Andhra HC (Pre-Telangana)
Sonti Venkataiah And Etc. vs State Of A.P. on 10 June, 2005
Equivalent citations: 2005(2)ALD(CRI)608, 2005CRILJ3507
Author: Bilal Nazki
Bench: Bilal Nazki, L. Narasimha Reddy
JUDGMENT
Bilal Nazki, Actg. C.J.
1. Criminal Appeal No. 721 of 2003 is filed by accused No. 1, Criminal Appeal No. 655 of 2003 is filed by accused No. 2 and Criminal Appeal No. 1326 of 2002 is filed by accused No. 3. They were tried together for the offences under Section 302 read with 34 and under Section 201 of IPC. Therefore, these three appeals are heard together and decided by this common judgment.
2. All the accused have been found guilty for the offences under Section 302 read with 34 and under Section 201 of IPC. They have been sentenced to suffer rigorous imprisonment for life and fined with Rs. 500/- each for the offence under Section 302 read with 34 of IPC. For the offence under Section 201 of IPC they have been sentenced to suffer rigorous imprisonment for three years and also fined with Rs. 500/- each.
3. The substance of the charge against the accused was that on 26-4-1999 at about 6.30 a.m. the accused, in furtherance of their common intention, caused the death of one Eshwaraiah, husband of Accused No. 2 at his house in Ganganagar by inflicting head injuries on him. They caused disappearance of the evidence by burying the dead body under the floor of the house. On the basis of these allegations, charges were framed, accused pleaded not guilty and claimed to be tried. Prosecution examined 13 witnesses and exhibited 26 documents.
4. The prosecution story was that P.W. 3 is the cousin and P.W. 10 is the brother of the deceased, accused No. 2 is the wife of the deceased. Accused No. 2 and deceased had two children aged 11 and 12 years. They were studying in a hostel. Deceased was originally a native of Bollaram. About 10 to 20 years before, he had come to Hyderabad to earn a living. For some time, the deceased worked as a watchman in C.P.M. party building. Accused No. 2 was also attending party work. Subsequently deceased started running a sugarcane cart in Bhaglingampalli. Accused No. 2 was assisting him. He built a house at Amberpet. During the construction of the house, accused No. 1 was visiting them. Accused No. 2 introduced accused No. 1 as her brother by courtesy, to P.W. 10. Accused No. 1 further used to frequently visit the sugarcane cart of the deceased. A month prior to the incident, the deceased complained to P.Ws. 1 and 2 about the illicit relationship between accused Nos. 1 and 2 and requested them to advise them not to continue such relationship. P.Ws. 1 and 2 called them and advised them accordingly. In the month of April 1999 for about 20 days, P.W. 3 could not know the whereabouts of the deceased and accused No. 2. P.W. 3 once asked accused No. 2 about the deceased. She informed him that the deceased had gone to Bombay for livelihood. P.W. 3 suspected some foul play and he informed P.W. 1 that the deceased was missing. On 25-4-1999, P.Ws. 1 & 2, and accused No, 1 and 2 gave a report at Chikkadpalli. Police instructed them to report at Amberpet Police Station. Accordingly Ex. P-1 report was given there. Police registered a case being Crime No. 108 of 1999, issued FIR Ex. P-20. P.W. 13 took over the investigations. On suspicion he took into custody accused No. 2 from her residence. During the course of interrogation accused No. 2 confessed to the guilt and disclosed that she would show the place where the dead body was buried. Then led them to accused Nos. 1 and 3. They were arrested on 26-4-1999. Accused Nos. 1 and 3 also made statements that they would point out the weapons and also the location of the dead body. Accused Nos. 1 and 3 led Police to the scene of offence and at the instance of accused No. 1, M.O.4, at the instance of accused No. 2, M.Os. 1 and 2 and at the instance of accused No. 3, M.O. 3 were recovered under Ex. P-5, Ex. P-6 and Ex. P-7. FIR was accordingly altered, a requisition was sent to R.D.O. with a request to depute M.R.O. for the purpose of exhumation of dead body. P.W. 13 conducted scene of offence panchanama in Ex. P-8. P.W. 9 visited the scene and issued exhumation orders to exhume the dead body. Ex. P-15 was the exhumation proceedings. Dead body and scene of offence were photographed by P.W. 7. Exs. P-9 to P-13 were photographs. P.W. 9 held inquest over the dead body in Ex. P-14. On 27-4-1999 P.W. 11 conducted autopsy over the dead body of the deceased and opined that the cause of death was head injury. The scalp collected was sent to super imposition test. The material objects were also sent to F.S.L. It was opined that the scalp could have belonged to the person in the photograph. Accordingly a charge-sheet was filed.
