CRLA/898/2009 of Javoji Mallaiah , Mallesh, Vs The State , on 30 December 2013

JUDGMENT:

(per the Hon’ble Sri Justice K.C.Bhanu)

1. This Criminal Appeal, by appellant/A.1, is directedagainst the judgment dated 27.07.2009 in Sessions CaseNo.691 of 2007 on the file of the I Additional SessionsJudge, Mahabubnagar, whereunder and whereby theappellant/A.1 was found guilty of the offences punishableunder Sections 302 and 201 of the Indian Penal Code,1860 (for short, ‘I.P.C.’), accordingly convicted of the saidoffences and sentenced to undergo imprisonment for lifeand to pay fine of Rs.100/- for the offence punishableunder Section 302 I.P.C. and to undergo rigorousimprisonment for a period of three years for the offencepunishable under Section 201 I.P.C.

2. The case of prosecution, in brief, may be stated asfollows:

P.W.1, who is complainant, is native of Marepallyvillage, Thimmajipet Mandal, Mahaboobnagar District. She got one son by name B.Venkataiah and 3 daughtersviz. Smt. Earragolla Manemma (hereinafter referred to, as‘the deceased’) and 2 others who are no more alive. P.W.1 got Ac.2.00 of land in the limits of Marepallyvillage. About 20 years prior to the incident, the deceased married one Anjaneyulu of Pullagiri village and discardedhim due to family affairs, and since then, she had beenresiding at Marepally village separately, doing coolie andlabour work. She was blessed with a male child by nameParashuramulu aged 18 years. During his life time,Pedda Bachanna, who is husband of P.W.1, gave entireAc.2.00 of land to the deceased, and the same wascultivated and enjoyed by the deceased. Venkataiah, sonof P.W.1, and his family members bore grudge against thedeceased and used to quarrel frequently for the Ac.2.00 ofland. About eight months prior to the incident, the saidPedda Bachanna died. During his life time, he gotregistered Ac.1.00 of land each in favour of his sonVenkataiah and daughter, who is the deceased, andsince then, the accused and the deceased were havingAc.1.00 of land each. P.W.2, who is son of thedeceased, intended to purchase an Auto for his livelihoodfor which the deceased intended to sell Ac.1.00 of landand requested P.W.3 to arrange for selling the land early. Family members of the accused raised objection sayingthat the land was given to the deceased for livelihood andthe land belongs to them only. A.1 and A.2 planned tokill her. Accordingly, on 5.9.2006 evening hours, thedeceased was alone at the agricultural land while A.1 andA.2 were present at their land attending work. A.1 and A.2picked up a quarrel with the deceased and A.1 dealt withsickle on the neck causing severe injury. As a result, the deceased fell down and A.2 caught hold her head andhair and A.1 cut the neck and separated from the trunk byhacking with a sickle. A.2 took away silver ornamentsfrom the dead body of the deceased. They shifted thetrunk and head to nearby dilapidated well belonging toGolla Bachamma and threw in the well to concealevidence.

On coming to know that the deceased disappearedsince 05.09.2006, P.W.1 searched for her at the housesof relatives, but could not trace her. On 12.09.2006, deadbody of the deceased was found floating on water indilapidated well belonging to Golla Bachamma. Thehead was cut from the trunk. Then, P.W.1 lodged acomplaint to police, who registered it as a case in crimeno.58 of 2006 for the offences punishable under Sections302 and 201 read with 34 I.P.C. During course ofinvestigation, P.W.15 along with P.W.14 visited the sceneof occurrence, examined the witnesses and recorded theirstatements, got photographed the dead body and sceneof occurrence by P.W.8, conducted inquest over the deadbody in the presence of mediators, drew rough sketch ofthe scene and sent the dead body to post-mortemexamination. P.W.11 conducted post-mortemexamination and opined that the cause of death of thedeceased is ‘separation of head and neck from thoraxleading to failure of cardiac respiratory and nervoussystem’. After collection of relevant documents and completion of investigation, police laid the charge sheet.

