C. Venkatesulu @ Venkatesu vs State of A.P.

N. Y. Hanumanthappa, J

The sole accused in S.C.No.75 of 1993 on the file of the in Additional District and Sessions Judge is the appellant herein. He was charged for the offence punishable under Sections 302, 379, 394 r/w 397, IPC for causing the death of one Smt. Narayanamma (hereinafter referred to as the deceased) with a big knife near her fields in Perumallapalle village on 10-6-1991 at about 9.30 p.m. and for committing the theft of her gold ornaments viz., two ear studs (MOs.2 and 3), gold nose screws with white and red stones (M.O.4), nose screws with white stones (M.O.5) and gold ring with white stones and blue stone (M.O.6). He was tried by the learned Additional Sessions Judge, Tirupati, convicted for the offence punishable under Sections 302, 394 r/w 397, IPC and sentenced to suffer rigorous imprisonment for life for the offence u/s 302, IPC and also further sentenced to suffer rigorous imprisonment for a period of ten years for the offence under Sections 394 r/w 397, IPC. However the learned Additional Sessions Judge directed the sentences to run concurrently. Challenging the conviction and the sentences imposed on him, the accused - appellant preferred this appeal.

The gravemen of the charge is that the deceased was used to be the incharge of the cultivation of the agricultural lands of her son C.Muthyala Reddy, P.W.1, and used to sleep at the farm shed even during night times. The accused who was working under Venkata Reddy, P.W.5 as coolie (farm servant), got acquaintance with the deceased. The accused who was in need of money to purchase a house plot, planned to kill the deceased in order to take away her gold ornaments. On 10-6-1991 the accused attended the field work of the deceased and during night time at about 9.30 p.m. the accused returned to the farm shed of the deceased ad found her alone watering the fields. Thereupon the accused attacked her with a big knife (not marked) and killed her by inflicting fatal injuries on her body. Thereafter the accused took away the gold ornaments, M.Os 2 to 6. On receipt of a complaint, Ex.P-1, from P.W.1 a case was registered in Cr.No.84/91 of Tiruchanur Police Station by P.W.7, the Sub-Inspector of Police and issued F.I.R., Ex.P-2 to all the concerned. The Inspector of Police, PW9 took up the investigation, apprehended the accused on 4-2-1992 at 3-30 p.m. near Anjaneyaswamy Temple at Peruru Cross, recovered the missing ornaments and after completion of investigation field the charge sheet.

The prosecution examined as many as nine witnesses and marked Exs.P-1 to P11. It also marked M.Os 1 to 12. On behalf of the defence nobody was examined, but Exs.D-1 and D-2 were marked. When examined u/s 313 of the Code of Criminal Procedure the plea of the accused was one of total denial.

The learned Additional Sessions Judge, believing the evidence adduced by the prosecution and also the circumstantial evidence, found the accused guilty, convicted him for the offence punishable under Sections 302, 394 r/w 397, IPC and sentenced him as stated supra. Against the conviction and the sentences imposed on him the accused preferred the present appeal.

The facts of the case, as unfolded by the prosecution, in brief, are as follows :

Muthyala Reddy, P.W.1, the son of the deceased deposed to the effect that the accused was engaged to work in his fields to assist the deceased along with Siddaiah (P.W.3) in sericulture operations; that on 10-6-1991, the day on which the alleged incident took place, P.W.3 left for his village after taking permission from P.W.1; that the accused after taking food in his house at about 7.00 p.m. when P.W.1 directed him to go and sleep at the farm shed of his mother, the accused represented that he would sleep at the fields of Venkat Reddy (P.W.5) to watch the fields and that the deceased left the house at about 9.00 p.m. for sleeping at the farm shed. It is the further testimony of P.W.1 that on the next day i.e. 11-6-1991 at 7.00 a.m. he was informed by his paternal uncle Subrahmanyam Reddy, P.W.2 that the dead body of the deceased was found with injuries in the field of Ramakrishna Reddy, P.W.4 and that he rushed to the place of occurrence and found M.Os.2 to 6 were missing and found in tact M.O.1 on the dead body of the deceased.

P.W.2 has spoken to the incident that on the fateful day at about 10.00 p.m. the deceased on her way to her farm shed stopped herself at his farm shed and discussed about the cultivation with him for about half an hour and left for her farm shed. It is in the evidence of P.W.2 that ten minutes later the accused passed through that way. According to the testimony of P.W.2 on the next day one Papamma (not examined), who used to purchase milk from the deceased, informed P.W.2 that the deceased was not found at her farm shed and that P.W.2 after search found the dead body of the deceased in a pool of blood in the fields of P.W.4 and that thereafter he informed the same to P.W.1, the son of the deceased.

