Naravala Bala Murali, v. The State Of Andhra Pradesh,

HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND HON'BLE SRI JUSTICE T.AMARNATH GOUD CRIMINAL APPEAL No.356 of 2012 JUDGMENT: (per Hon'ble Sri Justice C.Praveen Kumar) 1) This appeal came to be filed against the judgment dated 29.12.2009, passed in S.C.No.192 of 2008 on the file of I Additional District and Sessions Judge at Machilipatnam, wherein the accused was convicted for the offences punishable under Sections 302 and 201 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.100/ -, in default to suffer simple imprisonment for one month for the offence under Section 302 IPC and also for a period of two years and fine of Rs.100/ -, in default to suffer simple imprisonment for a period of one month for the offence punishable under Section 201 IPC. Both the sentences were directed to run concurrently.

2) The gravamen of the charge against the accused is that on 22.03.2007, in the mango garden of Kosanam Veeraswamy (LW16) in Ganapavaram Village, the accused is said to have caused death of one Duba Venkata Narasamma, W/ o Baburao, by hacking her with knife indiscriminately, in connection with a dispute with regard to the marriage proposal raised by the accused with the daughter of the deceased and thereafter he is said to have caused disappearance of the evidence by disfiguring the face of the deceased.

3) The facts as culled out from the evidence of the prosecution witnesses are as under:

i) PW2 is the daughter of the deceased, while PW3 is the neighbour. All the prosecution witnesses are residents of Koduru village. The evidence on record discloses that on 22.03.2007, PW2 went to attend coolie work and at that time her mother (deceased) was working in their small hotel running in their house. The evidence of PWs.4 and 5 disclose that on 22.03.2007 at about 04.00 p.m., PW4, who was running a telephone box bearing No.9291120164, received a phone call, wherein the caller asked her to call the deceased. She informed one Bhaskararao, who was going on cycle on the road, to intimate the same to the deceased. Pursuant to which the deceased came to her shop and attended the call and left the place informing PW5 that she received the phone call from Mylavaram and that she has to go to Mylavaram.

iii) The evidence of PW7 discloses that at about 04.30 p.m., while she was going to fetch water, saw the deceased dressed in a new saree. The deceased informed her that she hanged the house key to tatty (tadika) and asked her to give it to her daughter when she arrives home after finishing the agricultural work. The deceased also informed her that she was going to Mylavaram. iv) PW8, in her chief examination deposed that PW2 and her grand mother attended the agricultural work along with her. She informed that PW2 and her grand mother did not attend the work since two days prior to the incident on the ground that the deceased did not return home after she left the village.

v) PW10 - who is a clerk in Hanuman Wines situated at Hanuman Junction, deposed that on 22.03.2007, one male person and a female person came to his wine shop on a scooter and purchased a beer bottle. He claims to have identified the person who came to the shop as that of accused, in the test identification parade, conducted by the Magistrate. However, the police failed to show the photographs of the deceased to find out as to whether the deceased lady, who was accompanying the accused on that day. The evidence on record further discloses that about 06.00 p.m., PW2 returned from her work, took the keys from the house of PW7.

vi) PW3 in her evidence deposed that at about 10.30 p.m., when she went to the house of the deceased to bring her children, PW2 informed her that she is alone and asked her to stay with her till her mother returns to the house. PW3 slept in the house of PW2. At about 10.30 to 11.00 p.m., one person came to the house, spoke with PW2 for some time, took some signatures on the stamp paper and left the place. PW3 identified the said person as the accused. Ex.P5 is the stamp paper on which the accused is said to have obtained the signatures of PW2 on that night. On the next day morning, the relatives of PW2 enquired about the deceased as to why she did not return. However, on 23.03.2007, at about 08.00 a.m., PW13 approached PW1-the VRO and informed him about the dead body of a lady lying at Makham Mango trees. He also intimated that the said lady must have been killed. On such information, PW13 along with PW1 went to the spot and found

that the dead body lying with injuries on the face. Thereafter, PW.1 lodged report with the police. Ex.P1 is the report given by PW.1 Basing on the report given by PW.1, one Venkateswarlu (LW.29) the S.I. of Police registered a case in Crime No.43 of 2007 under Sections 302 and 201 IPC and issued the first information report, which was marked as Ex.P.23. After registering the crime, the Sub-Inspector of Police took up the investigation and proceeded to the scene of offence, which is situated in the mango garden of Veeraswamy. He conducted a scene of offence panchanama in the presence of PW.16. Ex.P2 is the said panchanama. During the said panchanama, he seized M.O.1controlled earth, M.O.2-blood stained earth and M.O.3 a small piece of black bead chain. He also examined and recorded the statements of PW.1, PW.13 and PW.

