Andhra Pradesh High Court - Amravati
T. Venkateshwarlu, Ongole Town vs Sho, Ongole Ii Town P.S., Prakasam Dist. on 27 July, 2020
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy, Ninala Jayasurya
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
&
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
Criminal Appeal No.811 of 2015
JUDGMENT:(Per Hon'ble Sri Justice M. Satyanarayana Murthy) The sole accused in S.C.No.182 of 2013 on the file of I Additional District and Sessions Judge, Ongole, preferred this appeal under Section 374 (2) of Criminal Procedure Code (for short Cr.P.C), challenging the conviction and sentence passed against him under the calendar and judgment in S.C.No.182 of 2013 dated 08.07.2015, finding him guilty for the offence punishable under Section 302 of the Indian Penal Code (for short I.P.C) and sentenced him to undergo imprisonment for life and pay fine of Rs.1,000/- with default sentence.
2. The case of the prosecution in nutshell is that the accused and Gudipudi Kondala Rao (P.W.2) were attenders in Principal District Judge's residential bungalow, Ongole. On 25.03.2013 at about 4:50 am while Gudipudi Kondala Rao (P.W.2) was present at his house, the accused who was on night duty as guard/attender, at Principal District Judge's residential bungalow contacted him over phone bearing No.08592-324841, informed that Challa Sambasiva Rao who was on night duty as guard/attender at the residence of Principal District Judge's residential bungalow, on the relevant date was found in unconscious state due to electrical shock, the accused along with G. Chakaradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) were present outside the bungalow and 108 ambulance staff are not responding to his call, asked Gudipudi Kondala Rao (P.W.2) to come to the bungalow as instructed by G. Chakaradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1). Later Gudipudi Kondala Rao (P.W.2) MSM,J & NJS,J Crla_811_2015 2 informed to 108 ambulance by his mobile number 9849423176. Gudipudi Kondala Rao (P.W.2) reached Principal District Judge's residential bungalow, riding his cycle, found one person lying covered with bed sheet. Gudipudi Kondala Rao (P.W.2) went to G. Chakaradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1), informed that 108 ambulance was arrived as the accused informed him that Challa Sambasiva Rao was found in unconscious state due to electrical shock. Thereupon, G. Chakaradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) along with Maddumala Chiranjeevi (P.W.7) and Koppolu Prabhakara Rao (L.W.9) visited the scene of offence which is in the premises of residential bungalow of Principal District Judge, Prakasam at Ongole, found bleeding injuries on the face of Challa Sambasiva Rao and he was declared dead. The accused was found absent at that time, though he was night guard/attender, therefore they prima facie concluded that the accused might have killed Challa Sambasiva Rao (deceased). On the instructions of G. Chakaradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1), Gudipudi Kondala Rao (P.W.2) lodged report (Ex.P1) with the Inspector of Police, Ongole II town P.S. The same was registered as a case in Cr.No.77/2013 for the offences punishable under Sections 302 and 201 I.P.C, issued FIR (Ex.P9). On collection of FIR (Ex.P9), V. Suryanarayana, the then Inspector of Police, Ongole II town P.S (P.W.12) took up investigation, visited the scene of offence, prepared rough sketch of scene of offence (Ex.P10), observed scene of offence in the presence of mediators, examined the witnesses, recorded their statements under Section 161 (3) Cr.P.C. The dead body of Challa Sambasiva Rao (deceased) was forwarded to postmortem examination and after conducting postmortem examination, Dr.Pamujula Suresh (P.W.10) issued postmortem certificate (Ex.P7), the scene of MSM,J & NJS,J Crla_811_2015 3 offence was also photographed. On 25.03.2013 the accused appeared before P.V Subba Rao, MRO (P.W.8), made confessional statement, the same was recorded and the accused was produced before V. Suryanarayana (P.W.12) along with the confession statement recorded by P.V Subba Rao, MRO (P.W.8), V. Suryanarayana (P.W.12) arrested the accused.
3. After arrest of the accused, he was interrogated in the presence of P.V Subba Rao, Tahsildar (P.W.8) and another witness, the accused in turn made confession leading to discovery and the same was reduced into writing at 11:00 am on 25.03.2013, admissible portion of mediators report is marked as Ex.P5. On the basis of Ex.P5, the accused led V. Suryanarayana (P.W.12), P.V Subba Rao (P.W.8) and other mediators to the place where iron rod (M.O.1) was concealed and produced the same before V. Suryanarayana (P.W.12), P.V Subba Rao (P.W.8) and other mediators, who in turn seized the same under the cover of mediators report drafted at 11:45 am on 25.03.2013 (Ex.P6). Later the accused was remanded to judicial custody.
4. V. Suryanarayana (P.W.12) also seized blood stained bandage cloth and piece of control bandage cloth marked as M.O.1 and M.O.2 respectively and they are sent to RFSL along with requisition and letters of advice for examination and report. Accordingly report dated 05.06.2013 was received from RFSL marked as Ex.P23, thereafter having prima facie concluded that the accused was the person who caused death of Challa Sambasiva Rao (deceased), filed charge sheet before the jurisdictional Magistrate.
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5. Since the procedure followed by the Magistrate and Sessions Judge is not in dispute, no purpose will be served in reiterating the procedure followed by the jurisdictional Magistrate and Sessions Judge, as such it is not repeated.
6. The Sessions Court upon securing the presence of the accused, on hearing Additional Public Prosecutor and defence counsel, framed a sole charge for the offence punishable under Section 302 of I.P.C, explained the same to the accused in Telugu, he pleaded not guilty and claimed to be tried.
7. During trial, on behalf of prosecution, P.W.1 to P.W.12 were examined, marked Exs.P1 to P23, and M.O.1 to M.O.3.
8. After closure of prosecution evidence, accused was examined under Section 313 of Cr.P.C, explaining the incriminating material that appeared against him, he denied the same and reported no defence evidence.
9. Upon hearing argument of both the learned Additional Public Prosecutor and learned defence counsel, the Sessions Court believed the evidence of prosecution witnesses and on the basis of theory of last seen together alive, the Sessions Court concluded that the accused was the person who caused death of Challa Sambasiva Rao (deceased) by causing injuries on his body during the intervening night of 24/25.03.2013, as there was no possibility for any other person to enter into the District Judge's residential bungalow during night time, found him guilty, convicted and sentenced him for the grave offence punishable under Section 302 IPC.
