Andhra HC (Pre-Telangana)
Bhogadi Venkatramaiah vs The State Rep. By Its Public Prosecutor ... on 12 June, 2018
Equivalent citations: AIRONLINE 2018 HYD 251, (2018) 2 ALD(CRL) 792
Bench: C.V. Nagarjuna Reddy, Gudiseva Shyam Prasad
THE HONOURABLE SRI JUSTICE C.V. NAGARJUNA REDDY AND THE HONOURABLE SRI JUSTICE GUDISEVA SHYAM PRASAD
Criminal Appeal No.811 of 2011
12-06-2018
Bhogadi Venkatramaiah Appellant
The State Rep. by its Public Prosecutor High Court of Andhra Pradesh Respondent
Counsel for the appellant : Mr. T. Pradyumna Kumar Reddy
Counsel for the respondent: Mr. Posani Venkateswarulu,
Public Prosecutor (AP)
<GIST
>HEAD NOTE:
?CITATIONS: 1. (2011) 3 SCC 306
2. 1993 Supp (3) SCC 305
3. AIR 1994 SC 110
4. AIR 1956 SC 54
5. (1995) 3 SCC 574
6. (2001) 10 SCC 340
THE HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY
AND
THE HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD
Criminal Appeal No.811 of 2011
DATED:12-06-2018
Between:
Bhogadi Venkatramaiah Appellant
And
The State
Rep. by its Public Prosecutor
High Court of Andhra Pradesh Respondent
COUNSEL FOR THE APPELLANT: Mr. T. Pradyumna
Kumar Reddy,
for Mr. Ramesh Babu Sanaka
COUNSEL FOR THE RESPONDENT: Mr. Posani
Venkateswarulu,
Public Prosecutor
(AP)
THE COURT MADE THE FOLLOWING:
JUDGMENT:(per the Honble Sri Justice C.V. Nagarjuna Reddy) The conviction under Sections 450, 302 and 201 of the Indian Penal Code (IPC) and sentencing inter alia to imprisonment for life gave rise to this appeal by the sole convict in Sessions Case No.295 of 2008 on the file of the I Additional Sessions Judge, Krishna, at Machilipatnam. For convenience, the appellant will be referred to as the accused.
2. The case of the prosecution in brief as reflected from the charge sheet, is as under:
(a) The accused is the elder son and one Bhogadi Pavan Kumar (hereinafter referred to as the deceased) was the younger son of P.Ws.2 and 13 mother and father respectively and all of them were living in joint family. While the accused is spendthrift even without doing any work and participating in politics, P.W.13 and the deceased were doing agriculture and earning the amounts for the joint family. P.Ws.2 and 13 and the deceased used to scold the accused as he was not having any avocation, even in the presence of their relatives, due to which the accused suffered humiliation in the family circle.
During the years 1999 to 2003, the accused sustained loss in agriculture and prawn culture. P.Ws.2 and 13 and the deceased scolded the accused for the loss and they did not give money to him even for his necessities. Hence, the accused developed jealousy towards the deceased.
(b) The marriage of the accused was performed with L.W.20 (Bhogadi Sampoorna) in the month of April, 2006. In the month of September, the accused threatened P.W.13 with a knife alleging that he caught the hand of the wife of the accused while she was taking bath, in the absence of inmates. However, P.W.13 escaped with the assistance of the deceased and went to the house of P.W.5. Later, the dispute was settled by P.Ws.7 and 8 and the accused was pacified. Thereafter the accused did seeds business and sustained loss and in this connection there were disputes in the family. As the disputes were developing day by day between them, P.Ws.7 and 8 elders held compromise and agreed that Rs.4,000/- cash and 25 Kgs. of rice would be given to the accused and his wife and they have to live separately. Accordingly, P.Ws.2 and 13 with the deceased were living jointly and the accused and his wife were living separately in a rent house at Nagayalanka. All the above incidents made the accused further jealous and turned into enmity against the deceased and was waiting for an opportunity to do away with the life of the deceased. At that time, P.Ws.2 and 13 went to Hyderabad to attend the marriage of their relative scheduled on 25.11.2007 and the accused decided to kill the deceased since he alone is in the house.