P.W.3, who was working as farm servant for the last 20 years under the family of P.W.1 deposed that the accused worked along with him in the fields of P.W.1 for four days prior to the alleged offence, that on the date of the incident P.W.3 left for his village, that the accused alone worked in the field of the deceased on the date of the incident and that on coming to know that the deceased was killed he went and found the dead body of the deceased in the fields of P.W.4

P.W.4 has spoken to the effect that on 10/11-6-1991 at about 12-30 in the mid night he found the accused moving near bus stand with a bag in his hand and that the accused stopped a lorry and boarded the same. The testimony of P.W.5 is that prior to the incident the accused worked in his fields for a period of two years and four days, that P.W.1 engaged the accused with his permission to work in his mulberry garden and the accused used to sleep at the farm shed of the deceased and that after coming to know about the killing of the deceased he saw the dead body of the deceased.

The Casuality Medical Officer, S.V.R.R. Hospital, Tirupati, P.W.6, who conducted post-mortem examination on the dead body of the deceased, found as many as 12 injuries on the dead body of the deceased and issued post-mortem certificate, Ex. P-2. According to him the death of the deceased was due to shock as a result of the injuries.

The Sub-Inspector of Police, PW7 has spoken to the receipt of complaint, Ex.P1 from PW1, the son of the deceased and issuance of FIR, Ex.P3 to all the concerned. PW8, the mediator, deposed with regard to the arrest of the accused on 4-2-1992 at Anjaneyaswamy Temple near Peruru Cross and recovery of MOs.4 and 5 at his instance and also the recovery of MOs,2 and 6 from the possession of the mother of the accused.

The testimony of Inspector of Police, PW9 is that on receipt of information with regard to the alleged offence he took up the investigation and conducted inquest over the dead body of the deceased and prepared the report, Ex.P7. He seized at the scene of offence blood stained red polyster jacket, MO7, saree, M08, petty coat, M09, Gold Talibottu, MO1 and a Torch light, MO10. He deposed that during the inquest he examined PWs.1, 2 and others. After completion of the investigation he laid the charge-sheet.

The learned Additional Sessions Judge believing the prosecution evidence and also relying on the circumstantial evidence found the accused guilty and convicted and sentenced him as stated supra.

The learned Counsel appearing for the appellant contends that the circumstance that the accused and the deceased were together in the fields of the deceased prior to the alleged offence does not by itself lead to irresistible inference that the accused must have murdered the deceased. He further contends that merely because the accused was last seen while going towards the farm shed of the deceased by PW2, it cannot be considered as the piece of evidence to jump to an irresistible conclusion that the accused killed the deceased. Therefore the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. Thus arguing, he sought that the appeal be allowed and the order of conviction and sentences passed by the trial Court be set aside.

On the other hand, the learned Public Prosecutor contends that the circumstances show that the accused alone was there together with the deceased on the fateful day in the farm shed of the deceased and therefore it can definitely be presumed that the accused was the real culprit who had done away with the life of the deceased and relieved of the ornaments from her person. The learned Sessions Judge rightly believed the evidence adduced by the prosecution and the order of conviction and the sentences passed by the learned Sessions Judge do not call for interference.

PW1 is no other than the son of the deceased, who used to look after the cultivation of the lands of PW1, His testimony to the incident is that the accused who was working under PW5, was engaged as farm servant five days prior to the alleged incident to work in his fields and sleep in the farm shed as his deceased mother was alone sleeping. However, PW1 nowhere stated in ExP1 report that the accused was engaged by him five days prior to the occurrence. Moreover no suspicion has been entertained by PW1 about the conduct of the accused, though he had acquaintance with the accused. Merely because the accused was last seen by PW2 while he was passing through the way and crossed his shed towards the shed of the deceased, it cannot be said that the accused had committed the offence of murder. It is also to be seen that there is no iota of evidence in the prosecution case to show that the accused had an axe to grind against the deceased. Moreso, it is only on the information given by PW2 the dead body of the deceased was found in the fields and PW1 gave Ex.P1 to the police. PW1 was only on the presumption that the accused after leaving PWl''s house was last seen by PW2 while going towards the shed of the deceased and suspecting that the accused might have committed the offence of murdering his mother, he gave report, Ex.Pl to the police against the accused. It is also noteworthy to notice that there is no direct evidence to the incident. The conclusion that the accused killed the deceased arrived at by the trial Court is only based upon the circumstantial evidence. The circumstance that the accused and the deceased were together in the field prior to the occurrence cannot, therefore, by itself form the basis to come to the conclusion that the deceased was killed by the accused. Moreover, if the accused attacked the deceased with a big knife, the deceased, who received as many as 12 injuries as per the post-mortem certificate. Ex.P2, issued by PW6 would have made a hue and cry and that would have drawn the attention of PW2 whose farm shed is only at a distance of half a furlong from the shed of the deceased. It is only after PW2 was told by one Papamma (not examined) who used to purchase milk from the deceased that the deceased was not available at her shed, he went around the nearby fields and found the dead body of the deceased in the field of PW4. The entire evidence of prosecution is contradictory and suffers from improbabilities and conjunctures. Therefore what remains to be considered is the circumstances, if any, established by the prosecution to connect the accused to the offence alleged against him.