5. The case appears to be totally based on circumstantial evidence. The following circumstances were tried to be established in order to secure a conviction against the accused -
(1) accused No. 2 is wife of deceased, (2) accused Nos. 1 and 2 had illicit relations, (3) at accused No. 2's instance body was recovered and at accused No. 3's instance weapons were recovered, and (4) the death of the deceased was homicidal.
6. P.W. 1 is a worker of Communist Party of India. Office of the party is situated in Bhaglingampalli. P.W. 2 Aruna and L.W. 5 Lakshmi (not examined) were the party workers. He knew the deceased. Deceased was running a sugarcane cart opposite to the office of the Communist Party. The wife of the deceased i.e. accused No. 2 used to help the deceased in his profession. Two months prior to the incident, the deceased started sugarcane juice business in front of the party office. He saw the deceased in the month of March. Thereafter he did not see him. He found accused No. 2 was also missing. The relative of the deceased by name Laxmaiah and Veeraiah came to him and informed him that deceased was missing. They also told him that they have enquired from accused No. 2 about the whereabouts of deceased and she had told them that deceased had gone to Bombay to secure livelihood there, but the relations of the deceased were suspecting foul play. When the relations of deceased met him, Laxmi and Aruna were also present. Twenty days prior to the missing of the deceased, the deceased had come to him and had told him that his wife accused No. 2 was having illicit intimacy with accused No. 1. He had requested him to call accused No. 2 and advise her. Then he, Laxmi and Aruna called accused No. 1 and 2 and advised them not to have any illicit relationships. On 25-4-1999 he, Aruna, Laxmi and accused No. 1 and 2, Laxmaiah and Veeraiah went to Police Station, Chikkadpalli and reported to Police that accused No. 2's husband was missing. Then Police instructed them to go to the Police Station, Amberpet and then they reported the matter there. He himself drafted the complaint Ex. P-l. On 26-4-1999, C.I. of Police, Police Station Amberpet examined him and recorded his statement. He knew the house of the deceased which was situated in Ganganagar, Amberpet near Moosi river. That house was owned by the deceased. The deceased was having two sons and he was living with accused No. 2 and his children in that house. He came to know about the death of the deceased through. C.I. of Police on 26-4-1999 in the Police Station when his statement was being recorded. He also stated that during the absence of deceased, one fellow started running the sugarcane juice cart belonging to the deceased. When he enquired from him as to why he was running the business, the person informed him that he had taken the cart on rent from accused No. 2 on a rent of Rs. 100/- per day. He knew that accused No. 3 was a relative of accused No. 2.
7. P.W. 2 also stated that deceased was a party worker, he was running a sugarcane cart, then he was not found running the sugarcane cart and 20 days after his disappearance, Laxmaiah and Veeraiah came to his office and requested them to help in tracing the whereabouts of the deceased and that accused No. 2 had informed them that the deceased had gone to Bombay, they took accused Nos. 1 and 2 to the Police Station, Chikkadpalli, then to another Police Station at Amberpet and filed a report.
8. P.W. 3 is a rickshaw puller from Bollaram village. He stated that the deceased belonged to his village and he was also his cousin by courtesy. For his livelihood he had migrated to Hyderabad. The deceased had constructed his own house at Ganganagar, Amberpet. Accused No. 2 was his wife. They had two children, they were studying in a hostel. Deceased was running a sugarcane cart in Bhaglingampalli, opposite to 'Sundaraiah Vignana Kendram' along with his wife accused No. 2. In the month of April 1999, for 20 days, accused No. 2 and deceased were missing. Incidentally on one day, he saw accused No. 2 at Chikkadpalli and enquired about the whereabouts of the deceased. Accused No. 2 replied that the deceased had gone to Bombay to secure livelihood. He suspected her statement and they went to the Police Station along with others.
9. P.W. 4 was originally a native of Nepal and was working at Hyderabad from 1996. He was working as a watchman in some company from 7 p.m. to 7 a.m. He knew the deceased. He did not know his occupation. He also knew accused No. 1. Accused No. 2 was the wife of the deceased. He was staying as a tenant in the house of the deceased and was paying a monthly rent of Rs. 200/-. He was staying in the house prior to the death of the deceased, in the front room of the deceased's house. Deceased and his family members were staying in other two rooms. The house portion of the deceased remained locked for 20 days, but in between, he saw accused No. 2 at the house. He came to know through Police that Eshwaraiah was dead.
