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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
Criminal Appeal No. 87 of 2015
JUDGMENT: (Per Hon'ble Sri Justice C.Praveen Kumar)
1) Accused No.1 in Sessions Case No. 294 of 2012 on the file
of XIII Additional District and Sessions Judge, Narasaraopet, is
the appellant herein. He along with Accused No. 2 [acquitted]
were tried for an offence punishable under Section 302 read
with 34 of Indian Penal Code ['I.P.C.'], for causing the death of
one Kshatri Nagamani ['Deceased'] on 05.10.2011 at 4.00 p.m.
at Subabul Garden. By its Judgment, dated 17.11.2014, the
learned Sessions Judge convicted Accused No.1 alone for the
offence punishable under Section 302 I.P.C. and sentenced him
to suffer rigorous imprisonment for life and to pay fine of
Rs.1,000/- in default to undergo simple imprisonment for one
month.
2) The facts, in the issue, are as under:
i) PW1 is the father of PW2 and husband of the deceased;
PW3 is the mother of PW1. The marriage of PW1 with the
deceased took place about nine years prior to the incident.
He was blessed with two children.
ii) On 05.10.2011 the deceased and PW2 went to attend calls
of nature while PW1 left the house at 7.00 a.m., to his
work at Gollapadu Village. It is said that, when PW2 and
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her mother [deceased] went to the fields in the evening, at
that time Accused No. 1 and another person were present
there and the mother of PW2 and both the accused talked
with each other for about half an hour and, thereafter, her
mother [deceased] handed over water mug and mobile
phone to PW2. Then, she along with both the accused went
inside Subabul Garden. PW2 claims to have waited there
till 7.00 p.m., and as her mother [deceased] did not return
back, due to fear she returned to her house. At about 7.00
p.m., PW2 telephoned and informed PW1 about her mother
[deceased] not returning home. By 7.30 p.m. PW1 returned
home and searched for his wife [deceased], but could not
trace her. When enquired with PW2, she informed him that
herself and the deceased went to attend calls of nature at
4.00 p.m., where her mother [deceased] handed over
mobile phone and water mug to her and went into Subabul
Garden, and as she did not return back, PW2 claims to
have returned home.
iii) On knowing the same, PW1 took the mobile phone of his
wife [deceased] and verified incoming calls. He noticed one
number displayed three or four times and the said number
is 8096616403. He called the said number through the
mobile of his wife [deceased]. One person lifted the phone,
revealed his name as Vinod [A1] and then cut the phone.
The said Vinod [A1] was a tenant in the house of PW3. On
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the next day, i.e., on 06.10.2011 at 10.00 a.m., in the
morning, PW1 went to Police Station and lodged a report
with PW11 - Sub-Inspector of Police. Basing on Ex.P1
report, PW11 registered a case in Crime No. 156 of 2011
under the head of woman missing and sent copies of First
Information Report to all concerned. Ex.P12 is the First
Information Report. He examined PW1 to PW3 and
recorded their statements. He sent radio message about
the missing woman to all the police stations.
iv) On 07.10.2011, PW11 along with Inspector of Police
[PW10] visited the house situated in 4th lane of
Vengalareddy Colony bearing door number 13-4-65/10.
One person, who was present there tried to run away. He
was apprehended and when enquired, revealed his name
as P. Vinod [A1]. The said visit was in the presence of PW7.
A1 is said to have confessed about the commission of the
offence and also disclosed that he will show them the place
where the dead body of Nagamani [deceased] is lying.
Ex.P2 is the admissible portion of A1. It is said that, A1
also handed over the wrist watch of the deceased, which is
marked as M.O.1. The evidence of PW10 - Inspector of
Police, would show that he handed over the mediatornama
prepared to PW11, who basing on the same altered Section
of law to 302 and 201 read with 34 I.P.C. Ex.P13 is the
section alternation memo.
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v) PW11 after altering the section of law proceeded to the
scene of offence where he prepared a rough sketch of
scene, which is placed on record as Ex.P14. The evidence
further discloses that A1 lead them to the scene of offence,
which is Subabul Garden of PW9 situated by the side of
the road leading to Kotappakonda Village. At the scene, A1
showed the dead body of the deceased. By that time, the
relatives of the deceased, who were present there,
identified the body as that of the deceased. It is said that,
at the scene A1 handed over his mobile phone [M.O.9] to
PW10.
vi) PW10 prepared a panchanama of the scene and also got
the dead body photographed. He noticed a towel around
the neck of the deceased, which is marked as M.O.4. The
same was seized under Ex.P5. He then conducted inquest
over the dead body of the deceased in the presence of three
mediators. Ex.P3 is the inquest report. At the time of
inquest, he examined PW1 to PW4 and PW6 and recorded
their statements and, thereafter, sent the body for post-
mortem examination.
vii) PW8 - the Civil Assistant Surgeon, Area Hospital,
Narasaraopet, conducted autopsy over the dead body of
the deceased on 07.11.2011 at 4.00 p.m., and issued
Ex.P6 - the post-mortem certificate. After receipt of
R.F.S.L., report, he opined that the death was due to
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strangulation with towel and due to injuries on ribs and
left lung by over laying. Ex.P8 is the final opinion.
viii) PW10, who continued with the investigation, arrested
Accused No.2 on 07.10.2011 at about 4.00 p.m., and
seized Hero Honda Motorcycle [M.O.8] from him. Both the
accused were sent to judicial custody. After collecting all
the documents and after completing the investigation, a
charge-sheet came to be filed, which was taken on file as
P.R.C. No. 13 of 2012 on the file of I Additional Junior Civil
Judge, Narasaraopet.
