Kondam Madhava Reddy vs State Of AP

This criminal appeal, by the appellant-A-1, arises out of the judgment dated 07.03.2014 in Sessions Case No.156 of 2013, on the file of the IX-Additional Sessions Judge, Kamareddy, whereby the appellant-A-1 was convicted for the offence punishable under Section 302 IPC and sentenced to undergo life imprisonment and also to pay a fine of Rs.75,000/-, in default of payment of fine, he shall undergo simple imprisonment for a period of six months. The appellant-A-1 was further convicted for the offence punishable under Section 201 IPC and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/-, in default of payment of fine, he shall undergo simple imprisonment for a period of two months.

The prosecution case, in brief, is that the appellant (hereinafter referred to as ‘A-1’) and A-2, who are son and father and the de facto complainant (P.W.1) viz., Nareddi Karunakar Reddy belong to Kamareddy. On 17.09.2011 at about 09:00 a.m., P.W.1 lodged a written complaint with the then Sub-Inspector of Police, Kamareddy (P.W.10) stating that on that day at about 05:00 a.m., his deceased father viz., Nareddi Kista Reddy, aged 70 years, went to house of A-1 situated at NGO’s Colony, Kamareddy to collect a sum of Rs.13,50,000/- from him (A-1). On the same day, at about 07:00 a.m., P.W.1 came to know that the deceased committed suicide by hanging in the house of the accused. Immediately, P.W.1 along with his mother P.W.2 went to the house of the accused and found the dead body of deceased there and they also noticed ligature mark around the neck and a bleeding injury on the right eyebrow of the deceased. P.W.1 suspected that A-1 and A-2 and Bharathi and Santosh, who are wife and son of A-1, for the death of the deceased. Later, on the basis of the complaint, P.W.10 registered a case in Cr.No.300 of 2011 under Section 174 Cr.P.C., and took up investigation and sent FIRs to all concerned.

During the course of investigation, P.W.10 visited the scene of offence and examined the scene in the presence of P.W.7 and L.W.9 and prepared crime details form and collected blood stains from the scene of offence and from the dead body of the deceased for sending the same for chemical examination. Subsequently, P.W.10 held inquest over the dead body of the deceased in the presence of the same panch witnesses. He secured the presence of photographer and took photographs of dead body of the deceased and later sent the dead body for post-mortem examination. P.W.9, who held autopsy over the dead body of the deceased, opined that the cause of death of the deceased was due to strangulation and head injury. Based on the opinion of the doctor, the then Sub-Inspector of Police, Kamareddy (P.W.10) altered the section of law to Sections 302, 201 read with Section 34 IPC and submitted alteration memo. Thereafter, P.W.11 took up investigation and apprehended A-1 and A-2 and recorded their confessional statements in the presence of panch witnesses i.e., P.W.8 and L.W.11 and recovered nylon rope and blood stained blanket at the instance of A-1 from the roof of the house of A-1 under a cover of pachanama in the presence of the same panch witnesses. The investigation further revealed that A-1 and the deceased were doing real estate business and they entered into a deal with P.W.6 to purchase her house for Rs.10,40,000/-for which A-1 acted as mediator and the deceased paid an amount of Rs.2,10,000/- on 16.07.2011 as advance. Later, after one month, the deceased paid Rs.2,00,000/- towards purchase proceeds. Thereafter, A-1 took a hand loan of Rs.4,00,000/- from the deceased in connection with job of his son. Subsequently, P.Ws.1 and 2 did not consent for purchase of house from P.W.6 since it was not vaasthu compliant and the same forced the deceased to cancel the agreement. The deceased turned down the agreement and started forcing A-1 to get back the amount of Rs.6,10,000/-, including the personal debt of A-1 and started harassing him frequently. On 16.09.2011, at night A-1 telephoned the deceased to come to his house at NGOs Colony, Kamareddy. Accordingly, the deceased went to the house of A-1and A-2 at late night where an altercation took place between A-1 and the deceased over demand of money. Upon which, A-1 became furious and hit the head of the deceased to the wall which hit on the right eyebrow and he fell down on the floor with bleeding injury. Later, A-1 took a nylon rope and rolled over the neck of the deceased and tied till his death. Later, A-2 joined hands of A-1 and took a bed sheet and wiped off the blood stains with it and threw the same on the roof of the building. Later, A-1 and A-2 brought the dead body out of the house and tied to the railing of the house with a nylon rope by simulating the scene as deceased himself committed suicide with a rope in the house of the accused. P.Ws.4 and 5, who are tenants and neighbours of the accused, woke up and peeped the incident while A-1 and A-2 were tying the body to the suspension with a rope. After completion of investigation, the Inspector of Police laid charge sheet against the appellant (A-1) and A-2.

