Harijana Maddanappa vs State of A.P.

K.C. Banu, J.—This Criminal Appeal by the appellant-sole accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for short ''Cr.P.C.'') is directed against the judgment, dated 28-04-2009, in Sessions Case No. 252 of 2007 on the file of the IV Additional Sessions Judge, (F.T.C.), Anantapur, whereunder and whereby the accused was found guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for brevity ''IPC'') and accordingly, he was convicted and sentenced to undergo imprisonment for life and also to pay a fine of Rs. 200/-, in default to undergo rigorous imprisonment for one month. Brief facts, that are necessary for disposal of the present appeal, may be stated as follows:

P.W. 1 is the daughter, P.W. 2 is the son and P.W. 3 is the brother of Harijana Hanumakka (hereinafter referred to as ''the deceased''). The deceased and the accused were living in S.C. colony, Kalyandurga, whereas P.W. 5 was living at Nagireddipalli. The deceased was concubine of the accused. The deceased was working as Anganwadi Teacher. After death of her husband, she developed illicit intimacy with the accused. The deceased gave Rs. 10,000/- to the accused as loan for his daughter''s marriage. When the deceased was asking the accused to repay the amount, the accused was beating her under the influence of liquor. Whenever P.Ws. 1 and 2 intervened, the accused used to beat them also. Due to his conduct, P.Ws. 1 and 2 left the house and joined in the hostel. On 27-11-2004 P.Ws. 1 and 2 came to their house from hostel. At that time, the, accused was beating the deceased. On 28-11-2004 accused took the deceased to hill area for firewood, but she did not return to the house. P.Ws. 1 and 2 went to the house of their relatives and enquired about the deceased, but they could not trace out her whereabouts. On 02-12-2004 at the advice of neighbourers, P.Ws. 1 and 2 went to Kalyandurga Police Station and gave Ex. P1-report. On the basis of Ex. P1, P.W. 13 registered a case under the head Woman Missing. On 04-12-2004 at about 4.30 p.m., the accused met P.W. 7-Panchayat Secretary of Panchayat office and confessed that he developed illicit intimacy with one lady and that he killed her in a hillock area located behind Manjunath theatre of Kalyandurga. Then P.W. 7 got the above statement written on a paper in the presence of P.Ws. 9 and 11 and after signing, they handed over the written report-Ex. P2 along with the accused to police. Basing on Ex. P2, P.W. 12 altered Section of law to 302 IPC and issued Ex. P6-altered F.I.R. and interrogated the accused. The accused led them to Takuledu area and shown the dead body of the deceased. P.W. 12 arrested the accused, visited the scene of offence and prepared Ex. P7 rough sketch and seized M.Os. 1 to 4. He held inquest over the dead body of the deceased in the presence of P.W. 10 and another under Ex. P4-inquest report. P.W. 8 who conducted autopsy over the dead body of the deceased opined that the cause of the death of the deceased was due to head injury. He issued Ex. P3-post mortem report. After completion of investigation and receipt of relevant documents, police filed charge sheet.

A charge under Sections 302 IPC against the accused was framed, read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

In order to bring home the guilt of the accused, the prosecution examined P.Ws. 1 to 13 and got marked Exs. P-1 to P-9 besides case property M.Os. 1 to 8.

After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same and reported no evidence.

The trial Court after analyzing the oral and documentary evidence on record, found the accused guilty and accordingly convicted and sentenced him as above. Challenging the said conviction and sentence, the present appeal has been preferred by the accused.

Now, the point that arises for consideration in this Criminal Appeal is whether the prosecution has proved its case against the accused of the offence punishable under Sections 302 IPC beyond all reasonable doubt and whether the judgment of the trial Court is correct, legal and proper?

