Andhra Pradesh High Court - Amravati
Dandima Adinarayana Baburao vs The State Of A.P. on 11 February, 2022
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
CRIMINAL APPEAL NOs.366,
376 and 404 of 2013
COMMON JUDGMENT :(Per the Hon'ble Sri Justice C. Praveen Kumar) Criminal Appeal No.366 of 2013 is filed by A.3; Criminal Appeal No.376 of 2013 is filed by A.4; while Criminal Appeal No.404 of 2013 is filed by A.1 and A.2. Since all the three appeals arise out of one judgment, the same are heard and disposed of by this common judgment.
2. These three appeals are filed against the judgment dated 12.04.2013 passed in Sessions Case No.159 of 2006, on the file of learned Metropolitan Sessions Judge, Vijayawada, wherein A.1 and A.2 were tried for the offences punishable under Sections 302 r/w. Section 34, 404, 201 and 411 IPC; A.1 to A.3 for the offences punishable under Sections 120-B r/w.Section 302 IPC for conspiring to commit murder of one Balabommala Ashok and A.4 for the offence punishable under Section 419 r/w.120-B IPC for impersonation as husband of A.3.
(i) The learned Sessions Judge convicted A.1 and A.2 for the offence punishable under Section 302 r/w. Section 34 IPC and sentenced each one of them to suffer Imprisonment for Life and to pay a fine of Rs.500/-, in default, to suffer Simple Imprisonment for one month each. They were also found 2 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 guilty for the offence punishable under Section 404 IPC and sentenced to suffer Rigorous Imprisonment for six months and to pay a fine of Rs.500/- each, in default, to suffer Simple Imprisonment for one month each. A.1 and A.2 were further sentenced to suffer Rigorous Imprisonment for one year each and to pay a fine of Rs.500/- each, in default, to suffer Simple Imprisonment for one month each for the offence punishable under Section 201 IPC. A.1 and A.2 were acquitted for the offence punishable under Section 411 IPC.
(ii) A.3 was found guilty for the offence punishable under Section 404 IPC and sentenced to suffer Rigorous Imprisonment for six months and to pay a fine of Rs.500/-, in default, to suffer Simple Imprisonment for one month for the offence punishable under Section 404 IPC; A.3 was further sentenced to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.500/-, in default, to suffer Simple Imprisonment for one month for the offence punishable under Section 420 IPC.
(iii) A.4 was convicted and sentenced to suffer Rigorous Imprisonment for Six Months for the offence punishable under Section 419 IPC. All the substantive sentences against A.1 to A.3 were directed to run concurrently.
3. Before proceeding further, it is to be noted here that there is no charge against A.3 for any of the offences with which she is punished. It appears that since the offence punishable under Section 404 IPC is a minor offence 3 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 compared to offence under Section 302 r/w. Section 120-B IPC [charged], the learned Sessions Judge convicted A.3 for the offences punishable under Sections 404 and 420 IPC. The net result is A.1 and A.2 were sentenced to Imprisonment for Life while A.3 and A.4 to one year and six months respectively.
4. The case of the prosecution, as culled out from the prosecution witnesses, is as under:
(i) A.1 and A.2 are brothers. P.W.1 is the mother of the deceased [Balabommala Ashok]. P.Ws.2 and 3 are the friends of the deceased; P.W.4 is the daughter of one Pothuraju in whose the deceased was living as a tenant. P.W.7 is the brother-in-law of the deceased. P.W.8 is the relative of the deceased and P.Ws.10 and 11 are the brothers of the deceased. The deceased was residing as a tenant in the house of one Pothuraju, situated at old Post Office road, Krishnalanka, Vijayawada. The deceased was doing room spray and finance business. P.W.3 and others used to meet the deceased regularly at Krishnalanka Katta, near Satyam hotel.
(ii) On 17.10.2004 at about 9.00 or 9.30 PM when P.W.3 and the deceased met each other at Satyam Hotel, the deceased informed P.W.3 that A.1 asked him to come to Enikepadu for repayment of the amount due by A.3.
(iii) It is the case of the Prosecution that the deceased was doing Finance business and in the course of the said 4 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 business, he advanced some amount as loan to a lady who is a resident of Enikepadu. It is the case of the Prosecution that since 1½ months prior to the incident, A.1 was visiting the room of the deceased and both of them developed acquaintance with each other. About 1½ months prior to the incident, the deceased informed P.Ws.2 and 3 that A.1 informed him that one lady by name Jogi Venkateswaramma [A.3] of Enikepadu require some amount as loan on pledging of her house documents as security.
(iv) According to P.W.3, the deceased is said to have advanced a loan of Rs.92,000/- to A.3 keeping the house documents as security. After meeting the deceased at 9.30 PM, P.W.3 went away. On the next day morning, P.W.3 made a call to the deceased, but the same was switched off. It is the version of P.W.3 that the deceased will not switch off his phone. P.W.3 went to the room of the deceased and noticed a motor bike outside the house, but the room of the deceased was locked. His enquiries with the neighbour revealed that two persons came to the house, parked their vehicle and took away two bags from the room of the deceased informing that the deceased has asked them to keep the vehicle there and that the deceased has gone to Chennai. The house owner further informed P.W.3 that the said two persons went away walking.
(v) It is said that the deceased used to wear a ring containing Balaji emblem studded with red, white and other 5 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 colour stones. There was another gold ring, which was having Kanakapushyaragam stone on the back side of the ring. He got inscribed his name as B.A. or B.M. The chain, which he used to wear, is a Maharani chain.
(vi) P.W.14, who was working as Secretary in Gandhi Co-operative Urban Bank, Vijayawada, deposed that on two occasions, they gave loan to A.3. A.1 is said to have accompanied A.3 at the time of advancing the loan. A.3 repaid the entire amount in October, 2004 and took back the house documents which were pledged in the bank. A.2 is said to have accompanied A.1 and A.3 on that day.
