Andhra Pradesh High Court - Amravati
Unknown vs State Of Madhya Pradesh As on 22 November, 2022
Author: C.Praveen Kumar
Bench: C. Praveen Kumar
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI
Criminal Appeal No. 4 of 2016
JUDGMENT:(Per Hon'ble Sri Justice C.Praveen Kumar)
1) Heard Sri. Aravala Rama Rao, learned Counsel appearing for the Appellant/Accused and Sri. S. Dushyanth Reddy, learned Additional Public Prosecutor, appearing for the State.
2) The Sole Accused in Sessions Case No. 50 of 2014 on the file of the Principal District and Sessions Judge, Srikakulam, is the Appellant herein. He was tried for offences punishable under Sections 302 and 201 of Indian Penal Code ['I.P.C.']. By its Judgment, dated 20.03.2015, the learned Sessions Judge, convicted the Accused for the offence punishable under Section 302 of I.P.C. and sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs.5,000/- in default to undergo simple imprisonment for six months. The Accused was also sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.2,000/- in default to undergo simple imprisonment for three months for 2 the offence punishable under Section 201 I.P.C. Assailing the said conviction and sentence imposed, the present Appeal is preferred.
3) The gravamen of the charges against the Accused is that, on 15.01.2013, the Accused is said to have caused the death of his daughter, by name, Yesoda ['deceased'], aged about 05 years and, thereafter disposed of the same by throwing the body into a Well at Mudili Appalanaidu of Illamnaiduvlasa Village, Rajam Mandal, to screen the evidence.
4) The facts, in issue, are as under:
i) PW3 is the Wife of the Accused and mother of the deceased. PW4 is the Sister of PW3. The marriage between the Accused and PW3 took place about nine [09] years ago and they were blessed with a Son, by name, Manikanta, and the deceased. After the birth of their Son and after she conceived pregnancy to give birth to the deceased -daughter, the Accused started suspecting the fidelity of PW3. It is said that, Accused 3 always used to beat her stating that the deceased was not born through him.
ii) About three [03] days prior to Sankranthi Festival, the Accused is said to have poured kerosene on PW3, which was witnessed by the neighbours, who came and rescued her. On the Bhogi Festival day, the Accused asked PW3 to give him some hot water. It is said that, PW3 asked him to wait for some time. On the same day evening, while PW3 and the deceased were sleeping, the Accused threw almirah at them. PW3 could escape, but the almirah fell on the deceased -daughter. However, the father-in-law [PW6] came there, lifted the almirah and rescued the deceased.
iii) On the Kanuma Festival day, the sister-in-law of PW3 and her husband came to their house and after having lunch, her brother-in-law went to his house. While PW3 was having her lunch, the deceased asked her to give some snacks and after taking them, went out. On instructions of her mother-in-law, PW3 went to fields and about 1.00 P.M. her husband, mother-in-law and 4 sister-in-law stated to PW3 that they will go to their in- laws house. PW3 claims to have returned at 4.30 P.M. and searched for her daughter [deceased] from 4.00 to 6.00 P.M. but to no avail. When, PW3 questioned the Accused as to why he is not making any effort to search for the deceased, he told that he will search for the deceased next day morning. On 15.01.2013 at about 5.30 or 6.00 P.M., PW3 informed PW2 [Village Revenue Assistant] about the missing of her daughter.
iv) On the next day, PW3's sister-in-law, mother-in-law and the Accused, left in a Jeep in search of the deceased. At about 8.00 A.M., one Borada Chinnayya @ Venkataramana, came to PW3 and informed about the body of her daughter [deceased] being found in the Well of one M. Appalla Naidu [PW5]. PW3 went there along with her brothers and saw the body in the Well. The same was informed to Village Revenue Officer [PW1] at 9.00 A.M. PW1 and the Villagers came there and noticed the dead body floating in the Well. PW1 went to Rajam Police Station and lodged a report [Ex.P1], basing on which, PW10 [Sub-Inspector of Police] registered a case 5 in Crime No.11 of 2013 under Section 174 Cr.P.C. Ex.P12 is the First Information Report. He examined PW1 in the Police Station and recorded the statement. He also examined PW2, who came along with PW1 and recorded his statement. Thereafter, PW10 along with PW1 and PW2 visited the scene of offence, which is situated in the outskirts of Village and got the body taken out from the Well with the assistance of PW2 and other Villagers. Ex.P3 is the Observation Report of the scene of offence. Thereafter, he got prepared a rough sketch, which is placed on record as Ex.P13.
