaner stopped the work for taking lunch. While P.W.6 and the cleaner were taking food under a tree, accused Nos.1 and 2 and the deceased consumed arrack and sometime thereafter, accused came to the place where P.W.6 was levelling the land. At that time, P.W.6 found some ash and flames from the place where the accused and deceased consumed arrack. When he enquired about the flames with the accused, they both stated that the deceased set fire to himself and was in flames. Then P.W.6 and the cleaner went the place of the incident and found partly burnt dead body of the deceased. At that time, besides both the accused, P.W.6 and the cleaner were only present. 16. So, the entire case rests upon the evidence of P.W.6. If the evidence of P.W.6 is placed in the category of ‘wholly reliable’, then there is no difficulty in accepting his evidence. He is totally an independent witness. His presence at the time of the incident in the fields of accused No.2 is established. He is not having enmity against the accused so as to falsely implicated them, similarly he is not having any close association with P.W.1. He went to the fields of accused No.2 for levelling the land with the help of the proclainer. His evidence is very clear that immediately prior to the incident, both the accused were in the company of the deceased and immediately after the incident both the accused came to the place where P.W.6 was levelling the land and it is at that time flames were coming from the place where the accused and deceased consumed arrack. Then P.W.6 and the cleaner went there and found partly burnt dead body of the deceased and there was noone present in and around that place. Because the scene of occurrence is the lands, ordinarily no other outsiders would be present in and around. So, in those circumstances, there was scope or possibility for both the accused alone to commit the murder of the deceased for the reasons best known to them. Since the motive for the incident is locked up in the minds of the accused, it is difficult for the prosecution to know the mind of the accused. Since the evidence is clear that both the accused were alone present in the company of the deceased just prior to the incident and immediately after the incident, there was no scope for any third person to cause murder of the deceased. Hence, the irresistible inference that can be drawn in the facts and circumstances of the case is that both the accused were alone perpetrators of the crime and no other inference can be drawn with regard to the participation of any third person in the commission of the offence. 17. The learned counsel for accused No.2 contended that the conduct and behaviour of P.W.6 is highly improbable and having seen the partly burnt dead body, he would have gone to the village and raised cries and therefore, the reaction of the witness creates any amount of doubt with regard to his presence so as to place any reliance on his evidence. P.W.6 was engaged by accused No.2 for levelling the land on payment of certain amount on hourly basis. So, he cannot leave the proclainer and go to the village as he may sustain loss. The conduct and reaction of a person after seeing the ghastly incident varies from man to man. Each person reacts in his own way. Some may rush to the Police, some may rush to the village and some may attend to their work even after seeing the incident. So, on that ground alone, it cannot be said that P.W.6 is untruthful witness. He may be under the impression that he would not get the amount if he stops the work of levelling the land in the middle and therefore, he might have continued the work even after the incident. Therefore, there is no unnaturality in P.W.6 continuing his work even after the incident. 18. The other contention of the learned counsel for the accused is that the cleaner of the proclainer was not examined. No doubt the cleaner was also present at the time of the incident. But non- examination of the cleaner cannot be said to be fatal in view of the fact that the presence of P.W.6 at the time of the incident is established beyond all reasonable doubt. The prosecution is not obliged to examine witness after witness to prove the same fact. Therefore, in the circumstances of the case, non-examination of the cleaner of the proclainer is not fatal to the case of the prosecution. 19. With regard to non-seizure of arrack bottle at the scene of occurrence and not sending the stomach contents to the chemical examiner to find alcoholic substance in them, no doubt, these are irregularities committed by the investigating officer. When the specific evidence of P.W.6 is that accused gave Rs.100/- to the deceased at about 12 noon and asked to bring arrack and thereafter accused and the deceased consumed arrack at about 1.00 p.m., the same was not specifically denied or disputed. Except suggesting that the accused did not come to the scene of occurrence, nothing has been elicited to disturb the testimony of P.W.6. 20. With regard to the factum of suppression of the alleged report said to have been given by P.W.1 to P.W.7 is concerned, P.W.1 is not an eyewitness to the incident. He was informed about the incident by P.Ws. 4 and 5. Admittedly P.Ws.4 and 5 are also not eyewitnesses to the incident. They came to know about the incident from accused No.2, who allegedly made statement before them that he and accused No.1 committed murder of the deceased. Therefore, the statement made by P.W.1 that he gave a report to P.W.7 – village secretary must be an inadvertent admission by him. Even assuming for a moment that P.W.1 gave a report to P.W.7 and that the report was suppressed by the prosecution, it would not in any manner affect the main substratum of the prosecution story. In view of the fact that P.Ws.4 and 5 are not eyewitnesses to the incident nor the witnesses to speak about the incriminating circumstances against the accused. The trial Court has not placed any reliance on their evidence. Giving a statement by accused No.2 stating that accused No.1 killed the deceased is not extra judicial confession because it is not the case of P.Ws.4 and 5 that accused No.2 gave a confession admitting his guilt about the commission of offence and also implicating accused No.1 in the commission of offence. At any rate, the statement made to P.Ws.4 and 5 does not fall within the ambit of extra judicial confession. A confession is a statement made by the accused admitting his guilt. Such is not the case here. The evidence of P.W.6, who is totally an independent witness and whose presence is established at the time of the incident, before the incident and immediately after the incident and as a matter of fact through out the day of the incident, leads to an irresistible conclusion that the crime must have been committed by the accused alone and none else. There are no other reasons to doubt the testimony of P.W.6 and from the evidence it is very clear that the crime must have been committed by the accused and none else. Therefore, the trial Court upon consideration of entire evidence on record, especially placing reliance on the evidence of P.W.6, rightly concluded that the evidence is sufficient for convicting the accused and there are no grounds to interfere with the convictions and sentences recorded by the trial Court. 21. Therefore, these Criminal Appeals are dismissed. __________________ A. GOPAL REDDY, J _____________ K.C.BHANU, J 18th August, 2010 GHN [1] AIR 1990 Supreme Court 79