Andhra Pradesh High Court - Amravati
Shaik Sab Basha A1, Nellore Dt., vs State Of Ap. Rep. Pp. Hyd., on 16 June, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, R Raghunandan Rao
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
Criminal Appeal No. 643 of 2014
JUDGMENT:(Per Hon'ble Sri Justice C.Praveen Kumar)
1) A1 in Sessions Case No. 126 of 2006 on the file of the III Additional District & Sessions Judge, Nellore is the appellant herein. He along with two others was tried for the offences punishable under Section 302 read with 34 and Section 201 IPC. By its Judgment, dated 31.01.2014, the learned Sessions Judge while acquitting A2 and A3, convicted A1/appellant under both the counts and sentenced the appellant to undergo imprisonment for life and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for a period of three months for the offence punishable under Section 302 IPC and also undergo rigorous imprisonment for a period of three years and pay a fine of Rs.500/-, in default to undergo simple imprisonment for a period of two months for the offence punishable under Section 201 of IPC. Both the sentences were directed to run concurrently. M.Os. 1 and 2 were directed to be destroyed after the appeal time is over. Challenging the same, the present appeal came to be filed.
2) The gravamen of the charges against the accused is that, on 04.12.2004 at the burial yard of Pallipalem, situated on the southern side of Bombay road, the accused is said to have caused death of his wife Shaik Mahataj ['deceased'] by pressing 2 her throat with both hands and thereafter throwing the dead body into the water of Kovuru big canal.
3) The facts, as culled out, from the evidence of prosecution witnesses are as under:
i) The accused/appellant was the husband of the deceased while PW5 is a close relative of the deceased; the husband of PW7 is the brother of A1; A2 is said to be the kept mistress of A1; while, A3 is son of A2. It is said that, A1 developed illegal intimacy with A2 and because of the said intimacy A1 deserted the deceased, upon which, the deceased filed a criminal case against A1. Since then, the deceased was residing in her parent's house at Kavali. It is said that, the deceased came to the house of PW5 who is her maternal aunt to assist her daughter who was pregnant by then. While staying in the house of PW5, she used to visit the house of her parents in Buchireddipalem.
The deceased used to tell PW5 that, A1 was asking her to come and join him along with her children and that he will take a house in Kamakshi Colony for their stay. The evidence further discloses that prior to the incident; the deceased filed a case against A1.
ii) While things stood thus, on 04.12.2004, the deceased informed PW5 that she is going to visit her husband to go to an Advocate to get the case withdrawn from the court. 3 As it was night, PW5 told the deceased not to go to A1 and if necessary got to him on the next day morning. However, the deceased convinced her that she will come back within five minutes and so saying went outside the house but did not return. On the next day, when PW5 was about to go to the house of co-sister in-law of the deceased, she was informed that the deceased went to her parents house. On receiving such information PW5 returned back to the house and searched for the deceased by going to the parents of the deceased at Kavali. When PW5 enquired, she was informed that deceased did not come to their house. At that time, PW5 received information that the deceased and A1 were proceeding on the road on the night of 4th December. In-fact, PW10 in his evidence states that, on the fateful day i.e., on 04.12.2004 at about 7.00 PM, he noticed A1 and deceased going on bye-pass road. PW5 telephoned to PW3 and informed him about the missing of the deceased since last two days and asked him to come to village. Immediately, thereafter, PW3 came to the house of PW5 and enquired with A1 about the deceased, but, A1 did not tell anything about the deceased. Hence, PW3 and PW13 who is also resident of Kavali and brother of the deceased, took A1 to the house of PW1 where the accused is said to have made extra judicial confession disclosing about the incident and also told them that, if they follow him, he would show the dead body of the deceased, which 4 was packed and thrown into a canal. Thereafter, PW1, PW2 and other persons who came with them went to went to the canal situated by the side of the road leading to Chellapapalem village and found the dead body in the said canal. Since foul smell was emanating from the gunny bag in which the dead body was packed, they did not try to open it and returned back and thereafter, took the accused to the police station, where PW1 is said to have lodged a report. Basing on which, a case in Cr. No. 179 of 2004 came to be registered for the offences punishable under Sections 302 and 201 IPC. Ex.P6 is the express First Information Report.
