Andhra HC (Pre-Telangana)
Shaik Ibraheem vs The State Of Andhra Pradesh Represented ... on 12 February, 2018
Bench: C.V. Nagarjuna Reddy, Kongara Vijaya Lakshmi
THE HONOURABLE SRI JUSTICE C.V. NAGARJUNA REDDY AND THE HONOURABLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI
Criminal Appeal Nos.77 of 2011 and batch
12-2-2018
Shaik Ibraheem Appellant
The State of Andhra Pradesh Represented by Public Prosecutor High Court of Andhra Pradesh Hyderabad Respondent
Counsel for the appellant : Mr. Akula Anil Srinivas, for
Mr. Raj Kumar Rudra
Counsel for the respondent : Public Prosecutor (TS)
<GIST
>HEAD NOTE:
? CITATIONS: 1. 2011 (1) ALT (Crl) 291 = 2011 (1) ALD (Crl.) 759 (AP)
2. (2013) 12 SCC 406
3. (2012) 9 SCC 249
4. (1978) 4 SCC 65
5. (1988) 4 SCC 302
6. (1978) 4 SCC 435
7. (2001) 9 SCC 362
8. (2004) 10 SCC 657
9. (2011) 11 SCC 111
10. (2001) 8 SCC 578
11. AIR 2014 SC 1256
12. AIR 2012 SC 1357
13. AIR 2013 SC 912
14. AIR 2013 SC 3150
15. (2016) 13 SCC 12 = 2016 (2) ALD (Crl) 50 (SC)
THE HONBLE SRI JUSTICE C.V.NAGARJUNA REDDY
AND
THE HONBLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI
Crl.A.Nos.77 and 964 of 2011
12.02.2018
Crl.A.No.77 of 2011:
The Court made the following:
Common Judgment:
These cases involve gruesome murder of an innocent
pregnant woman and consequently, foeticide as well, and an
attempt to screen the evidence.
2. The case of the prosecution as set out in the charge sheet
is as under.
(a) On 14.01.2008, at 10.00 hours, P.W.12 received a
complaint from P.W.1, wherein she stated as follows.
She has three daughters and a son. The marriage of her
elder daughter viz., Irfana Begum @ Sana Irfana (hereinafter
referred to as the deceased) was performed with Mohammed
Ghouse of Sreeramnagar Colony on 27.08.2007. During the
marriage, they gave four tulas of gold, 20 tulas of silver and net
cash of Rs.20,000/- towards dowry. The couple lead conjugal
life happily for two months. Thereafter, her son-in-law left for
Saudi Arabia. Later, accused Nos.1 and 5 to 9 i.e., the mother-
in-law and other family members of the husband of the
deceased tortured her mentally and physically, by demanding an
additional dowry of Rs.30,000/-. When this was informed to
her by the deceased, P.W.1 asked to wait for one month. On
14.01.2008, at about 01.00 hours, all the above accused tortured
the deceased and accused No.1 raped and murdered her. To
screen away the evidence, accused No.1 shifted her dead body
into Maruti Omni van bearing No.AP 25/M 2859 with the help
of the driver and proceeded towards Hyderabad. When they
stopped at Pondurthi Petrol bunk in Narsannapally limits for
the purpose of petrol, the person, who was working in the
petrol bunk, saw the dead body and started enquiring the
matter, upon which, accused No.1 and the driver left the van
and the dead body and fled away. As such, P.W.1 requested the
Police for taking necessary action into the incident. Based on
the said report, P.W.12 registered a case in crime No.9 of 2008
under Sections 498-A, 376, 302 and 201 I.P.C., which was
investigated into by P.Ws.13, 14 and 15.
(b) During the course of the investigation, P.W.12
recorded the statement of the complainant P.W.1. On receipt
of information, P.W.13 visited HP petrol bunk, where the dead
body of the deceased was abandoned in a Maruti Omni van,
inspected the dead body, examined the witnesses P.Ws.1 and
2 and L.Ws.2 to 4 viz., Tajoddin, Sameer Hussain and Sk.Akber,
recorded their statements, took the photographs of the dead
body with the help of P.W.3 and also examined him and
recorded and his statement. On requisition by
P.W.13, P.W.11 the Deputy Mandal Revenue Officer,
Kamareddy visited the scene, examined the witnesses
P.Ws.1 and 2 and L.Ws.2 to 4 and conducted inquest over the
dead body of the deceased, which was lying in the Maruti Omni
van in the presence of P.Ws.5 to 7 and the dead body was
referred to the Government Hospital, Kamareddy for autopsy.
P.W.13 seized Maruti Omni van bearing No.AP 25/M 2859 in
the presence of P.Ws.5 and 7. P.W.10 and L.W.13 -
Dr.G.Sujatha, conducted autopsy over the dead body of the
deceased and sent the vaginal smears to the Andhra Pradesh
Forensic Science Laboratory (FSL), Hyderabad.
(c) On 15.01.2008, at 13.00 hours, P.W.13 apprehended
accused Nos.1 to 4 at Railway Station, Kamareddy, duly
explaining them the grounds for their apprehension. On
interrogation, they all confessed to have committed the
offences. As such, P.W.13 recorded their confessional
statements in the presence of P.Ws.8 and 9 separately. In
pursuance of the confession, accused No.1 lead the Police and
the mediators to his house where the offence had occurred and
a piece of cloth of his shirt pocket, SINOSTAR wrist watch
and broken bangle pieces of the deceased were seized from the
bedroom under the cover of separate recovery panchanama.