Mr. G. Vijaya Saradhi, State brief counsel appearing for the appellant-accused contended that presence of P.Ws. 1 and 2 at the relevant point of time of incident has to be doubted because admittedly by the date of incident, they were staying in their respective hostels, that the evidence of P.W. 4 would go to show the theory of last seen circumstance, that the time gap between the last seen circumstance and the time of offence would not so proximate so as to infer that the crime was committed by the accused and therefore, no reliance can be placed on the evidence of P.W. 4, that the extra judicial confession said to have been given by the accused to P.Ws. 7, 9 and 11 does not appear to be true and voluntary, that there are clear circumstances to indicate that Ex. P2-extra judicial confession was brought into existence after due deliberations in the Police Station with a view to fix the crime against the accused, that in view of the fact that Ex. P2 was retracted during the course of trial, it needs corroboration and there is no such corroboration available on record and that P.Ws. 7, 9 and 11 are totally strangers to the accused and the accused has no prior acquaintance with them, that possibility of giving extra judicial confession is found to be unbelievable, that therefore, no reliance can be placed upon Ex. P2 so to as base a conviction, that recovery of axe cannot be said to be an incriminating circumstance against the accused as it was not proved that it belong to the accused and hence, he prays to set aside the conviction and sentence recorded against the accused.

On the other hand, learned Additional Public Prosecutor appearing for the State contended that 27-11-2004 happened to be Saturday, there is a possibility for P.Ws. 1 and 2 to come to the house from the hostel, that 28-11-2004 happened to be Sunday, their presence at the time of incident is quite probable and natural and at that time, they saw the accused and the deceased leaving to the hillock area for the purpose of collecting firewood, that the evidence of P.W. 4 would go to show that the deceased was last seen alive in the company of the accused, that this circumstance coupled with the evidence of P.Ws. 7, 9 and 11 would go to show that it is the accused who committed the murder of the deceased, that some minor discrepancies elicited in the cross-examination would not in any manner affect the main fabric of the prosecution case, that the death of the deceased is homicidal in nature and all the circumstances relied upon by the prosecution point out the guilt towards the accused only, that the trial Court after elaborate consideration of evidence on record, rightly convicted and sentenced the accused and absolutely, there are no grounds to interfere with the same.

One Kollappa was the husband of the deceased, who died due to snakebite. Thereafter, the accused developed illicit intimacy with the deceased and started residing in the house of the deceased in Kalyandurga. The accused and the deceased used to quarrel and the reason for the said quarrel was that the deceased lent an amount of Rs. 10,000/- to the accused which was taken by the accused for the purpose of performing the marriage of his daughter. Whenever, the deceased asked the accused to repay the amount, the accused was beating her under the influence of liquor. According to the case of the prosecution, on 28-11-2004 at about 9.00 a.m., the accused and the deceased left the house of the deceased to the nearby hillock area for the purpose of collecting firewood. Thereafter, the deceased did not return home. P.Ws. 1 and 2 who are the children of the deceased went to Police Station and lodged Ex. P1-report to police, basing on which, Police registered a case under Woman Missing. P.Ws. 1 and 2 and the relatives of the deceased searched in and around Kalyandurga area and also hillock area, but they could not trace the deceased. While the matter stood thus, on 04-12-2004 at about 4.30 or 5.00 p.m., the accused went to the office of P.W. 7 and said to have given extra judicial confession and the same was reduced into writing and signed by P.Ws. 7, 9 and 11 and also the accused, which was marked as Ex. P2. The accused and Ex. P2 were handed over to police. Then the police took the accused to hillock area and found the dead body of the deceased. Thereafter, the accused was arrested. Police as usual conducted inquest over the dead body of the deceased on the next day. The inquest mediators opined that the deceased died as a result of head injury. Thereafter, the dead body was subjected to post-mortem examination by P.W. 8, who found the following external injuries:

Compression injury with skin and subcutaneous tissue peeled away over the left side of the face, cheek, exposing the teeth and upper jaw to temporal region 6" x 31/2". Tooth are loosened.

Lacerated like wound on occipital region left side 2" x 2" in size, with irregular margins with covered by full of Maggots.

Torned skin on left side of the chest 4" x 3" in side below the left clavicle, with Maggots and destroyed soft.

Skin and soft tissue destroyed 1" x 1", 11/2" x 11/2" size with torned skin with irregular margins near the elbow joint of right arm.