iii) The evidence on record also show that, on 09.12.2004, i.e., the day on which Ex.P1 was lodged, PW9 was summoned to the police station to act as a panch for the confession to be made by the accused. It is said that, A1 confessed the guilty and informed them that if they follow him, he will show the place where the dead body was concealed. Ex.P2 is the relevant portion of the statement made by A1 leading to the discovery of the place of incident and the dead body of the deceased. Though the confession was made at 10.30 P.M., on 09.12.2004, but the accused lead them to the burial ground of Pallipalem, which was situated by the side of Bombay Highway road and shown the place where the incident took place on the next day morning at about 7.00 5 A.M. Ex.P3 is the Observation Report prepared in the presence of PW9 and others. The C.I. of Police got the gunny bag containing the dead body removed from the canal and when the same was opened, they noticed the dead body of a female. A1 is said to have told them that the dead body is that of his wife. PW10 was also asked to identify the dead body. M.O.1 is the gunny bag while M.O.2 is a cloth ribbon seized under Ex.P4 seizure mahazar. He got prepared a rough sketch of the scene, which is placed on record as Ex.P7. Thereafter, the Inspector of Police conducted inquest over the dead body of the deceased in the presence of PW9. Ex.P5 is the inquest report. The panchayatdars opined that the death of the deceased was due to throttling. During inquest, PW14 examined PW4 to PW6 and recorded their statements. Thereafter, the dead body was sent for post-mortem examination. Though, post-mortem doctor was not examined, Ex.P9 post-mortem report came to be marked through the investigation officer. The cause of death, as per post-mortem report is "asphyxia" and the approximate time of death was 6 to 7 days prior to the post-mortem examination, which was conducted between 2.00 to 4.00 P.M. on 10.12.2004. On the same day, PW14 arrested A1 and A3 and sent them to judicial remand. After completing the investigation and collecting all the documents, a charge-sheet came to be filed, which was taken on file as 6 P.R.C. No. 21 of 2005 on the file of the Additional Judicial Magistrate of First Class, Kovur.
iv) On appearance, 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 matter was committed to the Special Court under Section 209 Cr.P.C. Basing on the material available on record, charges referred to above came to be framed, read over and explained to the accused, to which, they pleaded not guilty and claimed to be tried.
v) In support of its case, the prosecution examined PW1 to PW14 witnesses and got marked Ex.P1 to Ex.P9, beside marking MOs. 1 & 2. After completion of prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied but however no oral evidence was adduced on behalf of the accused except getting marked Ex.D1 & Ex.D2, which are the portion of Section 161 Cr.P.C., statements of PW6 and PW13.
vi) Relying upon the three circumstances, namely, the accused being 'last seen' in the company of the deceased; recovery of the dead body at the instance of the accused [Section 27 of the Indian Evidence Act] and the gunny bag, 7 the learned Sessions Judge convicted the appellant. Challenging the same, the present appeal came to be filed.
4) The learned counsel appearing for the appellant would contend that, there are no eye witnesses to the incident and the circumstances relied upon are not sufficient to connect the accused with the crime. It is urged that, even if the theory of 'last seen' is believed, still, the dead body was recovered only six days later and as such, it cannot be said that it was the accused who is responsible for the incident, which is evident from the post-mortem doctor who opined that the deceased died six or seven days prior to the post-mortem. Insofar as recovery of dead body, at the instance of the accused is concerned, it is stated that, much prior to the statement made by the accused, PW1, PW3, PW13 and others were aware about the place where the dead body was and as such, it cannot be said to be a recovery under Section 27 of Indian Evidence Act. The third circumstance, namely, the recovery of the gunny bag, which is said to have been purchased from PW4, it is urged that, it was not having any special marks to say that it was purchased from the shop of PW4. Further, this gunny bag was in water for enarly a week and as such, it is difficult to believe that PW4 could have identified the same as the one purchased from his shop. Since, the post-mortem doctor was not examined, it is pleaded that, the accused was greatly prejudiced to prove the cause of death.
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5) The same is opposed by the learned Public Prosecutor contending that, though, there are no eye witnesses to the incident, but the circumstances relied upon by the prosecution are proved and sufficient to convict the accused.
6) The point that arises for consideration is "whether the circumstances relied upon by the prosecution are proved, and if proved, whether they point towards the guilt of the accused?
7) It is to be noted here that, there are no eye witnesses to the incident and the case rests on circumstantial evidence. In a case arising out of circumstantial evidence, the prosecution has to prove each of the circumstances relied upon by them and the circumstances so proved should form a chain of events connecting to the accused with the crime.
8) The Apex Court has consistently held that, in a case which rests on circumstantial evidence such evidence must satisfy the following tests:
1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
2. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
3. the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and 9
4. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharastra1)
9) Keeping in view the law laid down by the Apex Court, we shall now proceed to deal as to whether the circumstances referred to above are proved and if proved, whether they are sufficient to connect the accused with the crime.
