Andhra Pradesh High Court - Amravati
Mavuri Nageswara Rao vs The State Of A.P., Rep. By P.P. on 19 September, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
CRIMINAL APPEAL No.412 of 2013
JUDGMENT :(per Hon'ble Sri Justice C.Praveen Kumar)
1. The sole accused in S.C.No.299 of 2012 on the file of the Additional District & Sessions Judge, West Godavari District, Kovvur, is the appellant herein. He was tried for the offences punishable under Sections 302 and 380 I.P.C. By its judgment dated 23.4.2013, the learned Additional District & Sessions Judge convicted the accused under Section 302 I.P.C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs.1,000/-, in default, to suffer Rigorous Imprisonment for one month. He was also convicted under Section 392 I.P.C. and was sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default to suffer Rigorous Imprisonment for one month. The substantial sentences were directed to run concurrently.
2. The gravamen of the charge against the accused is that on 9.5.2011 at 11.30 AM the accused is said to have trespassed into the house of one, Pulapa Satyanarayanamma, aged 75 years, residing at Door No.7-68, Ramalayam Street, Dharmavaram Village, with an intention to commit robbery of gold ornaments of that woman and in pursuance of the same, caused her death by pressing her mouth and nose.
3. The facts, as culled out from the evidence of the prosecution witnesses, are as under :
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P.W.2 is the husband of P.W.1, while P.Ws.3, 4, 5 and 6 are known to the family of P.Ws.1 and 2. The accused was also known person to the family of P.Ws.1 and 2. P.W.1 is only daughter to her parents. Her marriage with P.W.2 took place about 20 years ago and out of their wedlock, she was blessed with two daughters. Parents of P.W.1 were residing in a Daba house in Dharmavaram. About 15 years prior to the incident, father of P.W.1 died and as such, her mother (deceased) was staying at Dharmavaram. Once in four or five days, P.Ws.1 and 2 used to go Dharmavaram to take care of her necessities.
4. The evidence of P.W.3 is that she knows the accused and the family members of the deceased. In fact, she is also relative of the deceased, as the deceased was the wife of brother of her father-in-law. House of the deceased was adjacent to the house of P.W.3. On 8.5.2011, P.W.3, her husband and relatives went to Kanaka Durga Temple, Vijayawada and returned home in the evening. On the next day at 9.00 AM, she went to the house of the deceased to give prasadam, but there was no response in spite of repeated tapping of the door. Thinking that the deceased was performing puja, she returned to her home. At about 4.00 PM, on the same day, she once again went to the house of the deceased and called her, but there was no response. Thinking that the deceased was sleeping, P.W.3 returned back. At about 5.30 PM or 6.00 PM she once again went to the house of the deceased and tapped the main door, so also the door of the back yard. Since she was not opening the door and suspecting some foul play, she put up a ladder to the wall of her back yard and got into the back yard of the house of the deceased and searched the rooms of the house, but did not find her. When she went to the kitchen room, she found the deceased lying dead on the floor of the kitchen room with blood stains on her body and also 3 on the floor. Immediately, she called neighbours and raised cries. On hearing the same, P.W.4 and others rushed to the house of the deceased. One, Pulapa Ravi Chandra Kumar telephoned to P.W.2 and informed about the death of the deceased in the kitchen. On receiving the information, without informing the news of death of the deceased, P.W.2 along with P.W.1 left for Dharmavaram. On reaching the house, P.W.1 was shocked to know the death of her mother. They saw the dead body lying in the Daba kitchen house with blood on her nose and mouth and also blood oozing onto the floor. Her neck was also found to be twisted to one side. The gold ornaments worn by the deceased were not found on her body. On coming to a conclusion that it was a murder for gain, herself, P.W.2 and relatives went to Kovvur Police Station and lodged a report with Sub-Inspector of Police, basing on which a case in crime No.38 of 2011 came to be registered for the offences punishable under Sections 302 and 380 I.P.C. On receipt of a copy of F.I.R., the Inspector of Police visited the scene of offence and got prepared the panchanama of the scene in the presence of P.W.8 and another. He also got prepared an observation report of the scene in the presence of P.W.8, which is placed on record as Ex.P5. He then got prepared Ex.P14 - rough sketch of the scene. Thereafter, he conducted inquest over the dead body between 8.00 AM and 10.30 AM. During inquest, he examined P.Ws.1 to 3 and got recorded their