P.W.13 brought the above accused to the Police Station (P.S.)
at 16.00 hours, effected their arrest by issuing arrest memos,
complied with Section 50 Cr.P.C. and referred accused No.1 to
the Government Area Hospital, Kamareddy, for conducting
potency test and treating the injuries sustained by him and also
for issuance of the medical certificate. L.W.14 B.Ramchander
Rao - the Civil Assistant Surgeon, who conducted potency test
over accused No.1, opined that there was nothing to suggest
that the male examined by him was not capable of sexual act.
L.W.14 also preserved the semen and pubic hair of accused
No.1 for sending it to F.S.L. and issued medical certificate
regarding the injuries on accused No.1 to the effect that they
are simple in nature. Accused No.1 was produced in the Court
for judicial remand on the next day. On 15.01.2008 itself, as
per the instructions of P.W.13, P.W.12 transferred the C.D. file
to Kamareddy P.S. on the point of jurisdiction. On receipt of
the C.D. file, P.W.14 re-registered the case as crime No.19 of
2008 under the same Section of law.
(d) On 23.01.2008, at 12.35 hours, P.W.15 apprehended
accused No.8 at Bhavani road and on interrogation, she
voluntarily confessed to have committed the offences along
with accused Nos.1 to 7 and 9. As such, P.W.15 brought her
to the P.S. at 13.15 hours, effected her arrest by issuing arrest
memo, complied with Section 50 Cr.P.C. and produced her in
the Court for judicial remand. On 14.02.2008, accused No.6
was arrested at Nizamsagar crossroads by P.W.15 at 7.15 hours
duly explaining him the grounds for his apprehension and on
interrogation, he voluntarily confessed to have committed the
offences along with accused Nos.1 to 5 and 7 to 9. P.W.15
brought him to the P.S. at 8.30 hours, effected his arrest by
issuing arrest memo, complied with Section 50 Cr.P.C. and
produced him in the Court for judicial remand. On 19.03.2008,
at 10.15 hours, accused No.9 came to the office of P.W.15 and
surrendered herself by voluntarily confessing the commission
of the offences along accused Nos.1 to 8. As such, P.W.15
effected her arrest by issuing arrest memo, complied with
Section 50 Cr.P.C. and produced her in the Court for judicial
remand. On 04.05.2008, at 07.30 hours, accused No.7 was
apprehended at Borabanda by P.W.15 and brought to the office
of P.W.15 at 10.15 hours. On interrogation, accused No.7
confessed to have committed the offences along with accused
Nos.1 to 6 and 8 and 9. As such, P.W.15 effected her arrest by
issuing arrest memo, complied with Section 50 Cr.P.C. and got
her produced in the Court for judicial remand.
On 03.06.2008, at 08.35 hours, accused No.5 surrendered
before P.W.15. On interrogation, she confessed to have
committed the offence in the company of accused Nos.1 to 4
and 6 and 9. As such, P.W.15 effected her arrest by issuing
arrest memo, complied with Section 50 Cr.P.C. and got her
produced in the Court for judicial remand. After receiving the
F.S.L. report, P.W.10 and L.W.13 the team of Doctors,
opined that the cause of death of the deceased was Asphyxia
due to throttling. The material objects seized by the
Investigating Officer during the course of the investigation and
the medical certificates were forwarded to A.P.F.S.L., which in
turn, issued the analysis report.
3. Based on the charge sheet and the material collected
during the investigation, the trial Court framed the following
charges.
Firstly:-
That you Abdul Hameed @ Ablu A-1, Smt.Gousiya
Begum A-5, Abdul Moize A-6, Smt. Naseema A-7,
Shehnaz Begam A-8, Smt.Irfana A-9 on or about
27.08.2007 being the mother in law and brother and sisters
in law of Smt.Sana @ Sana Irfana Begum subjected her to
cruelty by way of torture both mentally and physically
demanding for dowry and that you thereby committed an
offence punishable under Section 498-A I.P.C. and within
my cognizance.
Secondly:-
That you Abdul Hameed @ Ablu A-1 on or about
14.01.2008 at about mid night committed rape on Smt.Sana
@ Sana Irfana Begum who is your brothers wife and
thereby committed an offence punishable under Section
3.7.6. IPC and within my cognizance.
Thirdly:-
That you Abdul Hameed @ Ablu A-1 on or about
14.01.2008 at about mid night committed murder
intentionally by raping, chocking the mouth and nose and
throttling and causing the death of Smt.Sana @ Sana @
Sana Irfana Begum and thereby committed an offence
punishable under Section 302 I.P.C. and within my
cognizance.
Fourthly:-
That you Abdul Hameed @ Ablu A-1 Shaik
Ibraheem A-2, Abdul Majeed A-3, Abdul Nayeem A-4 on
or about 14.01.2008 at about mid night having reason to
believe that the offence namely rape and murder
punishment with imprisonment for life has been
committed by A-1 Abdul Hameed caused certain evidence
connected with the said offence namely burning the body
and taking it to unknown place to remove the body from
the place of offence with an intention to screen the
offender i.e., A-1 amongst you from legal punishment and
thereby you have committed an offence punishable under
Section 201 IPC and within my cognizance.
4. As the plea of the accused is one of denial, they were
subjected to trial, during which, the prosecution examined
P.Ws.1 to 15 got Exs.P-1 to P-27 marked and produced
M.Os.1 to 5. On behalf of the accused, no evidence was
adduced.