14 and others at the scene of offence. Thereafter, he got photographed the scene of offence through PW.19 and also prepared a rough sketch of the scene, which is placed on record as Ex.P24. He, then conducted inquest over the dead body of the deceased in the presence of PW.16 and PW.1. Ex.P3 is the inquest report. The mediators opined that the deceased was killed by hacking with a knife. After conducting the inquest, the body was transmitted to the Government Hospital, Mylavaram, for postmortem examination. PW.18-the Deputy Civil Surgeon, Community Health Center, Mylavaram, conducted autopsy over the dead body and issued Ex.P15-the postmortem examination report.

sharp object" and they are aged between 24 to 48 hours prior to postmortem examination. PW20-the Circle Inspector of Police, took up investigation, recorded the statements of PWs.2, 4, 5 to

10. On 29.03.2007 while PW.17-the V.R.O., Merusumilli was present in the office of V.R.O., Mylavaram, the accused is alleged to have approached him and conferred that he has killed the deceased, since she did not permit him to marry her daughter. The said statement was reduced into writing and was also signed by the accused. Ex.P11 is the confession statement made by the accused before PW.17. Thereafter, the accused was produced before PW.20-the Inspector of Police along with the confessional statement and a covering letter. PW.20 is said to have recorded the confessional statement of the accused in the presence of PW.17 and seized Ex.P5. Thereafter, the accused lead the police to the bushes situated by the side of road after crossing Ganapavaram towards Adavinekkalam and produced the blood stained cloths, knife, rice coupons book and ration card. The same were seized under Ex.P14-the seizure panchanama.

On 01.04.2007, PW.20 along with mediators went to the house of PW.11 and seized the scooter under mediators report-Ex.P4. It is said that the accused used the scooter of PW.11 to transport the victim-deceased to the scene of offence. The evidence on record further discloses that PW.15-the V Metropolitan Magistrate-cumJunior Civil Judge, Gannavaram, conducted test identification parade at District Jail, Vijayawada, for identification of the accused by PW.10. Ex.P10 is the test identification proceedings.

After completion of the investigation and after receipt of all the documents, PW.20 filed the charge sheet, before the Court of I Metropolitan Magistrate, Vijayawada, which was taken on file as P.R.C.No.37 of 2007. After compliance with Section 207 Cr.P.C., the case was committed to Sessions Division under Section 209 Cr.P.C. On committal, the same came to be numbered as S.C.No.192 of 2008.

4) On appearance, charges under Sections 302 and 201 IPC were framed, read over and explained to the accused, to which he pleaded not guilty and claimed to be tried.

5) In support of its case, the prosecution examined PWs.1 to 20 and got marked Exs.P1 to P26 and MOs.1 to 12. After the closure of evidence, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him, in the evidence of the prosecution witnesses, to which he denied. No oral evidence was adduced on his behalf, but Exs.D1 and D2-photographs were marked, in support of his defence.

6) Though there are no direct witnesses to the incident, relying upon the evidence of PW.10, who has last seen the deceased in the company of the accused, the circumstances namely extra judicial confession made by the accused before PW.17 and the recovery made pursuant to the confession of the accused, the Sessions Judge, convicted the accused as stated supra. Challenging the same, the present Criminal Appeal came to be filed.

7) Learned counsel for the appellant mainly submits that the circumstances relied upon by the prosecution do not form chain of events so as to connect the accused with the crime. According to him, the circumstances relied upon by the prosecution are not proved beyond reasonable doubt so as to base conviction. 8) On the other hand, learned Public Prosecutor would submit that the evidence of PW.17-before whom the extra judicial confession made and the evidence of PW.10-the employee in the wine shop, wherein the deceased and accused are alleged to have purchased a beer bottle and the circumstance of accused made a phone call to the deceased prior to she leaving the house are sufficient to base the conviction.

9) It is not in dispute that there are no direct witnesses to the incident and the entire case rests on the circumstantial evidence. The fact that the deceased was done to death or that it is a case of homicidal death stands established through the evidence of doctor, who is examined as PW.18, wherein he stated that the death of the deceased was due to shock and hemorrhage caused with multiple injuries due to heavy sharp object.

10) The question now is whether the accused is responsible for causing the death of the deceased.

11) The first circumstance which was sought to be relied upon by the prosecution is that the deceased leaving the house on receiving the telephone call from the accused. In support of the same, the prosecution pressed into service the evidence of PWs.4 and 5.