He opined that the deceased appear to have died of head injury due to fracture of skull bones, and damaged to the vital organ i.e., brain and hemorrhage by blunt object 5 to 10 days prior to his post-mortem examination. Skin was peeled of and destruction of soft tissue might be on account of decomposition. On account of decomposition of the dead body, it is not possible to identify the same. But basing on the cloth worn by the deceased, which was identified by P.Ws. 1 and 2, the dead body was identified. M.O. 1 is blanket, M.O. 2 is jacket and M.O. 3 is petticoat. Basing on those clothes, P.Ws. 1 and 2, who are the children of the deceased could be in a position to identify the deceased. Even it is not the case of the accused that the dead body, which was found in the hillock area near Kalyandurga is not that of the deceased. Therefore, homicidal nature of the death of the deceased is established.

Now, it has to be seen whether the accused is the assailant of the deceased or not?

The prosecution is relying upon the following circumstances viz., 1) the deceased was last seen alive in the company of the accused, 2) extra judicial confession said to have been given by the accused to P.Ws. 7, 9 and 11 under Ex. P2 and 3) recovery of M.O. 8-blood stained axe.

The prosecution failed to establish any motive for the accused to commit murder of the deceased. Though motive is not one of the essential ingredients of the charge under Section 302 IPC, but at the same time, it plays a vital role when a case rests upon circumstantial evidence. Though P.Ws. 1 and 2 stated that the accused borrowed an amount of Rs. 10,000/- from the deceased for the purpose of performing his daughter''s marriage and when the deceased was asking to repay the amount, a quarrel ensued, but that cannot be said to be a motive for the accused to kill the deceased. Even there is no evidence to show that the accused borrowed an amount of Rs. 10,000/- from the deceased. P.Ws. 1 and 2 who are the children of the deceased stated that on 28-11-2004 the accused took the deceased to hillock area for collecting firewood along with a blanket, axe, rope and sickle. Thereafter, they did not return. P.W. 1 did not state at what time, they went to hillock area. P.W. 2 stated that on 28-11-2004 during morning time, the accused and the deceased went to hillock area for the purpose of collecting firewood. From their evidence, it is clear that they have got fear of the accused and because of fear, both joined in the hostel in the year 2004 itself. It is admitted by P.W. 1 that due to fear of the accused, they never stayed in the house during night times when the accused was present with his mother. Similarly, the evidence of P.W. 2 would go to show that record will be maintained in the hostel about the presence of wards. He admitted that as per hostel records, he was present in the hostel on 27-11-2004 and 28-11-2004. Similarly, P.W. 1 was also present in the hostel on both the days. Therefore, on their own showing, it is clear that they were not present in the village on 28-11-2004. Therefore, the statement of these two witnesses seeing the accused going with the deceased to the hillock area for the purpose of collecting firewood appears to be false.

P.W. 3 did not support the case of the prosecution. P.W. 4 is neighbourer of the deceased, who stated that on 28-11-2004 at about 9.00 a.m., the accused and the deceased went to get firewood and thereafter, they did not return. On 05-12-2004, he came to know that the dead body of the deceased was lying in hill area. He admitted that no quarrel took place on 28-11-2004 between the accused and the deceased. He has no grouse or enmity against the accused to speak false, but his evidence would incriminate against the accused to prove the last seen circumstance. Last seen circumstance comes into play when the proximate time of last seen circumstance is so close to the approximate time of death. There is no approximate time of death because the doctor stated that the death of the deceased would have taken place 5 to 10 days prior to his post-mortem examination. This circumstance alone cannot be taken as a conclusive proof to show that it is the accused who had an opportunity to kill the deceased. On this aspect, it is pertinent to refer to a decision reported in Shyamal Ghosh Vs. State of West Bengal, , wherein it was held thus (para 74):

"The reasonableness of the time gap is, therefore, of some significance. If the time gap is very large, then it is not only difficult but may even not be proper for the court to infer that the accused had been last seen alive with the deceased and the former, thus, was responsible for commission of the offence. The purpose of applying these principles, while keeping the time factor in mind, is to enable the court to examine that where the time of last seen together and the time when the deceased was found dead is short, it inevitably leads to the inference that the accused person was responsible for commission of the crime and the onus was on him to explain how the death occurred."

