Andhra HC (Pre-Telangana)
Karam Sreenivasu Dora vs The State Of Andhra Pradesh, Rep.By Its ... on 12 June, 2013
Bench: K.C.Bhanu, Challa Kodanda Ram
HON'BLE SRI JUSTICE K.C.BHANU AND HON'BLE SRI JUSTICE CHALLA KODANDA RAM CRIMINAL APPEAL No.722 OF 2011 AND dated:12-06-2013 Karam Sreenivasu Dora .... APPELLANT The State of Andhra Pradesh, rep.by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad.....RESPONDENT Counsel for the appellant:Sri P.Prabhakar Reddy Counsel for the respondent: Public Prosecutor <Gist: >Head Note: ?Cases referred: 1. A.I.R.1952 SC 343 2. (1973) 2 SCC 793 3. AIR 1984 SC 1622 4. (2009)13 Supreme Court Cases 534 5. (2012) 6 Supreme Court Cases 403 6. A.I.R.1971 SC 1871 7. (2006) 13 SCC 516 8. A.I.R.1956 SC 116 9. A.I.R.1980 SC 898 10.(2002)4 SCC 679 HON'BLE SRI JUSTICE K.C.BHANU AND HON'BLE SRI JUSTICE CHALLA KODANDA RAM CRIMINAL APPEAL No.722 OF 2011 AND REFERRED TRIAL No.7 OF 2012 COMMON JUDGMENT:
- (per Hon'ble Sri Justice K.C.Bhanu) Criminal Appeal No.722 of 2011, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), is directed against the judgment, dated 04.07.2011, in Sessions Case No.242 of 2010 on the file of the VI Additional Sessions Judge, (Fast Track Court), East Godavari District at Rajahmundry whereunder and whereby, the accused was found guilty of the offences punishable under Sections 366, 302, 376 and 201 of the Indian Penal Code, 1860 (for short, "I.P.C.") and sentenced to death penalty by way of hanging for the offence punishable under Section 302 I.P.C., subject to ratification by this Court; to undergo imprisonment for ten years and to pay a fine of Rs.1,000/- for the offence punishable under Section 366 I.P.C.; to undergo imprisonment for seven years and to pay a fine of Rs.1,000/- for the offence punishable under Section 376 I.P.C., and further sentenced to undergo imprisonment for seven years and to pay a fine of Rs.1,000/- for the offence punishable under Section 201 I.P.C.
For confirmation of the sentence of death penalty by way of hanging, the learned Sessions Judge sent a letter to this Court and the same was taken on file as Referred Trial No.7 of 2012.
2. Since both the appeal and referred trial arise out of the same judgment, they are being disposed of by this common judgment.
3. Sri P.Prabhakar Reddy, learned counsel, argued the case on behalf of the appellant/accused whereas the learned Additional Public Prosecutor argued the case on behalf of the State.
4. The brief facts that are necessary for disposal of the present appeal may be stated as follows:
Accused is neighbour of Maturi Veera Veni (hereinafter, referred to as "the deceased") and a resident of Peda Bheerampalli Village. Deceased is the daughter of P.W.1. P.W.2 is the brother of P.W.1. The deceased was studying 10th class at Mallavaram as on the date of the incident and she was residing in the house of P.W.2 at Mallavaram. The deceased was aged about 15 years on the date of the incident. The deceased went to her parents' house on 12.07.2008 from Mallavaram. On 14.07.2008, in order to go to the school at Mallavaram, the deceased boarded the bus at 6.30 a.m. at Bheerampalli Village. There is no direct bus from Peda Bheerampalli to Mallavaram and she has to change bus at Gangavaram and Nellipudi in order to reach Mallavaram. At about 7 a.m., the deceased got down from the bus and was waiting for bus by sitting in the coffee hotel of P.W.4. After ten minutes, the accused went there and asked the deceased as to where she was going. She replied that she was going to school at Mallavaram. Then, the accused stated that he was going towards Jaggampeta and asked her to come on his motor cycle so that he can drop her at Mallavaram Village. It is said that on the request of the accused, she sat on the motor cycle and went along with him. In the evening, P.W.1 telephoned to P.W.2 and asked whether the deceased had come to Mallavaram. Then, P.W.2 stated that the deceased did not come. Then, P.W.1 went to Gangavaram and asked P.W.4 in the coffee hotel about the deceased. P.W.4 said to have informed P.W.1 that after getting down from the bus, when she was waiting for bus to catch next bus, the accused had come to the coffee hotel and asked the deceased to come with him and he would drop her at Mallavaram. Thereafter, P.W.1 went back to his village and at about 8 p.m., asked the accused about the whereabouts of the deceased. Then, the accused stated that he dropped her at Nellipudi. Thereafter, P.Ws.1 and 2 and other family members searched for the deceased at Nellipudi. On enquiry with the villagers, it was informed by Nookollu Ramana - P.W.5 that the accused brought the deceased to Vengayammapuram. It was also informed by P.W.6 that the deceased was with the accused near Velamalakota Village. Later, P.W.3 informed that there was a dead body in the cashew nut garden in the outskirts of Velamalakota Village. Thereafter, P.Ws.1 and 2 and other family members searched for the dead body of the deceased and found the dead body in rotten condition and most of the dead body of the deceased was burnt. They also found chunny pressed in her mouth and chappals at a distance of five feet to the dead body. Basing on the chunny, chappals and school bag, they identified the dead body as that of the deceased. Later, P.W.1 gave a report - Ex.P-1 in the police station on 16.07.2008 in the evening hours. It is further stated that he has not given any report earlier to this report.