10. P.W. 5 was running a cement shop. He stated that on 28-4-1999 at about 9.30 a.m. while he was in his shop, he was summoned by the Police to the Police Station. Police enquired from him whether he had sold cement to any woman and he revealed that he sold cement to accused No. 2 about 20 days back. In the cross-examination he stated that he did not produce any receipt under which he had sold the cement to accused No. 2. Police had also not collected any receipt from him. He denied the suggestion that he had no cement shop and had not sold any cement to accused No. 2.
11. P.W. 6 was a resident of Bhaglingampalli and was working as a Mason. He stated that on 26-4-1999 while he was proceeding in front of Police Station, Amberpet, he was stopped by the Police and was asked to act as a mediator. Thereafter he and his friend agreed to act as panchas. Then in the Police Station, they found accused No. 2 in the custody of Police. They questioned accused No. 2 and she confessed about the crime. Accused No. 2 also voluntarily showed the houses of other accused. Thereafter accused No. 2 took the Police in front of fever hospital and identified accused No. 3. Police took accused No. 3 into custody. When they questioned accused No. 3, he confessed about the crime and promised to show the crow bar. Accused No. 3 also took them to accused No. 1 in a hotel in front of fever hospital. Police arrested accused No. 1 also. Accused No. 1 also confessed about the crime and promised to show the axe, which was used in the commission of offence. Police and the witness followed accused No. 1. Police recorded the statement of accused No. 1. Accused No. 2 after making the statement, led the party for recovery of the material objects. Similarly, accused No. 3 led them to recovery of material objects. Thereafter, they returned to the Police Station. On the next day at about 6 a.m. they went to Police Station. Then accused Nos. 1 to 3, witness and LW-12 Basha went to Ganganagar, Amberpet. Then accused No. 1 to 3 pointed out the place of offence i.e. the house of the deceased. They revealed that the dead body of the deceased was buried there. House of the deceased was locked. Police broke open the lock and they went inside the house and found three rooms. Accused Nos. 1 to 3 pointed out to one room, where the dead body was buried. They found well in front of the portion of the house and also a bathroom. Accused No. 2 pointed out to an iron spade and iron bowl. Police seized the said items and a panchanama was prepared. M.O. 1 was iron spade and M.O. 2 was iron bowl. Then accused No. 1 took out an axe from the place underneath the gunny bags from a room where cocks were kept. Police also seized it under the cover of panchanama Ex. P-7 and it is M.O. 4. When they went inside the house, they noticed bloodstains on the walls. In the room, the Police also found one plastic bottle with bloodstains, which was also seized. In the room, accused No. 2 pointed out a place where the dead body had been buried. A fresh plaster of cement had been done over the place. Two Constables removed the cement plastering and stones and dug out the corpse of the deceased, which was only a skeleton. At that time, Police prepared panchanama. Ex. P. 8 was the observation panchanama proceedings of the exhumation of the dead body. Police prepared rough sketch at the scene of offence. At that time he, another panch, Police, accused Nos. 1 to 3 and M.R.O. were present. Though this witness was put to an incisive and long cross-examination, nothing worthwhile which could be of any help to the defence, was extracted from him.
12. P.W. 7 is a photographer, who took photographs of the dead body and the scene of offence after he was summoned by the Police. P.W. 8 was also called by the Police to be a panch witness. By that time, M.R.O. was present at the scene of offence. He was asked to observe the injuries over the body of the deceased. He found two injuries on the middle of the head and one each on left and right side of the head of the deceased. According to the opinion of the panchayatdars, the deceased had died due to the injuries.
13. P.W. 9 is M.R.O., Amberpet, Hyderabad, who received requisition from Police Station, Amberpet for exhumation of the body on 26-4-1999. As he was busy on that day, he fixed the date for exhumation on 27-4-1999. On 27-4-1999 by the time he reached the place of offence, the Police, panch and accused were present at the house bearing No. 2-3-720/C/12, Ganganagar, Amberpet, Hyderabad. The scene of offence was a room in the house where he found four shabad stones freshly cemented. He passed orders for exhumation of the dead body of the deceased. One Police Constable and another person a labour, dug open the place and removed the shabad stones. They picked skeletonised body of the deceased from that place. The body of deceased was in the shape of skeleton He found waist thread which also had a steel key, and one underwear and a lungi were also tied to it. He also observed and found four injuries over the head of the skeletonised body of the deceased. Then in the presence of witnesses and relatives of the deceased, he conducted inquest, which was concluded by 1 p.m. Ex. P-14 was the inquest proceedings, Ex. P-15 was a copy of exhumation proceedings, Ex. P-16 was the requisition received by him from Police Station, Amberpet. At the time of exhumation of the dead body of the deceased, accused Nos. 1 to 3 were present. The Police officials, Forensic officials and Medical officials were also present at the spot.