3. The trial Court framed the following charges against the accused.

“Firstly, That on 5.9.2006, in the eveninghours at Marepally village, A1 and A.2 of youdid commit murder by intentionally orknowingly causing the death of deceasedMunemma by cutting her neck and neckseparated from trunk with sickle and that youthereby committed the offence punishable U/s.302 r/w 34 IPC and within my cognizance.

Secondly, That A1 and 2 of you, duringthe course of same transaction stated supra,after committing murder of Manemma, youcommitted theft of silver ornaments from thedead body of deceased and that you therebycommitted the offence punishable U/s. 379IPC and within my cognizance.

Thirdly, That on the same day in thesame course of transaction, A.1 and 2 of youafter committing murder of the deceasedManemma, you shifted the trunk and head tonearby dilapidated well belonging to one GollaBachamma and threw it in the well to causedisappearance of evidence and that youthereby committed the offence punishable U/s201 IPC and within my cognizance.”

When the charges were read over and explained tothe accused in Telugu, they pleaded not guilty andclaimed to be tried.

4. To substantiate its case, prosecution examinedP.Ws. 1 to 16 and got marked Exs.P1 to P24, besidescase properties M.Os. 1 to 6.

5. After closure of prosecution side evidence, theaccused were examined under Section 313 Cr.P.C. toexplain the incriminating circumstances found againstthem in the evidence of prosecution witnesses. Theaccused denied the same. No oral or documentaryevidence was adduced on behalf of the defence. Ex.C1was got marked.

6. The trial Court, upon appreciation of the evidenceon record, found the A.2 not guilty of the offencespunishable under Sections 302 read with 34, 201 and 379I.P.C. and accordingly acquitted him, but found theappellant/A.1 guilty of the offences punishable underSection 302 and 201 I.P.C., accordingly convicted andsentenced him as stated supra. Aggrieved thereby, thepresent Criminal Appeal is preferred by the appellant/A.1.

7. Now, the point that arises for determination iswhether the prosecution is able to bring home the guilt ofthe appellant/A.1 for the offences punishable underSections 302 and 201 IPC beyond all reasonable doubtand whether the convictions and sentences recorded bythe learned Sessions Judge are liable to be set aside ormodified ?

8. The learned counsel appearing for the appellantcontended that there is no direct evidence to the incident

in question to show that A.1 is the assailant of thedeceased, and that even if all the circumstances relied onby the prosecution are taken as true and correct, at thisstage, they do not form a chain so complete that within allhuman probability, the crime was committed by theappellant and none else; that except recovery of M.O.1-sickle, there are no incriminating circumstances to showthat the appellant is the assailant of the deceased; thateven recovery of M.O.1-sickle cannot taken as anincriminating circumstance against the accused becauseit does not contain any human blood, and that basing onsurmises and conjectures, the trial court found theappellant guilty, and hence, he prays to set aside theconvictions and sentences recorded by the trial court.

9. On the other hand, the learned Additional PublicProsecutor contended that except recovery of M.O.1 atthe instance of appellant, there is no other evidence toshow that the appellant is the assailant of the deceased,and that from the circumstances relied on by theprosecution, it is clear that the appellant is the assailant ofthe deceased and that, the trial Court, upon consideringthe evidence on record, rightly convicted and sentencedthe appellant, and there are no grounds to interfere withthe same. Hence, he prayed to dismiss the CriminalAppeal.