(c) On 24.11.2007 the accused purchased pesticide in the shop of P.W.12, collected cable wire, went to the house of the deceased at about 7.00 p.m., entered into the house from the back door, found the deceased and chatted with him while he was sitting on a cot. Then the accused strangulated the neck of the deceased with the cable wire, and pulled him forcibly from the back side and in that process the deceased fell on his backside on the cot. The accused poured the pesticide in the mouth of the deceased so as to create the death as suicidal one, but the deceased thrown it aside and the pesticide got sprinkled on the bed sheet, pillow and clothes. The accused further strangulated the neck of the deceased forcibly with the wire, made him fell down on ground to his face side and tightened the wire, by catching its both ends by sitting on the scapula portion of deceased. At that time, as the telephone rang, the accused kept the receiver aside. The accused again strangulated the neck of the deceased with the wire till blood oozed from the mouth of the deceased. Then the accused skulked away from the back side of the house on hearing the callings of P.W.9 from front side of the house. While the accused was skulking away, P.Ws.9 and 10 witnessed him at the house and at also at turning of the street, respectively. The accused removed his shirt and pant, kept them in a polythene cover along with the wire and cutter, threw them into a dilapidated house situated opposite to his house at Nagayalanka and proceeded hurriedly to catch the train at Repalle to go to Hyderabad for attending the marriage of a relative by parking the TVS Moped at the stand at Repalle Railway Station. P.W.2 was also travelling in the same train to go to Hyderabad.
(d) On 25.11.2007, L.W.5 (Bhogadi Kutumbham) and P.Ws.4 and 5 observed the house doors of the deceased not opened and the lights in the house switched on. Then they peeped through the windows, found the deceased lying on the floor in the hall and intimated the same to P.W.13, through P.W.6. P.W.13 immediately informed the same to P.W.1, daughter of P.W.13, and sister of the accused and the deceased, who along with her husband P.W.3 rushed to the house of the deceased. P.W.1 informed the incident to P.W.13 and P.Ws.2 and 13 and the accused came to their village in a car from Hyderabad.
(e) P.W.1 gave a report to P.W.26 Sub-Inspector of Police, Nagayalanka Police Station, who registered the crime under Section 174 CrPC, inspected the scene of offence, got photographed the scene of offence through P.W.20, prepared a rough sketch, seized the material objects and conducted inquest over the body of the deceased in the presence of P.Ws.6 and 23 and L.W.29 (Gali Babu) under mediators reports and also recorded the statements of P.Ws.1 to 5, 7 to 10 and 20, and L.W.5. On 30.11.2007 the accused was produced before P.W.26 along with the extra judicial confession of the accused by P.W.21 Ex. Member of the Mandal Praja Parishad, Nagayalanka Mandal and P.W.23 Village Revenue Officer, Parrachivara Village. Based on the extra judicial confession, P.W.26 altered the section of law from Section 174 Cr.P.C. to Sections 302 and 201 IPC. P.W.27 in-charge Circle Inspector, Avanigadda, took up the investigation in pursuance of the confession of the accused, seized the material objects shown by him in the presence of P.W.25 and L.W.31 (Topula Sankar), got photographed the seizure of the material objects, prepared rough sketch Ex.P.43 and sent the accused to judicial custody. During the course of investigation, P.W.27 examined and recorded the statements of P.Ws.11, 12, 14 to 19, and 21 to 23, L.W.16 (Bandreddi Yesu), L.W.19 (Remala Ramesh), L.W.20 (Bhogadi Sampoorna) and L.W.22 (Dasyam Satyanarayana). Thereafter, P.W.28 Inspector of Police, Avanigadda Circle, took up the investigation, recorded the statement of P.W.6, got sent all the material objects to the Forensic Science Laboratory (FSL), Hyderabad and received the Ex.P.36 FSL report through the Sub-Divisional Police Officer, Avanigadda. P.W.24 Civil Assistant Surgeon, Government Hospital, Avanigadda, has conducted autopsy over the body of the deceased and issued Ex.P.37 post- mortem report. P.W.28 verified the entire investigation, collected all the documents and on completion of the investigation, filed the charged sheet.
3. Based on the charge sheet and the material collected in the investigation, the lower Court has framed the following charges.
Firstly: - That you Bhogadi Venkatramaiah, on the 24th day of November 2007 at about 7.00 p.m. in the house where the deceased and your parents are residing in Parrachivara village of Nagayalanka Mandal, committed house trespass by entering into the said house used as a human dwelling with the intent to commit an offence punishable with imprisonment for life to wit. To commit murder of your younger brother Pavan Kumar, and that you thereby committed an offence punishable U/s. 450 of the Indian Penal Code and within my cognizance.
