Unknown vs State Of Madhya Pradesh As Stated By on 16 November, 2022

[Cites 25, Cited by 0]

Andhra Pradesh High Court - Amravati

Unknown vs State Of Madhya Pradesh As Stated By on 16 November, 2022

Bench: C. Praveen Kumar

                                  1



     THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
                                AND
     HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

               Criminal Appeal No. 518 of 2015

JUDGMENT:

(Per Hon'ble Sri Justice C.Praveen Kumar)

1) Accused Nos. 1 to 3 in Sessions Case No. 238 of 2011 on the file of the VIII Additional District and Sessions Judge, Vijayawada, are the Appellants herein.

2) Originally, Charges were framed against eight [08] Accused for the offences punishable under Sections 364, 302 and 201 read with 34 and 109 of Indian Penal Code [I.P.C.]. After completion of trial and as per Order, dated 20.04.2015, and before pronouncement of Judgment, the trial Court reframed the charges, since charges came to be framed earlier even against Accused No. 5, who died by then.

3) The following are the Charges framed against Accused Nos. 1 to 4 and Accused Nos. 6 to 8 for the offences punishable under Sections 364 r/w 34 I.P.C., 302 r/w. 34 I.P.C. and 201 r/w. 34 I.P.C. The Charge under Section 109 I.P.C. was omitted.

4) A perusal of the proceedings would show that, all the Accused were questioned as to whether they have any objection for framing the charge or whether they intend to cross-examine the witnesses again. Since, none of them objected for the same, the above Charges were framed.

5) The substance of the Charges against the Accused is that, on 12.05.2009 all the Accused are alleged to have kidnapped one Moka Nageswara Rao ['Deceased'] and thereafter caused his death.

6)     The facts, in issue, are as under :


 i)    PW1 is the Father of the deceased, while PW2 is the Son

       of   PW1.     The    deceased,   who     used   to    live    in

Ibrahimpatnam was eking out his livelihood by doing coolie work. He was a tenant in the house of Accused No.7.

ii) On one occasion, when PW1 visited the house of the deceased, he found deceased and his wife quarrelling with each other. When enquired, the deceased informed to PW1, that his wife [Accused No.8] was having extra marital relationship with Accused No.1. He then 3 requested his Son [deceased] to come to his house at Dintimeraka, however, the daughter-in-law of PW1 [Accused No.8] refused to come to the house of PW1. When the intimacy between Accused No.1 and wife of deceased was informed to Accused No. 7, disputes arose between deceased and Accused No. 7 and, accordingly, Accused No. 7 demanded the deceased to vacate the house. It is said that, the deceased vacated the house and, thereafter, shifted his house to the house of one Vasantha. It is said that, the Accused No.1 and Accused No.8 used to move friendly and freely and they had illicit relationship. On seeing the same, mediations were also held before the elders, but, there was no change in the attitude of Accused No. 8 and Accused No.1.

iii) On 12.05.2009, while PW3 was going to another village to attend death ceremony of his Senior Maternal Aunt, he noticed the deceased and Accused No.1 coming to the Center. PW3 who was owning a auto, asked them to take his auto, which was at the welding shop and also requested Accused No.1 to drive the auto, as the deceased does not know driving.

iv) In the early hours on 13.05.2009, someone knocked the doors of PW15 [owner of the house] calling as 'Nani'. That person is Accused No.7 [Vadugu Purnaiah], who was there along with the wife of Accused No.1. PW15, who was sleeping, at that time, opened the door and questioned them the reason for knocking the door. On that, one Durga Bhavani told PW15 that Accused No.1 was in the house. Then, PW15 called Accused No.8 [wife of the deceased] from the house, on which, she opened the house and Accused No.1 came out of the home. On seeing the same, Accused No.7 took Accused No.1 to his house by beating him. PW15 questioned Accused No. 8 as to why she allowed Accused No.1 in the house, in the absence of the deceased. There was no reply from her. On that, PW15 threw out all the belongings of Accused No.8 and directed her to vacate the house on the following day. It is said that, in the early hours on the following day, Accused No. 8 vacated the house and took all the belongings in a rickshaw to the house of one Sreenu.