14. P.W. 10 is the brother of the deceased. He stated that the deceased had two male children. Accused No. 2 was his wife. By the time of death of the deceased, his sons were aged 10 and 11 years old. The deceased had come to Hyderabad to make a living 10 or 20 years before his death. The deceased had constructed a house in Amberpet in Balanagar galli. The deceased died a year after construction of his house. At the time of construction of the house of the deceased, the witness was also engaged in the construction of the house. Accused No. 1 was frequent visitor to the house of the deceased at the time of construction of the house. He had asked accused No. 2 as to who was accused No. 1. then accused No. 2 had told him that accused No. 1 was her brother by courtesy,. Thereafter, he came to know that accused No. 1 was having illicit relationship with accused No. 2. The sister of his mother Balamma came to him and informed him that the deceased was murdered and he had not been seen for 20 days. He went to Hyderabad along with his mother. They visited 'Sundaraiah Vignana Kendram' and enquired about the deceased's whereabouts and from there, they went to Amberpet Police Station.
15. P.W. 11 was working as a Professor, Head of the Department of Forensic Medicine. He stated that he received a requisition from M.R.O., Amberpet on 27-4-1999 to conduct postmortem of the deceased at Amberpet. Exhumation was commenced at 1.15 p.m. and he had conducted postmortem of the dead body. The body was covered with a blue lungi and dressed with stripped nicker red and white, multiple rows of waist thread with a key present along with the waist thread. Body was completely skeletonised and was covered with mud. He found a fracture 22 cms in length obliquely extended from the middle of the right temporal bone across the right parietal bone crossing the coronal suture and extending to the frontal bone across it and radiating into frontal bone after splitting into two fracture lines. He noted the internal burns also in the following terms :
"Internal appearance :- Brain is liquefied. Other internal organs are decomposed, blackish pulpy mass is present."
According to him, the cause of death was head injury. Viscera was preserved and sent for chemical analysis. He received the report from the Forensic Science Laboratory and the report was, "No poisonous substance was detected." However on P.M. Examination, the death was due to head injury. The injuries mentioned by him could have been caused by weapons like axe M.O.4. Ex. P-17 was the xerox copy of requisition for conducting postmortem examination, issued by M.R.O., Ex. P-18 was the postmortem examination report issued by him, Ex. P-19 was his final opinion.
16. P.W. 12 received a complaint regarding man missing and he registered Crime No. 108 of 1999 in Ex. P.I. P.W. 13 took over the investigation of the case on 26-4-1999. On the same day at about 2.45 p.m. he took accused No. 2 into custody from her residence. On interrogation in the presence of panchas, she confessed to the crime and promised to show the place where her husband had been buried and also promised to show the spade and iron bowl which were used in the commission of offence. She also promised to show her paramour accused No. 1 and also accused No. 3. Ex. P-2 is the relevant portion in confessional statement of accused No. 2. On 27-4-1999 in pursuance of the confessions and disclosures made by accused Nos. 1 to 3, they went to the scene of offence and finally recovered the body at the instance of the accused persons.
17. The learned counsel for the appellants submitted that there is no evidence to suggest that there were illicit relations between accused No. 2 and accused No. 1, and there is no evidence at all against accused No. 3. He submits that the only circumstance against accused No. 3 was that he made a disclosure on the basis of which M.O. 3 crow bar was recovered from the deceased's house. This was not even sent to Chemical examiner and it was alleged that this crow bar was used for digging of grave inside the house. He submits that under no circumstances, on the basis of this evidence, accused No. 3 could have been convicted for an offence of murder.
18. Coming to the recoveries, P.W. 13 the investigating officer stated that accused No. 2 led them into the house. The house consisted of three rooms and there was an open place from entrance side and there was a bathroom situated in the open place. There was a small cock shed by the side of the said bathroom. One room of the said house was occupied by the deceased and accused No. 2, another room was kept vacant, another room was rented. Accused No. 2 led them towards cock shed and showed weapons of offence i.e iron spade (M.O. 1), iron bowl (M.O. 2), which were kept on the top of the cock shed. Same were seized by him under the cover of seizure report Ex. P-5. Thereafter at the instance of accused No. 3, one crow bar (M.O. 3) was recovered as it was used for digging the grave. Thereafter at the instance of accused No. 1, he seized an axe (M.O. 4) from the top of cock shed under the cover of seizure report Ex. P-7.