Secondly: - That you, Bhogadi Venkatramaiah, on the aforesaid date, time and place as mentioned in Charge No.1, did commit murder by intentionally (or knowingly) causing the death of your younger brother Bhogadi Pavan Kumar, by strangulating his neck with the help of a cable wire, since the deceased and your father are scolding and chastising you for your useless acts and also about your behaviour being a spendthrift, and that you thereby committed an offence punishable Under Section 302 of Indian Penal Code and within the cognizance of Court of Session.
Thirdly & lastly: - That you, Bhogadi Venkatramaiah, on the aforesaid date, time and place as mentioned in Charge No.1, knowing (or having reason to believe) did commit murder of your younger brother Pavan Kumar, and in such attempt did a certain act towards the commission of the said offence, to wit attempted to pour pesticide into the mouth of the deceased to create the death as suicide to screen the offence from legal punishment, and that you thereby committed an offence under Section 201 IPC read with Section 511 of Indian Penal Code, and within the cognizance of Court of Sessions.
4. As the plea of the accused was one of denial, he was subjected to trial. The prosecution has examined P.Ws.1 to 28, got Exs.P.1 to P.46 marked and produced M.Os.1 to 15. On behalf of the accused, no oral evidence was let in, but Exs.D.1 and D.2 were marked. On appreciation of the oral and documentary evidence, the Court below has found the accused guilty and imposed sentence of imprisonment for life and to pay a fine of Rs.500/- and in default of payment of the fine, to suffer simple imprisonment for one year for the charge under Section 302 IPC; rigorous imprisonment for ten years and to pay a fine of Rs.500/- and in default of payment of the fine, to suffer simple imprisonment for one year for the charge under Section 450 IPC; and simple imprisonment for two years and to pay a fine of Rs.500/- and in default of payment of the fine, to suffer simple imprisonment for three months for the charge under Section 201 IPC.
5. We have heard Mr. T. Pradyumna Kumar Reddy, learned Counsel for the appellant, and Mr. P. Venkateswarlu, learned Public Prosecutor for the State of Andhra Pradesh.
6. This is a case based on circumstantial evidence where motive plays a very critical role. We shall therefore first deal with this aspect. It is the case of the prosecution that the accused is the elder son and the deceased is the younger son of P.Ws.2 and 13 and all of them were living in joint family. That the accused is a spendthrift without doing any work and involved in politics, and that in contrast to the accused, the deceased was helping P.Ws.2 and 13 in agriculture. That during the years 1999 to 2003 the accused had carried on agriculture and prawn culture and sustained loss and hence P.Ws.2 and 13 and the deceased scolded the accused for the loss and they have not given any money to the accused even for his necessities. That therefore the accused developed jealousy towards the deceased, since he suffered humiliation and the deceased was praised in his relatives circle.
7. The prosecution relied upon the evidence of P.Ws.1, 2 and 13 to prove the motive. In her evidence, P.W.1, the sister of the accused and the deceased, stated that the accused was sent out of the house along with his wife, made to stay in one portion of the house belonging to P.Ws.2 and 13 in Nagayalanka arranging Rs.4,000/- per month and supply of 25 Kgs. of rice in pursuance of a compromise. She further stated that while leaving the house the accused threatened their father, i.e., P.W.13, to kill him. P.W.1 did not raise a whisper about the ill-will between the accused and the deceased and any quarrel taking place at any point of time between them. She further admitted that she did not state in Ex.P.1 report given by her to the Police that the accused was picking up quarrels with their father while he was living with his parents, that the deceased used to support his father, and that the accused was demanding money from his father as he used to move as vagabond.
8. P.W.2 mother of the accused in her evidence stated that P.W.13, her husband, in 2003 questioned the accused for causing loss of Rs.50,000/- in agriculture and a quarrel ensued during which the accused has beaten P.W.13 and also the deceased, when he interfered. She further stated that in the year 2006 the accused got married, that in the year 2007disputes arose in connection with the STD Booth standing in the name of the accused and that in a quarrel arosing in connection with the STD Booth, the accused caught hold of the shirt of the deceased, dragged him and attempted to beat him, stating that he was responsible for the high telephone bill. That as the accused beat the deceased, P.W.13 has beaten the accused. She further deposed that due to the conduct of the accused, he was sent to their house at Nagayalanka by providing him with Rs.4,000/- per month and 25 Kgs. of rice. That the incident has occurred three months thereafter.