v) On 17.05.2009, sister of PW2 i.e., wife of PW3, by name, Sarojini, telephoned to PW2 informing him about the missing of the deceased since last four days and expressed suspicion. This information was furnished to PW2 on 17.05.2009 at 8.00 or 9.00 P.M. On the following day, PW1 along with his parents went to the house of PW15, where the deceased stayed as a tenant. PW15 informed them that Accused No.1 and deceased went outside in an auto and, thereafter, Accused No.1 alone returned to the house of the deceased and on observing the same, the wife of Accused No.1 bolted the door from outside and called Accused No. 7 and his wife and told them about his activities. On that, Accused No.7 took away his son [Accused No.1]. They were also informed about PW15 throwing away the household articles. On an information furnished by PW15, PW1, PW2 and others went to the house of Sreenu, who informed that he kept the articles in his house and Accused No.8 was in his house on that day. Thereafter, she was not found. Their enquires only revealed about 6 illicit relationship between Accused No.8 and Accused No.1.

vi) Having regard to the above, PW1 presented a report before PW13 - Assistant Sub-Inspector of Police, who registered a case in Crime No. 239 of 2009 as 'man missing'. Ex.P14 is the First Information Report. He recorded the statement of PW1 to PW3. He sent radio messages and photographs for apprehension of the missing person. Further investigation, in this case, was taken up by Inspector of Police.

vii) On 22.05.2009, Accused No.1 approached PW11 -

Village Revenue Officer, Ibrahimpatnam, at 9.30 A.M. and confessed about the commission of offence. The extra-judicial confession made by Accused No.1 gives a detail account as to the manner in which the deceased was done to death. The said statement of Accused No.1 was reduced into writing and the same was handed over to the police on 22.05.2009. He also handed over Accused No.1 to PW17 - Inspector of Police. Basing on the said statement, section of law was altered to 7 Sections 364, 302 and 201 read with 34 and 109 I.P.C. Ex.P15 is the altered First Information Report. PW17 further interrogated Accused No.1, who confessed about the commission of offence and also took them to Madduru village and showed the place where the dead body was buried. PW17 posted a guard there. Thereafter, the doctor and M.R.O. were summoned and in their presence, the body was exhumed. After exhuming the body in the presence of PW9 and PW8, inquest was conducted over the dead body in the presence of blood relatives, who identified the body. Thereafter, Accused No.1 brought a spade from the bushes, which was seized under Ex.P8. The Mediators report prepared for exhuming the body and for seizure of Kattepedu.

viii) The doctor [PW8], who conducted post-mortem, at the scene, stated that the body is in an advance stage of decomposition and bones were exposed here-and-there. According to him, the death must have been 8 to 15 days prior to autopsy and the cause of death could not be furnished due to decomposition of the body. The 8 doctor also found a handkerchief folded around the neck of the deceased. As per the request of the Investigating Officer, the skull was preserved for super imposition of humerus for D.N.A. examination. Ex.P5 is the post-mortem report. It has also come on record that, after the body was exhumed and before it was sent for post-mortem, PW1, PW2 and others identified the body basing on the clothes on the deceased, which were seized and shown in column (7) of the Inquest Report.

ix) PW19, who is a Scientific Assistant and Scientific Officer in F.S.L., Hyderabad, examined the bone samples and skull of the deceased in the crime and gave his report under Ex.P26 stating that the bone sample is biologically related to the deceased, M.Venkatapayaiah [father of deceased] and one M. Kishore Babu.

x) After completion of investigation, PW20 filed a charge-

sheet, which was taken on file as P.R.C. No. 52 of 2010 on the file of IV Additional Chief Metropolitan Magistrate, Vijayawada.