3) On appearance of the accused, copies of documents as
required under Section 207 Cr.P.C., came to be furnished. Since
the case is triable by Court of Sessions, the matter was
committed to the Sessions Court under Section 209 Cr.P.C.
Basing on the material available on record, charge as referred to
above came to be framed, read over and explained to the
accused, to which, the accused pleaded not guilty and claimed
to be tried.
4) In support of its case, the prosecution examined PW1 to
PW11 and got marked Ex.P1 to Ex.P14, beside marking M.Os. 1
to M.O.9. After completion of prosecution evidence, the accused
were examined under Section 313 Cr.P.C. with reference to the
incriminating circumstances appearing against them in the
evidence of prosecution witnesses, to which they denied,
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however, except examining DW1 and DW2, no documentary
evidence was adduced.
5) Basing on the circumstances relied upon by the
prosecution, namely, motive; accused being 'last seen' in the
company of the deceased; recovery of dead body at the instance
of A1; the learned Sessions Judge convicted A1 alone under
Section 302 I.P.C. Challenging the same, the present appeal
came to be filed.
6) (i) Sri. Mastan Naidu Cherukuri, learned counsel
appearing for the appellant mainly submits that there are no eye
witnesses to the incident and the circumstances relied upon by
the prosecution are not proved beyond reasonable doubt. He
further submits that, though the prosecution pressed into
service the evidence of PW2 to establish the theory of accused
'last seen' in the company of the deceased, but, there are
number of circumstances to indicate that PW2 was not present
along with the deceased at the Subabul Garden of PW9. He
further submits that, if really PW2 had disclosed about the said
information to PW1, definitely the same would have reflected in
the First Information Report, which was lodged on the next day.
Since, the First Information Report is silent on all the material
aspects including the telephone number, the deceased being last
seen in the company of the accused etc., doubt arises as to
whether really PW2 was accompanied her mother [deceased] to
attend calls of nature. He further submits that, even on
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05.10.2011 when PW1 enquired PW2 as to what happened, she
did not disclose about the meeting the accused at Subabul
Garden of PW9. She only speaks about deceased not returning
home. Even the evidence of PW3 is silent about any information
being furnished by PW2 with regard to PW2 accompanying the
deceased to answer calls of nature.
(ii) Insofar as recovery of body, at the instance of A1, is
concerned, he would submit that the same is not proved as the
panch, who was examined to speak about the same did not
support the prosecution case. Even otherwise, he would submit
that the entire village was aware the dead body lying there since
number of family members of the deceased gathered on the road
where the dead body was lying by the time A1 took the police to
the said place. Therefore, it cannot be said to be a discovery
made pursuant to a confession made under Section 27 of the
Indian Evidence Act, 1872.
(iii) Coming to the recovery of the wrist watch, he would
submit that the evidence of PW1 would show that the wrist
watch was on the dead body itself when PW1 and others noticed
the body of the deceased. Having regard to all the
circumstances, he would submit that the prosecution has failed
to prove its case beyond reasonable doubt.
7) On the other hand, Sri. K.Srinivasa Reddy, learned Public
Prosecutor, opposed the same contending that non-mentioning
of details of A1 and A2 in the First Information Report or to PW1
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and PW3 by PW2, while giving evidence, do not go to the root of
the matter. According to him, A1 and A2 being known persons,
were coming to the house regularly and, as such, PW2 might not
have disclosed the names of A1 and A2 as the persons who met
them at the scene. He further submits that, since the dead body
came to be recovered at the instance of A1, and in the absence
of any cross-examination to disbelieve the same, he would
submit that the said circumstance is sufficient to base a
conviction. The learned Public Prosecutor further submits that,
though PW2 is a child witness, but there is nothing to disbelieve
her version. In his view, the conduct of PW2 is natural and can
be believed to connect the accused with the crime. According to
him, the evidence of PW2 and other witnesses would clearly
show that there was a 'motive' for the accused to commit the
offence. In view of the above, he would submit that the
conviction and sentence imposed on Accused No. 1 requires no
interference.
8) The point that arises for consideration is, whether the
prosecution was able to bring home the guilt of the Accused No.1
beyond reasonable doubt?
9) It is no doubt true that there are no eye witnesses to the
incident and the case rests on circumstantial evidence. In a case
arising out of circumstantial evidence, the prosecution has to
prove each of the circumstance relied upon by them and the
circumstances so proved should form a chain of events, which
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should lead to an irresistible conclusion establishing the guilt of
the accused.
