Andhra HC (Pre-Telangana)
Korra Lachu vs The State Of Andhra Pradesh Through ... on 22 January, 2018
Equivalent citations: AIRONLINE 2018 HYD 294, (2019) 1 ALD(CRL) 65
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.605 of 2011
22-01-2018
Korra Lachu Appellant
The State of Andhra Pradesh Through S.H.O., Hayathnagar Police Station Ranga Reddy District Rep. by Public Prosecutor Hig
Counsel for the appellant : Mr. M. Adam
Counsel for the respondent : Public Prosecutor (TS)
<GIST
>HEAD NOTE:
? CITATIONS: 1. 2016 (3) ALT (Crl.) 505 (DB)(AP)
THE HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY
AND
THE HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD
CRIMINAL APPEAL NO.605 OF 2011
DATED:22-01-2018
THE COURT MADE THE FOLLOWING:
JUDGMENT:(per the Honble Sri Justice C.V. Nagarjuna Reddy) This appeal is filed by the sole accused in Sessions Case No.318 of 2007 on the file of the Additional Metropolitan Sessions Judge, Cyberabad, N.T.R.Nagar, Hyderabad, whereby he was convicted for the offences punishable under Sections 302 and 379 of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life, and to pay a fine of Rs.1,000/- (Rupees one thousand only) and in default of payment of fine, to suffer simple imprisonment for three months for the offence punishable under Section 302 IPC; and to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- (Rupees five hundred only) and in default of payment of fine, to suffer simple imprisonment for one month for the offence punishable under Section 379 IPC. Both the sentences were directed to run concurrently. The appellant was, however, acquitted of the charge under Section 376 IPC.
2. The case of the prosecution in brief is that on 11.11.2005 at about 18.15 hours P.W.1 K. Jagan Naik came to the Police Station, Hayathnagar, and gave a report stating that on 11.11.2005 while he was at his house, he came to know that a lady was found killed in a room in a open plot. Immediately at about 4.30 p.m. he went to the spot and found an unknown female dead body, having injuries on neck and abdomen, in a pool of blood in plot No.142, belonging to one Smt. V. Lalitha, that it appears some unknown persons killed her on the night of 10.11.2005. He accordingly requested for taking necessary action. As per the contents of the report, P.W.13 Inspector of Police, Hayathnagar registered a case in Crime No.522 of 2005 under Section 302 IPC. During the course of investigation, P.W.13 examined P.W.1 and recorded his statement in detail, visited the scene of offence, and conducted the panchanama in the presence of P.W.8 and another mediators. The finger prints expert L.W.18 visited the scene of offence and collected chance print on a whisky bottle available at the scene, where he examined the chance prints and opined that the chance print is identical with the left index finger impression of the appellant. On 12.11.2005 the identity of the deceased was established as that of Challolla Manemma, W/o.Balaswamy, R/o.H.No.2-3-720/1/A/55/1/A, Ganganagar, Amberpet, Hyderabad, and native of Veerayapalli, Peda Mandada Mandal, Mahaboobnagar District, by P.Ws.2 and 3 and L.W.4.
3. That inquest was held over the body of the deceased on 12.112005 from 13.00 hrs. to 15.00 hrs. in the presence of P.Ws.1 to 3, 9 and L.Ws.4 and 13 and thereafter the body was sent for post mortem examination wherein, P.W.11 Doctor Durdana Begum, Assistant Professor, Department of Forensic Medicine, Osmania Medical College, held autopsy. After the post-mortem examination, the clothes of the deceased were seized and the body was handed over to their blood relatives. P.W.11 opined that the cause of the death was due to cut throat wound of neck. The seized incriminating articles at the scene of offence and the clothes of the deceased were forwarded to the Forensic Science Laboratory (FSL), Hyderabad and L.W.16 Assistant Director, FSL, who analyzed the articles, opined that human blood is detected on item Nos.1 to 4 and 6 (item 1 blue colour polyester saree with white flower design with dark brown stains; 2 red colour cotton petticoat; 3 violet colour cotton blouse; 4 and 5 soil; and item 6 green colour cotton towel). Blood group of bloodstains on item Nos.1, 2, 3 and 6 was found as AB. Semen and Spermatozoa were detected on item 2. Based on the facts and circumstances, the police apprehended the appellant, who was residing at Plot No.97, Tarakarama Banjara Colony, Hayathnagar and a native of Sathyam Thanda, Manchal, on 18.11.2006, arrested at Sathyam Thanda and brought him to Police Station, Hayatnagar, where he voluntarily confessed about the commission of the offence and the same was recorded in the presence of P.W.10 and another.