v) PW10 then conducted inquest over the dead body in the presence of PW1 and others. Ex.P2 is the Inquest Report. During inquest, he examined PW3, PW4 and others and recorded their statements. After conducting inquest, the body was sent for post-mortem examination.
vi) PW9 - the Civil Assistant Surgeon, Area Hospital, Rajam, conducted autopsy over the dead body and issued Ex.P10 - post-mortem certificate. According to 6 him, the approximate time of death was within 20 to 30 hours prior to post-mortem examination. After receipt of R.F.S.L. report, he opined that the cause of death was due to head injury, with extra dural haematoma leading to cardio respiratory arrest.
vii) On 20.01.2013, the Accused is said to have made extra- judicial confession before PW1, which was reduced into writing. Thereafter, PW1 took the Accused along with the report to the Rajam Police Station and surrendered the Accused along with the report. Ex.P4 is the report of PW1, while Ex.P5 is the statement of the Accused. PW10 effected the arrest of the Accused and basing on Ex.P4 and Ex.P5, altered the section of law from section 174 I.P.C. to 302 I.P.C. Ex.P14 is the altered F.I.R. Basing on the confession statement made by the Accused, all of them proceeded to the scene of offence and on instructions of PW11 [Inspector of Police], PW2 removed a stone from the wall of that Well, which was seized under Ex.P7. M.O.1 is the stone. He also got photographed the scene. After examining all the witnesses and collecting all the necessary documents, 7 PW11 filed a charge-sheet, which was taken on file as P.R.C. No. 12 of 2013 on the file of Judicial Magistrate of First Class, Rajam.
5) 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.
6) In support of its case, the prosecution examined PW1 to PW11 and got marked Ex.P1 to Ex.P16, beside marking M.O.1. After completion of prosecution evidence, the Accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied, however, no evidence was adduced in support of his plea except got marked Ex.D1 and Ex.D2.
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7) Though, there are no eye witnesses to the incident, the learned Sessions Judge, convicted the Accused basing on
(i)'motive', (ii) Accused being 'last seen' in the company of the deceased; and (iii) the extra-judicial confession made before PW1. Against this conviction and sentence, the present Appeal came to be filed.
8) (i) Sri. Aravala Rama Rao, learned Counsel appearing for the Appellant/Accused, 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 of connecting the Accused with the crime. He took us through the evidence of prosecution witnesses to show as to how the prosecution failed to prove all the three circumstances, which are relied upon by them.
9) On the other hand, Sri. S. Dushyanth Reddy, learned Additional Public Prosecutor appearing for the State, opposed the same contending that, though there are no eye witnesses to the incident, but 'motive' and 'extra-judicial confession' which are proved beyond reasonable doubt, are sufficient to base a conviction.
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10) The point that arises for consideration is, whether the prosecution was able to prove the guilt of the Accused beyond reasonable doubt?
11) 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 five golden principles as laid down by Apex Court in the case of Sharad Birdhichand Sarda V. State of Maharashtra1 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 of Maharashtra, (1973) 2 1 (1984) 4 SCC 116 10 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:
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"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 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."12
12) 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.
13) The first circumstance relied upon by the prosecution is the 'motive' for the Accused to commit the offence. As seen from the evidence of PW3 and PW4, the Accused was suspecting the fidelity of PW3 and, three days prior to the incident, he is said to have poured kerosene on the deceased, which was witnessed by the neighbours, who came to her rescue and chastised the Accused.