7) On appearance of the Accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court of Sessions, the same was committed to Court of Sessions under Section 209 Cr.P.C. Basing on the material available on record, Charges as referred to above came to be framed, read over and explained to the Accused, to which, the Accused pleaded not guilty and claimed to be tried.

8) In support of its case, the prosecution examined PW1 to PW20 and got marked Ex.P1 to Ex.P27, beside marking M.Os.1 to M.O.4. After completion of 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 prosecution witnesses, to which they denied, but, however, no oral evidence was adduced in support of their plea. However, Ex.C1 was marked by the Court.

9) Relying upon the evidence of PW1 to PW3 coupled with the evidence of PW15, the recovery of the dead body at the instance of the Accused No.1 and the mediation held; the 10 learned Sessions Judge convicted the Accused. Challenging the same, the present Appeal is filed by Accused Nos. 1 to 3.

10) (i) Sri. Challa Srinivasa Reddy, learned Counsel appearing for the Appellant/Accused No.1 to 3 mainly submits that, there are no eye witnesses to the incident and the circumstances relied upon by the prosecution are not proved and even if proved, do not form a chain of events to connect the Accused with the crime. In other words, his argument appears to be that, the theory of 'last seen' is not proximate to the time when the dead body was traced and, as such, the Accused cannot be fastened with criminal liability, more particularly, one under Section 302 I.P.C.

(ii) He further submits that, merely because Accused Nos.1 and 8 were sleeping in the house together on 13.05.2009, it cannot be presumed that Accused No.1 along with others were responsible for the death of the deceased or for that matter, there was any conspiracy between Accused Nos.1 and 8 to do away with the deceased.

(iii) He further submits that, the evidence of PW6 also cannot be relied upon as he is a chance witness and it is difficult to believe that the deceased and Accused No.1 would be going together when the wife of the deceased was having illicit relationship with Accused No.1.

11) Sri. S. Dushyanth Reddy, learned Additional Public Prosecutor, appearing for the State, opposed the same contending that, it is a fit case where the prosecution has adduced evidence to prove each of the circumstances relied upon and that the three circumstances, namely, (i) 'motive',

(ii) Accused 'last seen' in the company of the deceased; and

(iii) recovery of the dead body by way of exhuming at the instance of Accused No.1 and the conduct of Accused No.1 in staying in the house of the deceased immediately after killing him, are sufficient to prove the involvement of the Accused in the commission of the offence. Having regard to the above, he would submit that, the conviction and sentence imposed by the trial Court, warrants no interference. 12

12) The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the Accused No.1 to 3 beyond reasonable doubt or whether the circumstances relied upon by the prosecution if proved would form a chain of events connecting the Accused with the crime?

13) The fact that, there are no eye witnesses to the incident is not in dispute. It is a case arising out of circumstantial evidence. The Hon'ble Supreme Court in Rajbir Singh V. State of Punjab1, held that, "five golden principles as laid down by Apex Court in para 153 of Sharad Birdhichand Sarda V. State of Maharashtra2 to be established. They are as follows:

"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State 1 (2022) SCC Online SC 1090 2 (1984) 4 SCC 116 13 of Maharashtra, (1973) 2 SCC 793, where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

36. Before laying down the five aforesaid principles, Justice Fazal Ali speaking for the Court in paragraph 152 extracted a paragraph from the case of Hanumant vs. State of Madhya Pradesh as stated by Mahajan, J. Paragraph 152 is reproduced hereunder:

"Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh, AIR 1952 SC 343,. This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh,(1969) 3 SCC 198 and Ramgopal v. State of Maharashtra, (1972) 4 SCC 625. It 14 may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

14) Keeping in view the guidelines laid down by the Hon'ble Supreme Court in the judgment, referred to above, we shall now proceed to deal with the case on hand.

15) It is to be noted here that, originally eight [08] Accused were tried for various offences. Pending trial, Accused No. 5 died and Accused Nos. 4 and 6 to 8 were acquitted by the trial Court.