9. P.W.13, father of the accused, corroborated the evidence of P.W.2. He has further deposed that there used to be quarrels between him and the accused in connection with the loss of Rs.50,000/- caused by the accused in agriculture, that the accused used to beat the witness, that whenever such attempts are made, the deceased used to help the witness by intervening and that the accused used to beat the deceased for such intervention. He has further stated that for the last four or five years the accused was quarrelling with him.
10. On a holistic reading of the evidence of P.Ws.1, 2 and 13 it is clear that none of these witnesses spoke about the accused having any grudge against the deceased. On the contrary, all these witnesses in one voice spoke about the accused nursing grudge against his father P.W.13. Except a vague statement by P.W.2 that the accused grew jealous against the deceased as he was being praised in the society, nothing has been stated by these witnesses to infer that the accused has developed animosity against the deceased and that too for going to the extent of killing him. If at all the accused has nursed any grievance, it is only against his father. The learned Public Prosecutor sought to emphasise on the portion of the evidence of P.W.13 wherein he has stated that whenever the deceased intervened in the quarrel between the accused and P.W.13, the accused used to beat the decreased. But, none of these witnesses have deposed that whenever the deceased was beaten, he either resisted or retaliated against the accused. The conduct of the deceased as spoken to by the witnesses would thus reveal that he was meekly suffering the onslaught of the accused instead of revolting against him. Therefore, in the absence of any resistance from the deceased, there could be no reason for the accused to develop vengeance against the deceased. As noted hereinbefore, if at all the accused has developed any motive it would have been against P.W.13 his father and not against the deceased. Though the motive is a state of mind with respect to which no one can predict with certainty as to the reason for entertaining it, the burden still lies on the prosecution to prove with some degree of certainty the reason for the accused to develop motive against the deceased, in a case based purely on circumstantial evidence. Motive being an important link in the chain of circumstances, its absence would considerably weaken the case of the prosecution. In the light of the above discussion, we are inclined to hold that the prosecution has failed to prove the motive against the accused.
11. As regards the evidence on other aspects placed by the prosecution, the oral testimony of P.Ws.1, 2 and 13 would not be of much help to connect the accused to the offence. It is significant to note in this context that when P.W.13 has informed P.W.1 about the murder, the latter has given Ex.P.1 report, at about 6.30 p.m. on 25.112007 the day following the night during which the murder has taken place. From the perusal of the contents of this report, it is seen that it is not a case of suicide and a suspicion was expressed about the death.
12. The learned counsel for the accused submitted that based on Ex.P.1 report, Ex.P.42 FIR was registered on 25.11.2007 for the offence under Section 174 Cr.P.C. He has further submitted that though during the inquest itself held on 26.11.2007 involvement of the accused was suspected and the statements of important witnesses, such as P.Ws.1, 2 and 13 were shown to have been recorded on the same day, wherein the accused was alleged to have killed the deceased, the FIR was not altered till 30.11.2007. He has also submitted that it has been stated by all the material prosecution witnesses that after the inquest and the recording of Section 161 CrPC statements on 26.11.2007, the accused was taken into custody by the Police and that the accused was shown to have been arrested only on 30.11.2007 purportedly based on extra judicial confession. Relying on these facts, the learned counsel argued that though the accused was taken into custody on 26.11.2007 itself, he was shown to have been arrested on 30.11.2007 after creation of extra judicial confession and based on the same the Police have fabricated Section 161 CrPC statements by antedating the same. We shall now consider this aspect.