14) PW4, who is the sister of PW3 also speaks about this version, stating that about three days prior to the incident, she was informed by PW3 about the act of Accused in trying to kill PW3 by pouring kerosene and setting her on fire. It is said that, the incident was informed to the Villagers, who settled the dispute between the Accused and PW3. The evidence of PW3 and PW4 also show that, on Boghi Festival day, the Accused threw almirah on PW3 and deceased, but, though, PW3 was able to escape, the almirah fell on the deceased.
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15) Even PW6, who is the father of the Accused in his evidence deposed about the existence of disputes between the Accused and his wife [PW3], as the Accused was suspecting the fidelity of PW3. But, however, it is to be noted here that, PW3 who is said to have experienced the acts of harassment, in the hands of the Accused, did not mention these crucial aspects in her earlier statements, recorded by the Police. It would be appropriate to refer to the evidence of PW10 [Investigating Officer], in this regard.
"It is true that PW3 stated to me that after birth of her son, the accused used to harassed her and that the accused used to beat her always. But she stated that the accused was beating her now and then. It is true that PW3 did not state to me that the accused made allegation that the deceased daughter was born to PW3 through some body. It is true that PW3 did not state t me that the neighbours rescued her and also the time of their arrival, she only stated that the accused poured kerosene on her. She did not state that the accused poured kerosene on the deceased also. PW3 stated to me specifically about throwing almyrah on them on Bhogi festival day. PW3 did not state to me that while they were sleeping the almyrah was thrown on them. The PW3 only stated that the almyrah was thrown on her by the accused.14
It is true that PW.3 did not state to me that while she was taking lunch, her daughter asked her to give Vadas, and that she gave two vadus to her, and she deceased had gone out with those vadas for playing and that on the instructions of her mother in law she had gone to fields to work at about 1-00 pm. It is true that PW.3 did not state to me that her mother in law, her husband, and her sister in law, told her that they would go to the parents house of her mother in law and that she returned from the fields to their house at about 4-00 p.m. PW3 did not state to me that she searched for the deceased till 6-00 p.m. But she stated she searched for the deceased in the neighbouring localities. It is true that P.W.3 did not state to me that the accused, her mother in law, and her sister in law did not make any efforts to search for the deceased and that she was cry during the entire night and that they stated that they would search for the deceased next day morning and that the accused, her husband, and her sister in law went in a jeep for searching the deceased and that one Burada Chinnayyaa @ Venkataramana came and informed her at about 8-00 am., that her daughter was found in the well waters of the well of M.Appalanaidu of their village and that she informed the same through her brothers over phone."
16) From a reading of the above, it is very much evident that, PW3 did not state about Accused pouring kerosene and also Accused throwing the almirah on both of them on Boghi Festival day. She also did not say in her evidence about the alleged act of beating and harassment by the Accused. She also did not mention about the Accused making allegation 15 that the deceased was born to PW3 through someone. These crucial facts were not spoken to by PW3 to prove existence of motive for the accused to cause the death of the deceased.
17) Coming to the evidence of PW6, who is the father of the Accused, it is to be noted that, in the first sentence of the cross-examination, he categorically states that that the Accused is innocent and that PW3 used to go to her parents house very frequently. In the cross-examination, he admits that, it was he who saw the almirah falling and went there, pushed PW3 and the deceased aside and rescued both of them. But, PW3 gives a different version, stating that the almirah fell on the deceased. Having regard to the above facts, a doubt arises as to whether the 'motive' suggested by the prosecution is proved.
18) The second circumstance relied upon by the prosecution is accused being 'last seen' in the company of the deceased. PW7 and PW8, are the two witnesses examined to speak to this fact. But, both the witnesses did not support the prosecution case and they were treated as hostile by the prosecution.
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19) Coming to the conduct of the inmates of the family members with regard to not making any effort to search for the deceased, as referred to earlier, PW3 failed to mention these facts to the Police, when she was examined, during the course of investigation. Therefore, the theory of Accused being 'last seen' and the conduct of the Accused in keeping quiet, are not proved by the prosecution.