10) In R.Damodaran v. The State Rep. By The Inspector Of
Police1, the Apex Court after referring to the judgment of a three
Judge Bench in Padala Veera Reddy Vs. State of Andhra
Pradesh and Ors2, held that, in a case which rests on
circumstantial evidence such evidence must satisfy the following
tests:
1.
the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
2. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
3. the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharastra3)
11) Keeping in view the law laid down by the Apex Court in the
judgments referred to above, it is now to be seen whether the
circumstances relied upon by the prosecution are proved and if
1 AIR (2021) SC 1173 2 1989 Supp (2) SCC 706 3 (1982) 2 SCC 351 10
proved, whether they form a chain of events connecting the
accused with the crime leading to an inescapable conclusion,
the guilt of the accused.
I. Motive.
12) Coming to the "Motive" aspect, it would be relevant to
extract to the evidence of PW1, PW2, PW6 and PW10.
13) PW1 in his examination-in-chief deposed that, his wife
[deceased] was having illicit intimacy with A1 and used to give
money to him and meet him at Subabul Garden. As his wife
could not cooperate with A1, A1 murdered her with the help of
A2. The relevant portion in the evidence of PW1 is as under:
"A1 Vinod killed my wife with the help of A2 Lalibabu. My wife Nagamani was having illicit intimacy with A1 P.Vinod. My wife used to give money to A1 P.Vinod and she also used to meet A1 Vinod at Subabul Garden. After that as my wife could not cooperate with A1 Vinod, he murdered her."
14) In cross-examination, PW1 admits as under:
"I do not know about the illicit relationship between my wife and A1 - P. Vinod till the death of my wife. It is true that I have not mentioned any suspicion against A1 - Vinod in Ex.P1 about the death of my wife".
"I came to know through Police that A1 - P. Vinod killed my wife and I do not know any other source of information with regard to involvement of A1 for the death of my wife."
15) PW2, who the daughter of PW1 and the deceased, in her
evidence deposed that, A1 used to visit their house in the 11
absence of her father and also used to sleep at their house. He
also used to take food at their house and whenever he visited
their house her mother was present at house and provided food
to him. As her mother asked A1 to pay money, he killed her
mother. However, in cross-examination PW2 admits as under:
"...... I have not informed to my father that A1 Vinod used to visit our house in the evening. I also not informed to my grandmother that A1 - Vinod used to visit our house in the evening."
16) PW6, who is elder brother of the deceased, in his evidence
deposed that, he came to know through Police that A1 killed his
sister Nagamani, who was having illicit intimacy with A1.
However, in cross-examination, he admits as under:
"I have no personal knowledge about the cause of death of Nagamani. I came to know about cause of the death of Nagamani through police.
17) At this stage, it would be relevant to refer to the evidence of
PW10 - Inspector of Police, Narasaraopet Rural Circle. According
to him, his investigation revealed that A1 was having illicit
relationship with deceased and when the deceased refused to
continue relationship with A1 Vinod, he developed grudge and
killed her with the help of A2. However, in cross-examination,
PW10 admits that, his investigation does not reveal any money
transactions between the deceased and accused. It would be
relevant to extract the same, as under:
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"During the course of investigation, I never come across with regard to any money transaction between deceased and Vinod".
18) Therefore, in one breadth PW1 was made to say that the
motive for the offence is illicit relationship and non-payment of
money demanded by A1; while evidence of PW2 and PW6 is to
the affect that the cause for the incident is because of the money
transaction between A1 and the deceased. If the reason for
committing the murder is illicit relationship between A1 and the
deceased, it is doubtful as to whether A1 would have killed the
deceased, since nobody suspected the relationship between A1
and the deceased and even PW1 and PW3 were not aware about
the same. Even PW2, who speaks so many things in Court, did
not inform anyone of her family members about the visit of the
accused to her house at any point of time earlier. In fact, the
evidence of PW10 falsifies the evidence of PW1, PW2 and PW6
with regard to money transaction between the deceased and
accused. Therefore, we hold that the prosecution has not come
forward with any specific 'motive' for the accused to kill the
deceased. As stated earlier, each witness is giving different
version which we are not inclined to accept.
II. Accused and deceased 'last seen' together.
19) The main ground relied upon by the prosecution is the
accused and deceased being 'last seen' together, which they
sought to establish through the evidence of PW2. In order to
appreciate the same, it would be appropriate to refer to the 13
evidence of PW2, who is none other than the daughter of the
deceased and also the evidence of PW1, who is husband of the
deceased.
20) PW2 was aged about nine years at the time of giving
evidence and six years on the date of incident. According to her,
on 05.10.2011 herself and her mother [deceased] went to fields
to attend calls of nature. By that time, A1 and another person
were present there, who came there by walk. According to her by
the time they went to the fields of PW9, it was evening. Both the
accused talked with her mother [deceased] for half an hour and,
thereafter, her mother [deceased] handed over water mug and
mobile phone, and went inside the Subabul Garden along with
the accused. PW2 claims to have waited there till 7.00 p.m. As
her mother [deceased] did not return back, PW2 returned to her
house. She claims to have informed her father [PW1] through
mobile phone after returning home. At about 7.30 p.m., her
father [PW1] returned home and searched for her mother
[deceased] but could not trace her. Thereafter, her father
informed her paternal grandmother [PW3] and then all of them
searched for the deceased, but in vain. A report came to be
lodged on the next day morning at 10.00 a.m. PW2 also went
along with her father [PW1] to the Police Station for lodging the
report. According to her, police enquired her and she informed
the police as to what happened. On 07.10.2011 she along with
other relatives accompanied her father [PW1] to Subabul 14
Garden, where the dead body was found. She further deposed
that, by the time they reached Subabul Garden, Police and A1
was present there. It is her version that, A1 used to visit the
house in the absence of her father [PW1] and take food and sleep
in their house. According to her, whenever A1 visited the house,
the deceased used to provide food to A1. It is her evidence that,
as the deceased demanded A1 to pay the money, he killed her.