statements. Thereafter, he sent the body for postmortem examination. Before sending the body, he got photographed the scene of offence. Ex.P12 is the bunch of photographs. On 10.5.2011, P.W.9 conducted autopsy over the dead body and issued Ex.P10 - Postmortem Certificate. According to her, the cause of death was asphyxia due to smothering. P.W.15, who continued with the investigation, recorded the statements of witnesses and 4 collected call details of the mobile of the deceased. His enquiries revealed that the mobile number of the deceased is 8096714318 and was in working condition. Ex.P15 is the call data. On 12.5.2011 at about 6.00 PM, on credible information, P.W.15 along with Sub- Inspector of Police, Kovvur and staff, proceeded to the bus stop centre, Tallapudi and arrested the accused in the presence of P.W.8. Pursuant to a confession made, he seized gold ornaments i.e., two rows gold chain, four gold bangles, one gold ring with the image of goddess Lakshmi Devi and a cell phone of Nokia company along with a pledge slip. He also seized the clothes of the accused, worn by him at the time of commission of the offence. Thereafter, the accused lead them to Dhanalakshmi Jewellers, Tallapudi, which was owned by P.W.6. He is said to have identified the accused and produced ear studs pledged by the accused. On 9.5.2011, after collecting all the necessary documents, he filed the charge-sheet, which was taken on file as P.R.C.No.28 of 2011 on the file of the II Additional Judicial I Class Magistrate, Kovvur. On appearance of the accused, copies of all the documents, as required under Section 207 Cr.P.C., were furnished and later on it was committed to the Court of Sessions under Section 209 Cr.P.C. On appearance of the accused, charge under Sections 302 and 380 I.P.C. came to be framed, read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. In support of its case, the prosecution examined P.Ws.1 to 15 and got marked Exs.P1 to P16, besides marking of M.Os.1 to 6. After completing the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied, but did not adduce any defence evidence. Relying upon the confession made by the 5 accused leading to discovery of gold ornaments belonging to the deceased, the accused was convicted under Sections 302 and 392 I.P.C.
5. Learned counsel for the appellant would contend that there are no eyewitnesses to the incident and the circumstances relied upon by the prosecution are not proved and even if proved, would not form a chain of events connecting the accused with the crime. In the absence of any evidence to show that the accused was seen in and around the house of the deceased, an inference of guilt for an offence punishable under Section 302 I.P.C. cannot be drawn, merely because gold ornaments belonging to the deceased were recovered at his instance. It is further pleaded that the recovery itself is not proved, since the family members did not give identification particulars of the properties which were on the body of the deceased. Apart from that, it is pleaded that, the very identification of the property by the family members cannot be relied upon, since the same is not in consonance with the Rule 35 of the Criminal Rules of Practice.
6. On the other hand, the learned Public Prosecutor would contend that since properties came to be recovered within a period of three days from the date of incident, presumption under Section 114 of the Indian Evidence Act can be drawn to connect the accused with the crime. According to him, merely because particulars of the properties lost were not given in detail, does not by itself throw any amount of doubt with regard to recovery. In the absence of any explanation by the accused as to how he came into the possession of the gold ornaments, more particularly the receipt issued by P.W.6, he pleads that the conviction of the accused warrants no interference.
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7. The short point that arises for consideration is, Whether the evidence available on record is sufficient to hold the accused guilty of the charges framed against him?
8. As seen from the record, there are no eyewitnesses to the incident and the case rests on circumstantial evidence. In a case arising out of circumstantial evidence, the prosecution has to establish each of the circumstance relied upon by them and the circumstances so relied upon shall form a chain of events connecting the accused with the crime. The fact that there are no eyewitnesses to the incident is not in dispute. Therefore, it is to be seen whether the circumstances relied upon by the prosecution viz., recovery of the articles at the instance of the accused four days after the incident and their identification a week later by P.W.1 and recovery of cell phone of the deceased from the accused are sufficient to connect the accused with the crime.