It is no doubt true that the prosecution case is based solely on the circumstantial evidence. If at a trial the prosecution adduced direct evidence to prove the charge, the Court is primarily concerned whether the witnesses who have testified about the role of the accused are reliable. Once the Court is satisfied that the witnesses who are said to have seen the occurrence are trustworthy and inspire confidence, the finding of guilt has to be recorded, if otherwise the accused has to be acquitted. But in a case based on circumstantial evidence neither the accused nor the manner of occurrence is known to the persons connected with the deceased. The First Information Report is lodged only disclosing the offence, leaving to the investigating agency to find out the offender.

It is well settled that in cases where the case of the prosecution rests purely on circumstantial evidence, motive undoubtedly plays an important role in order to tilt the scale against the accused. It is also well settled that the accused can be convicted based on circumstantial evidence only if the circumstances are wholly inconsistent with the innocence of the accused. Even where the circumstances raise a serious suspicion against the accused, such suspicion, however strong it may be, cannot take the place of legal proof.

In cases depending on circumstantial evidence, it is true that the chain of events established by the prosecution must show that within all human probability the offence has been committed by the accused, but the Court is expected to consider the total cumulative effect of all the proved facts taking into consideration the motive suggested by the prosecution which induced the accused to follow a particular path.

According to us, the evidence adduced on behalf of the prosecution is full of inconsistencies and contradictions and the circumstances suffer from missing links. As held by the Supreme Court in Tanviben Pankaj Kumar Divetia Vs. State of Gujarat, , each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstance so proved must form a chain of events from which the only irresistible conclusion, about the guilt of the accused can be safely drawn. In the instant case, the prosecution failed to establish each of the circumstances by reliable and clinching evidence and there are missing links in the evidence adduced by the prosecution. The circumstances, which suffer from missing links, cannot in any manner establish the guilt of the accused beyond all reasonable doubt.

After careful scrutiny of the entire evidence on record, we are of the considered opinion that the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. Therefore the order passed by the learned Additional Sessions Judge convicting the accused for the offence punishable u/s 302 IPC and sentencing him to suffer rigorous imprisonment for life and further convicting the accused u/s 394 read with 397 IPC and sentencing him to suffer rigorous imprisonment for a period of ten years arc liable to be set aside and they are accordingly set aside.

However, insofar as the possession of ornaments, MOs.2 to 6 by the accused, allegedly belong to the deceased is concerned, they are very much recovered from the accused and also at his instance from his mother. According to the evidence of PW9, the Investigating Officer, the missing gold ornaments of the deceased, MOs.2 to 6, were found in the possession of the accused as also in his mother''s possession and they were recovered from them. These ornaments must have been stolen and dishonestly received or retained by the accused. On a careful scrutiny of the material on record we are of the opinion that the offence committed by the accused squarely falls under the provisions of Section 411 of the Indian Penal Code. Hence we found the accused guilty of the offence punishable u/s 411 IPC.l

We, therefore, convict the accused for the offence punishable u/s 411, IPC and sentence him to suffer rigorous imprisonment for a period of two years.

We, therefore, while setting aside the conviction u/s 302, 394 r/w 397, IPC and the sentence of rigorous imprisonment for life and also rigorous imprisonment for a period of ten years on each count respectively, convict the accused for the offence punishable u/s 411, IPC and sentence him to suffer rigorous imprisonment for a period of two years.

The criminal appeal is allowed in part accordingly.