21) In the cross-examination, she admits going to Police
Station along with PW1 on the next day at 10.00 a.m. where
Police recorded her statement. She further admits that she does
not know when her father [PW1] lodged the report with police.
She also admits that she used to go to school at 8.00 a.m. in the
morning and return back at 4.00 p.m., however denies the
suggestion that she is attending private tuitions in the evening.
She further admits that, her mother [deceased] used to be at her
house by the time she returns from school. She further admits
that, on the fateful day, her mother [deceased] did not attend
coolie work and she also did not attend the school. She further
clarifies that, on that day the school was closed as her teacher
was not in town. She further admits that, she has not informed
her father [PW1] about A1 visiting their house in the evening/in
the absence of PW1. She also admits that she has not informed
to her grandmother [PW3] about A1 visiting the house during
evening time. It was further elicited in the cross-examination
that herself and her mother [deceased] went into Subabul 15
Garden. At the same time, she also admits that, on the day her
mother [deceased] and A1 talked with each for one hour and her
mother handed over a mug and mobile phone and then went
inside Subabul Garden along with A1. She further admits that,
cars and motorcycle pass through the said road, apart from
people passing through the road near the Subabul Garden. It
was further elicited that, when her mother [deceased] went
inside the subabul Garden, she slept in the fields for some time
and then woke up when it started raining. She further admits
that her father [PW1] searched in the Subabul Garden on that
day, but could not trace the body. It was further elicited that
Subabul Garden is visible from their house and that A1 was
present by the time they visited the Subabul Garden.
22) Strangely, PW2 admits that she has witnessed A1 and A2
killing her mother [deceased] at Subabul Garden, but, did not
raise cries after witnessing the incident and also did not inform
her father [PW1] about she witnessing A1 and A2 killing the
deceased. She also admits that, she has not informed police
about she witnessing A1 and A2 killing the deceased. She
categorically admits that her version now in the cross-
examination is an improvement to what she has stated in the
chief-examination with regard to killing of the deceased. This, in
substance, is the evidence of PW2 with regard to accused being
'last seen' in the company of the deceased.
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23) From the evidence of this witness, it is discernible that she
along with her mother [deceased] claims to have gone to answer
calls of nature at Subabul Garden on 05.10.2011 at 4.00 or
4.30 p.m. PW2 claims to have witnessed the incident of accused
killing the deceased but kept quiet without informing anybody.
She claims to have returned home at 7.00 p.m. and, thereafter,
called her father [PW1] informing about the deceased not
returning home. At this stage, it is also to be noted that PW2
went along with her father [PW1] to Police Station on the next
day morning at 10.00 a.m. when a report is said to have been
lodged. At this stage, it would be useful to refer to the evidence
of PW1, who is none other than the father of PW2 and husband
of deceased.
24) According to PW1, on 05.10.2011 at 7.00 a.m. he left his
house to attend to work. At about 7.00 p.m., his daughter [PW2]
telephoned him and informed that whereabouts of his wife
[deceased] are not known and asked him to return home
immediately. Accordingly, he rushed home by 7.30 p.m., and
enquiries with his daughter [PW2] revealed that herself and his
wife [deceased] went to the fields of PW9 to attend calls of nature
at 4.00 p.m. where his wife handed over mobile phone and water
mug to PW2 and went inside the Subabul Garden, as the
deceased failed to come back, PW2 returned home. The evidence
of PW1 further disclose that, he verified the mobile phone of his
wife [deceased] and found one number being displayed three or 17
four times, which was received by his wife [deceased]. He called
that number, which was lifted by a person, who revealed his
name as Vinod and then disconnected the call. According to
him, the said Vinod is a tenant in the house of PW3. PW1 along
with PW3 and PW2 searched for the deceased, but in vain and,
thereafter, law was set into motion by lodging a report [Ex.P1].
According to him, the body was recovered on 07.10.2011 at
11.30 a.m. in the Subabul Garden.
25) PW1 was also cross-examined at length, wherein, he
admits that on that day itself they searched for his wife
[deceased] in Subabul Garden, but could not trace her due to
darkness. He also admits that he is not aware about the illicit
relationship between A1 and deceased till the death of his wife
[deceased]. He further admits that, he has not entertained any
suspicion against the accused in Ex.P1 report. He further
admits that he came to know about the involvement of A1 in the
commission of offence through police and that he has no source
of information with regard to the involvement of A1 in the
commission of offence. It would be appropriate to extract the
same as under:
"I came to know through Police that A1 - P. Vinod killed my wife and I do not have any other source of information with regard to involvement of A1 for the death of my wife".