9. As stated earlier, none of the witnesses have seen the incident nor does the witnesses speak about the presence of the accused in the house of the deceased at any point of time. Though P.W.1 deposed that the accused is a known person, but none of them speak about he visiting the house regularly. P.W.2 came to know about the death of the deceased through one, Pulapa Ravi Chandra Kumar, who is cousin of his wife-P.W.1, who informed about the dead body lying in the kitchen room. Thereafter, he went to his house and asked P.W.1 as to whether her mother telephoned her on that day. When she informed that her mother did not telephone her, he asked her to accompany him to Dharmavaram to see her mother. Accordingly, P.Ws.1 and 2 and their daughter Neelima went to Dharmavaram to the house of the deceased where they found dead body in the corner of the house and blood was 7 found at ear and nose of the dead body and similarly blood was oozing from the head. The ornaments which the deceased normally wears are not found on the dead body, more particularly, bangles, ear studs, gold ring and chain. The evidence of P.W.1 would disclose that on 17.5.2011, Police showed gold ornaments of her mother at Ramalayam of Dharmavaram at 11.00 AM by placing the ornaments with some other identical ornaments and asked her to identify the ornaments of her mother. The V.R.O., who acted as a panch witness, prepared a report of such identification. She claims to have identified M.O.1 - four gold bangles, M.O.2 - pair of ear studs, M.O.3 - gold ring with Lakshmi Devi figure on it, M.O.4 - Two rows gold chain, M.O.5 - Mobile phone of Nokia company and M.O.6 - empty cell phone box. From the evidence of these two witnesses it is clear that on receipt of information about the death, they proceeded to the house of the deceased at Dharmavaram and found the deceased lying with injuries. The gold ornaments, which the deceased normally wears, were found missing. A report came to be lodged by them and thereafter on 17.5.2011, P.W.1 is said to have identified M.Os.1 to 6. In the cross-examination, P.W.1 admits that she did not mention the exact weight of M.Os.1 to 4 and she also admits that she did not hand over the receipts with regard to the purchase of M.Os.1 to 4 by her mother. To a suggestion that M.Os.1 to 4 were not on the body of the deceased at the time of her death, but those ornaments were with her relatives, was denied by her.
10. Insofar as test identification of the properties are concerned, P.W.1 claims to have identified the properties on 17.5.2011 at 11.00 AM in the presence of P.W.8 - V.R.O. and again on the same day at 8.00 PM in the presence of P.W.11 - V.R.O. in the jewellery shop at Tallapudi, wherein jewellery shop owner mixed some more gold ornaments with the gold 8 ornaments seized from the accused and asked P.W.1 to identify the ornaments of her mother. Insofar as identification on 17.5.2011 at 11.00 AM is concerned, it was done at Ramalayam under Ex.P9. The properties, which are put to identification, are two gold chains, four bangles, pair of ear studs, a ring containing the figure of Lakshmi Devi. Insofar as test identification parade conducted on 17.5.2011 at 8.00 PM relates to identification of properties seized from the shop and the same was conducted in the jewellery shop at Tallapudi. It is said that the jewellery shop owner mixed some gold ornaments with the ornaments seized from the accused and asked P.W.1 to identify the ornaments of the deceased. P.W.1 is said to have identified the ornaments of her mother which are seized from the possession of the accused and also from jewellery shop at Tallapudi. Therefore, in respect of articles seized from the possession of the accused and those seized from the shop at the instance of the accused, two test identification parades were conducted, one, at 11.00 AM and another at 8.00 PM in the night on the same day. Further, the gold shop owner - P.W.6 is said to have issued Ex.P2 receipt in respect of two ear studs which are pledged in the shop and for which he paid Rs.3,500/-, but this Ex.P2 receipt contains no stamp of the shop of P.W.6. Even otherwise, there is no justification for the prosecution to conduct test identification of properties twice, once at 11.00 AM in Ramalayam by the Police in the presence of P.W.8 and second identification of the properties which are seized in the shop of P.W.6 in the presence of P.W.11. Apart from all, it is to be noted here that any test identification parade of the properties conducted by the investigating agency should be in consonance with the Rule 35 of the Criminal Rules of Practice.
