HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
AND
HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
Crl.A.No.787 of 2014
DATE: 19.11.2022
Between :
Katravath Shiva @ Shivakasi Patnayak.
...Appellant
And
The State of A.P., rep. by its Public Prosecutor.
...Respondent
For Appellant : Mr.Y.Chandrasekhara Reddy, Advocate.
For respondent : Public Prosecutor.
< Gist:
< Head Note:
? CITATIONS :
1. AIR 1984 SC 1622
2. (2014) 12 SCC 133
3. 1952 SCR 1091 = AIR 1952 SC 343
C/15
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GAC, J & RRN, J
Crl.A.No.787 of 2014
HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY AND HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO CRIMINAL APPEAL No.787 of 2014 JUDGMENT : (Per G.Anupama Chakravarthy, J) This appeal is arising out of the judgment in S.C.No.412 of 2012, dated 02.05.2014 on the file of the IX Additional District and Sessions Judge, Wanaparthy, whereby, the appellant was convicted under Section 235(2) Cr.P.C. for the offences punishable under Sections 302 and 380 of IPC and was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/-, and in default of payment of fine, to undergo simple imprisonment for six months for the offence punishable under Section 302 of IPC and to suffer rigorous imprisonment for two years and to pay a fine of Rs.1,000/-and in default of payment of fine, to undergo simple imprisonment for one month for the offence punishable under Section 380 of IPC.
2. The brief case of the prosecution is that PW-1 and one Venkateshwar Rao are the sons of the deceased/Sathyavathi. The deceased was living alone in Achampet town and her sons are also 3 GAC, J & RRN, J Crl.A.No.787 of 2014 residing in the same town independently. On 12.04.2011, while PW-1 was playing shuttle at about 6 a.m., he received a phone call from an unknown person informing him about the death of his mother. On that, PW-1 rushed to the house, scaled over the compound wall, noticed the main door locked from inside, went to the back side, found the rear door opened and also found the dead body of the deceased lying at the entrance of the lavatory/toilet with injuries on the head and forehead. He also noticed missing of gold ornaments of the deceased. Ex.P-1 is the complaint preferred by PW-1 against unknown persons and basing on Ex.P-1, PW- 13/ASI, Achampet Police Station registered the case against unknown offenders for the offences punishable under Sections 302 and 380 of IPC, vide Ex.P-2/FIR, PW-11/Inspector of Police, Achampet took up investigation. During the course of investigation, he visited the scene of offence, prepared the rough sketch of it in the presence of mediators, collected the blood- stained clothes of the deceased, held inquest over the dead body of the deceased in the presence of panchayatdars, and later, forwarded the dead body of the deceased to Government hospital, Achampet 4 GAC, J & RRN, J Crl.A.No.787 of 2014 for postmortem examination. He further recorded the statements of blood-relatives of the deceased and other witnesses and later handed over the dead body to the relatives of the deceased and also recovered the mobile phone of the deceased from the possession of one Balu, who is the brother-in-law of the accused under the cover of panchanama/Ex.P-7. PW-10 also conducted investigation in this case and he sent requisition to SDPO, Nagarkurnool for furnishing the call details of the mobile bearing No.99127774146 belonging to the deceased. Further, he made enquiries, came to know that the handset was in possession of the brother-in-law of the accused and on the basis of their information, apprehended the accused on 07.05.2011 and recorded his confession. Pursuant to the confession of the accused, PW-10 recovered one pair of ear studs, one pair of ear mateelu and a receipt pertaining to Manappuram General Finance and Leasing Company from the accused and also recovered three bangle pieces at the house of the accused. PW-11 also made requisition to the Judicial First Class Magistrate, Achampet for Police custody of the accused and on further interrogation, the accused, in the presence of mediators, led the 5 GAC, J & RRN, J Crl.A.No.787 of 2014 Police party to a shop at Santhoshnagar, Hyderabad, from where, M.O.1/Nanu was recovered. The Doctor, who conducted the postmortem examination over the dead body of the deceased, opined that the death of the deceased was due to cardio-respiratory arrest, as a result of head injury and damage to the brain. On completion of investigation, the investigating officer filed charge sheet against the accused for the offences punishable under Sections 302 and 380 of IPC.
3. The Court of Session framed charges against the accused/appellant for the offences punihshable under Sections 302 and 380 of IPC, for which, the accused pleaded not guilty and claimed to be tried.
4. During the course of trial, prosecution has examined PWs.1 to 13 and Exs.P-1 to P-12 and M.Os.1 to 8 were marked. The appellant was examined under Section 313 Cr.P.C. for the incriminating evidence of the prosecution against him and the accused denied the evidence and reported no defence evidence. 6
GAC, J & RRN, J Crl.A.No.787 of 2014 Considering the oral and documentary evidence on record, the trial Court convicted the appellant as aforesaid offences.