The other circumstance relied on by the prosecution is recover)'' of M.O. 8-blood stained axe near the scene of occurrence. From Ex. P9-R.F.S.L. report, it is clear that M.O. 8 contained ''A'' group of blood. The clothes of the deceased also contained same group of blood. Therefore, from the evidence, it is established that M.O. 8 is the weapon used in the commission of offence, but it is not proved by the prosecution that M.O. 8 belongs to the accused. No witness has stated that the accused was seen carrying M.O. 8 weapon while accompanying the deceased on the date of incident. There is absolutely no evidence on this aspect. Therefore, it cannot be taken as an incriminating circumstance against the accused.

The remaining evidence on record is the extra judicial confession said to have been given by the accused to P.Ws. 7, 9 and 11. Extra judicial confession said to have been given by the accused was reduced into writing, which was marked as Ex. P2 and it was scribed on 04-12-2004 at about 4.30 or 5.00 p.m., in the office of P.W. 7. The Court cannot start with the presumption that the extra judicial confession is weak piece of evidence. If the extra judicial confession is found to be true and voluntary, then it can be acted upon. In view of the fact that Ex. P2 was retracted, it requires some corroboration. On this aspect, it is pertinent to refer to a decision reported in Mulk Raj Vs. The State of U.P., , wherein it was held thus (parallel):

"We must notice another argument of the learned Advocate at this stage. It is said that the exact words used by the appellant when he made the extrajudicial confession were not given and that therefore the confession should be excluded. P.Ws. 1, 5, 6 and 7 repeated before the learned Additional Sessions Judge what the appellant stated before them and there is no appreciable difference in the gist of the confession made by the accused. Every one of them stated that the accused had stated that he stabbed the deceased because Amarnath and Milkiraj brought him there to do so. An extra-judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. The confession will have to be proved just like any other fact. The value of the evidence as to the confession just like any other evidence, depends upon the veracity of the witness to whom it is made. It is true that the Court requires the witness to give the actual words used by the accused as nearly as possible, but it is not an invariable rule that the Court should not accept the evidence, if not the actual words but the substance were given. If the rule is inflexible that the Courts should insist only on the exact words, more often as not, this kind of evidence, sometimes most reliable and, useful, will have to be excluded; for, except perhaps in the case of a person of good memory, many witnesses cannot repeat the exact words of the accused. It is for the Court having regard to the credibility of the witness, his capacity to understand the language in which the accused made the confession, to accept the evidence or not. In this case, the confession made by the appellant was not a complicated one and the witnesses stated without any conflict practically the exact words used by the appellant and also how they understood the words. In the circumstances, if the evidence of the witnesses is acceptable, there is no reason why the extra-judicial confession made by the accused could not be acted upon."

In R. Kuppusamy Vs. State Rep. by Inspector of Police, Ambeiligai, , it was held thus (para 11):

"IT is unnecessary, in the light of above pronouncements, to embark upon any further review of the decisions of this Court on the subject. The legal position is fairly well-settled that an extra judicial confession is capable of sustaining a conviction provided the same is not made under any inducement, is voluntary and truthful. Whether or not these attributes of an extra judicial confession are satisfied in a given case will, however, depend upon the facts and circumstances of each case. It is eventually the satisfaction of the Court as to the reliability of the confession, keeping in view the circumstances in which the same is made, the person to whom it is alleged to have been made and the corroboration, if any, available as to the truth of such a confession that will determine whether the extra judicial confession ought to be made a basis for holding the accused guilty."

In Sakharam Shankar Bansode Vs. State of Maharashtra, , it was held thus:

"This is a retracted extra-judicial confession which is the sole basis on which both the courts have relied and based the conviction. We are not satisfied with the evidence of P.W. 11 and his conduct also throws any amount of doubt about the truthfulness and the version given by him. If P.W. 11''s evidence become unreliable, then there is no other circumstance to connect the accused with the crime. In the result, the appellant is given benefit of doubt and the conviction and sentence awarded against him are set aside. The appeal is accordingly allowed."