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11. Rule 35 of the Criminal Rules of Practice prescribed a procedure as to how test identification parade of the property has to be done. Time and again, it has been held by this Court as well as by the Apex Court that when the property is lodged before the court, identification of the same should be done in the court after calling for special identification marks of the property. The issue is no more res-integra in view of the judgment of a Division Bench of the High Court of Judicature for the State of Telangana and for the state of Andhra Pradesh reported in Middela Parvaiah v. State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad1, wherein it is held that when once the Test Identification Parade of property was not conducted in accordance with the procedure prescribed in Criminal Rules of Practice, much credence cannot be given to the alleged identification of the said property by the witnesses.
12. This Court in Jarapala Deepala @ Babu Rao and others v. State of A.P.2 while dealing with an issue where the test identification parade of the property was not in accordance with procedure, held as under:
"As seen from Rule 35 of the Criminal Rules of Practice the identification of properties shall be held in the Court of Magistrate where the properties are lodged and each item of property shall be put up separately for the parade and it shall be mixed up with four or five similar objects and before calling upon the witnesses to identify the property, he shall be asked to state the identification marks of his property and the witnesses shall be called in one after the other and on leaving shall not be allowed to communicate with the witnesses not yet called in. The said procedure of conducting identification parade in respect of the property has not been followed in this case, as admittedly the identification parade was not conducted in the Court of the Magistrate. Thus, it is clear that the test identification in respect of the properties are not conducted in 1 2016(3) ALT (Crl.) 373 (DB)(AP) 2 (2005) 2 ALD (Crl.) 818 (A.P.) 10 accordance with the procedure prescribed in Criminal Rules of Practice.
Therefore, much credence cannot be given to the alleged test identification of the properties."
13. In view of the above judgments and Rule 35 of Criminal Rules of Practice, it is evident that if test identification of properties is not conducted before the Court and if the properties mixed are not identical to the properties seized, the same does not attain any importance. Therefore, in the absence of any descriptive particulars given by P.W.1 in the F.I.R. and also in the court, except mentioning the type of articles and since identification of properties came to be conducted contrary to Criminal Rules of Practice, which were held to be mandatory by the Apex Court, the identification of the properties by family members cannot be accepted. In view of the above, recovery of the gold articles does not establish them to be that of the deceased technically. Hence, this circumstance in the chain of events cannot be said to be proved. Even the presumption under Section 114 of the Indian Evidence Act cannot be invoked when once the very identification itself is to be rejected.
14. One other circumstance relied upon by the prosecution, is recovery of cell phone of the deceased from the accused. Though P.W.1 identifies the cell phone as that of the deceased, but the said identification was not in accordance with the Criminal Rules of Practice. Further, the First Information Report is silent as to the mobile phone of the deceased and its number. P.W.1 admits that in her Section 161 statement, she failed to mention the name of the manufacturer of the mobile, but gave the carton of the phone which contains the name of the manufacturer. Further, P.W.1 admits that she did not give any receipt to the Police with regard to the purchase of mobile phone by her mother. Therefore, this circumstance, in our view, cannot be said to be a one connecting the accused with the crime.
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15. Another circumstance relied upon by the prosecution, is that before entering the house of the deceased, the accused is said to have consumed alcohol in the shop of P.W.7, but P.W.7 did not support the case of the prosecution and he was treated hostile by the prosecution. Therefore, this circumstances of accused being seen before entering the house of the deceased was not established.
16. In view of the evidence referred to above, we feel that the circumstances relied upon by the prosecution are not proved and they do not form a chain of events to connect the accused with the crime. For the aforesaid reasons, we are of the opinion that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt.
17. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed against the appellant - accused - Mavuri Nageswara Rao, for the offences punishable under Sections 302 and 392 of I.P.C. in Sessions Case No.299 of 2012 on the file of the Additional District and Sessions Judge, West Godavari District, Kovvur, by judgment dated 23.04.2013, are set aside. The appellant - accused - Mavuri Nageswara Rao is acquitted and he shall be set at liberty forthwith, if he is not required in any other case.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
_____________________________________________ ACTING CHIEF JUSTICE C.PRAVEEN KUMAR ________________________________________ JUSTICE M. SATYANARAYANA MURTHY 19th September, 2019.
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