13. It is not in dispute that inquest was held at about 12.00 noon on 26.11.2007. Column No.XI contains the detailed narration of the motive on the part of the accused and the fact of his causing murder. Under Ex.P.29 the alleged extra judicial confession, the accused has allegedly stated that between 11.00 and 12.00 Hours of intervening night of 25.11.2007 and 26.11.2007 he absconded out of fear that the Police dogs may identify him and returned from the hiding during the night of 29.11.2007. In this context, it is significant to refer to the evidence of P.W.1 wherein she has deposed that her parents, the accused and others have reached the house of her parents between 9.00 and 10.00 p.m. on 25.11.2007, that the Police were present at that time, that thought they all went inside, the accused did not follow them to see the dead body and that on the following day morning also they went to the scene of offence and on that day also the accused did not venture to see the dead body but he was moving with others in front of the house and was waiting in the front yard of the house till the evening of 26.11.2007. She further stated that the Police have shifted the dead body from the house at about 10.00 p.m. on 26.11.2007 and taken the accused along with them and that the accused was with the Police since then. It is very important to note that though being prosecution witness, P.W.1 has categorically spoken about the Police taking the accused into custody and detaining him with them on the night of 26.11.2007, the prosecution has not re-examined her to spell out its stand regarding the time and date of the arrest of the accused. Thus P.W.1s statement on the above aspect remained unimpeached.
14. P.W.26, the Sub-Inspector of Police, who registered the case, stated that on 30.11.2007 at about 11.30 a.m. in the morning while he was present in the Police Station, P.W.23 (wrongly mentioned as P.W.24) Village Revenue Officer of Parrachivara Village of Nagayalanka Mandal came to the Police Station along with P.W.21 Jayaprakash, and also the accused, and handed over the statement of the accused recorded by P.W.23 and that based on the extra judicial confession made by the accused before P.W.23, the witness has altered the section of law from 174 CrPC to Sections 302 and 201 IPC. A suggestion was put to him that on 26.11.2007 at the time of inquest the witness has approached the accused and took him into custody and that since then the accused was in the illegal custody. The suggestion was, however, denied by the witness. It is also suggested to the witness that Section 161 CrPC statements were fabricated just before the filing of the charge sheet, which suggestion was also denied.
15. Significantly, P.W.26 failed to set the record straight with reference to the evidence of P.W.1 that the accused was taken into custody on 26.11.2017 by making any positive statement, excepting denying the suggestion put to him in his cross- examination. As noted supra, not only in the inquest report, but also in Section 161 CrPC statements allegedly recorded on 26.11.2007 the accused was imputed with the act of killing the deceased. Still, the FIR was not altered till 30.11.2007. No explanation was forthcoming from P.W.26 or P.W.27 for the reason for such non-alteration showing the death as a murder and the appellant as the accused. The learned Public Prosecutor submitted that the Police cannot alter the FIR without filing a Memo before the jurisdictional Magistrate and obtaining the latters permission. No provision has been cited by him in support of this submission. That no such Memo was filed and no permission was taken from the Magistrate is evident from P.W.26s deposition wherein he has stated that on 30.11.200 at 11.30 a.m. while he was present in the Police Station, P.W.23 the Village Revenue Officer of Parrachivara Village of Nagayalanka Mandal came to the Police Station along with P.W.21 Ex. Member of the Mandal Praja Parishad, Nagayalanka Mandal, and the accused, handed over Ex.P.23, the so called extra judicial confession upon which he has altered the section of law from Section 174 CrPC to 302 and 201 IPC including the name of the accused and submitted Ex.P.44 altered FIR to the jurisdictional court.
16. We shall now see whether the prosecution version about the accused approaching P.Ws.21 and 23 and giving his confessional statement is worthy of acceptance. P.W.21 deposed that on a day which happened to be the 30th of a month, which he did not remember, in the year 2007 the accused approached him after 7.00 a.m. and confessed that he has killed his brother on the 24th day of that month due to disputes. He then took the accused to P.W.23 - Village Revenue Officer, Parrachivara, that on making enquiries he recorded Ex.P.29 - statement of the accused and, the witness, the accused and P.W.23 signed on the same and thus took the accused along with the statement to the Police Station and handed over the same to the Sub-Inspector of Police. In his cross-examination P.W.21 stated that he is a resident of Nagayalanka, that he was a former Member of the Mandal Praja Parishad, Nagayalanka, and that while he and his brother, who was President of Co-operative Society, Parrachivara, belong to congress party, the accused, who was also in Congress Party, was later working for B.J.P. The witness also admitted that in the year 2005 the paddy heaps of his brother were burnt in Parrachivara village and the accused was suspected to be responsible for the same and that since then they had no talking terms with the accused and his father. He has further deposed that during the mediation on the burning of paddy heaps, the accused admitted his guilt, tendered apology by catching the feet of the brother of the witness and that the latter has let off the accused accepting his apology. It was suggested to the witness that the Police apprehended the accused on 27.11.2017 and since then he was in the Police custody and he has not approached the witness on 30.11.2007. The witness denied the same. The version spoken to by P.W.21 appears somewhat unnatural for, not only that the accused and P.W.21 belonged to different political parties, but also following an unpleasant incident happened in the year 2005, P.W.21 was not in talking terms with the accused and his father. Therefore, it is difficult to believe that the accused would have had any hope that P.W.21 would save him from the physical harm from the Police. On his part, being a former Member of the Mandal Praja Parishad and active member of the Congress Party, which was in power at the relevant time, he allegedly acted in a peculiar manner by not taking the accused straight away to the Police Station and instead by taking him to P.W.23, only a Village Revenue Officer.