(vii) According to P.W.14, on 18.10.2004, A.1 and A.3 came to the bank for obtaining another loan. On that day, A.4 is said to have accompanied A.1 and A.3, but since there was a Board meeting, he asked A.1 and A.3 to come after ten days. However, A.3 submitting the loan application along with her house documents to P.W.14.
(viii) On 19.10.2004 at about 4.00 PM, P.W.2 called P.W.10 the brother of the deceased and enquired about the deceased, but he was informed that the deceased never came to Chennai. P.W.2 informed PW.10 that the deceased is missing from the mid night of 17.10.2004. Though, numbers of calls were made to the cell phone of the deceased, there was no response. At about 7.00 PM, P.W.10 was able to contact the mother of the deceased (P.W.1) and informed her about the missing of the deceased. Incidentally, P.W.1, who 6 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 visits Vijayawada during "Navarathrulu", was in Vijayawada on that day.
(ix) P.W.1 came to Vijayawada on the morning of 19.10.2004. She went to her sister‟s house to get herself freshed up to go to Kanakadurga Temple. After having darshan, P.W.1 went to the house of her sister at 7.00 PM. At that time she received a call from P.W.11 [another brother of the deceased] informing about the missing of the deceased.
He also disclosed the source of the said information. Immediately, P.W.1 went to the house of Pothuraju where the deceased used to stay as a tenant. Her enquiries revealed that the deceased went out on the mid night of 17.10.2004 and did not return to home. The said Pothuraju also informed P.W.1 that Ashok left on his motor cycle and he also informed P.W.1 that on the next day morning two boys came on a motor bike, opened the lock of the house, went into the room of the deceased and then went away after half an hour carrying two bags. They left the motor cycle at the house. P.W.1 went to the house of P.W.2 and enquired with him about the incident. He disclosed about the deceased moving closely with A.1 of Enikepadu village since two months and also advancing loan and about repayment of loan etc.
(x) On 20.10.2004 at about 2.00 PM, P.W.1 is said to have gone to the Police Station at Krishnalanka and lodged a report with P.W.16, basing on which, a case in Crime No.421 of 2004 came to be registered as „Man Missing‟. Ex.P12 is the 7 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 First Information Report [F.I.R.]. P.W.16 then went to the house of missing person and recorded the statements of P.Ws.2 to 4 and two others. On 21.10.2004, he examined P.Ws.7 and 8 and recorded their statements. Basing on the report lodged by P.W.10, P.W.20 [Inspector of Police] altered the Section of law from „Man Missing‟ to Section 174 Cr.P.C. He examined P.W.10 and recorded his statement. He also secured a photographer for taking photographs of the scene. Later, he along with P.W.10 and Photographer proceeded to scene of offence. P.W.1 claims to have mentioned about the tattoo mark on the hand of the deceased, written as „Indian‟ in English. Further investigation in this case was taken up by P.W.21.
(xi) Since the whereabouts of the deceased were not known, P.Ws.10 and 11 came to Vijayawada and started searching for the deceased in different localities, more particularly, in Gudivada. While they were in Gudivada Bus Stand, somebody informed about a male dead body lying in Campbel Canal, which is within the limits of Bomminampadu Grama Panchayat. On the next day, P.W.10 along with others went to Bomminampadu and noticed the dead body with a tattoo mark [„Indian‟ in English] on the right hand of the deceased. After identifying the body as that of the deceased, P.W.11 stayed there while P.W.10 went to Krishnalanka Police Station to give a report. 8
CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013
(xii) On 23.10.2004 at about 9.30 AM while P.W.20 was in the Police Station, P.W.10 came and lodged a report vide Ex.P31, basing on which he altered the section of law from Man Missing to Section 174 Cr.P.C and recorded the statement of P.W.10. Thereafter, P.W.20 along with P.W.10, staff and Photographer went to the scene of offence and found the dead body, which was identified as that of the deceased by P.W.10 and other relatives. Photographs of the dead body were taken in the presence of P.W.15, who conducted inquest over the dead body of the deceased at the scene of offence. Ex.P11 is the inquest report. Thereafter, the dead body was sent for Post Mortem examination.
(xiii) P.W.17 who was working as Associate Professor in Siddartha Medical College, Vijayawada, conducted autopsy over the dead body of the deceased and issued Ex.P13-Post Mortem Certificate. According to him, the body was in decomposed condition and the cause of death was due to head injury. The doctor opined that the approximate time of death was five to seven days prior to autopsy.
(xiv) P.W.20 altered the section of law from Section 174 Cr.P.C. to Section 302 IPC and issued Ex.P32-Altered F.I.R. P.W.21, who took up investigation in this case, verified the investigation done by Sub-Inspector of Police and found it to be on correct lines. On 25.10.2004, on receipt of credible information about the accused, he proceeded to Sivalayam Street, Enikepadu and went to the house of one Bodi Krishna 9 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 Murthy where he found A.1 and A.2, who on seeing the Police tried to skulk away. They were surrounded and interrogated separately before the mediators and a mediatornama was prepared incorporating their confession. Ex.P15 is the admissible portion of mediatornama. P.W.21 is said to have seized a cell phone [Nokia] from A.1 [M.O.11] and also seized sale bills of cell phone and gold ornaments. He also seized a readymade shirt with bag belonging to the deceased, at the instance of A.1. A gold ring [M.O.1] was seized from A.2 which contains letters "B.A". Thereafter, A.1 and A.2 took P.W.21 to another scene of offence where they found dry blood stains at the scene. M.O.13 and M.O.14 are the blood stained earth and control earth. At the scene, he prepared scene observation report, which is marked as Ex.P16 and also a rough sketch, which is marked as Ex.P34. A.2 is said to have produced a chutney pounder, a pair of chappals from irrigation canal, seized under Ex.P17 [Mediators report] and marked as M.Os.17 and 18 in the trial.