5. On appreciation of the oral and documentary evidence,
the Court below, vide its judgment, dated 25.01.2011, has
acquitted accused Nos.1 and 5 to 9 of the charge for the
offence punishable under Section 498-A I.P.C. and also accused
No.1 of the charge for the offence punishable under Section
376 I.P.C. The Court below also acquitted accused Nos.3 and
4 of the charge for the offence punishable under Section 201
I.P.C. It has, however, convicted accused No.1 for the offence
punishable under Section 302 I.P.C. and sentenced him to
undergo life imprisonment and also to pay a fine of Rs.10,000/-
and in default of such payment, to undergo simple
imprisonment for a period of four months. Accused Nos.1 and
2 were found guilty of the offence punishable under Section
201 I.P.C. and were sentenced to undergo rigorous
imprisonment for a period of three years each on the said count
and to pay a fine of Rs.5,000/- each and in default of such
payment, to undergo simple imprisonment for a period of four
months each. Both the sentences were directed to run
concurrently, with the further direction that the remand period
of accused No.2 shall be given set off. Feeling aggrieved by his
conviction and sentencing, accused No.1 has filed
Crl.A.No.964 of 2011 and against his conviction and
sentencing, accused No.2 has filed Crl.A.No.77 of 2011.
6. For convenience, the appellants are hereinafter referred to
as they are arraigned in Sessions Case No.402 of 2008 before
the Court below.
7. Smt.C.Vasundhara Reddy, learned counsel for accused
No.1, has submitted that the Court below has committed a
serious error in convicting accused No.1 for the offences
punishable under Sections 302 and 201 I.P.C. in the absence of
evidence connecting him to the killing of the deceased. She has
further submitted that in the absence of the eyewitnesses, the
burden lies on the prosecution to establish all the links in the
chain of circumstances and it failed to discharge its burden.
She has also submitted that when accused Nos.5 to 9 i.e.,
mother-in-law, brother-in-law, two sisters-in-law and one co-
sister were present along with accused No.1 and the deceased
in the house, singling out accused No.1 and holding him guilty
for the murder cannot be sustained as the prosecution failed to
put-forth any evidence proving the involvement of accused
No.1 in the murder. She has taken us through the oral and
documentary evidence and submitted that the crucial witness
viz., P.W.2, who allegedly saw accused Nos.1 and 2 at the petrol
bunk along with the dead body of the deceased, having turned
hostile and not supported the prosecution case, the Court
below has fallen into a serious error in finding accused No.1
guilty of the offences punishable under Sections 301 and 201
I.P.C. She has further submitted that if the incriminating points
are not put to the accused during their examination under
Section 313 Cr.P.C., the same cannot be relied upon in the
evidence and that the alleged recoveries having not been put to
accused No.1, they cannot be held proved, without which the
prosecution failed to establish all the links in the chain of
circumstances. She has also submitted that the Court below,
having disbelieved the case of the prosecution that accused
No.1 committed rape of the deceased, ought not to have
believed the version of the prosecution that he committed
murder of the deceased. In support of her submissions,
the learned counsel has placed reliance on the judgments in
Gaddegudem Vadenna vs. State of Andhra Pradesh and
Sujit Biswas vs. State of Assam .
8. Mr.Akula Anil Srinivas, learned counsel representing
Mr.Raj Kumar Rudra, learned counsel for accused No.2, has
submitted that when the prosecution failed to adduce any
evidence to show the involvement of accused No.2 in causing
disappearance of the evidence, merely because the dead body
was found in the van belonging to accused No.2, it cannot be
presumed that he had the intention of causing disappearance of
the evidence and that the Court below on mere suspicion, has
unjustly convicted accused No.2 for the offence punishable
under Section 201 I.P.C. In support of his submission, the
learned counsel has placed reliance on the judgment in Suresh
Sakharam Nangare vs. State of Maharashtra . The learned
counsel has alternatively submitted that in the absence of any
direct evidence to show that accused No.2 had actively
collaborated with accused No.1 in causing disappearance of the
evidence, the sentence of three years is quite disproportionate
to the offence alleged against him.
9. Opposing the above submissions, the learned Public
Prosecutor (T.S.) has submitted that the circumstances brought
out on record by the prosecution clearly proved the guilt of
accused No.1 for the offence of murder punishable under
Section 302 I.P.C. and that of accused Nos.1 and 2 for the
offence punishable under Section 201 I.P.C. He has further
submitted that in the absence of any dispute about the death of
the deceased being homicidal, the place of the death being the
house of accused No.1, in the light of the recoveries of M.Os.3
to 5, which included the torn piece of accused No.1s shirt
pocket, and the absence of any explanation from accused No.1
as to any other manner the deceased might have been killed and
by somebody else, the Court below has rightly convicted
accused No.1 for the offence punishable under Section 302
I.P.C. He has also submitted that even if accused No.1 was
acquitted of the charge for the offence punishable under
Section 498-A I.P.C. that by itself would not absolve him of the
charge for the offence punishable under Section 302 I.P.C.
when the existence of strong circumstances pointing to his guilt
was established by the prosecution. He has further submitted
that accused No.1 cannot be allowed to get away with the
barbarious act perpetrated on an innocent pregnant woman. As
regards the conviction and sentencing for the offence
punishable under Section 201 I.P.C., he has sought to justify
the same.
10. We have carefully considered the submissions of the
learned counsel for both the parties with reference to the
record.
11. P.W.1 is the mother of the deceased. Based on Ex.P-1
report given by her, the Police registered the F.I.R. She, inter
alia, stated in the report that she gave some gold and silver and
money as dowry at the time of marriage of her elder daughter
(the deceased) with Md. Ghouse the brother of accused No.1
and that her son-in-law went to Saudi Arabia two months after
the marriage. She also referred to accused Nos.5, 1 and 6 to 9,
who are the mother-in-law, two brothers-in-law,
two sisters-in-law and co-sister respectively of the deceased,
demanding additional dowry and harassing the deceased, both
physically and mentally. After narrating the above background,
she alleged that accused No.1 raped the deceased and killed her
by throttling and that to cause disappearance of the dead body,
accused No.1 has taken the dead body in an Omni van bearing
No.AP 25/M 2859 on NH-7 road towards Hyderabad and
when P.W.2 the worker in the petrol bunk, noticed the dead
body in the van and questioned accused No.1, he left the dead
body and fled away at around 2.15 a.m. on 14.01.2008. She
further stated that P.W.2 informed the above facts to her, based
on which she gave the report. P.W.1 reiterated the contents of
Ex.P-1 in her evidence, in particular, in the chief examination.