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10. Aggrieved by the conviction and sentence passed by the Sessions Court under the calendar and judgment in S.C.No.182 of 2013 dated 08.07.2015, the accused/appellant preferred this appeal on various grounds. The main grounds urged in the grounds of appeal are that acceptance of the evidence of P.V Subba Rao, Tahsildar (P.W.8) regarding extra judicial confession marked as Ex.P2 is a clear illegality, since the accused was found at the Police Station at about 5:00 am as admitted by Gudipudi Kondala Rao (P.W.2) is highly improbable to the natural circumstances. On this ground alone, the extra judicial confession (Ex.P2) is to be disbelieved. It is also further contended that the prosecution failed to examine the Central Nazir of the District Court to prove that the accused was on duty on the date of incident as night guard/attender at the residential bungalow of Principal District Judge, Prakasam at Ongole. In the absence of proof that the accused was on night duty, he cannot be roped with the offence punishable under Section 302 I.P.C.
11. The material object was an iron rod (M.O.1) and no thumb marks were found on iron rod (M.O.1) and the injuries said to have been caused on the body are not with iron rod (M.O.1). Therefore, based on seizure of iron rod (M.O.1), recording conviction of the accused is a serious illegality committed by the Sessions Court and that the complaint lodged by the accused with the police was suppressed and enroped the accused to the grave offence punishable under Section 302 I.P.C. Thus, the Sessions Court committed a grave error in finding the accused guilty for the offence, requested to set aside the same by re-appreciating the evidence available on record.
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12. During hearing the legal aid counsel for the appellant/accused Sri V. Raghu contended that the motive to cause death was that the accused was always complaining against various attenders and other staff members as spoken by G. Chakaradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1), but that by itself is not a ground to convict the accused finding him guilty for the offence, since mere proof of motive is not sufficient and it is not a substantive evidence. Apart from that the alleged seizure of iron rod (M.O.1) on the basis of confession leading to discovery is not believable for the simple reason that the injuries found on the body of Challa Sambasiva Rao (deceased) ought not to have caused by iron rod (M.O.1).
13. The last seen theory is only one of the strong circumstance, but that by itself is not sufficient to convict the accused for the offence unless there is a proximity of time between the time of death and company of the accused with Challa Sambasiva Rao (deceased) while he was alive. Hence, based on theory of last seen together alive in the company of the accused soon before death, the Sessions Court cannot record conviction of the accused, prayed to set aside the same.
14. Whereas the learned Additional Public Prosecutor supported the calendar and judgment and the conviction and sentence passed there under, while highlighting the circumstances under which the incident occurred in the residential bungalow of Principal District Judge, Prakasam at Ongole which is not accessible to any third party except to the attenders working in the District Court and who are posted as night guards/attenders at the residential bungalow, where the scene of offence is located, prayed to confirm the conviction and sentence passed against the accused.
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15. Considering rival contentions, perusing the material available on record, the point for determination is:
Whether the accused caused injuries on the body of Challa Sambasiva Rao (deceased) which resulted in instantaneous death with an intention to kill him knowing that the injuries are sufficient to cause death in ordinary course, if so, whether the conviction and sentence passed against the accused finding him guilty for the offence punishable under Section 302 I.P.C by the Sessions Court be sustained?
14. Section 374 Cr.P.C conferred a substantive right of appeal on the accused who is convicted by the Trial Court and this Court while exercising power under Section 374(2) Cr.P.C is bound to re-appraise entire evidence to come to an independent conclusion, uninfluenced by the findings recorded by the Court below and decide the legality of conviction and sentence passed by the Sessions Court. Therefore, it is the duty of this Court to re-appraise entire evidence recorded by the Court below after giving an opportunity to both the parties, i.e accused and the respondent, unless the Court finds manifest perversity in the calendar and judgment or such findings were recorded without evidence, normally, this Court cannot interfere with such fact findings in appeal, while exercising jurisdiction under Section 374(2) Cr.P.C. It is the sacrosanct duty of the appellate court, while sitting in appeal against the judgment of the trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re-
assessment, re-appreciation and re-scrutiny of the material on record. Appreciation of evidence and proper re-assessment to arrive at the conclusion is imperative in a criminal appeal. That is the quality of exercise which is expected of the appellate court to be undertaken and MSM,J & NJS,J Crla_811_2015 8 when that is not done, the cause of justice is not sub-served, for neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence on record to assure his guilt (vide Kamlesh Prabhudas Tanna & Anr v. State Of Gujarat1). Keeping the scope of Section 374(2) Cr.P.C we would like to re-appreciate entire evidence on record to come to an independent conclusion, uninfluenced by the findings recorded by the Court below.
15. POINT:
The case of the prosecution as narrated above is based on six circumstances:
1) Motive;
2) Theory of last seen together alive soon before death;
3) False information about the cause of death over phone to Gudipudi
Kondala Rao (P.W.2);
4) Covering of body of Challa Sambasiva Rao (deceased) with a cloth;
5) Extra judicial confession made before P.V Subba Rao, Tahsildar
(P.W.8) and recovery of iron rod (M.O.1), on the basis of confession leading to discovery; and
6) Abscondence of the accused from the scene of offence.
16. When the case of the prosecution is based on circumstantial evidence, each and every circumstance which completes the chain of links is to be established and the proved circumstances must complete every link in the chain. In case of failure to prove one of the links in the chain of circumstances, conviction cannot be sustained. The Apex Court while discussing the scope of Section 3 of the Evidence Act, more particularly, circumstantial evidence held that, in a case of murder when the prosecution is relying on circumstantial evidence, it is for the prosecution to prove all the incriminating facts and circumstances and 1 (2013) 15 SCC 263 MSM,J & NJS,J Crla_811_2015 9 the circumstances which are incompatible with innocence of the accused to draw inference of guilt and such evidence should be tested by touch- stone of law relating to circumstantial evidence laid down by Supreme Court (vide Syed Hakkim & another v. State2).
17. Similarly, in G.Parshwanath v. State of Karnataka3, the Supreme Court is of the view that when the case of the prosecution is based on proof of circumstantial evidence on the basis of which conclusion of guilt is drawn must be established fully, individual chain of circumstances must be complete pointing out the guilt of accused, all proved facts must lead to inference of guilt of the accused alone and court has to draw distinction between primary and basic facts while appreciating the circumstances and regard must be had to common course of natural events and human conduct and finally the facts established should be consistent only with hypothesis of guilt of accused and it does not mean that each and every hypothesis suggested by the accused must be excluded by proved facts. In Rukia Begum Vs. State of Karnataka with Issaq Sait and another v. State of Karnataka with Nasreen v. State of Karnataka4; Jagroop Singh Vs. State of Punjab, Inspector of Police, Tamil Nadu Vs. Balaprasanna5, Shaik Khadar Basha v. State of Andhra Pradesh6, the same principle was reiterated.
18. The Supreme Court in Trimukh Maloti Kikran v. State of Maharashtra7, wherein the Supreme Court held as follows:
2 2009 Cr.L.J. page 1891 3 AIR 2010 S.C. page 2914 4 AIR 2011 SC page 1585 5 2009(1) ALD (Crl.) page 113 6 2009(1) ALD (Crl.) page 859 (AP) 7 (2006) 10 SCC 681 MSM,J & NJS,J Crla_811_2015 10 "In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence".