(xv) A.1 and A.2 took them to Nidamanuru over bridge where they noticed dried blood stains on the pillar. Blood stained lime powder of the pillar and control lime powder, were seized under Ex.P18 and marked as M.Os.19 and 20. A.1 and A.2 also took them to the house of A.3 where she was arrested and her statement was recorded under Ex.P24. P.W.21 seized empty pronotes and stamp papers produced and also cheque book leaves and four empty cheques signed 10 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 by A.1. Ex.P19 is the cheques signed by A.3 and one Jogi Srinivasa Rao. Ex.P20 is the empty stamp paper for Rs.100/- signed by A.3 and one Jogi Srinivasa Rao. Four empty pronotes Ex.P21 signed by A.3 and the pronotes were attested by A.3 and Jogi Srinivasa Rao apart from other documents. The said documents were seized under Ex.P24 [Mediators report]. Thereafter, A.1 and A.2 took the Police party to Om Sai Jewelleries at Sivalayam Street from where M.Os.2 and 3 were seized and Ex.P4 [Copy of the estimation slip] under Ex.P25 [Mediators report]. Thereafter, they took them to Shop No.12, run by P.W.5 at Satya Complex, Vijayawada, from where M.O.4 [Panasonic Cell phone with Charger] was recovered under Ex.P26 [Mediators report].
(xvi) It is also said that A.1 and A.2 took them to Prajasakthi Nagar Sai Tejaswani Consultant Office, from where M.O.6 [LG company DVD player] is said to have been seized. On 27.10.2004, Test Identification Parade of property was held under Ex.P29. The seized materials were sent to RFSL.
5. After collecting all the necessary documents, a Charge Sheet came to be filed, which was taken on file as P.R.C.No.128 of 2005 on the file of the learned II Additional Chief Metropolitan Magistrate, Vijayawada, for the offences punishable under Sections 302, 364, 379, 380, 411, 419, 201 r/w. Section 120-B IPC against A.1 to A.4. 11
CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013
6. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to them. As the offences are triable by Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned Metropolitan Sessions Judge, Vijayawada for trial and disposal in accordance with law.
7. Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, they pleaded not guilty and claimed to be tried.
8. To substantiate its case, the prosecution examined P.Ws.1 to 24 and got marked Exs.P1 to P41 and M.Os.1 to 20. After the closure of the Prosecution evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. In support of their plea, they got marked Exs.D1 to D6, however no oral evidence was adduced on behalf of the accused. Holding the circumstances relied upon by the prosecution are proved and form a chain of events connecting the accused with the crime, the learned Sessions Judge convicted A.1 to A.4. Challenging the conviction and sentence, the present appeals came to be filed by the appellants/A.1 to A.4.
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9. Heard Smt. A. Gayathri Reddy, learned counsel for A.1 and A.2; Sri V.R. Avula, learned counsel for A.3 and Sri S. Ashok Anand Kumar, learned Senior counsel for A.4, and learned Public Prosecutor for the State.
10. Smt. A. Gayathri Reddy, learned counsel for the appellants/A.1 and A.2 mainly submits that there are no eye witnesses to the incident and the circumstances relied upon by the prosecution are not sufficient to connect the accused with the crime. According to her, the trial Court proceeded on an assumption that A.1 and A.2 alone are responsible for the death of the deceased in view of the evidence of P.Ws.2 and 3, who were informed by the deceased about he going to meet A.1 on that night. She further submits that, if really the deceased has informed P.Ws.2, 3 and 8 about going to Enikepadu village on that night, there is no reason why the Police failed to examine witnesses at Enikepadu village, immediately after the said information was furnished by P.Ws.2, 3 and 8. She further submits that though P.Ws.2 and 3 claimed to have informed P.Ws.10 and 11 about all these aspects, but for the reasons best known, they did not mention anything in their earlier statements. It is further urged by her that there is no identification of the articles in accordance with law and the Court duly proceeded on a premise that they belong to the deceased. She further submits that M.Os.2 and 3, which were seized from a shop pursuant to a statement made by the accused, appear to be 13 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 new, while the evidence of the prosecution witness is to the effect that the deceased was using the articles since last three years. According to her, the evidence on record would show that these articles are available in the market.
11. Coming to the handing over of DVD player to P.W.13 for sale and that it has to be repaired the same appears to be false in view of the admission in the cross-examination of P.W.13 that he never stated before Police that DVD player requires repairs. Since the recoveries made are not identified in the manner required under law and as there was no identification in respect of some of the articles seized or recovered at the instance of the accused, it is urged that the prosecution has miserably failed to connect the accused with the crime. In other words, her argument is that except recovery, there is no material to connect the accused with the crime.
12. Sri V.R. Avula, learned counsel for the appellant/A.3 and Sri S. Ashok Anand Kumar, learned Senior counsel for the appellant/A.4 would contend that the trial Court erred in convicting the accused in spite of there being no charge for the said sections. It is further urged that when the husband of A.3 was not examined and in the absence of any evidence as to who the husband of A.3 is, the finding of the trial Court that A.4 impersonated husband of A.3, cannot be accepted. Learned counsel Sri V.R. Avula submits that when the loan 14 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 was not given to A.3 by the Gandhi Cooperative Urban Bank, Vijayawada [P.W.14], A.3 along with A.1 and A.4 approached the deceased, who after keeping the documents of A.3, advanced a loan of Rs.92,000/-. According to him, that being so there is nothing wrong in the recovery of mortgage deed from A.3. This by itself does not amount to an offence under Section 420 IPC. Both the counsel referred to the evidence of P.Ws.14, 18 and 19 to establish their case.