16) It is now to be seen whether the circumstances relied upon by the prosecution connect Accused Nos. 1 to 3 with the crime. Before dealing with the same, the first question to be decided is whether the dead body is that of the deceased. 15

17) PW1 and PW2 are father and brother of the deceased, who in their evidence deposed that, pursuant to an information given by the police, they proceeded to the scene of offence and found the dead body buried in the sand. Police removed the sand with the help of others and after exhuming the body, requested PW1 and PW2 to identify the body. Accordingly, PW1 and PW2 identified the body as that of the deceased. The identification was mainly based upon the folded handkerchief and banian over the body of the deceased. Similarly, PW2 who went to the scene of offence along with his father [PW1] identified the body, basing on the clothes over the body. Apart from the evidence of PW1 and PW2, the evidence of PW19 assumes significance in identifying the body as that of the deceased.

18) PW19 was working as Scientific Assistant and Scientific Officer in FSL, Hyderabad, from 1997 till 2013. He received a letter from ACP, West Zone, Vijayawada, vide Ex.P24, pursuant to which, he collected blood samples from three persons, namely, Moka Naga Malleswari, PW1 and M. Kishore Babu, which were marked as Item Nos. 1 to 3. He also received bone samples and skull of the deceased. After 16 comparing the blood samples of the above three persons with bone samples of the deceased, he issued a report stating that the bone samples is biologically related to Moka Naga Malleswari, PW1 and M. Kishore Babu. Therefore, not only the oral evidence of PW1 and PW2 but the evidence of Scientific Officer adduced by the prosecution through PW19, it stands established that the body is that of the deceased.

19) It is now to be seen whether the Accused are responsible for the death of the deceased?

20) As stated earlier, the prosecution is mainly relying upon the following circumstances, namely:-

(i) 'motive';

(ii) 'last seen';

(iii) extra-Judicial confession of the Accused

(iv) recovery of the body at the instance of the Accused;

(v) conduct of the Accused after the incident.

      I.    "Motive".

21)    Coming to the 'motive' part, PW1 who is the father of the

deceased categorically states, and which we have referred to earlier, that his Son [deceased] along with Accused No.8 were 17 living at Ibrahimpatnam and were doing coolie work. He was a tenant in the house of Accused No.7 [father of Accused No.1].

On one occasion, PW1 visited the house of his son [deceased] and noticed his son and Accused No.8 quarrelling. When enquired, it was informed that Accused No.8 was having extra-marital relationship with Accused No.1. The same was informed to Accused No.7. But, since then, disputes arose between the deceased and Accused No.7 and, accordingly, Accused No.7 directed the deceased to vacate the house. Pursuant to which, he shifted his residence to the house of PW15. Though, PW1 was cross-examined, nothing useful came to be elicited to discard his evidence with regard to illicit relationship between Accused Nos. 1 and 8. Even assuming for the sake of argument that the evidence of PW1 and PW2 could not be given much weight, as they are not only related to the deceased but failed to mention certain crucial facts in their earlier statements, but, the evidence of PW15, who is an independent witness and at whose house the deceased and Accused No.8 were living as tenants, categorically speaks about the illicit relationship between Accused Nos. 1 and 8. Apart from the evidence of PW15, the evidence of PW3 who is 18 the brother-in-law of deceased also speaks about the illicit relationship between Accused Nos. 1 and 8-wife of deceased. However, to a suggestion given to him that Accused Nos. 1 and 8 were not living together after the death of the deceased and that they did not give birth to two children and that Accused No. 8 unable to bear the cruel attitude of the deceased is living with her parents, was denied by him. Therefore, there exists a 'motive' for Accused No.1 to do away the deceased, namely, his illicit relationship with Accused No.8, who is the wife of the deceased.