19. Keeping in view the principles relating to appreciation of evidence, when the case is based on circumstantial evidence, we would like to discuss about the circumstances which we referred in the earlier paras in seriatim and record our finding.
20. The first and foremost contention of the prosecution is that the accused had motive to kill and eliminate Challa Sambasiva Rao (deceased) who was on night duty as guard/attender at the residential bungalow of Principal District Judge, Prakasam at Ongole. To establish the motive attributed to the accused, the prosecution examined G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole as P.W.1. according to his evidence, Gudipudi Kondala Rao (P.W.2), Challa Sambasiva Rao (deceased), Koppolu Venkata Rao (L.W.7) and the accused were the atenders working at bungalow. On 24.03.2013 the accused and Challa Sambasiva Rao (deceased) were on duty during night time at his residential bungalow. They reported to duty on relieving Koppolu Venkata Rao (L.W.7) and Gudipudi Kondala Rao (P.W.2) from day duty at the bungalow on 24.03.2013. Thus, the consistent evidence MSM,J & NJS,J Crla_811_2015 11 of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) is that the accused and Challa Sambasiva Rao (deceased) were alone on duty during night of 24.03.2013 as night guards/attenders at his residential bungalow. But this fact is disputed by the accused raising a specific ground in the grounds of appeal while pointing out that non- examination of Central Nazir of District Court is fatal to the case of the prosecution. No doubt Central Nazir was the office who posts the attenders and guards etc., both at the residence and court. But when G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) himself testified about the attendance of the accused and Challa Sambasiva Rao (deceased) to night duty as night guards/attenders at his residential bungalow, that itself is sufficient for the reason that G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) had no enmity or animosity to speak false against the accused or in favour of the prosecution, being head of the district judiciary. Therefore, his evidence with regard to attendance of the accused and Challa Sambasiva Rao (deceased) to night duty on 24.03.2013 relieving Koppolu Venkata Rao (L.W.7) and Gudipudi Kondala Rao (P.W.2) from day duty is to be accepted, since the evidence of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) who was the then District Judge inspires confidence of this Court, thereby non-examination of Central Nazir is not fatal to the case of the prosecution. Consequently, the contention of the learned counsel for the appellant is rejected. The evidence of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) and Gudipudi Kondala Rao (P.W.2) established the attendance of Challa Sambasiva Rao (deceased) and the accused to night duty, thereby non-examination of Central Nazir or any other official staff member in the District Court on administrative side is inconsequential.
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21. Coming to the motive attributed to the accused, the evidence of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) is clear that the accused developed differences with the other attenders including Challa Sambasiva Rao (deceased) and he is in the habit of complaining against them frequently. It is also pertinent to mention here that on 23.03.2013 in the morning hours, the accused approached G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) and complained against the other attenders and process servers who were on bungalow duties. Then G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) advised the accused to submit a written report to District Court for taking action against the concerned. On 24.03.2013 to avoid further differences between the accused and other attenders and process servers who were on bungalow duty, G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) directed the accused to attend duty at guest house which is located in the District Court premises, Ongole from 25.03.2013 onwards. Thus, the examination-in-chief of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) directly pointing the conduct of the accused and he was always complaining against one or the other attenders and process servers who were on bungalow duty. Even on the date of incident, he complained against some other attenders and process servers, thereupon G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) directed the accused to attend duty at guest house which is located at District Court premises from 25.03.2013 onwards. Before leaving the bungalow, the incident of murder had taken place in the room provided to the guards/attenders at the resident of Principal District Judge, Prakasam at Ongole. G. Chakradhara Rao, MSM,J & NJS,J Crla_811_2015 13 Principal District Judge, Prakasam at Ongole (P.W.1) was cross examined at length and even in the cross examination, he asserted that the accused had personal disputes with the staff members and the accused is quarelling about the duties, but no specific incident was brought to the notice of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) about duty timings of other guards and process servers. G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) further asserted that the accused was complaining against most of the staff members, but he expressed his inability to explain the nature of differences between the accused and Challa Sambasiva Rao (deceased).
22. Gudipudi Kondala Rao (P.W.2) is another attender working at the residential bungalow of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) and he explained as to how he received information from the accused and also spoke about the duties, but a stray sentence we could find in the evidence of Gudipudi Kondala Rao (P.W.2) is that the accused was in the habit of complaining against the other staff members regularly. In the cross examination, the learned counsel for the appellant could elicit that there were no disputes between Gudipudi Kondala Rao (P.W.2) and the accused and to his knowledge there were no disputes between the accused and Challa Sambasiva Rao (deceased) and to his knowledge the accused did not submit any complaint against any staff member, in writing. Thus, the evidence on record at best would establish that the accused was orally complaining against the other guards/attenders and process servers working at the residential bungalow of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) where the incident took place. However, no MSM,J & NJS,J Crla_811_2015 14 material in writing is placed on record about the complaints made by the accused against any other attender. However, the evidence of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) who is the Head of district judiciary is free from any infirmities and his evidence is consistent that the accused made oral complaints and even the accused was asked to attend duty at the guest house located in the District Court premises from 25.03.2013 onwards. This was not denied by putting any suggestion to G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) in the entire cross examination. Therefore, the undisputed evidence of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) would suffice to conclude that there were disputes between the accused, other attenders and process servers who are working at the residential bungalow of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1).
23. Thus the prosecution could establish the conduct of the accused in complaining against Challa Sambasiva Rao (deceased), but there was no material to show that the accused had any motive to do away with the life of Challa Sambasiva Rao (deceased). Therefore, believing the oral evidence of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1), the Sessions Court rightly concluded that the motive attributed to the accused is established. Motive is relevant under Section 8 of the Evidence Act, but proof of motive is not sufficient to convict the accused as it is not substantive evidence.
24. In Anil Rai v. State of Bihar8, the Apex Court held that the admitted position of law is that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of 8 2001(2) ALD (Cri.) page 446 MSM,J & NJS,J Crla_811_2015 15 the accused persons. In case of inimical witnesses, the Courts are required to scrutinize their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity held to be a double edged weapon, may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime. Testimony of eyewitnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased were related to the eye-witnesses or previously there were some disputes between the accused and the deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case. However, the mere existence of enmity in this case, particularly when it is alleged as a motive for the commission of the crime cannot be made a basis to discard or reject the testimony of the eye-witnesses, the deposition of whom is otherwise consistent and convincing.
From the principle laid down by the Hon'ble Apex Court, enmity by itself is not a ground to conclude that the accused is the person who MSM,J & NJS,J Crla_811_2015 16 perpetrated the murder. After developing enmity, the accused must develop motive to commit murder. However, motive by itself is not a ground to convict the accused and proof of motive is not the substitute for proof.