13. On the other hand, Sri K. Srinivasa Reddy, learned Public Prosecutor opposed the same, contending that though there are no eye witnesses to the incident, but there is enough material on record to establish involvement of A.1 and A.2 in the offence of murder and A.3 and A.4 for the minor offences. He would submit that when the fact of deceased going to Enikepadu village stands established through the evidence of P.Ws.2, 3 and 8 coupled with A.1 and A.2 coming to the house of deceased on the next day, it has to be inferred that it was A.1 and A.2 who are responsible for the incident. Further argument of learned counsel for accused that after P.W.14 refused to give loan, they approached the deceased and obtained loan, also appears to be incorrect for the reason that after taking the documents from the house of the deceased on 18th morning, as spoken to by witness, they approached P.W.14 who asked them to come after 10 days as they were busy with board meeting, while retaining the loan application form and the documents that are enclosed. It is 15 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 further contended that the recoveries made pursuant to the disclosures made by A.1 and A.2 from P.Ws.9, 10 and 12 which were identified by the mother and brother of the deceased amply establish the involvement of the accused with the crime, more so, when the recoveries were within two days of their arrest and four to five days after the incident.
14. He further submits that no prejudice would be caused to A.3 and A.4 on their conviction for minor offences and there is no miscarriage of justice on that score. Having regard to all the above circumstances, it is pleaded that the prosecution has proved its case beyond reasonable doubt.
15. The point that arises for consideration is, whether the circumstances relied upon by the prosecution are proved and if proved, whether they form a chain of events connecting the accused with the crime?
16. It is no doubt true that there are no eye witnesses to the incident and the case rests on circumstantial evidence. In a case arising out of circumstantial evidence, the prosecution has to prove each of the circumstance relied upon by them and the circumstances so proved, should form a chain of events, which should lead to an irresistible conclusion establishing the guilt of the accused.
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17. In R.Damodaran v. The State Rep. by the Inspector of Police1, the Apex Court after referring to the judgment of a three Judge Bench in Padala Veera Reddy Vs. State of Andhra Pradesh and Ors2, held that, in a case which rests on 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 Gambhir v. State of Maharastra3) Keeping in view the law laid down by the Apex Court in the judgments referred to above, it is now to be seen whether the circumstances relied upon by the prosecution are proved and if proved, whether they form a chain of events connecting the accused with the crime leading to an inescapable conclusion, the guilt of the accused.
1
AIR (2021) SC 1173 2 1989 Supp (2) SCC 706 3 (1982) 2 SCC 351 17 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013
18. As stated earlier, the conviction under Section 302 r/w. Section 34, 201 and 404 I.P.C is against the A.1 and A.2, while A.3 is convicted under Sections 404 and 420 I.P.C. though the charge was only under Section 120-B r/w. Section 302 I.P.C while A.4 was convicted under Section 419 I.P.C.
19. In order to convict A.1 and A.2 under Section 302 r/w. Section 34 I.P.C. the prosecution mainly relied upon. (1) A.1 and A.2 going to the house of the deceased on the morning of 18.10.2004; (2) then leaving the house after half an hour with two bags; (3) documents which are supposed to be with the deceased were with A.3, who along with A.1 went to the Gandhi Cooperative Urban Bank, Vijayawada on 18.10.2004 and submitted a loan application enclosing house documents and (4) recovery of ornaments and articles belonging to the deceased at the instance of A.1 and A.2.
Accused going to Enikepadu Village:
20. Before dealing with the above circumstance, it is to be noted that the evidence of P.Ws.2, 3 and 8 would establish that the deceased was doing money lending business and about six months prior to the incident, he lent money to one woman of Enikepadu village, after taking documents from her, through A.1. The evidence of these witnesses also establish that on 17.10.2004 at about 9.30 P.M., the deceased met P.W.8 at Bhargavi Sweet shop, Krishnalanka and told him that the person to whom he lent money has 18 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 asked him to come to Enikepadu for repayment of the said amount. The evidence of P.W.2 also discloses that on that day at about 10 P.M., he met the deceased at Satyam Hotel, at which point of time he informed him about going to Enikepadu, as A.1 promised to give the amount. Similar is the version of P.W.3, who in his evidence deposed that on 17.10.2004 at about 9 or 9.30 P.M., he met the deceased at Satyam Hotel where he was informed that A.1 asked the deceased to come to Enikepadu as he would repay the amount. The payment of money to one lady [A.3] at the instance of A.1 was also deposed by P.Ws.2 and 3. The evidence on record also show that since last couple of months, A.1 used to come to the house of the deceased frequently, which was noticed by P.Ws.2 and 3 and A.1 and the deceased were moving freely on the motor bike.
Therefore, the first circumstance namely that the deceased planning to go to Enikepadu on the night of 17.10.2004 stands established through the evidence of these witness. At this stage, it is also to be noted that the evidence of P.W.4 also establishes the deceased going out of her room at 12 midnight. But, there is no positive evidence to show that the deceased actually went to Enikepadu Village, as no witness from Enikepadu Village were examined to establish the visit of the deceased to the said village.
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CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 RECOVERY OF MATERIAL OBJECTS:
21. The next circumstance, which is relied upon by the prosecution and which assumes lot of significance is the documents of the house of A.3, being kept in the bank, while they should have been with the deceased. As stated earlier, the evidence of prosecution witnesses is that loan to an extent of Rs.92,000/- was advanced to A.3 by the deceased through A.1. P.W.19, who is a resident of Krishnalanka, Vijayawada, doing business in supply of raw materials, deposed stating that the deceased who was also a resident of Krishnalanka introduced him to A.1, A.3 and A.4. The deceased is said to have informed him that A.1, A.3 and A.4 approached him for loan by mortgaging the house property of A.3. He scribed Ex.P19 mortgage deed by deposit of title deeds and A.3 handed over the originals of the documents to the deceased at the time of execution of Ex.P19. According to him, A.3 also executed promissory notes [five in number] in favour of the deceased. Ex.P21 is the bunch of promissory notes. A.3 also gave „10‟ empty cheques to the deceased which are marked as Ex.P22. Apart from that, A.1 gave „4‟ empty cheques signed by him to the deceased which are marked as Ex.P23. His evidence also shows that A.3 introduced A.4 as her husband, who signed on the mortgage deed as well.