4. That in his confession, the appellant stated that he was granted plot No.97 at Tarakarama Banjara Colony where he is residing, by doing cooking works, and at the relevant point of time he was working under one Chand Pasha along with Amjhad, Ahmed, Raheem, Habeeb, Ahmed, and P.Ws.4 and 5, who were working as permanent coolies, that in the month of November the aforesaid workers came for work in Khaja Garden, Namally, where P.Ws.4 and 5 brought another lady Manemma (the deceased) and that the appellant introduced himself to the deceased, who disclosed to him that she is a native of Mahaboobnagar, her husband deserted her and she has been residing at Amberpet with her brothers. Again when he went to work at Methodist Garden Function hall, the deceased also came there and there he induced her that he would take care of her, as his wife deserted him, and also promised to give a plot in her name. Subsequently, on 8.11.2005 at about 9.00 a.m. the deceased came to Ali Caf Adda, Amberpet, from there, they went to Dilsukhnagar, witnessed a movie in Vishnu Theatre, they had lunch there and later the deceased expressed to leave but the appellant insisted her to see his house. That he purchased half bottle whisky and went to Chintalakunta toddy compound where the deceased consumed one bottle of toddy. That the appellant went to RTC Colony, along with her, took her to plot No.142 where a room was situated and there, he consumed the whisky and had sexual intercourse with her. When she insisted to go home, he again committed sexual assault on her and at this juncture, she revolted, saying that he is cheating her for sexual acts and threatened to complain to her brothers and book a case. Even thereafter, he committed rape on her and apprehending that she would complain to Police, he took out a knife which he carried with him and stabbed on her abdomen and neck. When she died, he took out her silver anklets and he concealed the knife in the nearby place. On 9.11.2005 he pledged the silver anklets for Rs.2,500/-, went to Devarakonda and resided there. On 17.11.2006 he came to Sathyam Thanda, where he was taken into custody by Hayathnagar Police on 18.11.2006, who collected the fingerprint impressions of the appellant and forwarded them to L.W.18 finger print expert. In pursuance of the confession of the appellant, offences under Sections 376 and 379 were also added to the crime. The appellant led the Police to the place of offence, where they recovered the knife, which was used in the commission of the offence. Thereafter, they proceeded to the pawn shop of P.W.6, recovered the silver anklets which were pledged, recorded the statement of the appellant, and sent him to judicial custody. Based on the charge sheet, the Court below framed the following charges. FIRST CHARGE: That on 08.11.2005 you took the deceased Manemma, who is also a coolie and working under one Syed Chand Pasha (List Witness No.7) by inducing to keep her permanently and brought her to RTC Colony in to open Plot 142 and committed rape on her, and when she threatened to complain the matter, you again committed rape on her forcibly and stabbed her on the neck and abdomen causing her death and that you thereby committed an offence punishable U/s302 of Indian Penal Code and within my cognizance.
SECOND CHARGE: That on 08.11.2005, you took the deceased Manemma who is a coolie working under one Syed Chand Pasha (List Witness No.7) by inducing to keep her permanently and brought her to RTC Colony to open Plot 142 and committed rape on her, and when she threatened to complain the matter, you again committed rape on her forcibly and stabbed her on neck and abdomen causing her death and that you thereby committed an offence punishable U/s.376 of Indian Penal Code and within my cognizance.
THIRD CHARGE: That on 08.11.2005, you took the deceased Manemma who is a coolie working under one Syed Chand Pasha (List Witness No.7) by inducing to keep her permanently and brought her to RTC Colony to open Plot 142 and committed rape on her, and when she threatened to complain the matter, you again committed rape on her forcibly and stabbed her on neck and abdomen causing her death, and you have also stolen her silver (leg) rings and thereby committed an offence punishable U/s.379 of Indian Penal Code and within my cognizance.
6. As the plea of the appellant was one of denial, he was subjected to trial. In support of its case, the prosecution has examined P.Ws.1 to 14, got marked Exs.P.1 to 28 and produced M.Os.1 to 5. No evidence was let in on behalf of the defence. On consideration of the oral and documentary evidence, the lower Court has disposed of the appeal in the manner as stated above.
7. This is a case based on circumstantial evidence as no eyewitness has witnessed the occurrence. While the alleged offence has taken place on 8.11.2005, the appellant was apprehended on 18.11.2006 and the alleged recovery of silver anklets was made after the arrest of the appellant. As could be seen from the case of the prosecution, the appellant with the motive of sexually exploiting the deceased and steeling the sliver anklets, caused the murder of the deceased. The Court below, however, disbelieved the case of the prosecution as regards sexual exploitation/rape.
8. In a case based on circumstantial evidence, the prosecution has to establish all the links in the chain of circumstances. P.W.1 is the first informant, who had a shop- cum-residence in the vicinity, where the body of the deceased was found. He gave the information to the Police, based on the information he has received from another person. He had absolutely no personal knowledge about the facts of the case. P.W.2 is the one of the brothers of the deceased. He only spoke about the deceased visiting his house at Hyderabad about five days prior to her death and P.Ws.4 and 5 taking the deceased with them during that time for cleaning the vessels in function halls. P.W.3 is the sister-in-law of the deceased. Even she does not have the knowledge about the manner in which the offence has taken place. Her evidence is relevant only to the extent of the alleged missing of the silver anklets of the deceased. The presence of this witness at the time of inquest was spoken to in Ex.P.4 - inquest report. It is evident therefrom that during the preparation of the inquest report she did not state the fact of the alleged missing of the silver anklets.