5. Heard learned counsel for the appellant and the learned Public Prosecutor appearing for the State.
6. The point for consideration in this appeal is;
"Whether the prosecution is able to bring home the guilt of the accused beyond reasonable doubt and whether there is any irregularity or error in the judgment of the trial Court, requiring interference ?"
7. It is the contention of the learned counsel for the appellant that the charges framed against the accused are defective, misleading, which resulted in failure of justice and the facts do not make out a case under Section 302 of IPC. It is also contended by the learned counsel for the appellant that the entire case of the prosecution is based on the circumstantial evidence and the panchsheel principles required to prove the circumstantial evidence are not proved by the prosecution. It is further contended that the trial Court cannot presume that the accused committed murder of the deceased and presumption cannot be drawn under Section 114-A of the Indian Evidence Act as the alleged recoveries of 7 GAC, J & RRN, J Crl.A.No.787 of 2014 M.Os.2 to 4 were after the lapse of 25 days from the date of incident, M.O.5 after lapse of 27 days and M.O.1 after the lapse of 36 days. Further, the prosecution has failed to conduct test identification parade of articles and further there is discrepancy in the weight of the ornaments for which no proper explanation was putforth by the prosecution.
8. The learned counsel for the appellant has relied on the judgments of Hon'ble Supreme Court in Sharad Birdhi Chand Sarda v. State of Maharashtra1 and in Prakash v. State of Karnataka2. Accordingly, prayed to set aside the judgment of the Sessions Court and to acquit the accused/appellant.
9. On the other hand, the learned Public Prosecutor has contended that there are no errors or irregularities in the order passed by the Sessions Judge and the trial Court has rightly convicted the accused as the prosecution was able to prove the guilt of the accused for the offences charged.
1 AIR 1984 SC 1622 2 (2014) 12 SCC 133 8 GAC, J & RRN, J Crl.A.No.787 of 2014
10. It is necessary to appreciate the oral and documentary evidence in order to come to the conclusion whether the prosecution is able to prove the guilt of the accused. Admittedly, the entire case rests on the circumstantial evidence as there are no direct eyewitnesses to the incident, and in a case of circumstantial evidence, it is for the prosecution to prove the chain of events which forms as a complete ring and that there is no missing of link for convicting the accused for the offences alleged.
11. PW-1 is the son of the deceased. His evidence discloses that he received a call from an unknown person informing about the death of his mother. The evidence of PW-1 clearly reveals that after receiving the information, he went to the house of the deceased, jumped over the compound wall for entering into the house, pushed the main door, but it was not opened and on that, he entered into the house from the rear door/back door, which was found opened and the dead body of the deceased was found lying on the ground facing towards the sky at the entrance of the lavatory and also noticed injuries on the head and forehead and blood oozing from the injuries. His evidence further discloses that his 9 GAC, J & RRN, J Crl.A.No.787 of 2014 mother/deceased used to wear golden nanu around her neck weighing about three tulas, a rold gold chain of two pairs, a pair of golden ear studs with matees, two gold bangles and a silver ring and that she was also having a cell phone. M.Os.1 to 4 are the gold nanu, pair of ear studs, pair of gold mateelu and three pieces of gold bangles, which were marked through PW-1.
In the cross-examination, it is specifically deposed by PW-1 that he did not remember the telephone number from which he received the call informing the death of his mother. He did not observe whether the accused came to see the dead body along with the neighbours. Further, it is admitted by PW-1 that they do not have any receipts for purchasing M.Os.1 to 4.
12. It is important to note that the prosecution was not able to prove as to who was that unknown person that made telephone call to PW-1. The record reveals that the prosecution has made efforts to call for the call data of the mobile number of the deceased. Inspite of having the mobile number displayed in the mobile of PW-1, no efforts are being made by the investigating officer to ascertain as to who was the first person who saw the dead body of 10 GAC, J & RRN, J Crl.A.No.787 of 2014 the deceased at the scene of offence. It is relevant to mention that the dead body was found in the house of the deceased and the front door of the house was locked.
13. The evidence of PW-2, who is the neighbour of the deceased, discloses that on 12.04.2011 at about 6.30 a.m., after hearing the cries of PW-1, he came to the scene of offence and noticed the dead body of the deceased with injuries. His evidence further discloses that on previous night, he saw the deceased in her compound and she used to wear gold ornaments and the said ornaments were found missing on the dead body of the deceased.