22. P.W.19 was cross-examined at length but nothing has been elicited to discredit his evidence. The only answer which came to be elicited in the cross-examination is that he is not a 20 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 Document Writer and he does not maintain any register in respect of documents scribed by him. However, to a suggestion that A.1, A.3 and A.4 never approached him, was denied. From the evidence of this witness, it is very much clear that a mortgage deed was drafted by him, which was signed by A.3 and A.4. At the time of execution of mortgage deed, the originals of the house documents of A.3 were handed over to the deceased along with blank promissory notes and cheques signed by A.3 and A.1. This document Ex.P19 is dated 01.10.2004.
23. At this stage, it should be appropriate to refer to the evidence of P.W.14, who was working as Secretary in Gandhi Cooperative Urban Bank, Vijayawada from 1983. From the above, it appears that A.3 got her loan discharged in the month of October, 2004. The evidence also shows that she again took an amount of Rs.92,000/- from the deceased after pledging the documents relating to her house. There is no evidence on record to show that the documents which were given to the deceased were taken back by A.3 or by A.1 at a later point of time. From the above, it has to be inferred that the document relating to the house of A.3, is with the deceased.
24. However, on 18.10.2004, A.1 and A.3 went to Gandhi Cooperative Urban Bank, Vijayawada for another loan. On that day, A.4 is said to have accompanied A.1 and A.3. The 21 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 evidence of P.W.14 further discloses that on that day A.3 gave an application for another loan enclosing documents relating to her house. But, he could not process it as he was busy with some meeting. P.W.14 asked A.1 and A.3 to come after ten days. His evidence shows that along with the loan application, the documents relating to the house of A.3 were enclosed, which he kept with him. Ex.P6 is the application given by A.3 and Ex.P8 is the Registered Sale Deed, dated 25.06.2001 which is in the name of A.3. Ex.P9 is the link document of Ex.P8. Ex.P10 is the certified copy of another link document of Ex.P8.
25. In the cross-examination of P.W.14, it has been elicited that along with loan application they will also obtain E.C. before sending them for legal opinion. It was also elicited that no receipt will be issued for the same. It was also further elicited in the cross-examination that they will return the documents on the same day after the payment of loan and obtain an acknowledgement to that effect. It was further stated that the signature of the person to whom the loan was granted will be taken at the time of granting loan and also at the time of repayment. However, in the cross-examination done by the counsel for A.4, P.W.14 admits that he has not stated before the Police about A.4 coming along with A.1 and A.3 to their bank. This evidence of P.W.14 would establish couple of things namely taking/submission of an application for loan on 18.10.2004, enclosing documents relating to 22 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 house and the link documents and the Police recovering those documents from their bank.
26. At this stage, the question that props up for consideration is, as to how these documents belonging to A.3 which were given to the deceased at the time of taking loan, are with A.3 or Bank?
27. In order to establish the same, the prosecution mainly relies upon the evidence of P.Ws.2 to 4, 10, 11, 14 and 19.
Though, P.Ws.10 and 11 who are the brothers of the deceased deposed about P.W.3 informing them about the deceased going to Enikepadu village on 17.10.2004 night for collecting the loan amount advanced by him, but their statement before the Police recorded under Section 161 Cr.P.C. is silent on this aspect. However, the evidence of P.Ws.2 and 3 establish that the deceased informed them about he going to Enikepadu on the night of 17.10.2004 as A.1 asked him to come for repayment of the said amount.
28. The evidence of P.W.4, who is the daughter of the owner of the house, in which, the deceased was residing as a tenant, in her evidence deposed that on 17.10.2004, A.1 and the deceased were in the house till 5.00 PM and thereafter in the mid night at 12.00 PM, the deceased left the house on his motor cycle. On the next day morning at about 9.00 AM, two boys came on a motor cycle and parked the motor cycle near the door steps. They opened the lock, went inside the house 23 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 and stayed there for half an hour. While they were leaving after locking the door, the father of P.W.4, who was sitting outside the house, questioned the said persons about the deceased they told him that the deceased went to Chennai. Later, the two boys went by walk, carrying two bags.
29. Much comment has been made on the evidence of P.W.4 with regard to her father accosting the accused and talking with them when he is aged about 90 years and bed ridden with paralysis. It is to be noted that the father of P.W.4 by name Pothu Raju was bed ridden with paralysis at the time of giving evidence and not at the time of incident, which is evident from the further cross-examination by A.1 and A.2. Therefore, the version of P.W.4 that her father enquired with the deceased as to where he is going and also with A.1 and A.2 on 18.10.2004 cannot be doubted.
30. The evidence of P.W.19, as referred to earlier establish that on 01.10.2004, A.3 handed over the house documents to the deceased on receipt of loan and on execution of mortgage deed.
31. From the evidence of P.W.4, it stands establish that A.1 used to come to the house of the deceased since one month prior to the incident and on 17.10.2004, A.1 and the deceased were in the house from 8.00 AM to 5.00 PM and on the next day morning, A.1 and A.2 came on a motor cycle and 24 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 after collecting two bags from the house of the deceased, left by walk leaving the motor bike.