In her cross-examination, she however, admitted that accused
Nos.6 and 9 the brother-in-law of the deceased and his wife
are living separately and that similarly, accused No.8 one of the
sisters-in-law of the deceased, is also living separately. It is,
thus, evident from the evidence of P.W.1 that the deceased,
accused Nos.1, 5 and 7 were living in the house together at the
time of the occurrence. Significantly, no suggestion was put to
P.W.1 that accused No.1 was not at home when the offence
has taken place or that the offence has not taken place at his
house. No suggestion probablising the death of the deceased in
any manner other than the manner as alleged by the
prosecution was put to P.W.1.
12. P.W.2 is the worker in the petrol bunk at Pondurthy,
where Maruti Omni van bearing registration No.AP 25/M 2859
belonging to accused No.2 along with the dead body of the
deceased therein, was found. As happens in many criminal
cases, the defence appeared to have cleverly managed him to
turn hostile. As usual, like in any other hostile witness, he
feigned ignorance of his seeing accused Nos.1 and 2 in the
petrol bunk along with Maruti Omni van and the dead body
therein and his even giving the statement to the Police. P.W.3 is
a photographer who took photographs of the van with a dead
woman lying therein. He was not cross-examined on behalf of
any of the accused. P.W.4 is an employee of NCSF and
brother of P.W.1 and he deposed that he came to know that
the brother-in-law of the deceased (identified as accused No.1)
killed the deceased and that while he was taking the body in
order to dispose of the same he was caught. He has also
deposed that he came to know later through Police that all the
accused were involved in the killing of the deceased and
accused No.5 (mother of accused No.1) called for a press
conference and informed them that the deceased eloped with a
person taking away the gold and money. As the evidence of
P.W.4 is hearsay, it has no evidentiary value.
13. P.W.5, cited as panchayatdar for Ex.P.8 inquest
panchanama, Ex.P.9 seizure panchanama and Ex.P.10
rough sketch, turned hostile and did not support the case of the
prosecution. P.W.6, cited as panchayatdar for Ex.P.8 - inquest
panchanama also turned hostile. Both P.Ws.5 and 6 stated that
their signatures have been obtained on the respective
documents. In relation to this, P.W.6 stated that he does not
know the contents of Exs.P.8 as he is an illiterate. P.W.7,
another purported witness to Exs.P.8 to P.10 also turned
hostile. He stated that when he went to the Police Station to
collect the chicken bill, the Police have obtained his signatures.
P.W.8, the alleged attestor to Ex.P.17, confession panchanama,
also turned hostile. Similarly, P.W.9, the alleged attestor to
Exs.P.19 to 21, confessional statements of accused Nos.2 to 4,
also turned hostile. P.W.10 the Doctor, who conducted the
autopsy over the dead body of the deceased and issued Ex.P.23
post-mortem report, submitted that he found the following
anti-mortem injuries on the body of the deceased.
1. A contusion on the front portion of the throat measuring 7 x
3 cms.
2. A contusion on the left cheek of 5 x 3 cms.
3. An abrasion on the right posterior aspect of the elbow of 3 x
3 cms.
He further stated that he found fracture of the hyoid bone on
the left side, muscle contusions and blood clots. That when the
abdomen of the deceased was opened, he found that her uterus
was enlarged with a pregnancy of 3 to 4 months and a male
foetus was present in the same. He collected the vaginal smears
for chemical analysis and got the same sent for chemical
analysis. That later he received Ex.P.22 - FSL report and that
on the basis of the autopsy and the FSL report, he opined that
the death was due to asphyxia due to throttling and therefore
he has issued Ex.P.23 to that effect. He also referred to
Ex.P.24 shown to him and issued by Dr. Ramachander Rao,
whose signature was identified, and stated that in the said
document the doctor opined that accused No.1 was capable of
sexual acts. The only aspect on which P.W.10 was cross-
examined was regarding Ex.P.25, the alleged consent letter of
accused No.1, for conducting medical test on him. All other
aspects regarding the injuries on the body of the deceased and
the cause of death in the evidence of P.W.10 remained
uncontroverted.
14. P.W.11 was the Deputy Mandal Revenue Officer at
Kamareddy, and a witness to the inquest. P.W.12, who was
Sub-Inspector of Police of Devanpally Police Station, and who
registered the FIR deposed about his receiving Ex.P.1 - Police
report from P.W.1 and his registering Crime No.9 of 2008
under Sections 498A, 376, and 201 IPC under Ex.P.26 FIR.
He further deposed that he has recorded the statement of
P.W.1 and handed over the case file along with the property
seized by him to the Sub-Inspector of Police, Kamareddy on
point of jurisdiction. In his cross-examination, P.W.12
admitted that P.W.1 did not state before him that she has taken
her daughter, i.e., the deceased to the hospital on 10.1.2007 and
that later her daughter informed her on the phone that the
accused harassed her for want of money of Rs.50,000/- and
gold of 3 tolas was sent to her by her husband. He also
admitted that P.W.1 did not state before him that the Police
have informed her that accused Nos.5 to 9 caught hold of the
deceased while accused No.1 raped her.