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26) PW1 further admits in the cross-examination that he
identified the body of his wife [deceased] basing on her clothes
and the wearing of gold colour wrist watch on the dead body. It
would be appropriate to extract the same, which is as under:
"My wife was wearing Gold colour wrist watch on the date of her death. I also saw wrist watch when I noticed the dead body of my wife. As I used to see wrist watch of my wife I can say that those are belongs to my wife".
27) From the evidence of this witness, it is clear that he was
not aware of the alleged intimacy between A1 and the deceased
and even PW2 did not inform him about the involvement of A1
and A2 or A1 and A2 meeting the deceased or A1 meeting the
deceased on 05.10.2011 at Subabul Garden. In fact, PW2 never
disclosed about the presence of accused or deceased going to
Subabul Garden along with A1 and A2 on the fateful day.
28) PW3, who is grandmother of PW2, in her evidence, deposed
that, on 05.10.2011 by 7.00 p.m. her son [PW1] telephoned to
her informing about the missing of his wife [deceased]. Then, she
went to the house of PW1 and searched for the deceased, but,
could not trace her. On the next day morning at about 10.00
a.m., herself, PW1 and PW2 went to the police station and
lodged a report. Her enquiries with PW2 revealed that PW2 and
deceased went to Subabul Garden to attend calls of nature and
the deceased is said to have gone inside the Subabul Garden. 19
29) From the evidence of this witness, it is very much clear
that even when PW3 enquired with PW2, she did not reveal
anything about the accused. In fact, in the cross-examination
she admits that she has not enquired even from PW1 as to how
the deceased died. Even when they went to Subabul Garden in
the night, they did not trace the body of the deceased. She
categorically admits that, PW2 has not informed to her as to
what happened on that day and she claims to have come to
know the facts only after lodging of the report through PW2.
30) Before analyzing the evidence of these witnesses, we also
intend to refer to Ex.P1 - the report lodged by PW1 on the next
day. The said report was lodged on 06.10.2011 at 10.00 a.m.,
which lead to registration of a case in Crime No. 156 of 2011
under the head "woman missing" of Narasaraopet Rural Police
Station. In the said report, it is stated that, marriage of PW1
with the deceased took place about nine years ago and they were
blessed with two children. According to him, on 05.10.2011 at
7.00 a.m., in the morning, he went to Gollapadu Village, for the
purpose of earning. At about 7.00 p.m., in the evening, his
daughter [Birabai -PW2] telephoned him informing that herself
and her mother [deceased] went to answer calls of nature,
wherein, her mother gave her cell phone and went away saying
that she will come within short time, but did not return. On
receipt of the said information, the informant [PW1] claims to
have returned and enquired with his daughter [PW2] and then 20
searched for his wife [deceased] in surrounding place, but could
not find her. He noticed a call from a cell phone number
8096616403. This, in substance, is the content of the First
Information Report, which was lodged on the next day morning
at 10.00 a.m. by PW1.
31) An analysis of the evidence of PW1 to PW3 and the
contents of Ex.P1 [report], in our view throw some doubt as to
whether really PW2 witnessed A1 and A2 at the Subabul Garden
and the deceased going along with them into the said garden. If
really PW2 had seen A1 and A2 at the garden, and if really A1
and A2 and her mother [deceased] talked together for some time
and, thereafter, went into the Subabul Garden, she would not
have missed mentioning the same to her father [PW1], who
returned the home at 7.00 p.m. pursuant to the call made by
her informing about deceased not returning home. At least, on
next day morning she would have revealed the said facts when
they were not able to trace the deceased in spite of making
hectic search in an around their place. It is not as if the accused
is a stranger to PW2. If really PW2 has disclosed some
information about the involvement of the accused or about the
deceased meeting the accused, the same would have been
reflected in the First Information Report given by PW1.
32) It is now to be seen, whether the evidence of PW2, who is a
child witness can be accepted when it is fraught with so many
improbabilities?
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33) In Digamber Viashnav and Another V. State of
Chhattisgarh4, the Hon'ble Supreme Court while dealing with
the evidence of child witness, held as under:
"20. Bearing these principles in mind, we shall now consider the contentions of the learned counsel for the parties. In coming to the conclusion that the accused have committed the offence, the prosecution has relied on (i) Testimony of child witness Kumari Chandni (PW8);
(ii) The recoveries made under Section 27 of the Evidence Act; (iii) The fingerprint report; (iv) FSL report;
(v) Motive of committing robbery; and (vi) Evidence of last seen together.
21. The case of the prosecution is mainly dependent on the testimony of Chandni, the child witness, who was examined as PW-8. Section 118 of the Evidence Act governs competence of the persons to testify which also includes a child witness. Evidence of the child witness and its credibility could depend upon the facts and circumstances of each case. There is no rule of practice that in every case the evidence of a child witness has to be corroborated by other evidence before a conviction can be allowed to stand but as a prudence, the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that witness must be a reliable one.