32. At this stage, it is to be noted that there is no evidence on record to show as to whether the deceased took the documents relating to the house along with him when he is alleged to have gone to Enikepadu to collect money. Even assuming that the deceased went to Enikepadu along with the documents, to be returned on repayment of the loan, possibility of he returning the document to A.3 on repayment cannot be ruled out, for the reason that on 18.10.2004, A.1, A.3 and A.4 went to the bank of P.W.14 for obtaining fresh loan and these documents were enclosed along with the application by A.3. Further, the evidence of P.W.21, the Investigating Officer would establish that other documents namely promissory notes, signed cheques by A.1 and A.3 etc., which were given to deceased in the presence of P.W.19, were recovered from the house of A.3. By this, can the liability of A.1 and A.2 under Section 302 IPC can be fastened?.
33. It is to be noted that the very same circumstance is also there against A.3. As stated earlier, A.3 along with A.1 and A.4 went to the Gandhi Cooperative Bank and handed over the said document along with the application to P.W.14, but the trial Court for the reasons stated therein held that A.3 cannot be convicted under Section 120-B r/w. Section 302 IPC on the basis of the said circumstance, but instead convicted A.3 under Sections 404 and 420 IPC. Therefore, 25 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 the circumstance of A.1 going along with A.3 to Gandhi Co- operative Urban Bank, Vijayawada with documents, which according to the prosecution should have been in the custody of deceased at the relevant point of time, cannot be a circumstance to convict A.1 and A.2 for the offence punishable under Section 302 IPC.
34. At this stage, learned Public Prosecutor would contend that the recoveries made pursuant to the arrest of the accused would amply establish the involvement of the accused in the crime. He took up through the evidence of P.Ws.9, 10 and 12 in support of his plea.
35. As seen from the record, the dead body of the deceased was traced on 23.10.2004, thereafter the section of law was altered from Section 174 Cr.P.C. to Section 302 IPC. P.W.21, who took up investigation, on receipt of information about the presence of the accused in a house at Sivalayam Street, proceeded to the house on 25.10.2004 where A.1 and A.2 who were present in the house, tried to skulk away on seeing the Police. They were surrounded and interrogated separately by the mediators. Ex.P15 is the mediatornama. He seized cell phone from A.1 [M.O.11]. He also seized sale bills of cell phone and gold ornaments. He also seized a readymade shirt with bag belonging to the deceased at the instance of A.1. A gold ring [M.O.1] was seized from A.2 which contains B.A. letters. Thereafter, A.1 and A.2 took P.W.21 to another scene 26 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 of offence where they found dried blood stains at the scene. M.O.13 and M.O.14 are the blood stains earth and control earth. At the scene, he got prepared an observation report, which is marked as Ex.P16 and also a rough sketch which is marked as Ex.P34. A.2 is said to have produced a chutney pounder, a pair of chappals from irrigation canal which are marked as M.O.17 and M.O.18 and seized under Ex.P17.
36. A.1 and A.2 took them to Nidamanuru over bridge where they noticed dried blood stains on the pillar. They also seized blood stained lime powder of the pillar and control lime powder, which are marked as M.Os.19 and 20 under Ex.P18. A.1 and A.2 also took them to the house of A.3 where she was arrested and her statement was recorded under Ex.P24. P.W.21 seized empty pronotes and stamp papers produced by A.3 and also cheque book leaves and four empty cheques signed by A.1. Ex.P19 is the cheques signed by A.3 and one Jogi Srinivasa Rao. Ex.P20 is the empty stamp paper for Rs.100/- signed by A.3 and one Jogi Srinivasa Rao. Four empty pronotes Ex.P21 signed by A.3 and the pronotes attested by A.3 and Jogi Srinivasa Rao apart from other documents were seized under Ex.P24.
37. From the above, it is clear that the documents which were seized from A.3 are the documents which were given to the deceased in the presence of P.W.19 on 01.10.2004 and these documents were recovered from the house of A.3. 27
CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 Therefore, these documents which were recovered from the house of A.3, does not in any way inculpate A.1 and A.2 in the commission of the offence. Though the prosecution tried to contend that these documents were taken from the house of the deceased on the next day morning and then given to A.3, but there is no evidence to that effect. Though, the evidence of these witnesses speaks about the seizure of shirt with bag belonging to the deceased from A.1, but the same is not identified as that of the deceased, which we will consider a little later.
38. P.W.21 further deposed that A.1 and A.2 took them to Prajasakthi Nagar Sai Tejaswani Consultant Office, from where M.O.6 [LG company DVD player] was said to have been seized.
39. Further, the evidence of P.W.21 would disclose that A.1 and A.2 took them to Shop No.12, Satya Complex, Vijayawada owned by P.W.5, from where M.O.4 was recovered under Ex.P26. P.W.5 in his evidence deposed that on 18.10.2004 one person came to him stating that he intend to sell the cell phone and charger for Rs.4000/- and ultimately agreed to give it for Rs.3600/-. P.W.5 purchased the same and he himself wrote the details of the purchase. He identifies A.1 as the person who sold the same. The credit bill issued for sale is marked as Ex.P2. The said credit bill contains the signature of P.W.5 and also the signature of A.1. The carbon 28 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 copy of Ex.P2 is marked as Ex.P3. M.O.4 is the Panasonic Cell phone.
40. However, P.W.5 in his cross-examination admits that these types of cell phones are available in market. P.W.21 in his cross-examination admits that there are no special identification marks to identify M.O.4.
41. Thereafter, A.1 and A.2 took them to one Om Sai Jewelleries at Sivalayam Street from where M.Os.2 and 3 were seized and Ex.P4 under Ex.P25 [Mediators report].