On appearance of the accused before the trial court, charges under Sections 302, 302 read with Section 34 IPC and 201 IPC were framed against A-1 and A-2 and they denied the same and claimed to be tried.

During the course of trial, the prosecution examined P.Ws.1 to 12, marked Exs.P-1 to P-14 and produced M.Os.1 and 2. On behalf of defence, no evidence was let in.

On appreciation of the oral and documentary evidence, the trial court found the appellant-A-1 guilty of the charges and accordingly convicted and sentenced him as noted hereinabove and acquitted A-2 of the charges framed against him. Hence, the present appeal by the appellant-A-1.

We have heard Mr.P.Prabhakar Reddy, learned counsel for the appellant-A-1 and learned Assistant Prosecutor for the respondent-State.

Learned counsel for the appellant-A-1 would submit that the court below erred in convicting the appellant-A-1 based on the interested testimonies of P.Ws.1 to 3 and they are not the eye-witnesses to the incident and the entire prosecution case rests solely on the circumstantial evidence. Learned counsel further submits that the court below based conviction of the appellant-A-1 on the theory of ‘last seen’, as the deceased visited the house of the accused in the night and on the next day morning, he was found dead hanging in front of the house of the accused. The evidence of prosecution of last seen together by itself should not lead to the inference that the appellant-A-1 committed the crime. Therefore, the prosecution failed to prove all the circumstances relevant to connect the accused with the alleged offence. Thus, learned counsel further submits that it is not safe to convict the appellant-A-1 based on insufficient and unreliable evidence. In support of his contentions and submissions, learned counsel placed relied on the followings decisions of the Hon’ble Apex Court:

i. NIZAM AND ANOTHER v. STATE OF RAJASTHAN AIR 2015 SC 3430.

ii. ASHOK v. STATE OF MAHARASTRA 2015 (4) SCC 393.

iii. KANHAIYA LAL v. STATE OF RAJASTHAN 2014 (4) SCC 715.

iv. A.VEERA REDDY v. STATE OF A.P AIR 1990 SC 79.

v. STATE OF ORISSA v. Mr. BRAHMANANDA NANDA AIR 1976 SC 2488

vi. SONIA BAHERA v. STATE OF ORISSA AIR 1983 SC 491

Opposing the above submissions, learned Assistant Public Prosecutor appearing for the State commended the correctness of judgment of the trial court.

Thus, after hearing the submissions of learned counsel for the parties, the only point that arises for determination is - whether the conviction and sentence of the apeplant-A-1 is sustainable?

Before adverting to the prosecution evidence, we shall at the threshold point out that in the present case, there is no direct evidence to connect the accused with the offences in question and the entire prosecution case rests solely on circumstantial evidence. It is well settled that the accused can be convicted on circumstantial evidence, only if every other reasonable hypothesis of guilt is completely excluded and the circumstances are wholly inconsistent with the innocence of the accused. Where a case rests purely on circumstantial evidence, motive undoubtedly plays an important role in order to prove the guilt of the accused.

In PADALA VEERA REDDY v. STATE OF A.P AND OTHERS AIR 1990 SC 79, the Hon’ble Apex Court held that when a case rests upon 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”

We may also make a reference to a decision of the Hon’ble Apex Court in C. CHENGA REDDY v. STATE OF A.P (1996) 10 SCC 193, wherein it has been observed thus:

“In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence”.

Bearing the above principle of law enunciated by the Hon’ble Apex Court, we may scrutinize and examine carefully the circumstances appearing in this case against the accused.