9. P.W.4 is a co-worker with P.W.5 working in a function hall at Golnaka by cleaning vessels. She deposed that at the relevant time, she along with P.W.5 attended the work of cleaning of the vessels, that the appellant was working as a cook under P.W.7 and that when she, P.W.5 and the deceased went for attending to the labour work, the appellant also came and she noticed the appellant and the deceased talking to each other. She further deposed that for about three days thereafter there was no work. Two days thereafter, after she returned from her work, the brothers of the deceased came to her and informed that the deceased has not returned to their house and two days later she came to know that the deceased was murdered in Hayatnagar area and the photograph of her deadbody was published in the newspapers. P.W.5, who is also one of the co-workers, spoke about the deceased attending to the labour work along with her and others. She has stated that she has not observed specifically whether the appellant had any conversation with the deceased when they were all conversing with each other. The evidence of all these witnesses does not help the prosecution in any manner to establish the involvement of the appellant in the commission of the alleged offence.
10. P.W.6 is a pawnbroker at Hayatnagar. He has deposed that about five years back the appellant came to his shop and pledged a pair of sliver anklets, that he might have lent a sum of Rs.2,500/- and that he does not remember the exact amount. That about two months thereafter the CCS Police came and took way the said anklets. He further deposed that he can identify the said anklets if shown to him and accordingly he has identified those anklets on their production, in the Court. He has also deposed that he has passed on a receipt to the appellant evidencing the pledging of the silver anklets and his receiving Rs.2,500/- and that he had obtained signatures of the appellant apart from himself subscribing his signature on the receipt and the Police have taken away the said receipt.
11. In addition to the alleged recovery of M.O.1, the Police allegedly recovered M.O.5 knife. The prosecution mainly based its case on the recovery of these two items and the Court below was also guided by these recoveries in connecting the appellant to the alleged offence. As regards the alleged recovery of M.O.1 silver anklets, no panchanama was conducted in the presence of any witnesses. The alleged receipt spoken to by P.W.6 was not produced by the prosecution before the Court. In the absence of the mediators report and the failure of the prosecution to produce the receipt, no credibility can be attached to the claim of the prosecution that the silver anklets were recovered from the possession of P.W.6. Significantly, test identification of the appellant as well as silver anklets was not held for P.W.6. For the first time, when the anklets were produced before the Court, P.W.6 purportedly identified them. In our opinion, unless proper test identification as prescribed under Rules 34 and 35 of the Criminal Rules of Practice and Circular Orders 1990 was held, no sanctity could be attached to the evidence of P.W.6. Moreover, P.W.6 has deposed that his turnover per month is Rs.3 to 4 lakhs, that he will deal with 50 to 60 persons per month and that per annum he will deal with 600 persons. P.W.6 has given his evidence five years after the alleged offence has taken place and M.O.1 was allegedly pledged with him. Thus, by his own evidence, between the date of the appellant pledging the article and his giving evidence he must have dealt with about 3000 persons. Therefore, it is humanly not possible for any person to identify the appellant with precision. In such circumstances, failure of the prosecution to conduct the test identification parade is fatal to its case. We are hence of the opinion that no credibility whatsoever could be attached to the evidence of P.W.6, who is obviously planted by the prosecution.
12. Coming to the alleged recovery of M.O.5 - knife, based on the confessional statement of the appellant, it is stated in the seizure report that M.O.5 knife was seized from a collapsed room under asbestos sheets in Plot No.142 which is the scene of offence. P.W.10, one of the mediators to the report, has turned hostile and has not supported the case of the prosecution. The alleged seizure has taken place more than one year after the commission of the alleged offence. It has come out from the record that the Police have visited the scene of offence more than once and it is therefore highly improbable that if the crime weapon was available at the scene of offence in the asbestos room, the Police would not have noticed the same during their visits in the course of investigation. Further, the confessional statement leading to the alleged recovery of M.Os.1 and 5 have also not been marked. From these facts, it is reasonable to presume that the prosecution has planted M.O.5 in order to falsely implicate the appellant. If we eschew M.O.1 silver anklets and M.O.5 knife from consideration, the vital links in the chain of circumstances are totally missing in this case. Therefore, we have absolutely no doubt in our mind that the prosecution has falsely implicated the appellant and secured false conviction. The Court below has misdirected itself in accepting the case of the prosecution without there being legal evidence.
13. For the aforementioned reasons, the Criminal Appeal is allowed. The conviction and sentences recorded against the appellant in the impugned judgment are set aside. Consequently, the appellant shall be set at liberty forthwith, if he is not required in any other case or crime, and the fine amount, if any, paid by him shall be refunded to him.
14. A perusal of the record shows that by order dt.05.12.2016 this Court has granted bail to the appellant as he has served more than five years of the sentence, following the order of this Court in Batchu Ranga Rao v. State of A.P. The bail bonds stand cancelled and the appellant shall surrender himself before the Superintendent, Central Jail, Cherlapally, for completion of legal formalities for his release from Jail.
__________________________ C.V. NAGARJUNA REDDY, J __________________________ GUDISEVA SHYAM PRASAD, J 22-01-2018