15. P.W.13 the Circle Inspector of Police, Bhiknoor
deposed that he has received a phone call from P.W.12
regarding registration of Crime No.9 of 2008, that being the in-
charge Circle Inspector of Kamareddy, he proceeded to the
scene of offence located at Narsannapalli Petrol Bunk, at the
said place he found a Omni Van bearing No.AP 25M 2859 with
a dead body of a woman, recorded the statements of P.Ws.2, 4,
and L.Ws.2 and 3, and that later P.W.11 held inquest
panchanama over the body of the deceased in the presence of
P.Ws.5 to 7. He further deposed about his sending the body
for post-mortem examination and seizure of the Omni Van
under a panchanama in the presence of P.Ws.5, 7 and 8. That
he got the scene of offence and the dead body photographed
prior to the body being sent for post-mortem examination
through P.W.3. He further deposed that on 15.1.2008 at about
1.00 p.m., he apprehended accused Nos.1 to 4 at the Railway
Station, Kamareddy, and interrogated them and they confessed
about the offence. That he recorded Exs.P.17, and 19 to 21
confessional statements in the presence of P.Ws.8 and 9 and
seized M.O.2 red and white stripes shirt of accused No.1
which was torn in the commission of the offence, at his
instance, under the same panchanama. That accused No.1 led
the Police and panchayatdars to his house and produced M.O.5
- torn piece of the pocket of his shirt, which is M.O. 2, M.O.3 -
broken bangles of the deceased, and M.O.4 Sinostar make
watch seized under ExP.18 - scene of offence panchanama,
drew Ex.P.10 - rough sketch of the scene of offence, brought
accused Nos.1 to 4 to the Police Station, effected their arrest
and sent them for judicial remand, after sending accused No.1
for medical examination. In the cross-examination by the
counsel for accused Nos.1, and 3 to 5, P.W.13 admitted that
P.W.4 did not state before him that accused No.1 killed the
deceased for the money sent by her husband. He has denied
the suggestion that he has not visited the scene of offence and
did not hold any panchanama and that he has not seized any
material object from the said place. He has also denied the
suggestion that accused Nos.A.1 to A.4 did not confess about
the offence and that he has falsely implicated them. In the
cross-examination by the counsel for accused No.2, P.W.13
denied the suggestion that no Omni Van was used in the
commission of the offence and he has not seized the same and
that he has falsely implicated accused No.2 in this case though
he is not the driver of the Omni Van.
16. P.W.15 who was the Circle Inspector of Police,
Kamareddy and who conducted the later part of investigation
and apprehended one of the accused, i.e., accused No.8,
referred to sending the material objects on 05.02.2008 to the
FSL for examination. He further deposed that he collected
Ex.P.22 FSL report and Ex.P.23 post-mortem report and
filed the charge sheet. P.W.15 was not subjected to specific
cross-examination about the FSL and post-mortem reports.
For the first time, a suggestion was put on behalf of accused
No.2 to this witness that accused No.2 is neither the owner nor
the driver of the Maruti Van.
17. From the aforementioned discussion, the following
admitted facts emerge.
a. The death of the deceased is homicidal.
b. The death took place in the house of accused No.1.
c. Accused No.1 has not put-forth any defence that he
was not at home when the offence took place, and
d. Neither accused No.1 nor any other inmate has
informed the Police about the death of the deceased.
18. The primordium of the case of accused No.1 is that when
there were more than one accused in the house when the
alleged offence has taken place, it is not possible to hold
accused No.1 guilty of murder. As noted herein before, there
were not more than three persons apart from the deceased, in
the house. As it is the case of the defence that the brother-in-
law of the deceased - accused No.6 and his wife - accused No.9
and sister-in-law of the deceased accused No.8 are living
separately and therefore accused No.7, another sister-in-law
must have been in the house apart from accused Nos.1 and 5.
It is specifically urged by the prosecution that accused No.1
being un-married, had an evil eye on the deceased. Though the
post-mortem examination report shows only three injuries,
namely, (i) a contusion on the front portion of the throat; (ii) a
contusion on the left cheek; and (iii) an abrasion on the right
posterior aspect of the elbow, Ex.P.3 photographs, the
authenticity of which was not disputed, show many injuries
commencing from right cheek down to the neck. These
injuries clearly show that they must have been sustained by the
deceased in the struggle. Added to this, one of the
photographs shows that the naked body of the deceased was
covered upto shoulders with a nighty and an apparel like
pyjama was placed on the nighty. The defence has not come
out with any suggestion probabalising the causing of such
injuries by any other person. Non-denial of accused No.1s
presence in the house and his failure to report to the Police
about the death also support the case of the prosecution that he
is responsible for the causing of the death. Accused No.1 being
unmarried and his brother having left the deceased two months
after the marriage also lends strength to the case of the
prosecution that no one else has any reason to attack the
deceased during the dead of the night. Neither the Police nor
the Court have charged anyone other than accused No.1 with
the offence of sexual assault and also murder of the deceased.
Accused Nos.5 and 7 being women the question of sexual
assault on the deceased by them does not arise. Added to this,
the evidence of P.W.13 clearly demonstrates that at the time of
the arrest of accused No.1 the former has seized M.O.2 - red
and white stripes shirt and on being led by accused No.1, the
Police have also seized M.O.5 - torn piece of the pocket of the
shirt of accused No.1.
19. No doubt, P.Ws.5 to 7, the alleged mediators to the
seizure panchanamas, turned hostile. But, however, the
evidence of P.W.13 could not be shaken by the defence.
Except the suggestion that he has not visited the scene of
offence and did not hold any panchanama and seize any
material objects from the said place, nothing could be elicited
to falsify the testimony of P.W.13. The law is well settled that
even when the panch witnesses turned hostile, the evidence of
the Investigating Officer, if otherwise credible, can be made the
basis to believe the seizure.
20. In State of Kerala v. M.M. Mathew , the Supreme
Court held prima facie public servants must be presumed to
act honestly and conscientiously and their evidence has to be
assessed on its intrinsic worth and cannot be discarded merely
on the ground that being pubic servants they are interested in
the success of their case. This view was reiterated by the
Supreme Court in State of U.P. v. Krishna Gopal .