19. Now the only circumstance that remains is the disclosures and recovery of the body at the instance of accused Nos. 1 to 3. The relevant portions of the disclosures made by accused Nos. 1 to 3 have been exhibited as Exs. P-2 to P-4. The learned counsel for the appellants submits that even if it is believed that the body was recovered at 'the instance of the disclosure statements made by accused Nos. 1 to 3, even then, in the absence of any other evidence, the accused could not be convicted for an offence of murder under Section 302 of IPC in view of the judgment of the Supreme Court reported in State of Maharashtra v. Suresh, 2000 SCC (Cri) 263. Before coming to the applicability of this judgment to the facts of the case, it will also be pertinent to mention that the learned counsel for appellants has submitted that the trial Court had convicted the accused persons on the basis of statements made to the Police under Section 161, Cr. P.C. In para 10, the learned Judge stated, "This case based on circumstantial evidence. The material witnesses examined to prove each and every circumstance relied on by the prosecution. It is a well established rule that while appreciating the circumstantial evidence, the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and other hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused, how far fetched and fanciful it might be. Nor does it mean that the prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise. The above are the observations of our Lordships of Honourable Supreme Court in a decision reported in AIR 2002 SC 3137 : (2002 Cri LJ 4650). The case of the accused is that of total denial and they have expressed their innocence with their guilt as alleged. With this above back ground of the prosecution case and defence version, it is very essential to analyze the prosecution evidence adduced to prove its case."
The learned counsel submits that after going through whole of the evidence, nothing in the nature what has been stated by the learned Judge has been stated by the witnesses in Court therefore, the learned trial Judge has mis-directed himself in coming to the conclusion that there was any evidence with regard to the commission of offence.
20. We have gone through the evidence and it has been discussed hereinabove. We have also not found anything which could connect accused No. 3 to the offence. Therefore, in our view, accused No. 3 has been convicted for the offences without any evidence at all. Therefore in our view, he deserves to be acquitted. Coming to accused Nos, 1 and 2, there is no evidence that accused Nos. 1 and 2 had illicit relations except some hearsay evidence. There is also no evidence that accused No. 1 had participated in the commission of crime. Therefore in our view, the motive that accused Nos. 1 and 2 wanted to get rid of the deceased as they had an illicit relationship, is also not proved.
21. Now coming to the recovery of the body from the house of deceased and accused No. 2, the learned counsel has relied on the judgment referred to above (2000 SCC (Cri) 263) (supra). In para 26 of the judgment, the Supreme Court laid down :
"We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal Court, that his knowledge about the concealment was on account of one of the last two possibilities the criminal Court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal Court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."
The learned counsel submits that presumption that can be drawn is not of murder, but presumption can be drawn of concealment. We do not agree with such a view. In the present case, the following circumstances have been proved against accused No. 2 -
(i) that she was living with accused No. 1 as his wife,
(ii) that for almost 20 days after disappearance of deceased, accused No. 2 did not complain about his disappearance.
(iii) that she alone was living with the deceased as their children were in the hostel and the body was recovered at her instance, buried in the room in which she was living and there is no evidence to suggest that anybody else had access to that room except deceased and accused No. 2.
(iv) that the accused No. 2 had purchased cement a few days earlier, which was obviously used for covering the grave in which the deceased was buried,
(v) that she gave a false explanation when she was contacted about the whereabouts of her husband that her husband/deceased had gone to Bombay for making a living.
Therefore, relying on the same judgment. we are of the view that both the offences are made out against accused No. 2. While acquitting accused No. 1 and 3 of the charges under Section 302 read with 34 and under Section 201 of IPC, we uphold the conviction of accused No. 2 for the offences under Section 302 read with 34 and under Section 201 of IPC.
22. Criminal appeals No. 721 of 2003 and 1326 of 2002 are allowed, while Criminal Appeal No. 655 of 2003 is dismissed.
23. The conviction and sentence passed by the trial Court against accused Nos. 1 and 3 is set aside. They shall be released forthwith, if not required in any other case. They are entitled for refund of fine amount paid, if any.
24. The conviction and sentence passed by the trial Court against accused No. 2 for the offences under Section 302 read with 34 and under Section 201 of IPC, is confirmed. The sentences on both the counts shall run concurrently.