10. The deceased is none other than daughter of P.W.1. Marriage of the deceased with one Anjaneyuluwas performed long prior to the incident and they wereblessed with a son. After the said Anjaneyulu discardedthe deceased, she started living in Marepally village,which is the native place of P.W.1. The deceased waseking out her livelihood by doing coolie work. P.W.1 washaving Ac.2.00 of land and out of it, gave Ac.1.00 of landto the deceased and Ac.1.00 of land to her sonVenkataiah. The deceased intended to sell away the saidAc.1.00 of land to buy an auto for her son, and informedthe same to P.W.3. On knowing about it, A.1 objected. From 05.09.2006, the deceased was found missing fromthe house. P.W.1, after making efforts to trace thedeceased, lodged Ex.P19-complaint on 13.09.2006 toP.W.14, who registered it as a case. In Ex.P19, P.W.1entertained suspicion against A.1 and A.2. A.1 is grandson of P.W.1 i.e. son of her son Venkataiah. A.2 is wife ofsaid Venkataiah.

11. There is no direct evidence to show that theappellant is the assailant of the deceased. Entire caserests upon circumstantial evidence. When a case restsupon circumstantial evidence, law is well settled that allthe circumstances must firmly and unerringly point out theguilt towards the accused; that all the circumstances, iftaken cumulatively, should form a chain so complete thatwithin all human probability, the crime was committed by the accused and none else. All the circumstances shouldnot only consistent with the case of prosecution but alsoshould be inconsistent with the hypothesis of the guilt ofthe accused. On this aspect, it is pertinent to refer to adecision reported in Sharad Birdhichand Sarda Vs.

State of Maharashtra[[1]]wherein it is held at para No.153

as under:

“A close analysis of this decision would showthat the following conditions must be fulfilled before acase against an accused can be said to be fullyestablished :

(1) the circumstances from which the conclusion ofguilt is to be drawn should be fully established.guilt is to be drawn should be fully established.

It may be noted here that this Court indicated thatthe circumstances concerned 'must or should' andnot 'may be' established. There is not only agrammatical but a legal distinction between 'maybe proved' and 'must be or should be proved' aswas held by this Court in Shivaji Sahebrao Bobadev. State of Maharashtra, (1973) 2 SCC 793 : (AIR1973 SC 2622) where the following observationswere made :

"certainly, it is a primary principle that theaccused must be and not merely may be guiltybefore a Court can convict and the mentaldistance between 'may be' and 'must be' is longand divides vague conjectures from sureconclusions."

(2) the facts so established should be consistent onlywith the hypothesis of the guilt of the accused,that is to say, they should not be explainable onany other hypothesis except that the accused isguilty.with the hypothesis of the guilt of the accused,that is to say, they should not be explainable onany other hypothesis except that the accused isguilty.

(3) the circumstances should be of a conclusivenature and tendency.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 completeas not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must and must show that in all human probability the act musthave been done by the accused.

12. P.W.11 is the Doctor, who conducted postmortemexamination on the dead body of the deceased. Sheopined that the cause of death of the deceased was dueto severance of head from the trunk. Material prosecutionwitnesses P.Ws.1 to 6 and 9 did not support the case ofprosecution. Except marking their statements recordedunder Section 161 (3) Cr.P.C., nothing has been elicited toconnect the accused with the crime. The mediators forthe observation of scene of occurrence, preparation ofrough sketch of scene of occurrence and holding inquestover dead body of the deceased, also did not support thecase of prosecution. P.W.15 is the investigating officer,whose evidence would disclose that he held inquest onthe dead body of the deceased in the presence ofmediators. The inquest mediators found that head wasseparated from the body and opined that the cause ofdeath of the deceased was due to severance of thehead. The opinion as expressed by the inquest mediatorsin column no.15 of Ex.P17-inquest report, remainedunchallenged.

13. Death of the deceased is not in dispute. Floating ofthe dead body in the dilapidated well belonging to GollaBachamma in the outskirts of Marepally village is not indispute. Her head was severed from the body. P.Ws.6and 7 removed the dead body from the well at theinstance of police. P.W.8 is the photographer, who tookphotographs of the dead body and the scene ofoccurrence.