42. P.W.12 in his evidence deposed that on 18.10.2004, A.1 came to his shop for selling gold items. Witness identified A.1 as the person who came on that day. Initially P.W.12 refused to purchase the gold from unknown persons. Hence, A.1 returned and came back after 15 to 20 minutes informing him the names of the customers and with some references known to him. Being convinced, P.W.12 pledged the gold and gave an amount of Rs.8500/-. A.1 promised to take back the gold within a week. According to him, A.1 pledged a gold chain and a gold ring, which weighted approximately 12 grams and 6 grams. He prepared estimation slip and gave the original to A.1 and kept the copy with him. P.W.12 also obtained signature of A.1 on both the slips. M.O.2 is the ring and M.O.3 is the chain.
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43. P.W.12 in his cross-examination admits that there are variations in between the original and carbon copy regarding the writings and lines. It would be appropriate to extract the same as under:-
"....It is true that there are variations in between original and carbon copy regarding the writings and lines."
He further admits that he did not mention the descriptive particulars of M.Os.2 and 3 in his estimation slip or in his statement. It would be appropriate to extract the same, which is as under:-
"....Either in my estimation slip or in my statement, I have not given the descriptive particulars of M.Os.2 and 3. It is true that M.Os.2 and 3 are commonly available models in market. "
44. P.W.12 further admits that when a stranger pledges the gold ornaments, they will be tested before taking them. But in the instant case, he admits that no test was conducted to find out as to whether they are gold ornaments or not. He further admits M.Os.2 and 3 are appearing as new. It would be appropriate to extract the same, which is as under:-
"I have not testes M.Os.2 and 3. Witness added: That due to experience, I have assessed them as gold ornaments. It is true that in general, if an unknown person tries to pledge the ornaments, we will test them before taking the same. M.Os.2 and 3 are appearing as new. "
45. Though, the evidence of P.W.2, who said to have prepared the gold ornaments show that the deceased used to wear these ornaments since last 1½ year, but, strangely they appear to be new as admitted by P.W.12. Further, there 30 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 appears to be some variations in the original and carbon copy of Ex.P4 [Estimation slip] issued by P.W.12, which could not have happened.
46. At this stage, it would be appropriate to refer to the evidence of P.W.9, who in his evidence deposed that on 18.10.2004 he went to the shop of one Ramprasad for purchase of a cell phone. At that time, A.1 was present there who offered to sell the cell phone. Though, he refused to purchase the same as A.1 is a stranger, A.1 is said to have told him that the cell phone is a new one. Then at the instance of P.W.13-Ramprasad, who was running an Office in Sai Kiran Towers, Vijayawada, P.W.9 purchased the same for Rs.3500/- along with box and receipt. M.O.5 is the Nokia cell phone. The same was seized by the Police from P.W.9 on 25.10.2004 at 9.30 or 10.00 PM. They informed P.W.9 that the cell phone sold to him by A.1 is a stolen property.
47. The evidence of P.W.13 is also relied upon by the prosecution for recovery of DVD player. It is said that on 18.10.2004 at about 4.00 or 5.00 PM, A.1 came to his shop and gave one L.G. DVD player to P.W.13 intending to sell the same to somebody. He further informed him that the said DVD player is required to be repaired. However, the Police came and recovered the same after a week. In the cross- examination, P.W.13 admits that he did not state before the Police, when his Section 161 Cr.P.C. statement is recorded 31 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 that on 18.10.2004, A.1 came to his shop and stated that there are financial transactions between himself and A.1 and they have settled the same as in Ex.D6. He further admits that he has not stated before the Police that DVD player requires repairs. The sum and substance of the recoveries made pursuant to the disclosures made by A.1 and A.2.
48. The question now is, whether there was any identification parade of these properties, and if so, whether it was in accordance with the provision of law?
49. P.W.21 in his evidence deposed that on 27.10.2004, Test Identification of the property was held at Ramalayam of Krishnalanka. Ex.P29 is the Test Identification of the property. P.W.18 is said to have acted as a mediator for the Test Identification of the property seized at the instance of the accused. Rule 35 of the Criminal Rules of Practice & Circular Orders, 1990 deals with Identification of property, which reads as under:-
" (1) Identification parades of properties shall be held in the Court of the Magistrate where the properties are lodged.
(2) Each item of property shall be put up separately for the parade. It shall be mixed up with four or five similar objects.
(3) Before calling upon the witnesses to identify the property, he shall be asked to state the identification marks of his property. Witnesses shall be called in one after the other and on leaving shall not be allowed to communicate with the witness not yet called in."
50. Learned Public Prosecutor submits that identification of the properties in the Court would arise only when the 32 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 properties are lodged in the Court otherwise there is no bar for holding Test Identification of property at a different place in the presence of respectable persons. But, he admits that each item of the property should be put up separately for the parade and it should be mixed with four or five similar objects. He relies upon Clause 474 of the Andhra Pradesh Police Manual, to show that in respect of properties which are not sent to Court, the identification of the property can be held in the presence of the independent witnesses.
51. Even, in the said Rule, it has been categorically stated that the properties to be identified should be mixed with similar articles and the witnesses should be asked to identify, but the condition is that the Police should not be there. It may not be necessary for us to go into the same as to where the Test Identification of properties for the reason that in Rule 35 of the Criminal Rules of Practice as well as Clause 474 of the Andhra Pradesh Police Manual, it is clearly mentioned that the properties which are sought to be identified, should be mixed with four or five similar properties, which was not done in the instant case.
52. P.W.18, who acted as mediator for identification of these properties by P.Ws.10 and 11, categorically admits in cross- examination that mixed items were not similar items to the identified items. Therefore, the primary ingredient of mixing articles to be identified with articles of similar nature, has 33 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 been complied with, more so, when the witnesses in their evidence categorically deposed that items which were seized at the instance of A.1 and A.2 would be available in the market. Having regard to the evidence of P.W.18, it can be said that the identification of property by P.Ws.2, 10 and 11 cannot be accepted.