17. As regards P.W.23, he actively participated in the investigation process at the instance of the Police. He was the scribe of Ex.P.34 Scene Observation Report prepared on 26.11.2007 and also one of the attestors to the same. He is also the author of Ex.P.35 - inquest report. In his chief examination he has deposed that he himself has scribed Ex.P.29 at his house, obtained the signature of the accused and P.W.21 on the said statement, he endorsed on the statement that it was made in his presence, and took the accused to the Police Station and handed over him to the Police in the presence of P.W.21. He admitted that the accused has earlier submitted a complaint to the District Collector complaining that he committed irregularities in distribution of compensation leading to enquiries and that since then they were not in talking terms with each other. The most crucial admission coming from P.W.23 is to the effect that at the time of scribing Ex.P.29, the accused, himself, P.W.21, Krishnaiah (evidently referable to P.W.13 father of the deceased) and P.W.26 - Sub-Inspector of Police were present and that Ex.P.29 was scribed at Nagayalanka Police Station. This admission completely destroys the credibility of the testimony of P.Ws.21 and 23 and also supports the defence version that Ex.P.29 is fabricated as if the accused was absconding and produced by P.W.23 for the first time on 30.11.2007. From the testimony of P.W.21 and the fact of the aforementioned admission of P.W.23 it could be concluded without any cavil of doubt that the accused was in the illegal custody of the Police from the evening of 26.07.2007 itself, till 30.11.2007 on which date he was shown to have been formally arrested, after creating Ex.P.29, the alleged extra judicial confession of the accused.
18. The above discussed facts also raise a serious doubt as to whether the Police have recorded Section 161 CrPC statements on 26.11.2007, and lend support to the defence version that following the purported extra judicial confession, the Police have fabricated Section 161 CrPC statements after 30.11.2007, because, as the said statements were evidently sent along with the charge sheet, there was no material with reference to which the prosecution could prove that they were recorded prior to 30.11.2007. The aforementioned suspicious circumstances would make it appear that the prosecution has come out with a false version by not only suppressing the real time and date on which the accused was taken into custody, but also by creating a purported extra judicial confession by planting P.Ws.21 and
23. This conduct of the investigation agency is abhorrent for which we have decided to initiate separate proceedings for considering prosecution of P.Ws.21, 23, 26 and 27 for perjury and other related offences.
19. The next aspect to be considered is the alleged recovery of M.O.6, M.O.13 and M.O.14 from the accused. It is the case of the prosecution that after the accused was surrendered by PWs.21 and 23 on 30.11.2007, along with the alleged extrajudicial confession, the accused led the police and the mediators to a dilapidated tiled house situated to the east of the metal road running from north to south, situated in the eastern side of the house in which the accused was living and took out MO.6- cable wire piece and MOs.13 and 14 shirt and pant of the accused, stating that he has hidden them in the northern side room of the dilapidated tiled house. It is the further case of the prosecution that the accused went to the house in which he was living and brought MO.15 cutter, with which he has cut a cable in the second portion of the house bearing No.74/2 in which he is residing. Ex.P.40 is the admissible portion of the mediators report under which the aforementioned MOs. were seized in the presence of PW.25. In his chief examination, PW- 27, the investigating officer has stated that MOs.6, 13 and 14 were seized from the dilapidated house situated opposite to the house of the accused. However, in the cross-examination he admitted that in the remand report dated 01.12.2007, he has stated that he has seized the said material objects from the house bearing D.No.11-61/2 in which the accused is residing and it is different from the said dilapidated house. Though the remand report does not constitute evidence, the fact that the prosecution has come out with conflicting versions regarding the place from which MOs. 6, 13 and 14 were seized, cannot be ignored. Added to this, the evidence of PW-20 photographer, who was deployed only for the purpose of taking photographs of the place from which the material objects were seized, is somewhat ambiguous. Nowhere in his evidence, he has referred to the dilapidated house from which the police have seized the material objects from the accused. The dilapidated house which is supposed to be photographed vide Ex.P.26 is described by PW-20 as the building situated by the side of the house of the accused. But he has not deposed that it is from that house, that the aforementioned MOs. were seized by the police. All these aspects create reasonable doubt in the mind of the court that the prosecution is not coming out with true version as regards the place from which the said MOs. were seized.