21. In Modan Singh v. State of Rajasthan the Supreme
Court observed that where the evidence of the investigating
officer who recovered the material objects is convincing, the
evidence as to recovery need not be rejected on the ground that
seizure witnesses did not support the prosecution version. This
view was reiterated in Mohd. Aslam v. State of
Maharashtra . In Anter Singh v. State of Rajasthan the
Apex Court held that even if panch witnesses turn hostile,
which happens very often in criminal cases, the evidence of the
person who effected the recovery would not stand vitiated. In
Rameshbhai Mohanbhai Koli v. State of Gujarat the
Supreme Court held:
This Court has held in a large number of cases that
merely because the panch witnesses have turned hostile is no
ground to reject the evidence if the same is based on the
testimony of the investigating officer alone. In the instant case,
it is not the case of defence that the testimony of the
investigating officer suffers from any infirmity or doubt. [Vide
Modan Singh case (6 supra) and Anter Singh case (8 supra)].
22. In the light of the case law referred to above and
considering the intrinsic value of the evidence of P.W.13, which
as observed above could not be shaken by the defence as
regards the seizure, we are inclined to hold that the prosecution
was able to prove the seizure of M.Os.2 to 5.
23. With reference to the submission of the learned counsel
that when no suggestion was put to the accused under Section
313 CrPC examination about the incriminating material, the
same cannot be relied upon, the learned counsel relied upon the
judgment in Sujit Biswas (2 supra). The facts in the said case
reveal that the bloodstains found on the underwear of
the accused matched the blood group of the deceased.
However, the said circumstance was not put to the accused
while he was being examined under Section 313 CrPC by the
trial Court. The Supreme Court held that the said circumstance
cannot be taken into consideration as the accused was not given
an opportunity of explaining the said incriminating
circumstance. In the instant case, question No.9 put to the
accused under Section 313 CrPC examination, reads as under:
Q.9: P.W.12 Y. Sayanna stated that while he worked as SI
of Police, PS Devanpally, he received a complaint from PW1
vide Ex.P.1 on 14-1-2008, hence registered Cr.No.9/08,
U/ss.498-A, 376, 201 IPC and sent the FIR to the Court apart
from recording the statement of PW1 and then handed over the
case file to the CI of Police along with the property seized.
What do you say?
24. Though specific reference to M.Os.3 to 5 has not been
made to accused No.1 in the absence of the defence taking the
stand in the cross-examination of P.W.13 that even if seizure
has taken place M.O.2 shirt does not belong to accused No.1
or M.O.5 the torn piece of the shirt pocket did not match
M.O.2, the submission of the counsel that it cannot be relied
upon, cannot be sustained. Apart from the struggle marks, the
torn pocket piece of the shirt belonging to accused No.1 would
clearly prove that it is only accused No.1 who attacked the
deceased with a view to sexually assault her and in the process
he throttled her to death.
25. In State of Punjab v. Naib Din the Supreme Court
held that if any appellate or revisional court comes across a vital
question not being put to the accused, such omission should
not result in setting aside the conviction and that the Court
should consider the impact of such question. The Supreme
Court further held that if the remaining evidence is sufficient to
bring home the guilt of the accused the lapse does not matter
much and it would be justifiable.
26. While the accused has a right to be silent during his
examination, the Court can draw adverse inference if he fails to
explain incriminating circumstances put to him. In Phula
Singh v. State of Himachal Pradesh the Apex Court held
that accused has the right to maintain silence during
examination or even remain in complete denial when his
statement under Section 313 CrPC is being recorded. But, in
such an event adverse inference could be drawn against him.
In Ram Naresh v. State of Chattisgarh , Munish Mubar v.
State of Haryana and Raj Kumar Singh @ Raju @ Batya
v. State of Rajasthan the Supreme Court held that the
accused has a duty to furnish an explanation in his statements
under Section 313 Cr.P.C. regarding any incriminating material
that has been produced against him and that if he has been
given the freedom to remain silent during the investigation as
well as before the Court, then the accused may choose to
maintain silence or even remain in complete denial when his
statement under Section 313 Cr.P.C. is being recorded, but, in
such an event, the court would be entitled to draw an inference,
including such adverse inference against the accused as may be
permissible in accordance with law.
27. Significantly, in Section 313 CrPC examination except
denying all the questions either as wrong (Galat) or no, accused
No.1 has not come up with any explanation whatsoever. His
deafening silence in the facts and circumstances of the case can
only be understood as he has no explanation whatsoever to
offer regarding the incriminating material pointing his
involvement in the gruesome murder and hence adverse
inference requires to be drawn against him.
28. As regards the submission of the learned counsel for
accused No.1 that when the case of the prosecution regarding
rape was found false, it is not safe to accept its case regarding
the murder, we are afraid, we cannot accept the same. In the
first place, we find from Ex.P.22- FSL report, in item No.6 dry
brownish substance, human semen and spermatozoa were
found present. P.W.10 in his evidence stated that he has
collected and sent vaginal smears for chemical analysis. Item
No.6 is one such item received by the FSL. The husband of
the deceased being abroad, ordinarily there was no possibility of
spermatozoa being present either on the body of or on the
clothes worn by the deceased. This raises a strong presumption
that accused No.1 might have sexually assaulted the deceased.
But, unfortunately, we find from the post-mortem report that
no special attention was shown by the Doctor as to whether
any signs of rape were present though in Ex.P.23 post-
mortem report, in second un-numbered paragraph, P.W.10
stated as under:
Human semen and spermatozoa are detected in item No.6,
but its blood group could not be detected.