On 16.07.2008, P.W.15 - Sub Inspector of Police, Gangavaram Police Station received Ex.P-1 from P.W.1 and registered a case in Crime No.28 of 2008 under the head "girl missing". Ex.P-10 is the First Information Report. It is alleged that P.W.1 gave another report on the same day at about 7.30 p.m. and basing on that, P.W.15 altered the sections in F.I.R. into Sections 302 and 201 I.P.C. After recording the statement of P.W.1 under Section 161 Cr.P.C., investigation was handed over to P.W.17 - Inspector of Police, Addateegala.
On 17.07.2008, at about 6 a.m., P.W.17 received a copy of express F.I.R. in Crime No.28 of 2008 and thereafter, took up investigation of the case. P.W.17 conducted scene of offence panchanama in the presence of P.W.12 and others. At the time of scene of occurrence panchanama, they found one pair of chappals, chunny in the mouth of the dead body of the deceased and the dead body was situated at a distance of 150 yards from the main road. The major part of the dead body was burnt and it was in decomposed state. The parents of the deceased identified the dead body of the deceased, but P.W.12 stated that he cannot identify the dead body of the deceased. Ex.P-14 is the observation report, dated 17.07.2008. P.W.17 prepared Ex.P-15 - rough sketch. On the instructions of P.W.17, P.W.10 - Photographer had taken the photographs. On 17.07.2008, at about 8 a.m., P.W.17 conducted inquest panchanama over the dead body of the deceased in the presence of P.W.12 and two others under Ex.P-17. On 17.07.2008, P.W.13 - the then Civil Assistant Surgeon, Community Health Centre, Rampachodavaram conducted autopsy over the dead body of the deceased and found 95% burns on the dead body of the deceased. He has not given any opinion pending F.S.L. report. After receipt of F.S.L. report, he stated that no opinion regarding identity of the person can be given basing on DNA and cause of death of the deceased was also not given as 95% burns were present on the dead body of the deceased. Ex.P-8 is the post mortem examination report.
On 23.07.2008, P.W.14 brought the accused on a motor cycle and handed over to P.W.17. P.W.14 handed over Ex.P-9 report to P.W.17 wherein it is stated that the accused made a confession before him stating that he gave lift to the deceased to take her to Mallavaram and while going on bike, he misbehaved with her for which she escaped from him at Jaggampet and went to Tuni on a bus. He further stated that he followed her and convinced her stating that he would not do any harm to her. Later, he had taken her into the road side cashew nut garden, raped her and killed her, and also burnt the dead body with petrol and fled away. Later, he approached P.W.14 seeking his help. Later, P.W.17 accepted the surrender of accused and recorded the confession statement of the accused in the presence of P.Ws.9 and 14.
P.W.17 examined P.Ws.1 to 8, 10, 11 and others and recorded their statements. Further investigation was done by P.W.16. P.W.16, after receipt of F.S.L. report on 31.10.2009, filed charge sheet. Ex.P-13 is the R.F.S.L. report.
5. The trial Court framed the following charges against the accused:
"Firstly: That you on or about 6.30 a.m., on 14.07.2008 your neighbour girl Maturi Veera Veni, you followed her and offered lift on the bike at Gangavaram village to go to Mallavaram and she boarded your bike and you diverted the route towards Jaggampeta and subjecting had to sexual intercourse in the cashew nut garden and killing her by hitting upon her head. Thereby you committed an offence punishable u/sec.376, 302, 366 IPC within the cognizance of this Court.
Secondly: As you are also pouring petrol on her body and burning her body to disappear with an intention to absolve the evidence of Murder. Thereby you committed an offence punishable u/sec.201 IPC within the cognizance of this Court.
6. When the above charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried.
7. To substantiate the charges, the prosecution examined P.Ws.1 to 17 and got marked Exs.P-1 to P-15 besides case properties - M.Os.1 to 6.
8. After closure of 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. He denied the same. On behalf of the accused, none was examined but Exs.D-1 and D-2 were got marked.
9. The trial Court, after considering the evidence on record, came to a conclusion that the circumstances clearly establish that the accused is the assailant of the deceased and having kidnapped and committed rape on the minor girl, brutally murdered her and accordingly, convicted and sentenced him as stated supra. Challenging the same, the present appeal is filed by the accused.
10. The points for determination are:
"Whether the prosecution proved its case beyond all reasonable doubt against the accused of the offences punishable under Sections 366, 302, 376 and 201 I.P.C; whether the judgment of the trial Court is correct, legal and proper and whether the sentence of death can be confirmed or not?"