PW.4 in her evidence stated that there is a coin telephone box at her house, which was installed with No.9291120164. According to her, on 22.03.2007 at about 4.00 p.m. she received a phone call and the caller asked her to call the deceased. Pursuant thereto, she asked one Bhaskar Rao, who was going on cycle on the road to intimate the same to the deceased. Thereafter, the deceased came, talked with caller and left the place. PW.5 in his evidence categorically stated that she informed to him that she received a phone call from Mylavaram and that she had to go to Mylavaram. The evidence of these witnesses do not anywhere indicate that it was the accused, who telephoned to the deceased. Except stating that the deceased had gone to Mylavaram, she never informed to PW.5 that it was the accused, who called her.

12) The second circumstance which is relied upon by the prosecution is the evidence of PW.7 to show that the deceased left the village after receiving the phone call, and proceeded towards Mylavaram. A reading of the evidence of PW.7 would show that on 22.03.2007 at about 4.30 p.m. while she was going to get water, the deceased dressed in a new saree, came on to the road, called and informed her that she was hanging the key of her house to the Tadika as she was going to Mylavaram. The deceased asked her to give the key to her daughter Kalyani, who went for agricultural coolie work. Even PW.7 does not anywhere say that the deceased left the village on that day to go to Mylavaram for meeting the accused. It was not even suggested to any of the witnesses that the deceased was seen going to Mylavaram to meet the accused.

13) The third circumstance which is relied upon by the prosecution is the evidence of PWs.2 and 3. PW.2 is none other than the daughter of the deceased. According to her, on 22.03.2007 she went to coolie work in the morning and returned to the house in the evening. As her house is locked, she collected the keys from PW.7 and went inside the house. At about 9.00 p.m. PW.3 came to her house to collect her children, who were sleeping in the house. But as PW.2 was alone, she requested PW.3 to stay for that night as her mother did not return. Accepting the request of PW.2, PW.3 stayed in the house along with the children. At about 10.30 or 11.00 p.m. the accused is said to have gone to the house of the deceased, talked with PW.2 for 20 minutes, took her signature on a paper and then went away. By this circumstance, the prosecution tried to connect the accused with the crime since he failed to explain as to what happened to the deceased.

14) It is to be noted here that none of the witnesses including PWs.2 to 5 and 7 deposed about they witnessing the accused and deceased leaving the house or leaving the village. Therefore, the question of accused not disclosing the whereabouts of the deceased would not arise. On the other hand, his case is that he was not aware as to what happened to the deceased. It may be true that there was some physical relationship between the accused and the deceased and that he used to visit her house now and then, but that by itself does not mean that the accused and deceased left the village together and that the accused failed to explain as to what happened to the deceased.

15) The fourth circumstance, which is relied upon by the prosecution is that on 23.03.2007 when PW.2 telephoned to the accused and enquired about her mother, the accused while pleading ignorance, talked with some anxiety. In view of the anxiety expressed by the accused on phone, PW.2 thought that the accused has killed the deceased. But it was only a suspicion. In our view that cannot be made the basis to connect the accused with the crime. On the other hand, in the cross-examination PW.2 admits that she did not tell the names of her relatives to whom she made a phone call on 23.03.2007, for her mother. She also admits that she did not go to the police station on 23.03.2007. She only informed to the police on 24.03.2007 about the missing of her mother.

16) The fifth circumstance relied upon by the State is the last seen theory spoken to by PW.10, who was working as clerk in Hanuman Wines at Hanuman Junction. On 26.03.2007 in the noon time, Mylavaram Police personnel approached him while he was at his wine shop and verified with him about a male person and a female person coming to his shop on scooter, on 22.03.2007. He told them that a male and female person came to the shop on scooter. The female person sat outside, where as male person purchased a beer bottle.

17) It is to be noted here that by then the accused was not arrested, nor was there any evidence before the police to show the complicity of the accused in the commission of offence. The only material available to the police, by then, was that an unknown

person committed murder of the deceased. That being the position, no explanation is forthcoming from the prosecution as to how the police of Mylavaram went to the wine shop of PW.10 and enquired as to whether a male and female person came to his shop on 22.03.2007. In fact, none of the witnesses examined by the prosecution during the course of inquest or scene of offence panchanama or during the course of investigation speak about the deceased and accused going to the shop of PW.10. That being the position, we are unable to understand as to how the police personnel went to the shop of PW.10 and enquired about the visit of male and female person. Even assuming that there was such visit and that it was the accused, who was a male person, who visited the shop on that day, there is no evidence on record to show that the female person, who was accompanied the male person was the deceased. PW.10 was not confronted with any photograph of the deceased for identifying the person, who accompanied the male person on 22.03.2007.