II. "Last Seen".

22) It is no doubt true that, the circumstance of the Accused being 'last seen' in the company of the deceased, by itself may not be sufficient to convict the Accused. But it is also well settled that, this circumstance assumes much importance if the proximity of time between 'last seen' and 'recovery of dead body' is so short that no other inference is possible. But, in the instant case, the situation is entirely different. The body was traced after accused was arrested and at his instance, it was dug out. So, in the given set of 19 circumstances and fact situation, it is to be seen whether it is believed?

23) Dealing with the same, namely, Accused being 'last seen' in the company of the deceased, the evidence of PW6 - the auto driver would establish that, on 12.05.2009 at 5.00 P.M., while he was proceeding towards Ibrahimpatnam, the deceased [Nageswara Rao] along with Accused Nos. 1 and four others got into his auto and later got down at Guntupalli Centre by paying Rs.4/-, by each one of the said person. Two days thereafter, he came to know that the deceased was missing. In the cross-examination, it was elicited that, originally two passengers boarded the auto and on the way five more persons boarded the auto. In-fact, in the Court, he identifies Accused Nos.1, 2 and 5 who boarded his auto on that day. The evidence of PW15 also shows that, in the early hours of 13.05.2009, the parents of the deceased came and enquired about Nageswara Rao [deceased] and their daughter- in-law [Accused No.8], who told them as to what all happened on the intervening night of 12/13.05.2009 and how she got vacated the house. She also informed them about Accused No.1 and the deceased going in an auto and that Accused 20 No.1 alone returning to the house of the deceased and Accused No.8 on that night.

24) In the instant case, the Accused and the deceased were seen together on 12.05.2009 and, thereafter, the deceased was missing from the Village. About nearly 10 days later, pursuant to an extra-judicial confession made by Accused No.1 before the V.R.O. [PW11], Accused No.1 showed the place where the dead body was buried. On his statement, the dead body was exhumed and, thereafter, it was identified as that of the deceased. Therefore, in the facts of the case, the delay in tracing the body cannot be a ground to reject the said circumstance. Things would have been different had the body was thrown at an open place or that the deceased being taken to a secluded place and killed. But, here is a case where the body was buried by the Accused and the place where the body was buried was only to the knowledge of Accused No.1 alone. Further, pursuant to his disclosure statement, the body was recovered. Hence, it can be held that, this circumstance also stands proved. We are aware that the said circumstance by itself may not be a ground to connect the Accused with the crime, but, if the said circumstance is supported by other 21 circumstances, the same assume importance and shall form a link in the chain of events.

III. "Extra-Judicial Confession of the Accused and the recovery of the body at the instance of the Accused."

25) Coming to the third circumstance, namely, extra- judicial confession made before PW11, as seen from the evidence available on record, the incident in question took place on 12.05.2009 and the accused is said to have confessed about his involvement in the commission of the offence on 23.5.2009. In the said confession, he narrated the manner in which the incident took place, with regard to the cause of death. The said statement is placed on record as Ex.P9. Though, PW11 was subjected to lengthy cross- examination, nothing useful came to be elicited to discredit his testimony. Though, extra-judicial confession is a weak piece of evidence, the Hon'ble Supreme Court has time and again held that, if the confession is made before a person, who is reliable, the same can be taken as one of the circumstance and may be made the basis, in a given set of circumstances, to convict the accused.

26) At this stage, it would be appropriate to refer to the judgment of the Hon'ble Supreme Court in Siva Kumar v. State By Inspector of Police3, wherein, the admissibility of extra judicial confession made before the Village Revenue Officer came to be considered. Though Rule 72 of the Madras High Court prohibits Village Magistrate from reducing or writing any confession or statement whatever made by an accused person after Police investigation has begun, however, held that the said rule has lost all its significance in view of the fact that under the Code of Criminal Procedure or any other statute or statutory regulations, the village headman is not a Village Magistrate and that the Village Administrative Officer, has not been conferred with any power of a Magistrate by reason of the provisions of the Code of Criminal Procedure or otherwise and that he has no role to play in any manner with the investigation of a criminal case and accordingly held that, Rule 72 of the Criminal Rules of Practice has become redundant and nugatory. Holding so, the Hon'ble Apex Court held that they do not see any reason why an extra-judicial confession made before a Village Administrative Officer be not 3 (2006) 1 Supreme Court Cases 714; (2006 1 Supreme Court Cases (Cri) 470 23 accepted, if it satisfies the test of credibility. It would be appropriate to extract the same, which is as under:

"35. Criminal Rules of Practice and Orders, 1931 of the Madras High Court was issued by the High Court in exercise of its power conferred by Article 227 of the Constitution of India. Rule 72 of the Rules reads thus:

"72. Village Magistrates not to record confession. - Village Magistrates are absolutely prohibited from reducing or writing any confession or statement whatever made by an accused person after the Police investigation has begun."

36. The said rule has lost all its significance in view of the fact that now under the Code of Criminal Procedure or any other statute or statutory regulations, the village headman is not a village Magistrate. The post of a Village Magistrate since 1973 does not exist.

37. The Village Administrative Officer, it has not been shown, has been conferred with any power of a Magistrate by reason of the provisions of the Code of Criminal Procedure or otherwise. It has also not been shown that he exercises any judicial or quasijudicial function. Indisputably he has no role to play in the matter of an investigation in a criminal case.

38. The Village Magistrates evidently, under the new Code of Criminal Procedure, are not empowered to record any confession or statement either in terms of Section 162 or Section 164 of the Code of Criminal Procedure.

39. For all intent and purport, therefore, Rule 72 of the Criminal Rules of Practice has become redundant and nugatory, logical corollary whereof would be that there does not exist any embargo for an accused person to make an extra-judicial confession before a Village Administrative Officer.

40. We do not, thus, see any reason as to why such an extrajudicial confession could not be made before a Village Administrative Officer. With a view to exclude the admissibility of the confession made before a person, he must be a police officer. A Village Administrative Officer does not answer the descriptions. While carrying out his duty to inform the Police or the magistrate in terms of 24 Section 40 of the Code, the village headman does not act as a public servant removable only by or with the sanction of the local government nor he acts in his capacity as Magistrate. Pregada Balanagu v. Krosuru Kotayya4.

41. We, for the reasons stated hereinbefore, are of the opinion that the extra-judicial confession by the Appellant before the Village Administrative Officer was not inadmissible and, thus, could be relied upon.

43. In Mujeeb and another v. State of Kerala5, whereupon again Mr. Sampath relied, the prosecution failed to prove even the circumstances pointed out to the guilt of the Appellant.

44. Extra-judicial confession may or may not be a weak evidence. Each case is required to be examined on its own fact. In Sidharth v. State of Bihar6, a Division Bench of this Court held:

"... He had also made extra-judicial confession to PW-8 Arko Pratim Banerjee. The confession made by appellant Arnit Das was not under any inducement, threat or promise and is voluntary in nature. Therefore, it is perfectly admissible under the Evidence Act."

45. In Piara Singh and Others v. State of Punjab7, this Court observed: "The learned Sessions Judge regarded the extra judicial confession to be a very weak type of evidence and therefore refused to rely on the same. Here the learned Sessions Judge committed a clear error of law. Law does not require that the evidence of an extra judicial confession should in all cases be corroborated. In the instant case, the extra judicial confession was proved by an independent witness who was a responsible officer and who bore no animus against the appellants. There was hardly any justification for the Sessions Judge to disbelieve the evidence of Balbir Singh particularly when the extra judicial confession was corroborated by the recovery of an empty from the place of occurrence." 4 AIR 1937 Mad 578 5 AIR 2000 SC 591 6 [JT 2005 (12) SC 310] 7 (1977) 4 SCC 452 25

46. Yet again in State of Rajasthan v. Raja Ram8 it was stated:

"19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."