14. The other evidence on record is the evidence ofP.Ws.15 and 12, who are investigating officer andmediator for recovery of material objects, respectively. Atthe instance of A.1, M.O.1-sickle used in commission ofthe offence, was recovered, whereas, basing on theconfessional statement of A.2, M.Os. 2 and 3-silverarticles which were said to be possessed by thedeceased, were seized. The learned Sessions Judgedisbelieved the evidence of both the witnesses withregard to recovery of M.Os.2 and 3 at the instance of A.2,but, relying on the statement of the same witnesses withregard to recovery of M.O.1 at the instance of A.1,convicted A.1. Recovery of M.O.1 can be said to be anincriminating circumstance against A.1 provided it isshown that it was used in commission of the offence. Admittedly, M.O.1 does not contain any blood stainsbecause in all probability blood stains were wiped out fromthe weapon as it was thrown into the tank. As per the evidence of prosecution, M.O.1 was taken out from thetank and the same was produced before mediators andpolice, and the police seized the same. M.O.1 is notshown to the Doctor who conducted necropsy on thedead body of the deceased, to show whether severanceof neck can be possible with a weapon like M.O.1. Therefore, in the absence of such medical opinion andalso in the absence of blood stains on M.O.1, it cannot besaid that recovery of M.O.1 is an incriminatingcircumstance against the appellant/A.1 so as to take it asone circumstance relevant for the purpose of proving thecharge leveled against the appellant/A.1.

15. Learned counsel for the appellant/A.1 relied on adecision in Wakkar and another v. State of Uttar Pradesh[[2]], wherein it is held thus: (para 12 & 26)

“It is well settled and needs no restatement atour hands that the principle for basing a conviction onthe basis of circumstantial evidence is that each andevery incriminating circumstance must be clearlyestablished by reliable and clinching evidence and thecircumstances so proved must form a chain of eventsfrom which the only irresistible conclusion about theguilt of the accused can be safely drawn and no otherhypothesis against the guilt is possible.

…

It is true that recovery of certain incriminatingarticles at the instance of the accused under Section27 of the Evidence Act by itself cannot form the basisof conviction. THE recovery of incriminating articlesand its evidentiary value has to be considered in thelight of other relevant circumstances as well and the chain of events suggesting the involvement of theaccused. THE trial Court and as well as the appellateCourt did not rest the conviction of the appellantssolely based on the recoveries. THE fact remains thatthe recovery of articles used in the commission ofoffence has been taken into consideration togetherwith other incriminating circumstances brought onrecord by the prosecution.”

16. In the case on hand, even if all the circumstancesrelied on by the prosecution are accepted as true andcorrect, they do not lead to draw an irresistible conclusionthat the crime was committed by the appellant/A.1. Afterperusing the evidence, we do not find any circumstancesto say that the appellant/A.1 is the assailant of thedeceased. Even in the absence of any legal evidence,the trial court convicted and sentenced the appellant/A.1. Therefore, the appellant/A.1 is entitled for acquittal.

17. In the result, the Criminal Appeal is allowed. Theconvictions and sentences recorded against theappellant/A.1 in the judgment dated 27.07.2009 inSessions Case No.691 of 2007 on the file of the IAdditional Sessions Judge, Mahaboobnagar for theoffences punishable under Sections 302 and 201 I.P.C.are set aside. The appellant/A.1 is found not guilty of thesaid charges and is, accordingly, acquitted of the saidcharges. The appellant/A.1 shall be released forthwith ifhe is not required in any other case. Fine amount, if any,paid by the appellant/A.1 shall be refunded to him.

------------------------

(K.C. BHANU, J.)

30.12.2013DRK

-----------------

( ANIS, J.)

THE HON’BLE SRI JUSTICE K.C.BHANUAND

THE HON’BLE SMT. JUSTICE ANIS

CRIMINAL APPEAL No.898 OF 2009 (per the Hon’ble Sri Justice K.C.Bhanu)

30.12.2013

[1]AIR 1984 SC 1622AIR 1984 SC 1622

[2](2011) 3 Supreme Court Cases 306(2011) 3 Supreme Court Cases 306