11. POINTS:- Learned counsel for the appellant/accused contended that there is no direct evidence to show that the accused kidnapped the minor girl or committed rape on her or committed the murder of the deceased; that even if the entire circumstances relied upon by the prosecution are taken as true and correct, they cannot conclusively establish the guilt of the accused, and at best, they may give rise to a suspicion that the accused may be the assailant of the deceased; that basing on surmises and conjectures, the trial Court found him guilty, and that suspicion, however strong may be, cannot take the place of legal proof; that P.W.1 lodged only one report, but as seen from the record, two reports have been lodged; that in the first report, there was no mention that P.W.1 came to know through P.Ws.4 to 6 that the deceased was in the company of the accused, but during the course of investigation, P.Ws.4 to 6 were set up by the prosecution; that the proximity of time is not so close with regard to the time of the death of the deceased; that the medical evidence does not indicate that it is a case of rape or murder; that the trial Court based its conviction solely on the extra-judicial confession said to have been made by the accused to P.W.14; that P.W.14 is not a truthful witness; that there are so many other known persons, who are competent to record the confession given by the accused, but giving the extra-judicial confession to P.W.14 appears to be improbable; that to gain something from the police, P.W.14 was deposing false; that there are certain omissions in the evidence of P.W.6 with regard to the accused moving together with the deceased; that P.W.14 is neither a prominent person nor a political leader nor a social worker so as to help the accused; that the accused knows the local M.L.A. and other political leaders and in such circumstances, giving extra-judicial confession appears to be improbable; that the police had already called P.Ws.9 and 14 to the police station and therefore, there is any amount of doubt with regard to the accused giving extra-judicial confession; that the recovery of M.Os.4 and 5 cannot be said to be incriminating against the accused. It is further contended that the evidence of P.W.9 rules out the making out of extra-judicial confession by the accused as P.Ws.9 and 14 went to the police station together; that even as per the report of the Forensic Science Laboratory, cause of the death of the deceased was not established in view of the fact that all the flesh of the deceased was burnt except the skeleton; that the presence of chunny in the mouth could not have been found and it was planted so as to make believe the Court that the skeleton remains are that of the deceased; that there is absolutely no evidence to show that the deceased was kidnapped by the accused or that the accused committed rape on the deceased; that the blood grouping of P.W.1 was not tallied with the D.N.A. profile of the deceased; that no separate charges have been framed against the accused for the offences of kidnapping and rape and all the offences were put in one charge, which caused great prejudice to the case of the accused, and therefore, he prays to set aside the convictions and sentences recorded by the trial Court.
12. On the other hand, learned Additional Public Prosecutor contended that the death of the deceased had taken place during night time on 14.07.2008; that the deceased was last seen alive in the company of the accused by three witnesses; that proximity of time of death and the last seen theory are so close to infer that this crime must have been committed by the accused alone and none else; that on the basis of the chunny, chappals and school bag of the deceased near the place of occurrence, the dead body was identified and the skeleton remains are shown to be the bones of the deceased and therefore, the identity of the dead body of the deceased was established; that P.Ws.4 to 6 are independent witnesses and they have no animosity or grouse against the accused so as to speak false; that in the first instance, the accused went to the house of P.W.14 and gave extra-judicial confession and basing on the same, P.W.14 reduced into writing as in Ex.P-9; that what prompted the accused to go to the house of P.W.14 to give extra-judicial confession may not be known to the prosecution because it was locked up in the mind of the accused; that P.W.14 has no grouse or enmity against the accused to accommodate the police saying that the accused gave extra-judicial confession as in Ex.P-9; that after scribing Ex.P-9, he went to the police station along with the accused and handed over the same to the police and some discrepancies in the evidence of P.Ws.9 and 14 may not have any impact on Ex.P-9; that P.W.14 is totally an independent witness; that in the absence of any ill-will for P.W.14 to fabricate Ex.P-9, the evidence of P.W.14 cannot be rejected and therefore, the extra-judicial confession coupled with the last seen circumstance of the accused and the deceased and the proximity of time, it can be safely inferred that this crime must have been committed by the accused and none else; that therefore, there are no grounds to interfere with the convictions and sentences recorded by the trial Court. As regards the referred trial, she contends that this case falls under rarest of the rare cases because having kidnapped the minor girl on the pretext of dropping her at the school, the accused took her to an isolated place, committed rape on her, killed her, thereafter, purchased petrol, poured the same on the dead body of the deceased and burnt the same, and hence, she prays to confirm the death sentence passed by the trial Court.
13. The entire case rests upon circumstantial evidence. There is no direct evidence. When the case rests upon circumstantial evidence, law is well settled that all the circumstances must unerringly point the guilt towards the accused; that all the circumstances, if taken cumulatively, should form a chain so complete that within all human probability, the crime was committed by the accused and none else. On this aspect, it is pertinent to refer to a decision reported in Hanumant Govind Nargundkar vs. State of Madhya Pradesh1 wherein it is held at para No.10 as under:
"Assuming that the accused Nargundkar had taken the tenders to his house, the prosecution in order to bring the guilt home to the accused, has yet to prove the other facts referred to above. No direct evidence was adduced in proof of those facts. Reliance was placed by the prosecution and by the Courts below on certain circumstances, and intrinsic evidence contained in the impugned document, Ex.P-3A. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge, (1838) 2 Lewin 227) where he said :
"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead, itself to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.
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. In spite of the forceful arguments addressed to us by the learned Advocate-General on behalf of the State we have not been able to discover any such evidence either intrinsic within Ex.P-3A or outside and we are constrained to observe that the Courts below have just fallen into the error against which, warning was uttered by Baron Alderson in the above mentioned case".
Similarly, the panchasheel principles of circumstantial evidence have been stated in Shivaji Sahabrao Bobade vs. State of Maharashtra2 wherein it is held at para No.10 as under:
"The probative items placed before the court by the prosecution there is no defence evidence adduced- falls into three groups. Firstly, we have the eye-witness account of the mortal attack as given by P. Ws. 5 and 7. Secondly, the dying declaration stated to have been made by the deceased a little before he expired and witnesses, Balakrishna and Ramu, P. Ws. 2 and 9, have been cited in support thereof. The last set of incriminating facts consists in the discovery, under sec. 27 of Evidence Act, of certain material objects pursuant to the statements made by the accused supported by the evidence of few persons and the chemical analyst's report. The Sessions Judge has rejected all the three categories taking up an extreme position grounded on the medical evidence and supposed human conduct, while the appellate Judges have swung to the opposite standpoint and accepted substantially all the prosecution evidence. With vigilant scepticism, let us scan the important evidence without going over the whole ground again."