53. Further, in Para 92 of the judgment of the trial Court, the learned Sessions Judge after considering the recoveries made held that the only presumption that can be drawn is A.1 and A.2 murdered the deceased and, therefore, they have committed offence punishable under Section 302 r/w. Section 34 IPC. It was further held that the joint participation of A.1 and A.2 stands established through chain of events make them liable for punishable under Sections 404 and 201 IPC. But having regard to the evidence adduced, it can be said that the prosecution has failed to prove its case beyond reasonable doubt in so far as A.1 and A.2 are concerned for the offences punishable under Section 302 r/w.34 and Section 201 IPC.
54. In view of the fact that the recovery made was not in accordance with the provision of law as held in Para No.50 of this Judgment, the conviction under Section 404 I.P.C. against A.1 and A.2 has to be set aside and accordingly A.1 and A.2 are acquitted for the offence under Section 404 I.P.C. as well.
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55. In so far as A.3 is concerned, though the charge was under Section 120-B r/w. Section 302 I.P.C, but the conviction is under Sections 404 and 420 I.P.C. No specific charge has been framed in so far as these two offences are concerned. Things would have been different had the offences with which the accused is charged and the offences with which she is convicted were in the same Chapter of the Code. As the conviction is in respect of offences, for which, there is no charge, the accused would definitely be prejudiced as no cross-examination was done effectively with regard to the contents of the said offences. Infact, a perusal of the evidence on record show that no cross-examination was done on these aspects when the material witnesses were in box. Having regard to the above, the conviction of A.3 under Sections 404 and 420 I.P.C., does not stand the test of legal scrutiny. The learned Sessions Judge invoked Section 222 Cr.P.C and convicted A.3 for the offence under Sections 404 and 420 I.P.C on the ground that they are minor offences. True, the offences with which A.3 is convicted are minor in nature compared with the offences with which she is charged. But, the substances of both the offences is totally different while one deals with conspiracy to commit a murder and the other deals with dishonest misappropriation of property possessed by deceased person at the time of his death. As observed earlier, there was no effective cross-examination on these aspects when the witnesses were in box. Atleast, the 35 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 learned Sessions Judge ought to have framed a charge before conviction and after giving an opportunity to the accused to cross-examine on those lines should have convicted the accused, but the same was not done either. Hence, on that score, as well, the conviction of A.3 under Sections 404 and 420 I.P.C. are liable to be set aside.
56. Coming to the conviction imposed on A.4 is concerned, he was convicted under Section 419 I.P.C and sentenced to suffer Rigorous Imprisonment for Six months. The evidence on record show that A.3 introduced A.4 as her husband to P.W.19 when A.4 was present along with A.3 before him and signed the promissory notes and mortgage deed. Though, the prosecution tried to rely upon the evidence of P.W.14 to show the involvement of A.4 impersonating as husband of A.3, but P.W.14 in his cross-examination admits that he did not state before Police, wherein he directed A.4 to come after ten days as he could not verify the loan application on that day. P.W.14 in his cross-examination further admits that he has not stated before the Police that A.4 came to the bank along with A.1 and A.3 on the said date. Therefore, the entire case against A.4 is based on the evidence of P.W.19. The only suggestion put to P.W.19 was that A.1, A.3 and A.4 never approached him at any point of time, which was denied.
57. A perusal of the mortgage deed and the evidence of P.W.19 would show that though the name of A.4 is Dandima 36 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 Adinarayana @ Babu Rao, he signed on the document as "Jogi Srinivasa Rao". No explanation is forthcoming as to why he has signed on the said document as Jogi Srinivasa Rao [husband of A.3]. Even, in his Section 313 Cr.P.C. examination except denial, he did not answer under what circumstances he signed in the document as Jogi Srinivasa Rao. It is nodoubt true that the accused can maintain silence during his Section 313 Cr.P.C examination, but, in the given set of facts, he should have answered whether A.3 is his wife or not. Further, the evidence of Handwriting Expert would establish that it was A.4, who signed on Ex.P19 as Jogi Srinivasa Rao. Hence, the conviction imposed against A.4 warrants no interference. However, having regard to the fact that the incident took place in the year 2004 and as A.4 was in jail for some time, the sentence imposed by learned Sessions Judge under Section 419 I.P.C., is reduced from six months to the period already undergone by him.
58. Accordingly, the Criminal Appeal No.404 of 2013 is allowed. The conviction and sentence recorded against the appellants/A.1 and A.2 in the Judgment dated 12.04.2013 in Sessions Case No.159 of 2006 on the file Metropolitan Sessions Judge, Vijayawada for the offences punishable under Sections 302 r/w. Section 34, 404 and Section 201 IPC are set aside and the appellant/A.1 and A.2 are acquitted for the said offences. Further, the Criminal Appeal No.366 of 2013 is allowed. The conviction and sentence recorded 37 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 against the appellant/A.3 for the offences punishable under Sections 404 and 420 IPC are set aside and the appellant/A.3 is acquitted. Further, the Criminal Appeal No.376 of 2013 is dismissed. The conviction and sentence recorded against the appellant/A.4 for the offence punishable under Section 419 IPC is confirmed. However, the sentence imposed for the offence punishable under Section 419 IPC shall be reduced from six months to the period already undergone by him. Consequently, the appellants/A.1 to A.4 shall be set at liberty forthwith, if they are not required in any other case or crime. The fine amount, if any, paid by the appellants/A.1 to A.4 shall be refunded to them in the case of acquittal.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE C. PRAVEEN KUMAR ______________________________ JUSTICE RAVI NATH TILHARI Date:11.02.2022 MS 38 CPK, J & RNT, J Crl.A.Nos.366, 376 & 404 of 2013 THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE RAVI NATH TILHARI CRIMINAL APPEAL NOs.366, 376 & 404 OF 2013 (per the Hon'ble Sri Justice C. Praveen Kumar) DATE:11.02.2022 MS