29. Even the lower Court while not ruling out the possibility
of rape, however, could not hold accused No.1 guilty of the
offence under Section 376 IPC in the absence of specific
findings in the medical record, such as post-mortem
examination report and FSL report, while observing that in
order to establish the offence of rape, the presence of semen
and spermatozoa either on the private parts, or on the clothes
of the deceased is not required and mere penetration of a male
genital organ is sufficient to conclude that the offence of rape is
committed. Be that as it may, even assuming that accused No.1
could not accomplish the act of rape, the prosecution case
regarding the murder cannot be thrown out applying the legal
principle falsus in uno, falsus in omnibus (False in one thing is false
in everything) which is not applied to the criminal jurisprudence
in India. When there is credible evidence pointing to the guilt
of the accused beyond all reasonable doubt, failure of the
prosecution to prove its case regarding one offence will not
lead to acquittal of the accused of the remaining offences, if
proper evidence is available on record to prove the guilt of the
accused regarding those offences.
30. Under Section 106 of the Indian Evidence Act, 1872, the
burden of proving a fact is on the person when such fact is
especially within his knowledge. When accused No.1 along
with his mother and one sister were in the same house in which
the deceased was done to death, the fact as to the cause of the
death is exclusively in their knowledge. Accused No.1, who is
charged with the offence of murder, has failed to discharge the
burden. The learned counsel for the appellant, however, relied
upon the judgment in Gaddegudem Vadenna (1 supra) in
order to derive support to her two-fold submission, namely, (i)
that when accused Nos.5 and 7 were living with accused No.1
and when benefit of doubt was given to accused Nos.2 and 3,
accused No.1 is also entitled to the benefit; and (ii) that merely
because accused No.1 was living in the same house along with
the deceased, no presumption under Section 106 of the
Evidence Act can be drawn.
31. We have carefully gone through the judgment in
Gaddegudem Vadenna (1 supra). In that case, the deceased
was wife of accused No.1, and accused Nos.2 and 3 are mother
and sister of accused No.1 respectively. While accused Nos.1
to 3 were charged for the offence under Section 498-A IPC,
accused No.1 was also charged for the offence of murder. On
appreciation of the evidence, this Court observed that it was
not in dispute that accused No.1 was having Acs.6.00 of land in
the outskirts of Village Koilkonda, that he used to do
agriculture and his leaving the house in the early hours of the
day cannot be ruled out. It is thus evident that accused No.1 in
that case has pleaded that he was not at the home when the
offence has taken place. But, in this case, as discussed above,
not even a suggestion was given to the prosecution witnesses
that accused No.1 was not in the house when the offence took
place. Indeed, the Division Bench in Gaddegudem Vadenna
(1 supra) observed as under:
If there is any evidence to show that A.1 and the deceased
were alone present in the house on the fateful day of incident,
certainly presumption that the accused alone is the perpetrator
of the crime can be presumed.
The absence of the stand taken by accused No.1 that he was
not at home, distinguishes the present case on hand with that in
Gaddegudem Vadenna (1 supra) as regards the application or
otherwise of Section 106 of the Evidence Act.
32. As for the second limb of the counsels submission,
namely, that when benefit of doubt was given to accused Nos.2
and 3, such benefit should have been given to accused No.1
also, if the circumstantial evidence did not point to the guilt of
accused No.1 he would be certainly entitled to the benefit of
doubt. M.Os.2 and 5 clearly speak of accused No.1s
involvement without any doubt. Apart from this, the way the
dead body was positioned initially in a naked position (only
kurti/nighty being placed on the body to cover the struggle
marks on the face was seen), presence of human semen (in item
No.6 of FSL report) collected from the deceased and the fact
that the dead body was found in Maruti Van admittedly owned
by accused No.2, a friend of accused No.1, shatter all the
reasonable doubts about the involvement of accused No.1.
Therefore, these features which are absent in Gaddegudem
Vadenna (1 supra) makes the present case stand apart.
33. The judgment of the Supreme Court in Jamnadas and
others v. State of Madhya Pradesh applies in all fours to
this case. That was also a case based on the circumstantial
evidence and the Supreme Court took into consideration the
following links in the chain of circumstances to hold the
accused guilty.
(i) It is established that Bhoomi alias Richa (deceased) was
living in the house of the appellants, after her marriage on
16-9-2006 with appellant Manoj.
(ii) It is also established beyond reasonable doubt that death of
the deceased was homicidal in nature which occurred on
16-9-2006.
(iii) It is also established that the deceased was murdered in the
house of the appellants where bloodstains were found.
(iv) It is also conclusively established that after commission of
murder, the body of the deceased was cut into two pieces.
(v) It is further proved that the dead body was thrown in the
park by Dhanwantari (mother-in-law of deceased) who was
seen doing so by PW 1 to PW 5.
(vi) Perusal of the number of ante-mortem and post-mortem
injuries mentioned in autopsy report read with the
statement of PW 15 Dr N.M. Unda establish beyond
reasonable doubt that the crime could not have been
committed by one person alone.
(vii) There were in all five members in the family excluding the
deceased three male members (Jamnadas, father-in-law;
Manoj, husband and Vishal, brother-in-law of the
deceased) and two female members (Dhanwantari, mother-
in-law and Heena alias Madhuri, minor sister-in-law).
(viii) PW 32 Heena alias Madhuri (minor daughter of Appellant
No.1) was too young. She was a student of Class VIII when
her statement was recorded during trial and she has stated
that she had gone to school on the day of incident and after
her return she slept. (This witness was declared hostile as
she did not fully support the prosecution case). It is
nobody's case that she had any role in commission of the
crime. This leaves four accused named in the charge-sheet,
out of whom Vishal, brother-in-law, was acquitted by the
trial court (rather discharged in respect of offence of
murder). His acquittal is upheld by the High Court, and
nobody has challenged the same. The remaining three in
the field are Dhanwantari (mother-in-law) and the
appellants.