The same principles have been reiterated in Sharad Birdhichand Sarda Vs. State of Maharashtra3 wherein it is held at para No.153 as under:
"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 Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) 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.
14. Similarly, learned counsel for the appellant/accused relied upon a decision reported in Tipparam Prabhakar vs. State of Andhra Pradesh4, as observed in Bodhraj v. State of Jammu and Kashmir [(2002)8 SCC 45 at page 63 para No.31], wherein it is held at para No.16 as under:
"The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
15. Law is well settled about the evidentiary value of extra judicial confession said to have been made by the accused to the known person. On this aspect, learned counsel for the appellant relied upon a decision reported in Sahadevan and another vs. State of Tamilnadu5 wherein it is held at para No.14 as under:
"It is a settled principle of criminal jurisprudence that extra- judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra- judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration."
16. A Three Judge Bench decision reported in Thimma and Thimmaraju vs. State of Mysore6 has been referred to wherein it is held at para No.9 as under:
"The trial court was not favourably impressed by the testimony of Ganga (Prosecution witness 4) though it felt convinced that on the day following the disappearance of the deceased he had knowledge both of the commission of the offence and of the place where the dead body was lying. That court did not rely on his testimony in regard to the extra-judicial confession because it was considered incredible. The High Court on appeal disagreed with the trial court in its appreciation of the evidence of Prosecution witness 4. According to the High Court the evidence of P.W. 4 was corroborated by the evidence of Prosecution witness 13 and Prosecution witness 25. The extra-judicial confession was, therefore, held to be admissible and trustworthy. Before us it was contended that the extra-judicial confession said to have been made to Prosecution witness 4 is inadmissible and in any event without corroboration in material particulars from independent source it is unsafe to act upon it. It was emphasised that Prosecution witness 4 was at one stage of the investigation suspected of complicity in this murder and, therefore, he should be treated no better than an accomplice. In our opinion, this criticism is not justified. An unambiguous confession, if admissible in evidence, and free from suspicion suggesting its falsity, is a valuable piece of evidence which possesses a high probative force because it emanates directly from the person committing the offence. But in the process of proof of an alleged confession the court has to be satisfied that, it is voluntary, it does not appear to be the result of inducement, threat or promise as contemplated by S. 24. Indian Evidence Act and the surrounding circumstances do not indicate that it is inspired by some improper or collateral consideration suggesting that it may not be true. For this purpose, the court must scrutinise all the relevant factors, such as, the person to whom the confession is made, the time and place of making it, the circumstances in which it is made and finally the actual words used. In the case in hand it is quite clear that Prosecution witness 4 is not a person in authority. There can thus be no question of any inducement, threat or promise rendering the confession irrelevant. Nor has any cogent reason been suggested why the appellant should have made an untrue confession to Prosecution witness 4 within 24 hours of the disappearance of the deceased. On the other hand, the appellant appears to have been impelled by some inner urge to take the assistance of Prosecution witness 4, his real nephew, to go to the place of occurrence to see as to what had happened to the dead body of his victim. Such behaviour cannot be considered unnatural. The confession appears to us to be free from any taint which would throw suspicion on its voluntary character and it has a ring of truth in it. The fact that during the investigation Prosecution witness 4 was suspected of being involved in the murder would also not cast any doubt on the voluntary character of the confession or on its true nature because it is the knowledge of Prosecution witness 4 derived from this very confession which perhaps invited suspicion on him. We do not consider this to be a cogent ground for holding that P.W. 4 had any motive to concoct the story of confession. This confession is, therefore, admissible in evidence and being true deserves to be acted upon. The words used are quite clear and admit of no doubt of the appellant's guilt. And then through the evidence of Prosecution witness 4 does not need any corroboration we find that corroboration in material particulars is forthcoming on the record. The existence of the dead body and all the other articles at the place where they were later found and the evidence of Basappa (Prosecution witness 13) which proves the visit of the appellant and Prosecution witness 4 to the spot on Saturday following the disappearance of the deceased furnish strong corroboration. The High Court was thus quite right in relying on the extra-judicial confession made to Prosecution witness 4. The confessions said to have been made to Prosecution witness 31 and to Abdul Rahman (Prosecution witness 22) stand on a different footing. Both the Courts below have not considered it safe to rely on these confessions and we do not find any sufficient reason for disagreeing with them."
In the decision Gagan Kanojia & another vs. State of Punjab7, it is held at para No.23 as under:
"Extra-judicial confession, as is well-known, can form the basis of a conviction. By way of abundant caution, however, the court may look for some corroboration. Extra-judicial confession cannot ipso facto be termed to be tainted. An extra-judicial confession, if made voluntarily and proved can be relied upon by the courts."
Even from the above decisions, it is clear that if extra-judicial confession is wantonly made by the accused and is found to be truthful and inspires confidence and also supported by a chain of cogent circumstances, then, it can be acted upon.
17. Bearing the above principles in mind, it has to be seen whether the accused is the assailant of the deceased or not. P.W.13 is the Doctor, who was summoned to the scene of occurrence and asked to conduct autopsy over the dead body of the deceased at 2 p.m. on 17.07.2008. He found the body burnt almost 95%. There was a contusion of 5 x 4 cms on the left temporal bone and 3 x 2 cms on frontal bone left side medially and loss of one molar and one premolar on tooth on left half of jaw. On internal examination, he found fracture of skull bone. The bony pelvis was identified as a female pelvis. He stated that no opinion regarding identity of the person could be given basing on DNA and the cause of death could not be given. The DNA profile - Ex.P-13 would go to show that there is no DNA yield from some of the items sent to FSL. So, except the skeleton remains belonging to a female human being, identity of the dead body is not established.