22. This Court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law. [See Panchhi and others v. State of U.P, (1998) 7 SCC 177, State of U.P. v. Ashok Dixit and
4 (2019) 4 Supreme Court Cases 522 22
another, (2000) 3 SCC 70, and State of Rajasthan v. Om Prakash, (2002) 5 SCC 745].
23. In Alagupandi alias Alagupandian v. State of Tamil Nadu, (2012) 10 SCC 451, this Court has emphasized the need to accept the testimony of a child with caution after substantial corroboration before acting upon it. It was held that:
"36. It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable."
24. It is clear from the testimony of PW-8 that she is not an eyewitness to the incident. She was aged about 9 years at the time of the incident. Her evidence is fraught with inconsistencies. None of the other witnesses have identified the appellants. Therefore, heavy reliance was placed on the testimony of PW-8. She did not tell PW-1, Badridas about the appellants while disclosing about the incident for the first time. This is reflected from the FIR which has been registered against unknown persons. In such circumstances, it is risky to rely on the uncorroborated identification of the appellants at the 23
instance of PW-8, who has not disclosed about the appellants at the first instance before PW-1 Badridas."
34) At this stage, it would also be useful to refer to the decision
of Apex Court in Hamza V. Muhammed Kutty Alias Mani and
Others5. It was also a case where PW1 who was aged about 7
years on the date of incident and claim to be a witness to the
incident, failed to disclose about the same to the police on the
date of incident, though the police came to her house where the
incident took place. Only on the next day evening after her
mother's body was buried, he went to the grandmother's house,
slept there with his elder aunt Sareena and on that night
disclosed about the incident to his aunt Sareena. It is the
version of PW1 that thereafter his maternal grandmother
Nabeesa and his uncle Hamza then came there and heard what
he said. The prosecution examined Hamza as PW2 who told that
his mother and wife Sareena were told by PW 1 about the
incident, namely, A-1 stabbing while A-2 holding her. PW2,
however, has said that the husband of the deceased used to
send money in the name of A-1 and A-2 and the deceased
informed her husband about non receipt of money and
thereafter the husband of the deceased started sending money
to the deceased. The evidence of PW2 in the said case makes it
clear that there was some animosity between A-1 and A-2 on
account of what the deceased had told him about A-1 and A-2.
Having regard to the above, it was held that even though the
5 (2013) 11 Supreme Court Cases 150 24
evidence of PW2 corroborates the testimony of PW1, his evidence
cannot be relied upon to lend assurance that PW 1 was giving a
true version of the incident.
35) Even in the instant case, except the evidence of PW2, there
is no other evidence available on record to establish the theory of
accused being 'last seen' in the company of the deceased. When
once the evidence of PW2 is found to be doubtful, it can be held
without any hesitation that the prosecution has failed to prove
the said circumstance.
III. Recovery of wrist watch of the deceased at the
instance of A1.
36) It would be appropriate to deal with the recovery of wrist
watch [M.O.1] of the deceased pursuant to the arrest of A1,
which, in our view, has some bearing on the circumstance of
accused showing the dead body of the deceased.
37) PW10 - Sub-Inspector of Police, in his evidence deposed
that, on 07.10.2011 on credible information, he secured the
presence of PW7 and visited the house situated in 4th lane of
Vengalareddy Colony bearing door number 13-4-65/10. At that
time, one person who was present there tried to run away after
seeing them. They caught hold of the said person and when
enquired, revealed his name as Vinod [A1]. He is said to have
confessed about the commission of the offence and also
disclosed that he will show the dead body of Nagamani 25
[deceased] which is lying in Subabul Garden. Ex.P2 is the said
confessional statement of A1. According to PW10, A1 also
handed over the wrist watch, which is marked as M.O.1. The
same was seized under a mediatornama.
38) Before going further, it would be appropriate to refer to the
evidence of PW7, who in his evidence deposed that, on
07.10.2011, Inspector of Police, called him to Rural Police
Station at 9.00 a.m. Then, he along with one Srinivasulu
accompanied the police to Vengal Reddy Colony of Narasaraopet,
where, himself and police party entered the house. One person
who was present there tried to run away. Then the Sub-
Inspector of Police questioned the said person. PW7 further
deposed that, he cannot say whether accused who is present
before the court is one of the accused who was present in the
house at Vengal Reddy Colony. But, however, states that the
person present in the said house revealed his name as Vinod.
According to him, Sub-Inspector of Police enquired Vinod as to
where he kept the wrist watch [M.O.1]. The said Vinod showed
the place where he kept the wrist watch of the deceased, which
was seized under a mediatornama. He also claims to have stated
to show the dead body of the deceased and accordingly lead
them to Subabul Garden situated near Yellamanda Village at
Kotappakonda road.
26
39) Insofar as the recovery of wrist watch [M.O.1] is concerned,
the evidence of PW7 and PW10 is to the effect that it was
recovered from the house of A1 on 07.10.2011. But, PW1 in his
cross-examination admits that the wrist watch [M.O.1] was
found on the body of the deceased. According to him, he saw the
wrist watch and then he identified the dead body of his wife.