[Emphasis supplied]

47. For the reasons aforementioned, the courts below must be held to have correctly come to the conclusion that the prosecution case has been proved as against the accused in view of the extra-judicial confession of the Appellant before the Village Administrative Officer, recovery of the air gun from Pappannan Thottam canal, the conduct of the Appellant and that he was last seen with the deceased." 8 (2003) 8 SCC 180 26

27) In Gura Singh v. State of Rajasthan9 it was held by the Hon'ble Apex Court as under:

"Extra-judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. That the evidence in the form of extra- judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. It is not open to the court trying the criminal case to start with presumption that extra-judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession."

2001(2)SCC 205 27

28) In view of the judgment of the Hon'ble Supreme Court in Siva Kumar's [cited supra] and Gura Singh's [cited supra] and as the statement came to be made before the Village Revenue Officer, without any inducement or threat, and in the absence of any material to show that it was brought into existence by the prosecution, we see no reason to disbelieve the extra-judicial confession made before the Village Revenue Officer.

29) The learned Counsel for the Appellants tried to contend that, the evidence of PW11 cannot be believed as he acted as mediator in number of cases, while working at Ibrahimpatnam and also at Taluk level. Merely because this witness [V.R.O.] has acted as mediator in number of cases, in our view, his evidence cannot be disbelieved if found to be reliable otherwise. No material has been elicited in the cross- examination to disbelieve the version, except eliciting that the time of commencement of statement and time of ending the statement, were not recorded in Ex.P8 and he acted as a witness in number of cases. But, however, it is elicited in the cross-examination that he went to the Police Station between 9.30 A.M. and 9.45 A.M. and, thereafter, to Madduru at 1.00 28 P.M. Therefore, in view of the other evidence available on record, this evidence of PW11, which gets corroboration from the evidence of PW9, who also speaks about Accused No.1 showing the place where the dead body was buried and exhumation of dead body with the help of village servant, this circumstance can be believed.

30) At this stage, learned Counsel for the Appellants tried to contend that, when the evidence of PW1 and PW2 show that were summoned to Police Station after four or five days of identifying the body, it is strange as to how the evidence of official witness showing discovery of the dead body at the instance of Accused on 22.05.2009 can be believed. At first blush, the said argument appeared to be quite impressive. But, on a close perusal of the evidence on record, the same is proved to be otherwise. It is not doubt true that, PW1 and PW2 being a rustic villagers, in their evidence deposed about the time when they were summoned to the place where the body was buried. But, their evidence also show that, only after they went to the scene, they were made to identify the body, which they have done so. Their evidence also shows 29 that, after they went to the scene of offence, the body was exhumed and, thereafter, they were made to identify.

31) At this stage, learned Counsel for the Appellants submits that, summoning of these two witnesses to the place even before the body is exhumed is something strange and which leads to inference that the Investigating Officers were aware about the dead body of the deceased lying there prior to exhuming the body. We are not in agreement with the said argument for more than one reason. It may be true that, a reading of the evidence of PW1 and PW2 indicate that they were summoned to the scene of offence and in their presence the body was exhumed to. But the fact, which is required to be noted, is that the body was exhumed pursuant to a confession made by Accused No.1 nearly 10 days later and in the confession, he confessed about body being buried at a particular place. Probably for this reason, even the family members along with post-mortem doctor and the V.R.O., were asked to come to the scene, as the body must have decomposed by then. This, in our view, may sound strange, but in the given facts and circumstances of the case, cannot discard this circumstance as a link in the chain of events. 30

IV. "Conduct of the Accused after the incident."

32) Another circumstance relied upon by the prosecution is the 'Conduct of the Accused'. The learned Public Prosecutor submits that, Accused No.1 slept in the house of the deceased immediately after eliminating the deceased. In other words, his argument appears to be that the fact that Accused No.1 was found in the house of the deceased in the early hours of 13.05.2009, is sufficient to show that he has done away with the deceased and started living with Accused No.8 in the house of the deceased.