(ix) The appellants have failed to disclose as to how deceased
has died which was especially within their knowledge.
(x) It is nobody's case that any outsider came in the house.
(xi) There is no report lodged to the police by the appellants
regarding homicidal death of the deceased who was wife of
appellant Manoj and daughter-in-law of appellant Jamnadas
as discussed above.
(xii) False explanation has been given by the appellants in their
statements under Section 313 CrPC that the deceased had
gone to her relative's place and that she was missing which
is an additional link on the record against them, in the
chain of circumstances.
Links (ii), (iii), (ix), (x) and (xi) are identical to the present case.
On a holistic consideration of the case in its entirety, we have
no reason to doubt that accused No.1, who had an evil eye on
the deceased, who is no other than his own brothers wife, has
done the deceased to death.
34. The learned counsel for the appellant alternatively
submitted that the conviction may be altered to Section 304
Part I or Part II IPC. We are afraid, we cannot accept her
submission. Here is a case where accused No.1 has taken
advantage of his dominant position in the family and
helplessness of a pregnant woman, mindlessly left by her
husband to her fate within two months of her marriage,
obviously in pursuit of his career. Accused No.1 did not have
any qualm of conscience to develop evil intentions against her
own sister-in-law, who as per Indian culture is revered as
Mother. In disregard of the fact that the deceased was
pregnant, accused No.1 has resorted to heinous act of sexual
exploitation of the deceased and in the process took away her
life. The beastly act done by accused No.1 shocks judicial
conscience. The offence committed by him does not fall in any
of the five exceptions to Section 300 IPC. Therefore, his
conviction cannot be brought under Section 304 IPC which
deals with the offences falling under any of the exceptions
enumerated under Section 300 IPC.
35. Coming to the charge under Section 201 IPC, the learned
counsel for accused Nos.1 and 2 submitted that there is no
evidence to show that the accused tried to cause disappearance
of the body. No doubt, P.W.2, the cashier at the Petrol Pump,
who allegedly saw the accused at the petrol pump along with
Maruti Omni Van with the dead body being carried therein, has
turned hostile. Though the presence of accused Nos.1 and 2
was not spoken to by P.W.2 in his chief examination, he has
however admitted that the Police have shown him a Maruti
Omni van and a woman lying on the seat of the van. Accused
No.2 has not suggested to any of the prosecution witnesses
examined upto P.W.14 that he is not the owner of the car. On
the contrary, in the cross-examination of P.W.1, he has
suggested to P.W.1 that he has not mentioned in Ex.P.1 or in
his statement to the Police that accused No.2 is a friend of
accused No.1 and that accused No.2 is not connected to
accused No.1 or the offence and he was not the driver of the
Omni van. The suggestions given to P.W.13, the Circle
Inspector of Police, Bhiknoor, who seized the Maruti Omni
Van, are significant which read as under:
It is not true to suggest that no Omni Van was used in the
commission of the offence and I have not seized the same. It is
not true to suggest that I have falsely implicated the A2 in this
case though he is not the driver of the Omni Van.
For the first time a suggestion was made to P.W.15, who filed
the charge sheet that accused No.2 is neither the owner nor the
driver of the Maruti Van. This suggestion, in our opinion, is a
pure after thought and contradicts the suggestion given to other
witnesses as discussed above impliedly admitting accused
No.2s ownership of the van, but his debnial of driving the
Omni Van. Even with regard to his friendship with accused
No.1, except a vague suggestion to P.W.1 that he is not
connected with accused No.1, no specific stand was taken that
accused No.2 is not a friend of accused No.1. It is thus proved
that the Maruti Van in which the body of the deceased was
found belonged to accused No.2, who also happened to be a
friend of accused No.1. When the body was found in the Van
belonging to accused No.2, Section 106 of the Indian Evidence
Act places burden on him to explain as to how his Van was
used for carrying the body. As far as accused No.1 is
concerned, as he was found guilty of murder, it is reasonable to
presume that he wanted to cause disappearance of the body by
taking it outside the town through the vehicle belonging to
accused No.2 and in the process he used the latters Van.
36. As regards the alternative submission of the learned
counsel for accused No.2 regarding sentence, there is no
allegation that accused No.2 had any complicity in the murder
of the deceased. Evidently, being a friend, he could not have
refused the request of accused No.1 to help him in disposing of
the body. As a responsible citizen, a duty is cast on him not to
oblige his friend in perpetrating the crime. However, in the
facts and circumstances of the case, we feel that ends of justice
would be met if the sentence imposed upon him is reduced to
one year, while confirming the sentence of fine imposed on
him.
37. In the result, the Criminal Appeal No.77 of 2011 is partly
allowed and Criminal Appeal No.964 of 2011 is dismissed. The
conviction and sentencing of the appellant in Criminal Appeal
No.964 of 2011, for the offences under Sections 302 IPC and
201 IPC are confirmed. Since he is stated to have been enlarged
on bail, he shall forthwith surrender before the Superintendent,
District Jail, Nizamabad, for serving the remainder of the
sentence. The conviction of the appellant in Criminal Appeal
No.77 of 2011 accused No.2 for the offence under Section
201 IPC is confirmed, but the sentence of imprisonment
imposed against him for three years, is reduced to that of one
year. The sentence of fine is however confirmed. Since
accused No.2 is stated to have been enlarged on bail, he shall
forthwith surrender before the Superintendent, District Jail,
Nizamabad, for serving the remaining sentence, if any.
_____________________
C.V. Nagarjuna Reddy, J
_______________________ Kongara Vijaya Lakshmi, J 12.2.2018