18. Simply because the Doctor could not give his opinion as to the cause of the death, it does not mean that the accused is entitled for acquittal. On evaluation of the evidence on record, if it is found that the accused is the assailant of the deceased, certainly, the accused can be convicted of the charges levelled against him. The death of the deceased can also be established from the circumstances and other admissible evidence on record. Similarly, the kidnap and rape can also be established by other evidence by the prosecution and it need not be necessarily by the medical evidence.
19. It is not in dispute before this Court that the deceased was aged about 14 years at the time of the incident and she was studying 10th class at Mallavaram by staying in the house of P.W.2, who is the brother of P.W.1. It is also not in dispute that the accused belongs to the same village of P.W.1 and the deceased viz., Peda Bheerampalli Village. On one second Saturday, in the year 2008, the deceased came to her parents' house at Peda Bheerampalli Village. On Monday, she had to go to the school. Therefore, she boarded a bus at Peda Bheerampalli Village at about 6.30 a.m., so as to proceed to Mallavaram. As there was no direct bus to go to Mallavaram, she had to change the bus at Gangavaram Village. Again, she had to change a bus at Nellipudi. Therefore, from the evidence on record, it is clear that she had to change two buses to go to Mallavaram from Peda Bheerampalli Village. In the evening, when P.W.1 telephoned to his brother - P.W.2, P.W.2 replied that she had not reached the house. Therefore, P.W.1 enquired about his daughter at Gangavaram and came to know from Konda Sathibabu that the accused had taken the deceased on his motor cycle saying that he would drop her at Mallavaram. Basing on the said information, P.W.1 returned back to the village and questioned the accused about the whereabouts of his daughter. The accused informed that he took his daughter from Bus Stand, Gangavaram and left her at Nellipudi. Thereafter, they made enquiries about their daughter at Nellipudi also. Through P.Ws.5 and 6, they came to know that the accused had taken the deceased on his motor cycle. On the information given by one Murali Krishna and their relative Nagu with regard to the finding of the dead body in the cashew garden in the outskirts of Velamakota Village, he went there and saw the dead body. Basing on the piece of chunny found in the mouth, chappals and the school bag, he identified the dead body as belonging to his daughter. P.W.1 identified the chappals of the deceased, which is marked as M.O.1, a school bag, which is marked as M.O.2 and a half burnt chunny, which is marked as M.O.3. He also found Ex.P-2, which is the identity card of the accused near the scene of occurrence. It is not suggested to him that M.Os.1 to 3 and Ex.P-2 were planted subsequently so as to implicate the accused falsely in this case.
20. One of the contentions of the learned counsel for the appellant is that since the entire flesh of the dead body of the deceased was burnt, it is highly improbable to believe the presence of half burnt chunny in the mouth of the deceased. If it is on the body of the deceased, certainly, it would also be burnt, but a piece of chunny was found in the mouth of the deceased. Therefore, there is every possibility for the chunny not being burnt when it is in the mouth of the deceased. So, it is clear from M.Os.1 to 3 that the skeleton remains are that of the deceased and none else. Similarly, the identification of M.Os.1 to 3 has not been challenged in the cross examination. Once a fact has been stated by a witness and the same is not denied or disputed in the cross examination, the same can be accepted as true. Therefore, from the evidence of P.W.1, it is clear that the deceased was burnt to death and the homicidal nature of the death of the deceased is established.
21. One of the contentions raised by the learned counsel for the appellant is that a single charge has been framed with regard to three offences and therefore, prejudice has been caused to the accused in defending the case. For distinct offences, the trial Court ought to have framed separate charges against the accused i.e., for the offences of rape, murder and kidnap. But when the accused knows about the sum and substance of the charges, no prejudice has been caused to the accused in clubbing of the offences in one charge and hence, it cannot be said to be a ground to acquit the accused. On this aspect, it is pertinent to refer to a decision reported in Willie (William) Slaney vs. State of Madhya Pradesh8 wherein it is held at para Nos.86 and 87 as under:
"Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled-up one involving the direct liability and the constructive liability' without specifying who are directly liable and who are sought to be made constructively liable.
In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence; without a charge can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant."
From the above decision, it is clear that unless prejudice is shown to have been caused to the accused, the non-framing of separate charge for each of the offences cannot be fatal to the case of the prosecution.
22. P.W.2, who is no other than the brother of P.W.1, did not incriminate anything against the accused except to the effect that the deceased used to study by staying in his house at Mallavaram, and that on 12.07.2008, she went to her parents' house and on 14.07.2008, she had to come back to his house, but she did not come to his house and therefore, P.W.1 telephoned to him and enquired about his daughter not reaching his house. Though he stated that when he was searching for the deceased, he came to know through Nukulla Ramana and Ganga Suryanarayana that the deceased was last seen alive in the company of the accused, they were not examined by the police. Therefore, the evidence of P.W.2 does not incriminate anything against the accused, but his evidence would clearly go to show that he along with his brother went to the house of the accused and enquired about the deceased for which the accused stated that he dropped her at Nellipudi Village and went away.
23. P.W.3 has categorically stated that he had no acquaintance with the accused. He found partly burnt dead body in the cashew nut garden. They found a pair of chappals and school bag near the place of occurrence. His evidence remains unchallenged with regard to finding of the school bag and the chappals near the partly burnt body of a human being.