According to Section 8 of the Indian Evidence Act, motive is relevant fact and it is one of the circumstances to complete the chain of circumstances. Motive is double-edged weapon. It may be a ground for committing a crime and it may also be a ground for falsely implicating the accused. Proof of motive may lend additional support to the prosecution, but it cannot make good the deficiency of the prosecution case.
In Suresh Chandra Bahri Vs. State of Bihar9, the Apex Court held that, sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the Court that the accused was guilty for the offence charged with. But the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of offence.
9 AIR 1994 S.C. page 2420 MSM,J & NJS,J Crla_811_2015 17
25. Proof of motive is only one of the circumstances and it is not substantial evidence and such motive can be taken as additional link in the chain of circumstances. Therefore, proof or failure to prove motive attributed to the accused to kill Challa Sambasiva Rao (deceased) is more or less academic, when the other circumstances are established by cogent and satisfactory evidence. Hence, in view of the law declared by the Apex Court in the judgments referred above mere proof of motive which is not substantive piece of evidence and the same is not sufficient to rope the accused and it is only an additional link the chain of circumstances when the other circumstances are proved to complete the chain.
26. The second circumstance relied on by the prosecution is that Challa Sambasiva Rao (deceased) was last seen together in the company of the accused alive while on night guard duty soon before death. To establish the theory of last together alive soon before death, the prosecution examined G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole as P.W.1. According to his evidence, the accused and Challa Sambasiva Rao (deceased) relieved Koppolu Venkata Rao (L.W.7) and Gudipudi Kondala rao (P.W.2) from day duty and reported to duty as night guards/attenders at his residential bungalow. Thus, the accused and Challa Sambasiva Rao (deceased) were on night duty as guards/attenders at the residential bungalow of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) during the night of 24.03.2013 from 8:00 pm onwards. The evidence of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) is consistent that on 23.03.2013 also the accused complained about duties being entrusted to staff members at the residential bungalow by the officials.
MSM,J & NJS,J Crla_811_2015 18 Thereupon, he orally directed the accused to attend duty at the guest house which is located in the District Court premises from 25.03.2013 onwards. In the cross examination of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1), he admitted that no written proceedings were issued to the accused to attend duty at the guest house. The learned counsel for the appellant/accused could elicit that in the District Collector's bungalow 1+4 security will be available and that the staff who are attending guard room are maintaining guard duty book and he saw the accused and Challa Sambasiva Rao (deceased) together lastly at his bungalow before incident. He further asserted that Challa Sambasiva Rao (deceased) was found in the company of the accused alive lastly before his death and the suggestion put to G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) that the accused did not attend duty during night of incident was denied. In the entire cross examination of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) nothing was elicited to disbelieve his oral evidence and that too he is only an official witness having no interest either in the acquittal or conviction of the accused and he is totally independent official witness being the Head of district judiciary at Ongole, as such, his evidence can be accepted.
27. Gudipudi Kondala Rao (P.W.2) is another witness who spoke about the theory of last seen together alive in the guard room. In the examination-in-chief, he testified that the duties at the residential bungalow of Principal District Judge are from 10:00 am to 8:00 pm and accordingly, himself and Koppolu Venkata Rao (L.W.7) attended to bungalow duty from 10:00 am to 8:00 pm on that day and at 8:00 pm the accused and Challa Sambasiva Rao (deceased) relieved them from MSM,J & NJS,J Crla_811_2015 19 day duty and reported to night duty. Thus, Challa Sambasiva Rao (deceased) was seen alive in the company of the accused lastly at 8:00 pm on 24.03.2013. In the cross examination, the legal aid counsel for the appellant/accused made an attempt to prove that there is another possibility of committing murder by any other person and not even denied reporting to duty by the accused along with Challa Sambasiva Rao (deceased) during night at 8:00 pm on 24.03.2013. Therefore, the unrebutted evidence of Gudipudi Kondala Rao (P.W.2) that he saw Challa Sambasiva Rao (deceased) in the company of the accused lastly at 8:00 pm on 24.03.2013 can be believed.
28. Challa Gouthami (P.W.4) is the wife of Challa Sambasiva Rao (deceased), her evidence is useful to a limited extent. According to her testimony, her husband died during night of 24.03.2013 and he was working as attender in the Principal District Court, Ongole and her husband was killed by the accused. But she is not the eye witness to the incident and her evidence is not useful to prove the theory of last seen together, but for one reason or the other in the cross examination the legal aid counsel for the appellant/accused could elicit that her husband attended night duty on the date of incident and her husband also informed that the accused used to quarrel with him about the duties, but he did not inform any reason for those disputes between him and the accused. However, she volunteered that her husband informed her over phone at 9:00 pm on 24.03.2013 that G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) directed the accused to change his duties. Hence, her evidence at best establish her husband attended night duty on the date of incident i.e. on 24.03.2013. The said fact is supported by the oral evidence of Challa Ramakoteswara Rao MSM,J & NJS,J Crla_811_2015 20 (P.W.5) who is no other than the father of Challa Sambasiva Rao (deceased).
29. Yet, another strange contention was that the report lodged by accused prior to Ex.P.1 by P.W.2 is suppressed, but this contention was to disprove extra judicial confession. If such, contention is accepted, more so when the accused is contending that he was not on duty, question of lodging report with police prior to Ex.P.1 does not arise. P.W.2 in his cross-examination admitted about appearance of accused at police station when he lodged Ex.P.1. Visit of police station by the accused at 05.00 a.m. and alleged lodging of report about death of Challa Sambasiva Rao lead to a strong inference that he was on duty along with Challa Sambasiva Rao, having knowledge about death, he went to the police station. If really, death was due to electric shock, he has to report the same to Principal District Judge, P.W.1, who was readily available in the bungalow. Instead of reporting the death of Sambasiva Rao to P.W.1, the accused gave information to P.W.2 and went to police station to lodge the report. The conduct of accused is highly improbable to the natural conduct of ordinary prudent employee. The fact elicited from the cross- examination of P.W.2 about the presence of accused in the police station at 05.00 a.m. is sufficient to conclude that the accused was on guard duty at relevant point of time and that he alone was in the company of Challa Sambasiva Rao, while he was alive.
30. Koppolu Venkata Rao (P.W.6) is another witness who was process server in the District Court, Prakasam at Ongole testified about the duties of two shifts from 10:00 am to 8:00 pm and 8:00 pm to 10:00 am on the next day, the duties at the bungalow will be allotted by the MSM,J & NJS,J Crla_811_2015 21 Central Nazir, but no records is being maintained to allotment of duties as admitted in the cross examination.