In order to establish the fact that the death of the deceased was homicidal death, the prosecution led the evidence of P.Ws.7 and 9. P.W.7 is resident of Posanipet Village and he attested the inquest panchanama and crime details form, which are filed on record as Exs.P-6 and 7. The investigating officer P.W.10 after conducting the scene of offence panchanama over the dead body of the deceased in the presence of P.W.7 and another, collected photographs of dead body of the deceased from the scene of offence and sent the body of the deceased to P.W.9 Dr.Manoraj is the then Civil Assistant Surgeon, Area Hospital, Kamareddy, for post-mortem examination. P.W.9 received requisition from the Sub-Inspector of Police, Kamareddy to conduct post-mortem examination on the dead body of the deceased. He commenced the post-mortem on the dead body of the deceased viz., Nareddi Kista Reddy on 17.09.2011 at about 1200 noon and noticed the ante-mortem injuries i.e., (i) a ligature mark around the neck of 40 x 1/2 cm size and (ii) contusion on the scalp of 5x5 cm size. On opening the skull, blood clots were present and on opening the neck, blood clots were present in the neck, no hyoid bone fracture was present and that the approximate time of death is 24 to 48 hours prior to his examination.

On a consideration of the evidence of inquest panchayatdar (P.W.7) and the evidence of the doctor P.W.10 on the point of homicidal death, we hold that the prosecution was able to prove that the deceased Nareddi Kista Reddy did die homicidal death.

The next important question is – whether the circumstances attending the court do satisfactorily and unerringly establish the guilt of the accused so as to incriminate him with the offences alleged?

P.Ws.1 to 3 are the son, wife and grandson of the deceased and they are not eyewitnesses to the incident. P.W.1 stated in his evidence that the accused killed the deceased and created a scene that the deceased committed suicide by hanging. The deceased was doing real estate business along with A-1, who was due an amount of Rs.13,50,000/- to the deceased, as per the evidence of P.Ws.1 to 3. In that connection, there was a quarrel between the accused and the deceased. It is stated by P.Ws.1 to 3 that the deceased went to the house of accused and pressed for payment of money and due to money disputes only, the accused killed the deceased. As per the evidence of P.Ws.1 to 3, the motive for the alleged offence is money dispute between A-1 and the deceased. The evidence of P.Ws.1 to 3 is corroborated by the evidence of P.W.6 about the purchase of her house for a sale consideration of Rs.10,40,000/- and the deceased gave an amount of Rs.2,10,000/- to P.W.6 towards advance for purchase of the house. A-1 acted as mediator for sale of the house to the deceased and agreement of sale was also executed in respect of sale of house. Ex.P-4 is the agreement of sale entered into between P.W.6 and the deceased. Subsequently, the cancellation deed was executed. However, in the said transaction, the accused was due an amount of Rs.13,50,000/- to the deceased. The evidence of P.Ws.1 to 3 is consistent and corroborated by the evidence of P.W.6 on the aspect of transaction between the deceased and A-1 and the accused was due an amount of Rs.13,50,000/-. So, the motive part is established by the prosecution.

The second important circumstance is that the dead body of the deceased was found in the house of accused with injury on the head and ligature mark around the neck of the deceased.

P.Ws.1 and 2 in their evidence stated that they found the dead body of the deceased inside the compound wall of the house of the accused. It is the evidence of P.W.3 that at about 05:30 a.m., he went to house of the accused and found the body of the deceased hanging with a rope to the ceiling of the house of the accused. P.W.3 returned to his house and informed the same to his relatives and again went to the scene of offence at about 07:00 or 07:30 a.m., and found the dead body of the deceased lying on the ground floor in the compound of the house of the accused.

P.W.4 is one of the tenants and P.W.5 is residing opposite the house of the accused. They are independent witnesses and turned hostile to the case of the prosecution. However, P.W.4 in his evidence categorically stated that he noticed the dead body of the deceased hanging to the roof of the house of the accused. A-2 and the wife of A-1 were holding the dead body of the deceased and A-1 removed the rope to which the deceased was hanging. The dead body of the deceased fell on the ground and the accused threw the rope on the roof of their house and went away. Therefore, the evidence of P.Ws.1 to 4 and also of the inquest panchayatdar (P.W.7) clearly establishes the fact that the dead body of the deceased was found within the compound premises of the house of A-1 and with the evidence of the doctor P.W.9, the ante-mortem injuries mentioned in Ex.P-10 and post-mortem examination report were also proved. This is one of the strong circumstances which is clearly established by the prosecution with cogent and convincing evidence.

Coming to the other circumstance with regard to the recovery of M.Os.1 and 2 i.e., rope and blood stained bet sheet by P.W.11 Inspector of Police at the instance of A-1 under Ex.P-8 recovery panchanama in the presence of panch witness (P.W.8), he clearly deposed in his evidence that A-1 led them to his house and shown the rope and blood stained bed sheet and the same were recovered under a cover of panchanama under Ex.P-9 as M.Os.1 and 2 and they were seized from the terrace of the house of the accused. The evidence of panch witness and Inspector of Police P.W.11 and the panchanama Ex.P-9 establishes the fact that M.Os.1 and 2 were seized at the instance of accused from the terrace of the house of A-1.