24. P.Ws.4 to 6 were examined to speak about the last-seen theory. According to P.W.4, he had seen the deceased in the company of the accused. At about 7 a.m. on 14.07.2008, while he was present at the coffee hotel, he saw the deceased getting down from the bus and sitting in his coffee hotel. Ten minutes thereafter, the accused came on a motor cycle and asked the deceased as to where she was going by calling her as "Bujji". She replied that she was going to Mallavaram. Then, the accused stated that he was going towards Jaggampeta and he would drop her at Mallavaram Village, which is on the way to Jaggampeta. Believing the words of accused, the deceased boarded the motor cycle of the deceased. On the same day, at about 8 p.m., P.W.1 came and enquired with him. Then, he informed the same to P.W.1 that accused took her on his motor cycle with a view to drop her at Mallavaram. He admitted in the cross examination that he had no acquaintance with P.W.1 and his daughter. It is suggested to him that he did not see the deceased and talk to her, but the same was denied. It is admitted by him that his hotel is situated opposite to the police station and the police personnel used to come to his hotel and he used to serve coffee and tiffin, and that his hotel is very busy one. Since the hotel is located in a village, there is every possibility for him to remember when school going children come and sit in the hotel. Though he had no acquaintance with the deceased, since the deceased was sitting in his hotel by carrying a school bag, it must have been imprinted in the mind of P.W.4 to enable him to recollect at a later point of time. Even on the same day evening, he informed about the said fact to P.W.1. Therefore, the identity of the deceased by P.W.4 though he had no acquaintance appears to be probable. Furthermore, he had no enmity or rancour with the accused so as to speak false against him saying that the deceased went along with the accused at about 7 a.m. on the date of the incident.
25. Similarly, P.W.5 was carrying eggs on his Hero Honda Motor Cycle for selling. On the date of the incident i.e., on 14.07.2008, at about 9.30 a.m., while he was proceeding on his Hero Honda Motor Cycle, he saw the accused coming in the opposite direction with the deceased and both were proceeding towards Jaggampeta Village. He saw them at Vengayammapuram. On 16.07.2008, he came to know that the daughter of P.W.1 was missing and he informed P.W.2 that he witnessed the deceased and the accused going towards Jaggampeta. Later, he came to know that the dead body of the deceased was found in the cashew garden. Then, he rushed to the scene of occurrence and saw the dead body. He also noticed one bag and chappals. P.W.5 is not related to P.W.1 and he had no acquaintance with the accused, but he saw the accused on several occasions. Therefore, there is nothing unusual for P.W.5 to identify the accused because he saw the accused on several occasions. Except the fact that the house of P.W.5 is situated very near to the house of P.W.1 in Mallavaram and they belong to the same caste, nothing has been elicited in the cross examination of P.W.5 so as to disbelieve his evidence.
26. Similarly, P.W.6 is another circumstantial witness, who saw the deceased in the company of the accused at 6 p.m. on 14.07.2008. He was proceeding on his bullock cart from Gangavaram to Velakalakota to his house. The accused along with the deceased was proceeding on a motor cycle towards Rampachodavaram. He saw them at a distance of 3 to 4 kms from Peda Bheerampalli. At that time, the accused was wearing a tea shirt. When P.W.1 enquired him, he stated that the deceased was last seen alive in the company of the accused. To a suggestion that he did not see the accused going along with the deceased on the evening of 14.07.2008, he denied the same. It is admitted by him that he himself, P.W.1 and other non-tribals used to cultivate the lands of the tribals by taking their lands on lease and also stated that there was no dispute between the tribals and the non-tribals and that he does not belong to the caste of P.W.1. Therefore, there is absolutely no reason for him to speak false against the accused.
27. Learned counsel for the appellant vehemently contented that P.Ws.4 to 6 were set up by the prosecution subsequently and if really they informed that the deceased was last seen alive in the company of the accused, definitely, it would have been recited in the earliest report, and that the names of these three witnesses have not been mentioned in Ex.P-10 report given by P.W.1 in the morning and Ex.P-1 report given by P.W.1 in the evening and therefore, the evidence of P.Ws.4 to 6 has to be eschewed from consideration. In the first instance, P.W.1 lodged a report at 10 a.m. on 16.07.2008 and the same was registered as Crime No.28 of 2008 under the head "Girl missing". As seen from this report, through P.W.4, he came to know that the deceased had taken his daughter on his bike to drop at Mallavaram, but the names of P.Ws.5 and 6 have not been mentioned in it. On coming to know about the dead body, he lodged a report at 7.30 p.m. Basing on the report, the section of law was altered. The names of the witnesses have not been mentioned, but it was stated that P.W.1 had a suspicion that the accused is responsible for the death of the deceased. Simply because the names of P.Ws.5 and 6 have not been mentioned in the altered F.I.R., that does not mean that their evidence has to be disbelieved or rejected on that ground. Their evidence has to be appreciated considering all other circumstances including the motive for them to implicate the accused in this case. They are totally independent witnesses and they are not related to P.W.1. Similarly, they have no enmity against the accused to implicate him falsely. If really they have not seen the deceased in the company of the accused, they would not have given false evidence. Therefore, from the evidence of P.Ws.4 to 6, it is clear that on 14.07.2008, the deceased was in the company of the accused from 7 a.m. to 6 p.m.
28. P.W.8 is a retired Attender, Forest Department, Chintapalli. On the date of the incident, at about 7.15 or 7.30 a.m., the accused came along with a girl aged about 15 years. When enquired about the girl, the accused stated that she is a neighbour in the village and he is going to drop her at Mallavaram as he was going to Jaggampeta through that village. The accused is known to him for a long time. Though he had not identified the deceased as that of the person who accompanied the accused, if the age and other aspects are taken into consideration, it can be safely inferred that it is the deceased, who was in the company of the accused.