20. Even assuming that MOs. 6, 13 and 14 were seized from the possession of the accused, the further question to be considered is whether the said MOs. could be connected to the accused. The investigating officer has sent the said MOs. along with the wearing apparel of the deceased to Forensic Science laboratory, which submitted its report vide Ex.P.36. Of 16 items sent for testing, item Nos.5 to 11 were examined. The report reveals that blood was detected on item Nos.5,10,11,12,14 and 15 and the blood group on item Nos.11,12,14 and 15 was B group. Item No.11 is MO.2 and item No.12 is MO.3. Both these belong to the deceased. Item No.14 green and maroon colour checks full hand polyester shirt, belongs to the accused and item No.15 is the cable wire which was allegedly seized from the accused. Though the blood group on items No.5,10,11, 12, 14 and 15 was shown to belong to the same group, for reasons best known to the investigating officer, he has not got the blood group of the deceased ascertained. From the mere fact that the blood group on the aforementioned items tallied with each other, it is not safe to presume the culpability of the accused, for, there is every possibility for the police to plant the blood belonging to some group on all the material objects, including the clothes of the deceased and the accused. We venture to make this observation for the simple reason that when the police have fabricated the extrajudicial confession and distorted the fact relating to the actual date of arrest, we would not be surprised if they have planted the blood also.
21. The law is well settled that in the absence of any other corroborative evidence, it is not safe to convict the accused, merely based on recovery. In Wakkar v. State of U.P. , the Supreme Court held:
26. It is true that recovery of certain incriminating articles at the instance of the accused under Section 27 of the Evidence Act by itself cannot form the basis of conviction. The recovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances as well and the chain of events suggesting the involvement of the accused. The trial court as well as the appellate court did not rest the conviction of the appellants solely based on the recoveries. The fact remains that the recovery of articles used in the commission of offence has been taken into consideration together with other incriminating circumstances brought on record by the prosecution.
22. Even if we believe that the recovery is proved, whether the appellant is liable to be convicted only based on recovery without there being any corroborative evidence needs to be considered. In Union Territory of Goa v. Beaventura DSouza , Surjit Singh v. State of Punjab , and Sanwat Khan v. State of Rajasthan the Supreme Court held that it is unsafe to draw a presumption of guilt merely based on recovery of incriminating articles from the possession of the accused. In Gulab Chand v. State of Madhya Pradesh , a converse view was taken. A two-Judge Bench in Limbaji v. State of Maharashtra , analyzed the divergent views and observed that the two-Judge Bench which decided Gulab Chand (5 supra) has merely taken note of the three-Judge Bench decision in Sanwant Khan (4 supra), and observed that the said decision is not applicable in the facts and circumstances of the case. In conclusion, the Court in Limbaji (6 supra) has chosen to give due weight to the dicta laid down by the Larger Bench in Sanwant Khan (4 supra) in order to adopt a safer course. Thus, as on today, the preponderance of judicial opinion is to the effect that mere recovery by itself cannot be made basis for convicting the accused without the prosecution establishing the other important links in the chain of circumstances. For the aforementioned reasons, we are unable to place any reliance on the prosecution case relating to recovery, for convicting the appellant.