Bearing the above principles in mind, it has to be seen whether Ex. P2 is the true and voluntary statement of the accused. According to P.W. 7, it was scribed in his office. He is totally a stranger to the accused. For the first time, he had seen the accused on that day. Admittedly, accused was so intimate with P.W. 7 when extra judicial confession was stated to have been made by the accused in the presence of several persons, and it was not stated by the witnesses that they have particular close men and familiarity with the accused so as to inspire him to make a confession of a serious crime like murder, no implicit reliance can be placed on it. At that time, ten persons were present in his office. So it is quite unlikely that the accused would have given extra judicial confession in the presence of ten persons. He admitted that he put his signature on the statement given by the accused and also other two persons in the Police Station, but he stated that the paper wherein they put the signatures in the Police Station was written in the panchayat office at about 4.30 or 5.00 p.m. When Ex. P2 was written in the office, it is not known as to why P.Ws. 7, 9 and 11 have to sign on Ex. P2 in the Police Station. P.W. 7 categorically admitted that he has not obtained signature or thumb impression of the accused in Ex. P2. By that time, he cannot be said to be an accused, but as seen from Ex. P2, it is clear that underneath his signature (accused) the word ''Muddayi (accused)'' was written. The person who wrote contents of Ex. P2 was not examined to show that it was written in the office of P.W. 9. According to P.W. 9, the contents were written by the employee of the Gram Panchayat office, but he was not examined. P.W. 11 admitted that after handing over the accused and Ex. P2 in the Police Station, they were taken to place of occurrence by the police personnel. P.Ws. 7, 9 and 11 were not examined by the Inspector of Police and their statements were not recorded under Section 1161(3) Cr.P.C. No explanation was given by the Investigating Officer for not examining them. Further writing of Ex. P2 appears to be doubtful because P.W. 2 has stated that on the next day of giving report Ex. P1, police personnel brought the accused. They gave report on 02-12-2004. On the next day means 03-12-2004. Therefore, by 03-12-2004 accused was in the custody of police. From this circumstance, it can be said that Ex. P2 was brought into existence by the police during the course of investigation. Therefore, it cannot be said that it was given by the accused voluntarily. In view of these suspicious circumstances, it is not safe to place an implicit reliance on the recitals of Ex. P2 as true and voluntary. Since Ex. P2 was retracted by the accused during the course of trial, some corroboration on material particulars is required. There is no such corroboration to Ex. P2.

Though P.W. 6 was examined to speak about the hearing cries of the deceased at the time of incident, his evidence has not been rightly relied upon by the trial Court for the reason that he did not inform about the incident to anybody. According to him, by the time, he heard the cries, the deceased was found lying over the ground on the east of hillock. He has not informed to anybody including inmates of his house due to fear. On the next day he was attending to his normal work as usual and he has taken his goats for grazing. He observed movement of public during one week before his examination by the police personnel. He did not made an attempt to inform to anybody when the close relatives including police were searching for the deceased. Therefore, no reliance can be placed on the evidence of P.W. 6. From these suspicious circumstances, it is not safe to place an implicit reliance on the evidence of P.Ws. 7, 9 and 11. P.W. 4 is an independent witness, but his evidence does not establish that there was a possibility for the accused to commit the murder of the deceased. Therefore, the accused is entitled for benefit of doubt. Accordingly, the Criminal Appeal is allowed setting aside the conviction and sentence recorded by the IV Additional Sessions Judge, (F.T.C.), Anantapur, vide judgment, dated 28-04-2009 in Sessions Case No.252 of 2007 against the appellant-accused of the offence punishable under Section 302 IPC. The appellant-accused is found not guilty of the above offence and accordingly, he is acquitted of the same. The appellant-accused shall be released forthwith, if he is not required to be detained in any other case. Fine amount, if any, paid by the appellant-accused shall be returned to him. Miscellaneous petitions, if any, pending in this Criminal Appeal shall stand closed.