14. Admittedly, the evidence of PWs.1 and 2 is in no way helpful for the prosecution to connect the accused with that of the crime. The evidence of PW-1 only establishes lodging of complaint against some unknown person basing on which, a case was registered and criminal law was set into motion. The evidence of PW-2 establishes that the deceased used to wear ornaments and the dead body was found without ornaments.
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15. PW-3 is the Photographer, who took the photographs of the deceased, at the instance of the Inspector of Police, Achampet. Exs.P-2 and P-3 are the photographs. His evidence further discloses that one day prior to the death of the deceased, he went to her house to take her pictures, while doing pooja. In the cross-examination, PW-3 specifically deposed that the deceased was alone in the house at the time of his taking photographs and he cannot say whether the chain worn by the deceased was gold or rold gold. Prosecution has relied on the evidence of PW-3 to prove that the deceased was wearing big and small gold studs at the time of performing pooja.
16. The evidence of PW-4, who is the VRO, discloses that he acted as a panch witness for the scene of offence, for the inquest over the dead body of the deceased and also acted as a panch witness for the confession and recovery of material objects pursuant to the confession of the accused and was signatory to Exs.P-4 to P-7, which are the crime detail form, inquest panchanama and recovery panchanamas.
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17. Admittedly, PW-4's evidence discloses that the accused had confessed his guilt to the Police in his presence and pursuant to the said confession, Police have recovered the ornaments i.e. M.Os.2 to 4.
18. PW-5 is the Goldsmith. His evidence discloses that the Police have called him to the house of the accused and asked him to weigh two gold bangle pieces, one pair of ear studs and mateelu, and accordingly, he weighed the same and issued receipt to the Police. In the cross-examination, he deposed that he had no acquaintance with the accused and he went to the house of the accused along with two or three Constables and also carried the weighing machine. The ear studs with stones weighed about three grams and three milligrams (3.03 mg.) and gold bangle pieces weighed about 11.9 grams and mateelu weighed about 2.9 grams and he has written the measurements on a white paper.
19. The evidence of PW-6, who is a Tailor by occupation, discloses that about two years back, while he was at his house at about 6 a.m., he learnt through villagers that the deceased 13 GAC, J & RRN, J Crl.A.No.787 of 2014 Sathyavathi was murdered by someone. On that, he went and saw the dead body of the deceased and noticed the dead body with head injury and ornaments on the dead body were missing. The evidence of PWs.1 to 3, 5 and 6 is in no way helpful to the case of the prosecution.
20. PW-7 is another panch witness. His evidence discloses that he accompanied the Police on 18.05.2011 at the instance of the MRO, Achampet and on that, the Police took him to Mahabubnagar jail, in a Police jeep and the accused also accompanied them in the Jeep and they all went to Santhosh Nagar at Hyderabad and the accused showed them Manappuram Gold Loan office and then, the accused informed them that he deposited the gold ornaments in the same shop. On production of slips, the Manager handedover gold nanu with pathakam to the Police, which was recovered under a panchanama/Ex.P-8. M.O.1 is the gold nanu, which was recovered from the Manappuram gold office. It is specifically deposed by PW-7 that he has no idea about the weighments/measurements of the gold articles and also had no acquaintance with the accused.
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21. PW-8 is the Manager of Manappuram gold loan office. His evidence discloses that on 25.05.2011, the accused, Police and other persons came to their office and on inquiry, basing on the name of the accused, he traced out the pawn ticket which contains the photo of the accused, name, address, phone number etc. and on that, he produced the gold chain, which was seized by the Police. In the cross-examination, it is deposed by PW-8 that he did not file any identity card to prove that he is the Manager of Manappuram gold Finance Company and the Police also have not shown any identity proof while he was in the office on 25.05.2011. It is also testified by PW-8 that their office is situated in a busy area and on average, 5 to 6 persons will come to their office everyday to avail loan on deposit of gold ornaments. He further testified that he did not ask the accused whether the gold brought by him was purchased and whether he got the receipt for purchase of the same. The evidence of PW-8 further discloses that there is no procedure in their Company to insist for the receipts and bills for purchase of the gold ornaments which were offered to deposit for availing loans.
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22. It is relevant to note that the gold loan application/pawn ticket was not produced/marked as an Exhibit to connect the accused with the crime, for the reasons best known to the prosecution. At the same time, there is no proof before the Court to believe the evidence of PW-8, to prove that he is the employee of Manappuram Gold Finance Company.