29. The evidence of P.W.11 would also go to show that on 14.07.2008, in the evening hours, the accused came to his shop along with a bottle and requested him to provide some petrol, as his vehicle was short of petrol. His evidence remained unchallenged. Though P.W.11 was not having any license to sell petrol, it is a common feature in the villages that loose petrol would be sold. The dead body was traced near Velamakota Village. P.W.11 is the resident of that village and if really the vehicle was short of petrol, he would have taken the vehicle directly to the shop of P.W.11. There is no need for him to purchase petrol in a bottle. Therefore, the purchasing of petrol in the bottle by the accused is quite un-natural and the place where he purchased the petrol is very close to the scene of occurrence.
30. Apart from the above circumstances, there is other evidence available on record i.e., extra-judicial confession, said to have been made by the accused to P.W.14. P.W.14 is a cultivator. He knew the accused for a long time. On 23.07.2008, at about 7.30 a.m., the accused came and informed him that he committed sin by killing the daughter of P.W.1; that he got the deceased on his motor cycle to drop at Mallavaram; that while he was proceeding beyond Mallavaram, the girl objected and tried to escape, but he convinced her stating that he is true believer of Jesus Christ and when he tried to modest her, she refused and resisted; that then, the accused brought her to the cashew nut garden and committed rape on her and after completion of rape, he committed murder by hitting her with a stone, and set fire to the body by pouring petrol on her. The same was reduced into writing as in Ex.P-9. Thereafter, he handed over the accused and Ex.P-9 to the police. He was in the habit of lending certain amounts to the ryots and used to collect grains in lieu of the money. He admitted that P.W.1 is not his friend. He denied about the lending of money to P.W.1 or P.W.2. He admitted that accused worked as a Co-operative Bank Vice President, Rampachodavaram and he knew M.L.A. and other political leaders. He also admitted that the brother of the deceased is a Government Teacher. He also admitted that the accused knew more persons than him. He also stated that he had not lodged any report or anything in the police station except Ex.P-9. It is suggested to him that Ex.P-9 was drafted at the instance of the police, but the same was denied. It is also suggested to him that accused never came to him and stated anything about the incident. The same was also denied. In the cross examination, it is elicited that there was no R.I. in the police station at the time of drafting Ex.P-9. Basing on the said admission, it is vehemently contented that Ex.P-9 was scribed in the police station, and therefore, it is hit by Section 25 of the Indian Evidence Act, 1872. The admission in the cross examination cannot be taken as a sole basis to reject the entire evidence. For the purpose of evaluating the evidence of a witness, the entire evidence has to be taken into consideration. If the entire evidence of P.W.14 is taken into consideration, it is clear that it was scribed to the narration of the accused at his house at about 7.30 a.m. Since he was a cultivator and used to lend amount to the ryots, there is a scope or possibility for the accused to inform about the incident rather than the politicians or his relatives. So, there is nothing unusual for the accused going to the house of P.W.14 so as to give confessional statement. If P.W.14 had a bitter animosity against the accused, then, it can be a ground to suspect his evidence and also the recitals in Ex.P-
9. They have to be viewed with suspicion if there is a bad blood running between the accused and P.W.14. In the entire cross examination, nothing has been elicited to show that he has a bitter enmity with the accused or he was under the influence of the police. Therefore, the evidence of P.W.14 and the contents in Ex.P-9 cannot be doubted in the absence of any enmity. What prompted the accused to go to the house of P.W.14 may not be knowing to the prosecution because the intention of the accused in going to the house of P.W.14 is locked up in the mind of the accused. Therefore, the evidence of P.W.14 and the recitals in Ex.P-9 cannot be brushed aside.
31. No doubt, the evidence of P.W.9 is quite contradictory to the evidence of P.W.14, but on that ground, the evidence of P.W.14 cannot be rejected. P.W.9 stated that when he along with P.W.14 were called by the police to draft a report, they proceeded to Gangavaram Police Station at 8 a.m. and at that time, the accused was present and he gave a confessional statement and in pursuance of his confessional statement, M.Os.4 and 5 were seized. P.W.9 is the resident of Gangavaram Village whereas P.W.14 is the resident of Usirijonnala Village. Therefore, they both going to the police station at the same time may not be correct. There was a gap of half an hour for P.W.14 to come out from the police station after handing over Ex.P-9 in the police station. So, basing on the evidence of P.W.9, the evidence of P.W.14 and the recitals in Ex.P-9 cannot be distrusted. P.W.9 was giving evidence in Court after a lapse of three years. Some minor discrepancies are bound to occur even in the case of truthful witnesses.
32. P.W.10 is the Photographer, who had taken the photos, which are 12 in number, under Ex.P-6. P.W.12 is one of the inquest mediators, who was present at the time of police holding inquest as in Ex.P-7. P.W15 is the person, who stated that he registered a case basing on the report given by P.W.1 in the morning. Later, on the same day, at about 7.30 p.m., P.W.1 gave another report basing on which, he altered the same. Except suggesting that P.W.1 gave only one report to him and he did not register a case, nothing has been elicited to discredit his testimony. No doubt, P.W.1 has admitted that he went to the police station only once and lodged report in the evening, but as seen from the evidence of P.W.15 and the recitals in Ex.P-10, it is clear that P.W.1 went to the police station in the first instance in the morning and lodged Ex.P-10, and again, in the evening, at about 7.30 p.m., he lodged another report and the police altered the same as Ex.P-1. The incident had taken place in the year 2008 whereas the witness testified about the same in the Court after lapse of three years. Therefore, some discrepancies are bound to occur even in a case of a truthful witness. So, from the documents - Exs.P-1 and P-10, it is clear that P.W.1 lodged two reports.