According to him, the said wrist watch belongs to his wife. It
would be appropriate to extract the same, which is as under:
"My wife was wearing Gold colour wrist watch on the date of her death. I also saw wrist watch when I noticed the dead body of my wife. As I used to see wrist watch of my wife I can say that those are belongs to my wife".
40) In the evidence-in-chief, PW1 identifies the said wrist
watch [M.O.1]. Except the said wrist watch, there is no other
wrist watch seized or marked. Having regard to the above, the
recovery of the wrist watch [M.O.1] from A1 from the house of A1
is doubtful and the same cannot be believed.
IV. Recovery of dead body at the instance of the accused
41) Insofar as recovery of dead body of the deceased at the
instance of A1 is concerned, prosecution is again relying upon
the evidence of PW7 and PW10. In order to appreciate the fact of
discovery of the dead body basing on the confession made by A1
[under Section 27 of Indian Evidence Act], it is to be noted that
the evidence of PW6 falsifies the same. According to her, on
05.10.2011 afternoon PW1 telephoned her and enquired
whether Nagamani [deceased] visited her house. She informed in 27
negative. On 06.10.2011 at 7.00 p.m., Police Constable
telephoned and requested her to come down to Narasaraopet.
She further deposed that, they came to know about the death of
Nagamani [deceased] on 05.10.2011 itself. According to her, she
came to Narasaraopet on 06.10.2011, along with her mother and
brother and then went to Police Station. The police took them to
a garden where they noticed the dead body of her sister. They
found the body with injuries on neck, with tongue protruding
out. On their enquiry, police informed and showed A1 as the
person responsible for the death of the deceased. Then the police
sent the dead body for post-mortem examination.
42) A reading of the cross-examination of PW6 would show
that she and her family members were aware about the death of
deceased on 05.10.2011 and the dead body lying at Subabul
Garden on 06.10.2011 itself. It would be appropriate to extract
the evidence of PW6 which is as under:
"We came to Narasaraopet at 7.00 a.m. morning on 06.10.2011. At that time, P.Ws., 1 to 3 were not present at the police station, Narasaraopet. Along with police we went to Subabul Garden in our vehicle. We directly went to the place where dead body of Nagamani was lying. I have no personal knowledge about the cause of the death of Nagamani. I came to know about cause of the death of Nagamani through police. I came to Narasaraopet yesterday night. I have not visited police station yesterday night".
28
43) From the evidence of PW6, who is none other than the
sister of PW1, it is clear that even prior to the confession made
by the accused, the police examined her at the Subabul Garden
and in fact, they went to Subabul Garden on 06.10.2011 along
with Police in their vehicle. If really there was any discrepancy in
the evidence of PW6 with regard to date of discovery of body, as
urged, namely, as to whether it was on 06.10.2011 or
07.10.2011, the prosecution ought to have clarified the same by
recalling PW6, which was not done.
44) PW10 - Inspector of Police, in his evidence deposed that,
on 07.10.2011 on credible information, he secured the presence
of PW7 and visited a house situated in 4th lane of Vengalareddy
Colony bearing door number 13-4-65/10. At that time, one
person who was present there tried to run away after seeing
them. They caught hold of the said person and when enquired,
revealed his name as Vinod [A1]. He is said to have confessed
about the commission of the offence and led them to Subabul
Garden of PW9, which was situated by the side of road leading
to Kotappakonda village, where the dead body of Nagamani
[deceased] was lying. At that time, the relatives of Nagamani
[deceased] were already present at the road. The relatives of
deceased identified the dead body of the deceased at the scene.
45) The evidence of PW10 also makes it clear that, even by the
time he along with PW7 and A1 went to the scene of offence, the
relatives of the deceased were already present on the road, 29
meaning thereby that the family members of the deceased were
aware about the body lying nearby. In fact, this piece of evidence
runs contrary to the evidence of PW6, who in categorical terms
deposed that on 06.10.2011 at 7.00 a.m. Police Constable
telephoned and informed about the death of Nagamani and
asked her to come down to Narasaraopet and from there they
went to Police Station and then to Subabul garden, which we
have referred to earlier.
46) At this stage, it would be appropriate to refer to the
evidence of PW7 - the mediator, who deposed about the arrest of
the accused and also the confession made by the accused
leading to discovery of dead body at his instance. Though, in the
evidence-in-chief, he deposed that he went to Police Station at
9.30 a.m., on 07.10.2011 and from there along with police party
went to the house at Vengalareddy Colony, where they noticed
the accused person in the house bearing No. 13-4-65/10. Vinod
[A1] stated before the police and PW7 that he will show the place
where the dead body of deceased [Nagamani] is lying and,
accordingly, lead them to Subabul Garden situated near
Yellamanda Village at Kotappakonda road. A mediatornama to
that affect vide Ex.P2 was prepared at the house. It is said that,
A1 has shown the dead body of Nagamani in Subabul Garden.