23. The evidence of PW-9 i.e. the Doctor discloses that on 12.04.2011, he conducted postmortem examination over the dead body of the deceased from 4.15 to 5.30 p.m. and Ex.P-9 is the postmortem report of the deceased. It is further testified by PW-9 that he found one deep lacerated wound over the head and on opening of the head, he found damage to brain, fracture of frontal bone and opined that the death of the deceased was due to cardiac-respiratory arrest as a result of intra cranial hemorrhage.
In the cross-examination, PW-9 deposed that the injury found on the dead body of the deceased may be possible by a fall on a hard object and also admitted that he has not specifically stated the mode of injury that caused cardiac respiratory arrest, that too, was due to damage of brain.
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24. The rest of the evidence in this case is that of the Police officials. PW-13 is the Sub-Inspector of Police, who registered the case in Crime No.37 of 2011 and issued Ex.P-12/FIR. Later, investigation was conducted by PW-10. During the course of investigation, he conducted inquest panchanama over the dead body of the deceased and prepared the inquest report and also the crime detail form at the scene of offence and made recoveries of the material objects during the course of recording confession of the accused. Further, PW-11 also conducted detailed investigation and recovered M.O.5/mobile phone under the recovery panchanama/Ex.P-7 and also forwarded the material objects M.Os.6 to 8 which are the wearing apparel of the deceased to FSL for chemical analysis and prepared the sketch of scene of offence and scene observation report, is Ex.P-4. PW-12 is the Inspector of Police, who also partly investigated the case, received the FSL report/Ex.P-11 and filed the charge sheet.
25. Their evidence only discloses about the investigation done by them and also reveal that the entire case was made out basing on 17 GAC, J & RRN, J Crl.A.No.787 of 2014 the confession of the accused, as there is no direct eye witness in this case.
26. It is important to note that the confession given by the accused to the Police is hit by Section 25 of the Indian Evidence Act. Pursuant to the confession, the information discovering the recovery of material objects connecting to the crime is only admissible under Section 27 of the Indian Evidence Act. The prosecution has completely relied on the material objects which were recovered at the instance of the accused i.e. M.Os.1 to 5, but failed to connect the material objects with that of the crime, as none of the witnesses have identified the ornaments, as that of the ornaments of the deceased, including PW-1, who is the son of the deceased. Moreover, it is mandatory to conduct test identification parade, as per Rule 35 of the Criminal Rules of Practice. A special procedure is laid under Rule 35 to mix each ornament with that of the similar ornaments and it has to be identified by the concerned persons/parties, but the same is lacking in this case. Moreover, M.O.5, which is alleged to be the mobile phone of the deceased, was not identified by any one and even the call data report was also 18 GAC, J & RRN, J Crl.A.No.787 of 2014 not filed before the Court to prove that the accused had stolen the property.
27. Section 380 of IPC envisages that whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
28. The confession of the accused, though not admissible, discloses that the accused went behind the deceased, shut her mouth and when she bit the middle finger of his right hand and pushed him back with one hand, but the accused got up and hit her with force on her forehead with the available broken piece of brick, due to which, she fell down on the shabad stones in supine position and died. Thereafter, he snatched her bangles, ear studs and mateelu, one gold nanu with gold locket with stones and came out of the house through back door, took away her cell phone, took the broken brick used as crime weapon in the murder and threw the brick by the side of the drainage and left the place. As per the said 19 GAC, J & RRN, J Crl.A.No.787 of 2014 confession, it is evident that the accused alleged to have committed theft from the dead body of the deceased, therefore, Section 404 alone attracts, but not Section 380 of IPC.
29. Admittedly, the Police have not filed any charge sheet against the accused for the offence under Section 404 of IPC. Section 404 of IPC reads as under:
"404. Dishonest misappropriation of property possessed by deceased person at the time of his death :--Whoever dishonestly misappropriates or converts to his own use property, knowing that such property was in the possession of a deceased person at the time of that person's decease, and has not since been in the possession of any person legally entitled to such possession, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offender at the time of such person's decease was employed by him as a clerk or servant, the imprisonment may extend to seven years."
30. As already stated supra, charge under Section 380 of IPC is applicable only when the theft is committed in a dwelling house from the person who is alive. But, it is the case of the prosecution that the accused has snatched the gold ornaments from the dead body of the deceased after her death. Therefore, there cannot be any charge against the appellant for the offence punishable under Section 380 of IPC. Therefore, the trial Court ought to have 20 GAC, J & RRN, J Crl.A.No.787 of 2014 framed a charge against the appellant for the offence under Section 404 of IPC instead of Section 380 of IPC. Therefore, the conviction and sentence imposed against the accused for the offence under Section 380 of IPC is liable to be set aside.