Learned counsel for the appellant submits that there is no evidence that the accused and the deceased were last seen together in the early hours of 17.09.2011 and in the house of accused there were about four portions in the ground floor and they were let out to the tenants and when the portions are let out to the tenants, it cannot be inferred that the accused alone was in possession of the house and it cannot be said that he is solely responsible for the death of the deceased. Learned counsel further submits that the findings of the trial court are perverse that the accused should explain how the death of the deceased occurred, under Section 106 of the Evidence Act.

The Hon’ble Apex Court in NIZAM’s case (AIR 2015 SC 3430 supra) relied on the decision of STATE OF RAJASTAN v. KASHI RAM (2006) 12 SC 254, wherein the Hon’ble Apex Court, while elaborating the principle of last seen alive, held as under:

“The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain”.

The decision relied on by learned counsel for the appellant-A-1 in ASHOK’s case ( 2015 (4) SCC 393 supra) on the principle of ‘last seen together’ theory has been elucidated by the Hon’ble Apex Court in TRIMUKH MAROTIU KIRKAN v. STATE OF MAHARASHTRA (2006) 10 SCC 106, wherein it was held as under:

“Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. Thus, the doctrine of last seen together shifts the burden of proof on the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him."

The Hon’ble Apex Court in KANHAIYA LAL’s case (2014 (4) SCC 715 supra) on the principle of ‘last seen together’ theory held as under:

“The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant”.

We are in agreement with the contention of learned counsel for the appellant-A-1 that there are no direct eyewitnesses who had seen the deceased in the company of the accused on 17.09.2011. However, the prosecution with the evidence of P.Ws.1 to 4 had established with cogent evidence that on the day of incident, in the night, the deceased left the house after dinner and went to the house of accused. On the next day morning, he was found dead in front of the house of the accused. The prosecution evidence also proved the fact that A-1 and the deceased went to P.W.6 and P.W.6 offered to sell her house for Rs.10,40,000/- to the deceased for which A-1 stood as mediator for the payment of money as advance to P.W.6 and also for the subsequent payment of entire amount and the accused was due an amount of Rs.13,50,000/- to the deceased is consistently stated by P.Ws.1 to 3 in their evidence which show that there was transaction between the accused and deceased and the deceased went to the house of the accused for the amount due to him. Therefore, the prosecution evidence clearly proved the fact that the deceased went to the house of the accused on the previous night of incident and on the next day he was found dead in front of the house of the accused. Since the prosecution had succeeded in proving the said fact by definite evidence, reasonable inference can be drawn that the deceased was in the company of the accused on day of incident. Thereby, the onus shifts on to the accused under Section 106 of the Evidence Act.

It is settled law that the conduct of an accused in an offence, previous and subsequent to the crime, is relevant fact. When the death had occurred in front of house of A-1, the appellant is under obligation in Section 313 Cr.P.C statement at least to give plausible explanation for his absence at the house, but A-1 had simply denied the prosecution case. The normal human conduct is when a dead body is found in front of the house, the inmate of the house as owner i.e., A-1 herein was absconding. Since the accused failed to offer an explanation about his absence on the day of incident when the dead body was found in front of his house and the accused does not offer any explanation, it certainly would give rise to a very strong presumption against the accused that he committed the offence. The facts and circumstances of the case are consistent with the hypothesis that A-1 is the prime accused in the commission of gruesome murder of the deceased.

We are of the firm view that there are strong circumstances appearing in this case, including the place where the dead body of the deceased was found, the nature of injuries found on the dead body of the deceased and the cause of death as certified by the doctor. On appreciation of the entire prosecution evidence and in the light of the principles enunciated by the Hon’ble Supreme Court, which clearly points out to the guilt of the appellant-A-1, we are, therefore, in full agreement with the view of the trial court that it is clear case of homicide caused by the appellant-A-1. Therefore, the trial court had rightly convicted and sentenced the appellant-A-1 and also imposed fine as aforementioned. We see no reason to interfere with the judgment under appeal.

The criminal appeal fails and the same is, accordingly, dismissed.

Pending miscellaneous petitions, if any, stand closed.