In the cross-examination, PW7 admits that, on 07.10.2011,
when they visited the house at Vengalareddy Nagar, two or three
persons were present in the house and about 50 persons 30
gathered near the house. The house consists of two rooms in the
ground floor. According to him, they were at the house at
Vengalareddy Nagar upto 11.30 a.m. on 07.10.2011 and when
they reached Subabul Garden on 07.10.2011, about 200 people
were already present there. It would be appropriate to extract
the relevant portion, in the cross-examination of PW7, which is
as under:
"Myself, Inspector of Police and Police Constables went to the house at Vengalareddy Nagar on 07.10.2011. When we visited the said house at Vengalareddy Nagar, two or three persons were present in that house. At that time about 50 persons gathered near the said house at Vengalareddy Nagar. The said house consists of two rooms in the ground floor. The said Vinod is in the ground floor. At that time 3 more male persons were present in the said house. Police have not enquired said three male persons. It is not mentioned in mediatornama that 3 other male persons were also present in the said house. One police constable drafted mediatornama at that house. The said constable also signed in the mediatornama. Police have not affixed slips on the wrist watch (M.O.1). We were there at the house at Vengalareddy Nagar upto 11.30 a.m. on 07.10.2011. When we reached Subabul garden on 07.10.2011, about 200 people were present there. Police constable drafted mediatornama at Subabul Garden. The said constable signed in the mediatornamma. It is true that 3rd lane in Ex.P5 appears that it was inserted subsequently."
47) From the evidence of this witness, it is clear that by the
time the police went to the place where the dead body was lying,
basing on the confession of A1, nearly 200 villagers were present
there. Therefore, the argument of the learned Public Prosecutor 31
that the dead body was discovered pursuant to a confession by
A1 cannot be accepted. It appears that the entire village
including the family members of the deceased were aware as to
where the dead body was lying, even prior to A1 leading the
police party to the said place.
48) It is worth noting that the evidence of PW7 to the effect
that they were in the hosue at Vengalareddy Nagar till 11.30
a.m. and from there they went to Subabul Garden, if true, it is
strange as to how PW1 could receive a telephone call at
11.30 a.m., asking him to come over to Subabul Garden as the
dead body was found lying there. Similarly, PW3, who in her
evidence deposed about receiving a call at 11.00 a.m. asking her
to come over to Subabul Garden situated near Chikati Colony of
Narasaraopet. Ergo, having regard to all the above
circumstances, it cannot be said that the recovery of the said
dead body was based on a statement made by A1 before the
police leading to a discovery of a fact under Section 27 of the
Indian Evidence Act.
49) The learned Sessions Judge while observing that the non-
mentioning the details of A1 in the First Information Report is
not fatal to the case of the prosecution as PW2 informed the
police on 06.10.2011 about the presence of A1 and A2 at
Subabgul Garden on that day and the evidence of PW3 about
PW2 explaining what all happened after returning home from
the police station, but it is to be noted that, though PW3 speaks 32
about PW2 informing everything after lodging of the report in the
police station, but, the evidence of PW2 is silent on this aspect.
Merely because the death of the deceased was not to the
knowledge of PW2 at the time of giving the report, that cannot be
a reason to omit mentioning the material aspect in F.I.R., which
goes to the root of the matter. It is needless to mention that,
there is no dispute with regard to PW2 accompanying the
deceased to attend calls of nature, but, the dispute is with
regard to the deceased meeting A1 and A2 at the Subabul
Garden on 05.10.2011. When the evidence of PW2 is to the effect
that she saw A1 and A2 talking with the deceased and going
inside the Subabul Garden along with deceased, and when
benefit of doubt is given to A2, it is difficult to accept the
evidence of PW2 for convicting A1 on that score as well.
50) In Kailash Gour and others vs. State of Assam6 the
Apex Court held as under:
"It is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between accused `may have committed the offence' and `must have committed the offence' which must be traversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognised as a human right which cannot be wished away."
6 AIR 2012 SC 786 33
51) Having regard to above, we feel that the circumstances relied
upon by the prosecution are not proved beyond doubt and the said
circumstances do not form a complete chain, connecting the
accused with the crime. Considering the judgments referred to
above and in the absence of any cogent and convincing evidence,
we feel that, it may not be safe to convict the appellant/accused
No.1 for the charge of murder basing on the evidence adduced.
Accordingly, we are inclined to acquit the Appellant/Accused No.1
by extending benefit of doubt.
52) In the result, the Criminal Appeal is allowed. The conviction
and sentence recorded against the appellant/accused No. 1 in the
Judgment, dated 17.11.2014 in Sessions Case No.294 of 2012 on
the file of the XIII Additional District and Sessions Judge,
Narasaraopet, for an offence punishable under Section 302 I.P.C.,
is set- aside and he is acquitted for the said offence.
Consequently, the appellant/accused no. 1 shall be set at liberty
forthwith, if he is not required in any other case or crime. The fine
amount, if any, paid by the appellant/accused no.1 shall be
refunded to him. No order as to costs.
53) Consequently, miscellaneous petitions, if any, pending shall
stand closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR
___________________________________ DR. JUSTICE K. MANMADHA RAO Date: 01.02.2022 S.M./ 34
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE DR. JUSTICE K. MANMADHA RAO
Criminal Appeal No. 87 of 2015 (Per Hon'ble Sri Justice C.Praveen Kumar)
Date: .01.2022
S.M.