10) The first circumstance relied upon was the accused being 'last seen' in the company of the deceased. Before dealing with the same, we intend to go on to the second circumstance, namely, recovery of the dead body, at the instance of the accused.
11) The evidence of PW3 and PW13 who are no other than the brothers of the deceased show that, A1 having kept A2 as his kept concubine, harassed the deceased and did not provide any food to the deceased and her children. The deceased lodged a report to the police, Kovur and thereafter she came back to his house. Since the daughter of their aunt was pregnant, the deceased stayed in her house at Buchireddipalem assisting the pregnant lady. By the, A1 was residing with A2 at Buchireddipalem. According to PW3, on 07.12.2004 morning, PW5 telephoned to him stating that since three [03] days the 1 (1982) 2 SCC 351 10 deceased was not seen. On that, himself and PW13 came down to Buchireddipalem and searched for her. On that day and on the next day, i.e., 08.12.2004. PW10 and one Salam [not examined] stated to them that A1 and deceased were found going on Bombay Highroad near Buchireddipalem. They searched for A1 and found him at about 4.00 or 5.00 P.M., on 08.12.2004. When enquired about the deceased, he did not tell anything about her, as such, they took A1 to PW1 [Sarpanch], who was in Panchayat Office. There, A1 is said to have confessed about killing of the deceased and thereafter packing the dead body in a gunny bag. He also seems to have told them that the dead body was thrown in a canal. Accordingly, PW1, PW2 [villager], PW3 and PW13 along with the accused went to the canal situated by the side of the road leading to Chellayapalem Village and found the dead body in the canal. But, however, since, foul smell was emanating from the gunny bag, they did not open it, and returned back and proceeded to the police station, where, the law was set into motion. Strangely, this statement of the accused made before PW1 and PW2 was not reduced into writing. No explanation is forthcoming as to why the said extra-judicial confession alleged to have been made by the accused before PW1 and PW2 was not reduced into writing.
12) It is well established principles of law that, when an extra- judicial confession is made before a person other than the police, the same should be reduced into writing and thereafter 11 the accused along with the said statement should be presented before the concerned police, who will then take steps in accordance with law.
13) But, here is the case where the said statement was not reduced into writing. PW1 now fails to identify the person who is said to have confessed about the guilty before him. Strangely, PW1 was not declared hostile by the prosecution. However, in the cross-examination, he admits that, he does not know the names of the persons who came to him and their identity.
14) PW2, who speaks about the alleged extra-judicial confession made by the accused, though, identifies the accused, but, his evidence shows that the statement made by the accused was not reduced into writing. He was also cross-examined at length, but, the suggestions given with regard to extra-judicial confession made before him by the accused was denied.
15) From the evidence of this two witnesses, it is clear that, much prior to the confession made before the police, leading to recovery under Section 27 of the Act, the accused is alleged to have disclosed them about the incident and PW1, PW2, PW3 and PW13 proceeded towards the place where the accused is said to have thrown the dead body. But, they did not take any steps to retrieve the body from the gunny bag. Further, the statement of the accused was never reduced into writing. As said by us earlier, no explanation is forthcoming as to why such a step was 12 not taken, which is a requirement in law to make the extra- judicial confession have some evidentiary value. Therefore, a doubt arises as to whether the accused made such a statement before PW1 to PW3 and PW13. However, PW1, PW2, PW3 and PW13 were aware of the place where the dead body was. That being so, the confession made by the accused before the police stating that he will show the place where the dead body is, if he is followed and his act of showing the dead body on the next day cannot be a recovery under Section 27 of the Act.
16) At this stage, it is also to be noted that, the accused is said to have made a confession on 09.04.2004 at 10.30 P.M., in the presence of C.I. of Police and PW9 and one Sarpanch Srinivasulu. Strangely, on the next day morning, A1 lead them to a burial ground, which is situated at the Bombay Highway and showed them the place where the incident took place and thereafter lead them to the place where the dead body was thrown.
17) Having regard to the circumstances stated above, we feel that the discovery of the dead body, at the instance of the accused, cannot be treated as the one made under Section 27 of the Act, for the reason that, much prior to the disclosure made, the villagers, more particularly, PW1, PW2, PW3 and PW13 were aware as to the place where the dead body is. Though the learned Public Prosecutor states that, these witnesses came to know about the place of dead body only on the basis of the 13 statement made by the accused before them, but, in the absence of such statement be reduced into writing, the same, as is observed by us earlier, cannot be treated as extra-judicial confession, but, it can be said that these witnesses had knowledge/information about the place where the dead body is.