33. Further, the identity card of the accused was found near the scene of occurrence. There is no other reason for the accused to go to the scene of occurrence. As per the evidence, the accused had to go Jaggampeta. Therefore, the finding of identity card of the accused near the scene of occurrence is another incriminating circumstance against the accused. So, all these circumstances coupled with the extra judicial confession made by the accused to P.W.14 lead to draw an irresistible conclusion that it is the accused, who kidnapped the minor girl on one pretext or the other, committed rape on her and later, murdered and burnt her. So, from the evidence on record, it is established that the accused is the assailant of the deceased and he committed the offences alleged.
34. Now coming to the sentence, the trial Court imposed death penalty. The law, on this aspect, is very well settled. Unless a case falls under rarest of the rare cases, the capital punishment cannot be imposed. On this aspect, it is pertinent to refer to a decision of the Constitution Bench reported in Bachan Singh vs State of Punjab9 wherein it is held at para Nos.204 and 207 as under:
Dr. Chitaley has suggested these mitigating factors :
"Mitigating circumstances :- In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances :-
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. It the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354 (3). Judges should never be blood-thirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past, Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Sec. 354 (3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
For determination of rarest of rare cases, it is apposite to refer to a decision reported in Dharmendrasinh vs. State of Gujarat10 wherein it is held at para Nos.20 and 21 as under:
"Every murder is a heinous crime. Apart from personal implications it is also a crime against the society but in every case of murder death penalty is not to be awarded. Under the present legal position imprisonment for life is the normal rule for punishing crime of murder and sentence of death, as held in different cases referred to above, would be awarded only in the rarest of rare cases. The number of factors are to be taken into account namely, the motive of the crime, the manner of the assault, the impact of the crime on the society as a whole, the personality of the accused, circumstances and facts of the case as to whether the crime committed, has been committed for satisfying any kind of lust, greed or in pursuance of anti-social activity or by way of organized crime, drug-trafficking or the like. Chances of inflicting the society with the similar criminal act that is to say vulnerability of the members of the society at the hands of the accused in future and ultimately as held in several cases mitigating and aggravating circumstances of each case has to be considered and a balance has to be struck. The learned State Counsel as indicated earlier has already indicated the aggravating circumstances by reason of which it has been vehemently urged that sentence of death deserves to be confirmed.
Now considering the facts of the present case in the background of our observations made in the preceding paragraph, we take note of the fact that the appellant had been labouring under the strain suspecting character of his wife. This fact is mentioned by none else but by the complainant Ashaben herself in her report. She also admitted in her statement in Court that quite often there has been quarrel between the two on that count. Though denied, a suggestion has been made to PW-3 Ashaben in her cross-examination that the appellant had been telling her that their sons were not born of him. It is true that does not seem to be any immediate cause before the commission of offence, yet the fact remains that rightly or wrongly such a painful belief was being entertained by the appellant since long which constantly engaged his mind as admittedly there had been quarrels on that count between the two. Obviously he would have been brooding under that idea, which perhaps he could not contain any more. It is true that two innocent children lost their lives for no fault of theirs. We also notice that Dharia is a weapon, which is ordinarily to be found in the house of any farmer or agriculturist in that area as stated by PW-3. He seems to have used the weapon as lying in the house. The offence was obviously not committed for lust of power or otherwise or with a view to garb any property nor in pursuance of any organized criminal or anti-social activity. Chances of repetition of such criminal acts at his hands making the society further vulnerable are also not apparent. He had no previous criminal record."
No doubt, the offence committed against the deceased is a very heinous one, but at the same time, there is no direct evidence to show that the girl was raped. Similarly, there is no medical evidence to corroborate the evidence of the prosecution except the extra judicial confession made by the accused. The deceased was moving with the accused from morning till the death in the night. What transpired between the accused and deceased preceding the incident is not known. Fearing that the deceased may inform about the act of rape to her parents, the accused had taken extreme step of slaying her. Accused had no previous criminal record. Accused was aged about 30 years at the time of commission of offence. Accused might not have had the intention of murdering the victim, but for the fear that victim may reveal about the rape to her parents. There was no immediate motive for the murder of the deceased. No bad blood was running between the family of deceased and accused. It is not an organised crime. Therefore, in these circumstances, we are of the opinion that it is not a case of imposing capital punishment of death penalty.
35. May be on the ground that trial Court imposed death sentence, no compensation in terms of Section 357 Cr.P.C. was awarded. Though it is a fit case for awarding compensation, there is no evidence with regard to capacity of accused to pay the compensation. In the absence of evidence, we are not inclined to grant any compensation to the father of the deceased.
36. In the result, the convictions recorded by the VI Additional Sessions Judge, (Fast Track Court), East Godavari district, Rajahmundry in Sessions Case No.242 of 2010, vide judgment, dated 04.07.2011, against the appellant/accused for the offences punishable under Sections 366, 302, 376 and 201 I.P.C. are confirmed. The sentences recorded by the trial Court for the offences punishable under Sections 366, 376 and 201 I.P.C. are also confirmed, but the sentence of death penalty imposed by the trial Court for the offence punishable under Section 302 I.P.C. is converted to imprisonment for life and to pay a fine of Rs.500/- (Rupees five hundred only), in default, to suffer simple imprisonment for a period of one month. All the sentences of imprisonment shall run concurrently.
37. Accordingly, Criminal Appeal No.722 of 2011 is partly allowed and Referred Trial No.7 of 2012 is answered.
38. Miscellaneous Petitions pending, if any, in this Criminal Appeal shall stand closed.
______________________ JUSTICE K.C.BHANU _________________________________ JUSTICE CHALLA KODANDA RAM Date: 12-06-2013