20) The last circumstance relied upon is the 'extra-judicial confession' made by the Accused before PW1. It is to be noted here that, as per the evidence of PW1, the Accused is said to have gone to the Office of PW1 on 20.01.2013 at 9.30 A.M. and made a confession disclosing the commission of offence. As stated earlier, this extra-judicial confession was made on 20.01.2013. Admittedly, PW1 has no close acquaintance with the Accused. Apart from that, the Accused was present at the time of inquest proceedings, which is evident from the evidence of PW10 - Investigating Officer. The case of the Accused is that, after inquest, he was taken to the Police Station and, thereafter, an extra-judicial confession was created, implicating him in the crime.
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21) A perusal of the Inquest Report [Ex.P2] would show that, the Accused was examined at the time of inquest. This inquest was held on 16.01.2013. If really the Accused was suspected to be a person responsible for the incident, the other witnesses including PW3, who was examined at the time of inquest, would have spoken to involvement of accused in the case. For the reasons best known, nobody suspected the Accused as an 'Accused' even at the time of inquest. That being so, there is no reason for the Accused to go and confess about the commission of offence before a person with whom he has no acquaintance.
22) In the case of Sansar Chand vs. State of Rajasthan2, Hon'ble Apex Court in paragraph 29 observed as under:-
"29. There is no absolute rule that an extra judicial confession can never be the basis of a conviction, although ordinarily an extra judicial confession should be corroborated by some other material vide Thimma vs. The State of Mysore - AIR 1971 SC 1871, Mulk Raj vs. The State of U.P. - AIR 1959 SC 902, Sivakumar vs. State by Inspector of Police - AIR 206 SC 563 (para 41 & 42), Shiva Karam Payaswami Tewar vs. State of Maharashtra - AIR 2009 SC 1692, Mohd. Azad vs. State of West Bengal - AIR 2009 SC 1307.2
2010 (10) SCC 604 18
30. Further, in the case of Sahadevan and another vs. State of Tamilnadu 2012 (6) SCC 403, Hon'ble Apex Court in paragraphs 14 to 16 observed as under:-
"14. 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.
23) In the case of Aloke Nath Dutta v. State of W.B.3, the Hon'ble Apex Court, while holding that conviction based on extra-judicial confession in absence of other corroborating material, as unjustified, observed:
"87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to:3
(2007) 12 SCC 230] 19
(i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.
89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof."
24) As is held by the Hon'ble Apex Court, the extra-judicial confession is a weak piece of evidence and the same by itself cannot be used to connect the Accused with the crime and it can only be used an additional link in the chain of events to establish the culpability of the Accused in the commission of the offence. Since, the other circumstances, namely, (i) 'motive', (ii) 'last seen', and (iii) the conduct of the Accused, are not proved by the prosecution, it may not be safe to convict the Accused, even if it is accepted that the extra- judicial confession made before PW1 is proved. 20
25) In Kailash Gour and others vs. State of Assam4 the Apex Court held as under:
"It is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between accused `may have committed the offence' and `must have committed the offence' which must be traversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognised as a human right which cannot be wished away."
26) Having regard to above, we feel that the circumstances relied upon by the prosecution are not proved beyond doubt and the said circumstances do not form a complete chain, connecting the accused with the crime. Considering the judgments referred to above and in the absence of any cogent and convincing evidence, we feel that, it may not be safe to convict the Appellant/Accused for the charge of murder basing on the evidence adduced. Accordingly, we are inclined to acquit the Appellant/Accused by extending benefit of doubt. 4 AIR 2012 SC 786 21
27) In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the Appellant/Accused in the Judgment, dated 20.03.2015, in Sessions Case No. 50 of 2014 on the file the Principal District and Sessions Judge, Srikakulam, for the offences punishable under Sections 302 and 201 I.P.C. is set- aside and he is acquitted for the said offences. Consequently, the Appellant/Accused shall be set at liberty forthwith, if he is not required in any other case or crime. The fine amount, if any, paid by the Appellant/Accused shall be refunded to him.
28) Consequently, miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR ___________________________________ JUSTICE B.V.L.N. CHAKRAVARTHI Date: 22.11.2022 dmr 22 THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI Criminal Appeal No. 4 of 2016 (Per Hon'ble Sri Justice C.Praveen Kumar) Date: 22.11.2022 dmr