18) Coming to the next circumstance, namely, the accused being 'last seen with the deceased', the prosecution mainly relied upon the evidence of PW10, who in his evidence deposed that, when the deceased was at Buchireddipalem, she used to come to the house of PW7 and used to talk to A1. According to him, on 04.12.2004 at about 7.00 P.M., he noticed A1 and deceased going on bye-pass road, but, subsequently, he has not seen them. The brothers of the deceased, namely, PW3 and another enquired him three days thereafter, whether he has seen the deceased. On that, he informed them that he has seen A1 and deceased. He further disclosed that, he heard that there is a dead body in Kovur canal and C.I. of Police called him and asked him to identify the dead body. Accordingly, he identified the dead body to be that of the deceased. It is his evidence that, A1 himself shown the dead body to the police. In the cross- examination, he states that, PW5 did not ask him about the deceased subsequent to 04.12.2004. PW5 enquired him but he did not inform PW5 and PW7 about he witnessing the deceased in the company of A1.
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19) The evidence of PW10 shows that, at 7.00 P.M., in the night, he noticed A1 and deceased going on the bye-pass road. His evidence also discloses that, he knows the deceased as she used to come to the house of PW7 and she used to talk with A1 in the house of PW7. He also knows A1 and his concubine [A2] who used to stay next to his house.
20) A reading of the evidence-in-chief of PW10 would show that, he has close acquaintance with the deceased and also with the family of the accused. His evidence shows that, though, he has seen the deceased and the accused together on 04.12.2004 at 7.00 P.M., he never informed PW5 and PW7 who were enquiring about the deceased. Apart from that, it is also to be noted that, though, PW10 claims to have seen the accused and deceased at 7.00 P.M., the dead body was traced nearly six days after the incident, after they being seen together. There was no proximity between the time the accused was last seen in the company of the deceased and the time when the dead body was traced. The time gap between the accused being last seen in the company of the deceased being not proximate or immediate to the time when the dead body was traced, this circumstance of lat seen, even if believed, cannot by itself be a ground to connect the accused with the crime.
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21) In Ramreddy Rajesh Khanna Reddy and another v. State of A.P.,2 the Apex Court held as under:-
"The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and 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. Even in such a case courts should look for some corroboration."
22) Coming to the last circumstance, with regard to purchase of gunny bag from PW4. The evidence of PW4 is to the effect that, about six years ago, on one day at about 10.00 P.M., some person purchased a gunny bag for a sum of Rs.10/-. He claims to have identified the person who came and purchased the gunny as A1 and M.O.1 is the gunny bag purchased from him by A1. In the cross-examination, he admits that, generally he used to sell the gunny bags in bulk, but, as A1 came to him stating that he is a lorry driver, he sold M.O.1 to him. He further admits that, there are many gunny bags identical to M.O.1 with him.
23) From the evidence of this witness, it is clear that, there are no special marks/ identification of gunny bag [M.O.1] to identify as the one that was sold to A1. In-fact, his own admission is that, bags identical to M.O.1 are with him and were sold to others. He also admits that, the name of his father is not shown on M.O.1. Further, it is also to be noted here that, PW4 does not say as to when A1 came and purchased gunny bag. Further, as 2 (2006) 10 SCC 172 16 M.O.1 was in the canal till 10th December, i.e., for nearly one week, definitely, it must have got damaged due to soaking, making it difficult to identify.
24) Viewed from any angel, we feel that identification of M.O.1 by PW4 cannot be accepted, more so, in view of his admission in the cross-examination that, there are no special marks/ identification on the M.O.1 and such gunny bags are available everywhere.
25) In Kailash Gour and others vs. State of Assam3 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 three circumstances relied upon by the prosecution are not proved beyond reasonable doubt and in our view, do not form a complete chain, connecting the accused with the crime. Thus, considering the judgments referred to above and in the absence of any cogent and convincing evidence, we are inclined to acquit the appellant, by extending benefit of doubt. 3 AIR 2012 SC 786 17
27) In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/accused in the Judgment, dated 31.01.2014 in Sessions Case No. 126 of 2006 on the file of the III Additional District & Sessions Judge at Nellore, for an offence punishable under Sections 302 and 201 I.P.C., are 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 shall be refunded to him.
28) Consequently, miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR __________________________________ JUSTICE R. RAGHUNANDAN RAO Date: 16.06.2020 SM.
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO Criminal Appeal No. 643 of 2014 (Per Hon'ble Sri Justice C.Praveen Kumar) Date: 16.06.2020 SM.