31. On overall consideration of entire material on record, the accused and Challa Sambasiva Rao (deceased) were on night duty as guards/attenders at the residential bungalow of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) on the date of incident. Mere proof of attending duty and the company of accused and Challa Sambasiva Rao (deceased) during night of 24.03.2013 is not sufficient and there must be proximity of time between the company and death. To decide the proximity of time it is necessary to advert to the medical evidence on record and the evidence of Gudipudi Kondala Rao (P.W.2). According to the evidence of Gudipudi Kondala Rao (P.W.2), he received a phone call from phone number 08592-324841 to his mobile number 9177567720. The person who telephoned to him is the accused and the accused informed to him that Challa Sambasiva Rao (deceased) was in unconscious state due to electrical shock. This information was received at the early hours of 25.03.2013. Therefore, it can be safely concluded that the accused was at the residential bungalow of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) on duty till he made a phone call to the mobile of Gudipudi Kondala Rao (P.W.2). Otherwise the incident of finding Challa Sambasiva Rao (deceased) in unconscious state due to electrical shock or otherwise does not arise. This fact is supported by the evidence of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) who has seen Challa Sambasiva Rao (deceased) in the company of the accused during night of 24.03.2013.
MSM,J & NJS,J Crla_811_2015 22
32. Coming to the medical evidence of Dr.Pamjula Suresh (P.W.10), the cause of death was due to injuries received by Challa Sambasiva Rao (deceased), whereas, the approximate time of death was 12-18 hours prior to conducting postmortem examination. The said fact is supported by the oral evidence of Dr.Pamjula Suresh (P.W.10). The postmortem examination was commenced at 11:45 am and concluded at 12:45 pm. If 12 to 18 hours is taken into consideration, the time of death is between 5:45 pm to 11:45 pm on 24.03.2013 i.e. intervening night of 24/25.03.2013. Thus, based on the time of death spoken by Dr.Pamjula Suresh (P.W.10) and postmortem certificate (Ex.P7) coupled with the evidence of G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) and Gudipudi Kondala Rao (P.W.2), it can be safely concluded that Challa Sambasiva Rao (deceased) was in the company of the accused alive soon before his death. The word soon before his death is an elastic term and it varies from facts of each case. The scene of offence is undisputedly in the guard room of residential bungalow of Principal District Judge, Prakasam at Ongole which is not accessible to anyone and apart from that the accused and Challa Sambasiva Rao (deceased) were posted as guards/attenders during night duty. Therefore, the question of any person entering into the premises, causing death while the accused and Challa Sambasiva Rao (deceased) were on duty does not arise. Even if anybody enter into the premises and caused injuries on the body of Challa Sambasiva Rao (deceased), it is the duty of the other guard to report the same to Principal District Judge while on duty as guard or at least report to some other officials and his duty is to protect the other guard also. But the accused was found absconding, after making telephone to Gudipudi Kondala Rao (P.W.2). therefore, the theory invented by the defence during cross examination of MSM,J & NJS,J Crla_811_2015 23 G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) and Gudipudi Kondala Rao (P.W.2) about possibility of third parties entering into the premises and causing death of Challa Sambasiva Rao (deceased) cannot be accepted, for the simple reason that the height of the compound wall is about eight feet and the guard room is situated adjacent to the northern compound wall of the residential bungalow of Principal District Judge, Prakasam at Ongole, it is difficult to anybody to climb the wall which is of eight feet height and enter into the premises in the normal course of events. Surprisingly a strange suggestion was put to G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) that a person can climb electrical pole easily and enter into the residential bungalow. The same was denied by the witness. Similarly, in the evidence of Gudipudi Kondala Rao (P.W.2) also a similar suggestion was put to him that the wall of Principal District Judge's residential bungalow is adjacent to the District Collector's bungalow on the western side and a different story is brought into existence about firing that had taken place when a mentally disabled person entered into the bungalow of District Collector. Therefore, the theory of any third party entering into the premises of Principal District Judge, causing murder during night cannot be believed.
33. The law is well settled that when the deceased was found alive in the company of the accused soon before his death, it is the strong circumstance to conclude that the accused was the person who caused death and if the accused is able to give any explanation for the death, the court is required to consider such explanation also. Time and again the Apex Court held that the test of proximity is important to decide the MSM,J & NJS,J Crla_811_2015 24 complicity of the accused when the case of the prosecution is based on last seen theory.
The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide (Vide: Mohibur Rahman and Another v. State of Assam10) In "State of Goa v. Sanjay Thakran11" the Apex Court observed as follows:
"From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen 10 AIR 2002 SC page 3064 11 (2007) 3 SCC 755 MSM,J & NJS,J Crla_811_2015 25 together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."
When the prosecution established that the accused was on duty along with Challa Sambasiva Rao and there was no possibility of any intrusion or entry to the scene of offence during night time by any third party since the scene of offence is a guard room in the official residence of Principal District and Sessions Judge at Ongole. In such case, the relative gap between last seen together and death of Challa Sambasiva Rao is minimum and the minimum gap would not affect the core of the prosecution to come to conclusion that the deceased was last seen alive in the company of accused soon before this death.
34. In view of the law declared by the Apex Court in the above perspective pronouncement, it can safely be concluded that Challa Sambasiva Rao (deceased) was found alive in the company of the accused soon before his death and the prosecution was able to establish the last seen theory, besides other circumstances.
35. By applying the principles laid down in the above judgments, to the present facts of the case, we accept the finding recorded by the Sessions Court based on last seen theory as the finding is in accordance with law. It cannot be set aside or reversed by this Court, even after reappraisal of entire evidence.
MSM,J & NJS,J Crla_811_2015 26
36. The third circumstance relied on by the prosecution is that the accused allegedly gave false information to Gudipudi Kondala Rao (P.W.2) about the cause of unconscious state of Challa Sambasiva Rao (deceased) over phone. The evidence of Gudipudi Kondala Rao (P.W.2) is consistent as to the receipt of information about unconscious state of Challa Sambasiva Rao (deceased) over phone numbers referred above. A bald suggestion was put to Gudipudi Kondala Rao (P.W.2) denying the telephone call, however, nothing could be elicited to disprove receipt of telephone call from the accused by Gudipudi Kondala Rao (P.W.2). it is undoubtedly not a death due electrocution, but it is homicidal death. Therefore, giving false information over phone to Gudipudi Kondala Rao (P.W.2) by the accused is another strong circumstance to enrope the accused with the offence of murder of Challa Sambasiva Rao (deceased).