23. The next aspect to be discussed is the last seen theory propounded by the prosecution, which was found favour with the court below. Though the prosecution has pressed into service, PWs.9 and 10 in support of this theory, the court below has refused to rely upon the evidence of PW-9. However, it has accepted the evidence of PW-10, which we shall now consider. PW-10 has deposed that he is the farm servant of one Mandali Anjaneyulu of Parrachivara and that he knows PW-13 and the accused, whose house is situated by the side of his masters house. He has further deposed in his chief examination that on one day about 2 years ago, at about 7 or 7.30 p.m., when he was returning from the field with hay stack, he found the accused running away from the back yard and when he called the accused by name twice, the latter has gone away with his motorcycle, without replying. He has further deposed that as it was a full moon day, he could identify the accused, though it was night and that he came to know on the next day that the deceased died. In his cross- examination, the witness admitted that he did not reveal to any villagers, of his seeing the accused running away. He admitted that he was bringing hay from the land of his master, which is at a distance of two furlongs from the house of the deceased and that he need not go in front of the house of Krishnaiah, for carrying grass. He further admitted that the house of the deceased is not visible from the land of Anjaneyulu. The defence has got Ex.D1 a portion of Section 161 Cr.P.C. statement of the witness, marked. In Ex.D1, the witness stated that when he was cutting the grass on the land of his master, he saw the accused coming out from the backdoor of his fathers house and proceeding towards Nagayalanka on his TVS XL Moped. Though the witness has denied having made such statement, such a denial cannot be countenanced and thus, there is a serious contradiction in the evidence of PW-10, as to the place at and the manner in which he has seen the accused at around the time of the incident. As noted above, he has admitted in his evidence that the house where the occurrence has taken place, is not visible from the land where the witness was cutting grass. The further improbability of the witness noticing and identifying the accused, is evident from the fact that it is unusual for a person to cut grass after sunset and it is also not possible for a person to identify other persons after sunset. We are, therefore, convinced that PW-10 has not come out with the truth and he was evidently planted by the prosecution to put forth the last seen theory.
24. As regards the medical evidence, in Ex.P.37 post mortem report, PW-24, the doctor who conducted autopsy, has opined that the deceased died due to Asphyxia due to strangulation as well as Fenvalrate an insecticide poison. It is not the case of the prosecution that the accused has strangulated as well as poisoned the deceased. On the contrary, the case of the prosecution is that pesticide was sprinkled/poured into the mouth of the deceased so as to create the death as suicide. The medical evidence, such as the autopsy report and the depositions of the doctor and also the FSL report, shows that insecticide poison was found in the stomach, liver and kidney pieces. Unless poison was administered, there would be no possibility of the same being found in stomach, liver and kidney pieces. Thus, even this part of the evidence does not support the case of the prosecution and, therefore, the charge against the accused under Section 201 I.P.C., is wholly misconceived. It is thus clear from the above discussion that the prosecution has failed to prove the manner and the real cause of death, as set out in its case.
25. One other relevant aspect to be considered, is the accused allegedly procuring the poison from PW-12. PW-12 was examined to speak about the accused procuring poison from him. In his chief examination, he has deposed that on 24.11.2007, the accused purchased Fenval 20 EC tin for Rs.75/- in the forenoon and he would identify the said tin. The witness accordingly identified the same as MO.5, sold to the accused. In his cross-examination, the witness deposed that the accused left the shop without taking the bill and he did not also write the bill. He however, admitted that there was no written document to show that the accused purchased pesticide tin from his shop. Though the witness stated that he has bills to show that MO.5 was purchased by him from the dealers, he expressed his inability to disclose the bill number or the date and also admitted that he did not furnish the said bill number or date under which he purchased MO.5 from the dealer. He further admitted that the tins similar to M.O.5 are available in any fertilizer shop and that MO.5 does not carry any specific identification mark, to show that it was sold by him. These admissions clearly render the evidence of PW.12, wholly unreliable and we have no doubt that the prosecution has planted him, only for the purpose of proving the purchase of pesticide by the accused, to support its otherwise false version that the accused has procured poison from PW-12.
26. For the aforementioned reasons, the judgment dated 01.04.2011 in Sessions Case No.295 of 2008 of the I Additional Sessions Judge, Krishna at Machilipatnam, is set aside. The appellant/accused is acquitted of all the offences with which he is charged. The fine amount, if any, paid by him shall be refunded to him. As the appellant is on bail, he is directed to surrender himself before the Superintendent, Central Prison, Nellore, for completing the formalities for his release, if he is not required in any other case or crime.
27. The criminal appeal is accordingly allowed. _________________________ C.V. NAGARJUNA REDDY, J ____________________________ GUDISEVA SHYAM PRASAD, J 12-6-2018