18) It is also to be noted here that in the cross-examination, PW.10 admits that the accused stopped the scooter at a distance of 20 feet to the shop. Their shop would be busy from 6.00 p.m. to 8.00 p.m. The evidence of PW.10 only shows that he was able to identify the person, who purchased the liquor, in the test identification parade. Even if such identification is accepted, there is nothing on record to show that the deceased was accompanying the accused. Hence, the circumstance of last seen, which was heavily relied upon by the prosecution, falls to ground.

19) The sixth circumstance, relied upon by the prosecution is the extra judicial confession made before PW.17.

20) The accused made an extra judicial confession before the police stating that he hails from Vuruvurupet, Chittoor District and was working as a driver of a Buldozer. He claims to having developed illicit intimacy with the deceased and the daughter of the deceased, who are residents of Koduruvu Village, Krishna District and that he was responsible for the incident. The incident is said to have been occurred within the limits of Mylavaram Police Station. The concerned V.R.O. for Mylavaram area is PW.1. Such being the position, it is very difficult to believe that the accused would have gone to the V.R.O. of some other place and confessed about the commission of offence. The record discloses that PW.17 was working as V.R.O. of Mursumalli at the time of incident, and that he was incharge of V.R.O. Mylavaram from February, 2007.

Definitely we are of the view that the accused could not have gone and made a statement before a person, who is unknown to him. One other aspect which makes us to doubt the extra judicial confession is that the office of the Inspector of Police is near to the office of the V.R.O.

21) It is to be noted here that as per the evidence of PW.17, the extra judicial confession was attested by him and one Naga Malleswara Rao. No steps are taken by the prosecution to examine Naga Malleswara Rao. In the absence of any other evidence and to give some authenticity to the said document, the prosecution should have taken some steps to examine Naga Malleswara Rao.

The said Naga Malleswara Rao, would have been the best person to corroborate the evidence of PW.17 with regard to confession made by the accused. Therefore, it is highly impossible to believe that the accused, who is a resident of Chittoor District, would have gone all the way to the office of V.R.O., at Mylavaram and made the extra judicial confession to a stranger. Therefore, a doubt arises as to whether such an extra judicial confession made by the accused before PW.17 can be relied upon.

22) In Baldev Singh Vs. State of Punjab1, the Apex Court held as under:

" 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."

23) In K.Brahmachari @ Kammari Brahamachari Vs. State of A.P.2, a Division Bench of this Court held as under: " The main witness to speak of the appellantA.1 to connect with the offence is PW.8. According to the prosecution, the appellant-A.1 went to the house of Seethanarayana and made extra judicial confession before PW.8-Venkatesh. There seems to be no relationship between PW.8 and the appellant-A.1. There are no special circumstances for the appellantA.1 to choose PW.8 to make extra-judicial confession before him. According to PW.8, the appellant-A.1 confessed before him at the house of Seethanarayana 1 2009(3) S.C.C. (Crl.) 66 2 2004(1) ALT (Crl.) Page 1 (A.P.)

15 days after the date of incident. It is distressing to note that the prosecution did not examine the said Seethanarayana for the reasons best known to it and no explanation has been offered by the prosecution for not examining the said Seethanarayana. It is the evidence of investigating officer ie. PW.15 that he came to know about the appellant making extrajudicial confession before PW.8 on 16.05.1995 and therefore, he went to Anantharam and recorded the statement of PW.8. When the evidence of PW.8 and PW.15 read together, the alleged date of extrajudicial confession does not tally. Therefore, it is highly improbable for the appellant to choose PW.8 to make extra judicial confession before him."

24) It is well established principles of law that extra judicial confession is a weak type of evidence and the same cannot be acted upon without sufficient corroboration. It is also to be noted here that whenever extra judicial confession is made, the same should be reduced into writing in the same words and thereafter the person who recorded the statement should take the accused to the police station.

25) It is also to be noted here that pursuant to the confession made by the accused, the police claimed to have recovered blood stained cloths, knife etc. but the prosecution failed to examine Naga Malleswara Rao, who is a mediator and independent witness to the seizure. The prosecution is trying to prove the recovery by examining the V.R.O. a panch for the recovery. Even assuming that such recovery was there, there is no material to show that the blood on these items was that of the accused or the deceased.

26) In view of the above, we feel that the circumstances relied upon by the prosecution do not form a chain of events to connect the accused with the crime.

27) Accordingly, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/ accused in the judgment, dated 29.12.2009 in S.C.No.192 of 2008 on the file of the I Additional District and Sessions Judge, Krishna at Machilipatnam, for the offences punishable under Sections 302 and 201 IPC are set aside. Consequently, the appellant/ accused shall be set at liberty forthwith, if he is not required in any other case or crime.

28) Miscellaneous petitions, if any, pending shall stands closed. ___________________ C.PRAVEEN KUMAR, J _____________________ T. AMARNATH GOUD, J 13.11.2017 gkv