37. The fourth circumstance relied on by the prosecution is covering of Challa Samabasiva Rao (deceased) with white cloth. This fact is spoken by G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) and Gudipudi Kondala Rao (P.W.2). When Gudipudi Kondala Rao (P.W.2) went to the scene of offence, on receipt of information, after calling 108 ambulance, he informed the said fact to G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) and after arriving of 108 ambulance, G. Chakradhara Rao, Principal District Judge, Prakasam at Ongole (P.W.1) and Gudipudi Kondala Rao (P.W.2) along with others entered into the guard room, found the body of a male person covered with white cloth and on removal of the cloth, found injuries on the body of Challa Sambasiva Rao (deceased). If really, the accused was not the person who caused death, in normal course of events, question of covering the body with a cloth so as to conceal the MSM,J & NJS,J Crla_811_2015 27 injuries on the body does not arise. If a third party entered into guard room and killed Challa Sambasiva Rao (deceased), naturally he would leave the premises immediately to avoid witnessing of his presence by any third party. Covering of dead body with cloth by a person will take place when death was caused by a known person who had free access to the premises. Therefore, it is also one of the circumstances to believe the incident.
38. The fifth circumstance relied on by the prosecution is extra judicial confession recorded by P.V Subba Rao, Tahsildar (P.W.8) who allegedly received phone call from the accused expressing his willingness to give confession about causing death of Challa Sambasiva Rao (deceased). The said fact is spoken by P.V Subba Rao, Tahsildar (P.W.8) in his evidence that one person telephoned to him introducing himself as Thumbeti Venkateswarlu who joined as attender and later promoted as process server and he along with Challa Sambasiva Rao (deceased) working in the District Judge's bungalow and that he killed Challa Sambasiva Rao (deceased) in the altercation that took place at 9:30 pm on 24.03.2013, causing injury with an iron rod measuring two feet length. Accordingly, on his arrival, at his office, the statement of the accused was recorded and the same was reduced into writing which was marked as Ex.P2 and the accused was produced before V. Suryanarayana (P.W.12) by P.V Subba Rao, Tahsildar (P.W.8) himself.
39. According to the material on record, the accused made confessional statement at about 8:30 am on 25.03.2013 when he reached Tahsildar office, after receipt of phone call at 8:15 am. Thus, the extra judicial confession (statement) of accused was drafted at 8:30 am MSM,J & NJS,J Crla_811_2015 28 on 25.03.2013. Whereas the evidence of Gudipudi Kondala Rao (P.W.2) who lodged report (Ex.P1) at Ongole II town P.S is consistent that the accused was present at the police station, he was found sitting outside the police station at 5:00 am on 25.03.2013. Therefore, the accused was already present in the police station, thereby the incident of telephoning to P.V Subba Rao, Tahsildar (P.W.8) and making confessional statement appears to be artificial and the same cannot be believed, more particularly, in view of the admission made by Gudipudi Kondala Rao (P.W.2) who lodged complaint with the police at about 5:00 am on 25.03.2013. Hence, the evidence of P.V Subba Rao, Tahsildar (P.W.8) with regard to extra judicial confession is disbelieved and that too there is variation as to the place of recording confession statement (Ex.P2).
40. In any view of the matter, the extra judicial confession by itself is not a strong ground in view of law declared by the Apex Court in catena of decisions. In Boya Akuthota Nagaraju v. State of Andhra Pradesh the Court held that though extra-judicial confession is a piece of evidence, it is not a strong piece of evidence as held by the Apex Court in State of Rajasthan v. Ramanand12. Extra judicial confession is a weak type of evidence and that by itself is not sufficient to record the judgment of conviction against accused, unless the same is corroborated and in the absence of any disclosure before a particular person, a conviction cannot be recorded (vide Baldev Singh v. State of Punjab13 ).
In State of A.P v. Kanda Gopaludu14 a Division Bench of the Apex Court held that extra judicial confession is admissible if it inspired confidence and made voluntarily and basing on that, Court can record 12 2018 (1) ALT (Crl) 155 (SC) 13 2009 (3) SCC (Crl) page 66 14 2005 (6) SCC page 551 MSM,J & NJS,J Crla_811_2015 29 conviction of the accused. Undoubtedly, if the extra judicial confession is believed and made voluntarily, the same can be made basis for recording conviction.
In Balbir Singh and another v. State of Punjab15, the Apex Court is of the view that extra judicial confession alleged to have been made by the accused to the Municipal Commissioner having friendship with the accused, cannot be accepted as trustworthy and basing on such evidence, the accused cannot be convicted.
In K. Brahmachari @ Kammari Brahamachari v. State of A.P16, the Division Bench of this Court held that, when there was no relationship between the accused and the person before whom he made a confession, it is highly improbable to believe the confession of accused made before the third party and conviction cannot be relied.
Extra judicial confession, if inspires confidence of the Court and the true version of the accused is mentioned on extra judicial confession, conviction can be recorded, if corroborated by other circumstances. But, extra judicial confession itself alone cannot form the basis for conviction and such conviction is illegal. Before touching evidentiary value of extra judicial confession, the court must look into various circumstances like prior acquaintance with the person to whom the accused allegedly gave statement and whether it is voluntary in nature.
41. In the present case, it is an admitted fact that the accused never visited Tahsildar and had no acquaintance prior to the alleged recording of confession statement (Ex.P2) and that too the accused was at police 15 1996 SCC (Crl) page 1158 16 2004 (1) ALT (Crl) page 1 (A.P) MSM,J & NJS,J Crla_811_2015 30 station at 5:00 am on 25.03.2013 according to the evidence of Gudipudi Kondala Rao (P.W.2) himself. Thereby when he allegedly committed the grave offence of murder, police will not allow him to go out from the police station, more particularly, when a complaint is lodged against the accused by Gudipudi Kondala Rao (P.W.2). Therefore, making such statement which inculpates him before P.V Subba Rao, Tahsildar (P.W.8) is not believable In Ratan Gond v. State of Bihar17, the Apex Court accepted an extra judicial confession as a reliable piece of evidence, but underscored the need for some more evidence that may connect the accused with the crime. In other words, the Court held that as to the extra judicial confession, two questions arise: is it voluntary, and if so, is it true? The appellant/accused denied at a later stage that he had made a confession, but it is not necessary to consider in the facts of the said case, the abstract question as to whether, as against its maker, a conviction can be based on a confession, which is found to be voluntary and true. It is enough to state that usually and as a matter of caution, Courts require some material corroboration to such a confessional statement. Corroboration which falls for decision in the facts of the said case is the circumstance proved against the appellant for sufficient corroboration to the confessional statement of the appellant. Therefore, the principle laid down by the Apex Court is that though conviction can be based on extra judicial confession, but some corroboration is required to inspire confidence on the statement of a witness.
17
AIR 1959 SC 18 MSM,J & NJS,J Crla_811_2015 31 In Nishi Kant Jha v. State of Bihar18, the Apex Court, while holding that the exculpatory portion of the confessional statement can be separated and declared that the conviction can be based only on the inculpatory portion of the confession. But, the Full Bench of the Apex Court in Thimma v. State of Mysore19 took a different view that an extra judicial confession worth acting upon, but before it was contested that the extra-judicial confession said to have been made to a person is inadmissible and in any event without corroboration in material particulars from independent source, it is unsafe to act upon it.