33) PW15 speaks about the same. In her evidence-in-chief she states that, in the early hours on 13.05.2009 at about 3.00 A.M., someone knocked the door calling the name of Accused No.1. The said person was Vadugu Purnaiah [Accused No. 7] along with the wife of Accused No.1. PW15, who was sleeping in the house opened the door and asked them the reason for knocking the door and it was informed to them that Accused No.1 is in the house of Accused No.8. Then, PW15 called Accused No.8 who opened the door, pursuant thereto Accused No.1 came out of the house and 31 then Accused No. 7 took him to his house by beating him. When PW15 questioned Accused No. 8 as to why she allowed Accused No.1 in the house, in the absence of deceased, there was no reply from her. On that, she threw all the belongings of Accused No. 8 and demanded her to vacate the house by next day morning. On the next day morning, PW15 came to know that Accused No.8 along with her articles went to the house of one Sreenu. This conduct of Accused No.1, namely, coming to the house of Accused No.8, sleeping in the house of Accused No.8, knowing that deceased would not come or in the absence of the deceased in the house, speak volumes indicating that, by then both of them were aware about the elimination of the deceased, otherwise, accused No.1 would not have dared to sleep in the house of Accused No.8.

34) The last circumstance to link up the chain, is the evidence of the doctor [PW8], who conducted post-mortem at the scene. Though, he deposed that, one could not identify the dead body due to advanced stage of decomposition, but in categorical terms states that the death could have taken place 8 to 14 days prior to autopsy, which fits in with the date of incident. No cross-examination, on this aspect, was done and 32 nothing detrimental to the case of the prosecution has been elicited in the cross-examination of PW8 - the post-mortem doctor.

35) Having regard to all the above circumstances, it can be said that the prosecution has established the guilt of Accused in the crime. But, one fact which is to be noted here is that, insofar as Accused No. 2 and 3 are concerned, except they being 'last seen' on 12.05.2009 by the auto driver [PW6], there are no other circumstances connecting them with the crime. As observed earlier, this circumstance by itself in our view may not be sufficient to connect Accused No. 2 and 3 with the crime.

36) At this stage, the learned Public Prosecutor tried to contend that, this circumstance coupled with extra-judicial confession made by Accused No.1 connects Accused No.2 and 3 as well. But, the extra-judicial confession made by Accused No.1 inculpating some other Accused, in our view, cannot be made admissible against other Accused. If the said argument is accepted, it will lead to a situation where any number of 33 persons can be roped in, basing on the extra-judicial confession of a co-accused, which in our view, is not proper.

37) As regards the offence punishable under Section 201 I.P.C. is concerned, it may be true that, Accused No.1 alone could not have buried the body, but as the prosecution failed to establish the involvement of other accused in screening away the evidence, Accused No.1 alone has to be convicted on the said count as well.

38) In the result, the Criminal Appeal is allowed in part confirming the conviction and sentence recorded against the Appellant/Accused No.1 in the Judgment, dated 22.04.2015, in Sessions Case No. 238 of 2011 on the file of the VIII Additional District and Sessions Judge, Vijayawada; while setting-aside the conviction and sentence recorded against the Appellants/Accused Nos. 2 and 3 in the Judgment, dated 22.04.2015, for the offences punishable under Sections 302 r/w. 34 I.P.C., 364 r/w. 34 and 201 r/w. 34 I.P.C. and acquitting them of the said offences. Consequently, the Appellants/Accused Nos.2 and 3 shall be set at liberty forthwith, if they are not required in any other case or crime. 34 The fine amount, if any, paid by the Appellants/Accused Nos.2 and 3 shall be refunded to them.

39) Consequently, miscellaneous petitions, if any, pending shall stand closed.

_______________________________ JUSTICE C. PRAVEEN KUMAR ___________________________________ JUSTICE B.V.L.N. CHAKRAVARTHI Date: 16.11.2022 S.M./.

THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI Criminal Appeal No. 518 of 2015 (Per Hon'ble Sri Justice C.Praveen Kumar) Date: 16.11.2022 S.M.

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Andhra Pradesh High Court - Amravati