31. It is pertinent to mention that there is no evidence before the trial Court as to who saw the dead body of the deceased first and as to how PW-1 came to know about the death of the deceased through unknown person. It is the case of the prosecution that PW-1 received a phone call from an unknown person but what made the investigating officer not to collect the call data of PW-1 to prove that PW-1, being the son of the deceased, received the information on cell phone and basing on the complaint/Ex.P-1, the criminal law was set into motion. Furthermore, as already stated supra, the investigating officer has failed to establish that the material objects alleged to have been seized at the instance of accused pursuant to his confession, belong to the deceased, as no test identification parade was conducted for identification of gold ornaments.
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32. The evidence of Police officials does not disclose as to why they got suspicion on the accused and as to how they apprehended the accused in this case. Admittedly, the accused did not come before the Police to confess his crime. In a case of circumstantial evidence, it is for the prosecution to prove that all the events have formed a chain, forming a complete ring. The last seen theory is also missing in this case to prove that the accused being the Tailor, used to stitch the garments of the deceased and both were last seen together prior to the incident. None of the witnesses have deposed before the Court that the accused and deceased were seen together prior to the incident. The entire case rests on the confession of the accused. Even as per the said confession, the accused has gone to the house of the deceased, one day prior to her death and at that time, the Photographer was taking the photographs of the deceased and that he had an evil eye to commit theft of the gold ornaments of the deceased. But, PW-3/photographer has not testified the presence of accused, at the house of deceased one day prior to her death. Absolutely there is no iota of evidence on record that the appellant was moving suspiciously near the house of the deceased 22 GAC, J & RRN, J Crl.A.No.787 of 2014 or had lurked into the house of the deceased to commit robbery/dacoity or extortion. In the absence of proper evidence, presumption cannot be drawn that the accused has committed murder of the deceased. The cardinal principles of criminal law are to be adhered to i.e. the accused shall be presumed to be innocent till the guilt is proved and that the burden is on the prosecution to prove such guilt of the accused beyond reasonable doubt.
33. In the judgment of Hon'ble Supreme Court relied on by the learned counsel for appellant in Sharad Birdhi Chand Sarda's case (1 supra), while referring to the judgment in Hanumant v. State of Madhya Pradesh3, it is held as under:
"Before a case against an accused vesting on circumstantial evidence can be said to be fully established the following conditions must be fulfilled as laid down in Hanumat v. State of M.P. [1953] SCR 1091.
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;
2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;3
1952 SCR 1091 = AIR 1952 SC 343 23 GAC, J & RRN, J Crl.A.No.787 of 2014
3. The circumstances should be of a conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
These five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence and in the absence of a corpus delicti."
34. The above judgment squarely applies to the facts and circumstances of the present case and there is no iota of evidence to connect M.Os.1 to 5 with that of the accused. The crime weapon alleged to have been used by the accused is a broken brick, but the prosecution has failed to produce the same. Therefore, this Court is of the considered view that the prosecution has miserably failed to prove the guilt of accused beyond reasonable doubt, and therefore, the judgment of the Sessions Court is liable to be set aside. The trial Court also erred in convicting the appellant and appellant is entitled for benefit of doubt. 24
GAC, J & RRN, J Crl.A.No.787 of 2014
35. In the result, the Criminal Appeal is allowed. The appellant is found not guilty of the offences punishable under Sections 302 and 380 of IPC, and accordingly, the conviction and sentence imposed on the appellant vide Judgment dated 02.05.2014 in S.C.No.412 of 2012 on the file of IX Additional District and Sessions Judge, Wanaparthy, is hereby set aside and the appellant is acquitted of the charged offences. The appellant shall be released forthwith, if not required in any other case. The fine amount paid, if any, shall be refunded to the appellant.
36. Though the trial Court has ordered for return of M.Os.1 to 5 valuables to PW-1, but, in the absence of proper evidence showing that those articles belong to the deceased, it is not proper to handover those items to PW-1. Therefore, M.Os.1 to 4 i.e. Gold nanu, pair of ear studs, pair of gold mateelu and three pieces of gold bangles shall be confiscated to the State and M.Os.5 to 8 i.e. Mobile phone, blood-stained saree, blouse of deceased and blood sample packet shall be destroyed after appeal time is over. 25
GAC, J & RRN, J Crl.A.No.787 of 2014 Pending miscellaneous applications, if any, shall stand closed.
_________________________________ G.ANUPAMA CHAKRAVARTHY, J _________________________________ NAMAVARAPU RAJESHWAR RAO, J Date: 19.11.2022 N.B:
(1) Judgment be forthwith communicated to the jail authorities concerned.
(2) L.R. copy be marked.
(b/o)
ajr