In Darshan Lal v. State of Jammu and Kashmir20 the Apex Court declaring that the confession made by a Constable to the Commanding Officer and the Inspector is inadmissible for the reasons that these two officers were persons in authority qua the accused but held that the confession made before he killed his wife's uncle and cousin was reliable and sufficient for the conviction of the accused.
In that view of the matter, such confessional statement has to be tested based on the relationship with the person to whom the confession was made by the accused.
42. Here in this case, P.V Subba Rao, Tahsildar (P.W.8) is a stranger to the accused as the accused never visited P.V Subba Rao, Tahsildar (P.W.8) prior to 25.03.2013. This itself is suffice to conclude that P.V Subba Rao, Tahsildar (P.W.8) had no acquaintance prior to the visit of the accused on 25.03.2013. When extra judicial confession is made to a third person, to whom the same is said to have made by the accused, the 18 AIR 1969 SC 422 19 AIR 1971 SC 1871 20 AIR 1975 SC 889 MSM,J & NJS,J Crla_811_2015 32 credibility of such person, relationship of the accused and the circumstances in which the extra judicial confession is made, are important questions to be addressed by the Court to rely upon such extra judicial confession.
In Ballu and others v. State of Haryana21, the Apex Court disbelieved the extra judicial confession made to three different persons. In the facts of the above judgment, each of three witnesses stated that after making confession, the accused concerned requested them to produce him before the Police. The story of the three appellants making confessions, which are on identical terms, before three different persons, who live in villages far off from the villages of the respective appellants, at periodical intervals appeared to be artificial and unnatural. If really their conscience compelled them to make a clean breast of their guilt, the appellants themselves could have surrendered before the Police instead of taking a circuitous route of first approaching the above three witnesses for help. Thereby, the Apex Court disbelieved the extra judicial confession and acquitted the accused.
43. Applying the principles laid down by the Apex Court in various judgments referred above, to the facts and circumstances stated above, the extra judicial confession allegedly made by the accused to P.V Subba Rao, Tahsildar (P.W.8) with whom the accused had no acquaintance is not believable. Accordingly, the same is rejected. Hence, conviction recorded by the Sessions Court based on confessional statement (Ex.P2), is an illegality.
21
1997 SCC (Crl) 234 MSM,J & NJS,J Crla_811_2015 33
44. The fifth circumstance relied on by the prosecution is recovery of iron rod (M.O.1) based on the confession made by the accused leading to discovery. V. Suryanarayana (P.W.12) is the Investigating Officer and he testified that he took up investigation in the case, visited the scene of offence, prepared rough sketch (Ex.P10) and scene observation report (Ex.P3) on 25.03.2013 itself at about 7:45 am, got photographed the scene of offence under Exs.P11 to P15 and also spoke about investigation, more particularly, about forwarding of dead body for postmortem examination. After completing inquest he rushed to Mandal Revenue Office, Ongole and the Mandal Revenue Officer handed over the accused along with confession statement (Ex.P2). Later he returned to Ongole II town P.S, secured the presence of Vishnumolakala Punna Rao, VRO, Ongole (P.W.9) and Challa Gowthami (P.W.4), interrogated the accused, recorded his confession statement where the accused assured that he would show the weapon used for commission of the offence, if anybody accompany him, admissible portion of mediators report is marked as Ex.P5. In pursuance of Ex.P5, V. Suryanarayana (P.W.12), Vishnumolakala Punna Rao (P.W.9) and Challa Gowthami (P.W.4) seized iron rod (M.O.1) and the same was reduced into writing, drafted mediators report (Ex.P6) at 11:45 am. Vishnumolakala Punna Rao (P.W.9) testified about procedure followed by V. Suryanarayana (P.W.12) for recovery of iron rod (M.O.1), blood stain bandage cloth (M.O.2) and piece of control bandage cloth (M.O.3), based on the confession made by the accused leading to discovery vide Exs.P5 and P6. In the cross examination Vishnumolakala Punna Rao (P.W.9) admitted that there were no specific identification marks on iron rod (M.O.1), seized under the cover of mediators report (Ex.P6) and expressed his inability as to the size of blood stain bandage cloth and piece of control bandage cloth MSM,J & NJS,J Crla_811_2015 34 (M.O.2 and M.O.3). No doubt the scene of offence is in the premises of official residential bungalow of Principal District Judge, Prakasam at Ongole and it is not accessible to anyone except the employees of the Court who are posted at District Judge's bungalow, thereby, question of planting M.O.1 to M.O.3 by any third party does not arise. Hence, seizure of M.O.1 to M.O.3 under the cover of mediator report (Ex.P6) based on the confession leading to discovery is proved.
45. One of the main contention of the learned counsel for the appellant is that the injuries on the body of Challa Sambasiva Rao (deceased) could not have been caused with iron rod (M.O.1). No doubt Dr.Pamjula Suresh (P.W.10) during his postmortem examination found seven injuries including a blunt stab injury over the right temporal area placed 6 cm above to the right ear, irregular in shape measuring 3cm x 2.5cm x 2.5cm cavity deep with irregular contused margins and fracture injuries on various part of the body and head. M.O.1 is an iron rod and with such iron rod, such blunt stab injury i.e. injury No.7 could be caused or not was not elicited in the examination-in-chief of Dr.Pamjula Suresh (P.W.10). However, in the cross examination, nothing was elicited, except suggesting that the actual injuries found on the body are not recorded in the postmortem certificate (Ex.P7) and no suggestion was put to Dr.Pamjula Suresh (P.W.10) that those injuries could not have been caused with iron rod (M.O.1). Therefore, in the absence of any suggestion put to Dr.Pamjula Suresh (P.W.10) that the injuries referred in the postmortem certificate (Ex.P7) are not possible with iron rod (M.O.1), the evidence of Dr.Pamjula Suresh (P.W.10) is to be believed. Apart from that, injury No.7 is a blunt stab injury and M.O.1 is an iron rod and such injury could be caused with such iron rod. Hence, the contention of MSM,J & NJS,J Crla_811_2015 35 learned counsel for the appellant that the prosecution failed to prove seizure of M.O.1 to M.O.3 is not acceptable. Similarly, M.O.1 can be directly connected with the offence in view of the above discussion.
46. Section 27 of the Indian Evidence Act is an exception to Sections 25 and 26. The conditions necessary for invoking the aid of the Section are as follows:
a) there must be a discovery of a fact albeit relevant fact in pursuance of an information received from a person in police custody;
b) the discovery of such fact must be deposed to ;
c) at the time of giving information the accused must be in
police custody;
Then the effect is that so much of the information as relates distinctly to the fact thereby discovered is admissible. What is allowed to be proved is the information or such part thereof as related distinctly to the fact thereby discovered.
Discovery evidence is not substantive evidence (vide Dinakar v. State22].
Similarly, in Inspector of Police, Tamil Nadu Vs. Balaprasanna23, the Apex Court held as follows:
"Law is well settled that the prosecution while relying upon the confessional statement leading to discovery of articles under Section 27 of the Evidence Act, has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts. The scope and ambit of Section 27 of the Evidence Act had been stated and restated in several decisions of the Supreme Court. However, in almost all such decisions reference is made to the observations of the Privy Council in Pulukuri Kotayya vs. Emperor, AIR 1947 PC 67. At one time it was held that the expression 'fact discovered' in the second is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression 22 AIR 1970 Bombay page 438 23 2009(1) ALD (Crl.)(SC) page 113 MSM,J & NJS,J Crla_811_2015 36 'fact discovered' includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kotayya's case. The various requirements of the section can be summed up as follows:-
1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy.
The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
2) The fact must have been discovered.
3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
4) The person giving the information must be accused of any offence.
5) He must be in the custody of a police officer. 6) The discovery of a fact in consequence of information
received from an accused in custody must be deposed to.
7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
In view of the principle laid down in the above decision, when a fact is discovered in pursuance of confession leading to discovery is only relevant piece of evidence, but it is not a substantive piece of evidence.
Even otherwise, in Brijesh Mavi Vs. State of NCT of Delhi24, the Apex Court, held that recovery evidence, when not sufficient to prove culpability of accused and no direct evidence connecting accused to murder, recovery of weapon of offence at the instance of accused two years after incident is not believable. Mere recovery of weapon, therefore, not sufficient to convict the accused for the offence of murder under Section 302 of I.P.C.
24
2012 (2) ALD (Cri.) page 865 (SC) MSM,J & NJS,J Crla_811_2015 37
47. Even if the principles laid down in the above judgments are applied to the present facts of the case, the evidence on record regarding recovery of M.O.1 to M.O.3 is established, though it is not a substantive piece of evidence, it is a strong circumstance to complete the links in the chain of circumstances, when the case of the prosecution is totally based on circumstantial evidence.
48. Abscondence from duty after the incident during the intervening night of 24/25.03.2013 is another strong circumstance. When the accused was on duty, he is not supposed to leave the premises where he was posted as guard, since his duty is to provide security to the Principal District Judge. Whether the accused alleged to have killed the other attender who was on guard duty, his subsequent conduct of abscondence is relevant circumstance to decide the complicity of the accused. In one of the judgments of the Apex Court in State through CBI v. Mahender Singh Dahiya25 , the Court while considering abscondence of the accused after killing his wife as one of the circumstances and observed that mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence 25 AIR 2011 (SC) 1017 MSM,J & NJS,J Crla_811_2015 38 which must admit of no other reasonable hypothesis than that of the guilt of the accused.
In view of the law declared by the Apex Court, it is only an insignificant circumstance in the chain of circumstances normally. But in the present facts of the case, the accused was on night guard duty and his duty time was from 8:00 pm on 24.03.2013 to 10:00 am on 25.03.2013, but he was found absconding from the place of his duty i.e. residential bungalow of Principal District Judge, Prakasam at Ongole after the incident and after giving information to P.W.2 over phone, and found outside the police station at 5:00 am on 25.03.2013 when Gudipudi Kondala Rao (P.W.2) went to police station to lodge complaint. Thus, the evidence on record establish that the accused was absconding from duty and even leaving place of duty without obtaining permission from the concerned authorities is another indication that the murder of Challa Sambasiva Rao (deceased) is within his knowledge and his abscondence from duty after death and appearance in the police station is a strong circumstance to link with the other circumstances in the chain of circumstances, which cumulatively establish the guilt of the accused. When the case is based on circumstantial evidence and proved circumstances completes the links in the chain of circumstance is sufficient to found the accused guilty. Therefore, abscondence of accused from the duty and appearance in the police station was proved by the prosecution. Hence, abscondence is also one of the strong circumstance.
49. One of the contention of the learned counsel for the appellant is that the complaint lodged by the accused was suppressed. In fact no suggestion was put to any of the witnesses about lodging of complaint by the accused about the death of Challa Sambasiva Rao (deceased) more MSM,J & NJS,J Crla_811_2015 39 particularly, police officials. V. Suryanarayana (P.W.12) is the investigating officer, whose examination-in-chief is silent with regard to lodging of complaint by the accused. Even in the cross examination no suggestion was put to him that a complaint was lodged by the accused himself before lodging report (Ex.P1) to the police by Gudipudi Kondala Rao (P.W.2). Even in the examination of the accused under Section 313 Cr.P.C, he did not state about lodging of complaint by himself. Hence, the contention of the learned counsel for the appellant that the accused lodged a complaint before lodging report (Ex.P1) is rejected.
50. Committing grave offence of murder in an isolated place i.e. guard room in the residential bungalow of Principal District Judge, Prakasam at Ongole is a matter of serious concern and the question of witnessing the incident directly by third parties is not expected during night more particularly, when the incident took place during mid night of 24/25.03.2013. In those circumstances, based on circumstantial evidence, the court has to decide the complicity of the accused, though extra judicial confession allegedly made by the accused before P.V Subba Rao, Tahildar (P.W.8) is disbelieved, the other proved circumstances complete the links in the chain of circumstances which consistently pointing out the guilt of the accused. Hence, based on proved circumstances, the Sessions Court found the accused guilty for the offence and even after reappraisal of the entire evidence available on record, exercising power under Section 374 (2) Cr.P.C. based on the principles laid down in Kamlesh Prabhudas Tanna & Anr v. State Of Gujarat26, it is difficult to come to any other conclusion than the 26 (2013) 15 SCC 263 MSM,J & NJS,J Crla_811_2015 40 conclusion arrived by the Sessions Court. Hence, we have no hesitation to hold that the proved circumstances established the guilt of the accused and we also found no ground to interfere with the findings recorded by the Sessions Court.
In view of aforementioned reasons, we hold that the accused caused death of Challa Sambasiva Rao (deceased) while they both were on duty as night guards/attenders at the official residence of Principal District Judge, Prakasam at Ongole during night of 24.03.2013 and he is liable for conviction. The learned Sessions Judge, rightly found the accused guilty for the offence punishable under Section 302 I.P.C and convicted him for the grave charge and the findings recorded therein does not call for interference of this Court, even after reappraisal of the entire evidence. Consequently, the appeal is liable to be dismissed, having found no merits in the contention of the appellant.
51. In the result, the criminal appeal is dismissed confirming the conviction and sentence passed under the calendar and judgment in S.C.No.182 of 2013 dated 08.07.2015 by the I Additional District and Sessions Judge, Ongole.
52. Consequently, miscellaneous petitions, pending if any in the appeal, shall stand closed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY _______________________________ JUSTICE NINALA JAYASURYA Dated:27.07.2020 RVK/Ksp