Kylash Potlia @ Shivaji and M.K. Dinesh Kumar vs The State of Andhra Pradesh

Eswara Prasad, J.—Both these criminal appeals arise out of the judgment of the learned First Additional Metropolitan Sessions Judge, Hyderabad in Sessions Case No. 58 of 1988. The appellant in Crl.Appeal No. 932/90 is the first accused and the appellant in Crl.Appeal No. 933/90 is the second accused. Both the accused were charged with offences punishable u/s 302 read with Section 34 of the Indian Penal Code, for causing the death of the deceased Santabai Tiwari on the intervening night of the First / Second May, 1986. Both the accused were also charged with the offence u/s 380 IPC for committing theft of gold and silver ornaments etc., belonging to the deceased and her daughter during he same transaction. The learned Sessions Judge found A-1 guilty for the offence u/s 302 IPC and sentenced him to suffer imprisonment for life and acquitted A-2 of the charge u/s 302 IPC. Both the accused were also found guilty of the offence u/s 380IPC-A-1 was sentenced to suffer RI for 3 years and A-2 was sentenced to suffer RI for six months, and the sentences of imprisonment imposed on A-1 are to run concurrently.

The case of the prosecution is that the deceased Smt. Santabai Tiwari, aged about 45 years, was a native of Rajastan and came down to Hyderabad fore king out her livelihood by working in the houses of P.W.16 and Shyam Sundar Das, as a cook. The deceased was living in a garage at Himayatnagar, Hyderabad, along with P.W.12 her son. Her husband is working a way from her, at Bikaneer as a Mechanic in the Indian Railways. P.W. 12, P.W. 13 and the accused are friends. P.W. 12 is a student while the accused are working in a rexin-cloth shop.

On the date of the incident P.W. 12 was away from Hyderabad, having accompanied his father to seek employment at Bikaner. The accused committed the murder of the deceased and took away the gold and silver ornaments, three wrist-watches, one camera and video games belonging to the deceased and her daughter P.W. 9. Shortly before midnight, A-1 had tea in the hotel at Bashir Bagh where P.W. 18 was working and left towards Balaji Bhavan situate near the garage where the deceased was living. On the next morning at 6-30 A.M. on 2-5-86, smell of cooking gas was emanating from the garage and the other occupants of the portions within the compound in which the garage is situate, gathered at the place and pushed the door open and f0und the deceased lying dead on a cot. P.W.1 telephoned to the Narayanagud''a Police Station. P.W.31 Sub-Inspector of Police of Narayanaguda Police Station who claims to have received the telephone message from one Lakshmaiah, rushed to the spot. P.W.1 gave the report Ex.P.1 which was registered as Cr.No. 153/86 u/s 302 IPC. P.W.33 the Inspector of Police, Narayanaguda Police Station went to the spot and conducted inquest over the deadbody from 9-30 A.M. to 12-30 P.M. and examined P.Ws.1 to 5. The gold ornaments on the body of the deceased were found missing. Inquest report Ex.15 was drawn up and the dead body was sent for autopsy. P.W.14, the Asst. Professor of Osmania Medical College conducted the post-mortem from 11-15 P.M. on 3-5-86 and found seven external injuries on the dead body of the deceased. The Medical Officer opined that the death was due to asphyxia. Ex.12 is the post-mortem certificate.

On 4-5-86 P.W.12 the son of the deceased, came back to Hyderabad and he was examined by P.W.33 and his statement was recorded. On the intervening night of 4/5 May, 1986at 1-30 A.M. P.W.33 surprised the house of A-1 inlsamia Bazar, Hyderabad and on interrogation of the father of A-1, he came to know that A-1 left for Delhi on 4-5-86 by A.P.Express and he would reach Delhi on 5-5-86 P.W. 32 the Asst. Commissioner of Police and P.W.33 went to the Police Control Room and contacted the Deputy Commissioner of Police, Crimes, New Delhi and informed him of the case and gave him the descriptive particulars of A-1 and requested him to apprehend him at Delhi. On 5-3-88 P.W.32 received information from the Railway Police Secunderabad, that the Railway Police Delhi, apprehended A1 at the Delhi Railway Station. P.W.32 sent P.W.31, Sul-Inspector of Police to Delhi to bring back A-1. A list of stolen article was furnished by P.W.12 on 5-5-86, marked as Ex.P.17.

P.W.13 was traced by the police on 6-5-86 and his statement was recorded. On the information furnished by him, P.W.32 along with P.W.22, visited the house of A-2 at Nallakunta at about 3-30 a.m. on 8-5-86 and A-2 was arrested by P.W.33. The statement of A-2 was recorded in Ex.P.3 which led to the recovery of a Hotshot camera M.O.23, video games M.O.24 and a wrist-watch M.O.21 along with a scooter from the possession of A-2 at his instance. In the presence of P.W.22, mahazar Ex.P.7 was drawn by P.W.33.

A-1 was brought back From Delhi to Hyderabad by P.W.31 on 9-5-86.. In the presence of P.W.22, P.W.33 questioned A-1 who made Ex.P.8 statement. P.Ws.32 and 33 together with P.W.22 the mediator accompanied A-1 to his workshop. A-1 took the key of/the workshop from his father, opened a room in the workshop and from a tin which was placed under a table in the room, pulled out M.Os.1 to 20, 22 and 31. The said articles comprise gold and silver ornaments and they were seized under Ex.P.10 panchnama drawn in the presence of P.Ws.5 and 22. P.W.33 examined the neighbours, P.Ws.15 and 16 of the workshop belonging to A-1 and his father.

P.W.33 found two bite marks on the fingers of A-1 and sent him to Gandhi Hospital for examination. P.W.24 the casualty medical officer of Gandhi Hospital examined A-1 at 4 P.M. on9-5-86and issued Ex.P.12 wound certificate. He found:

1) old minor laceration over the right fore-finger, three in number, size 1.8" x 1.8" and they were found healed.

2) old minor lacerations over the left short finger, three in number, of size 1/8" x 1/8" found healed.

P.W. 24 opined that the injuries 1 and 2 might have been caused when somebody had bitten A-1 during struggle and the age of the injuries might be one week. A-1 also complained to P.W.24 of dysuria with burning myctirition. P.W.33 conducted a test for identification of the seized properties and P.Ws.9 and 12 the daughter and son respectively of the deceased identified them as belonging to the deceased and P.W.9 and a mahazar Ex.P.13 was drawn in the presence of the mediator P.W.26. P.W.33 after completing the investigation filed the charge-sheet on 24-5-86.

In support of its case, the prosecution examined 33 witnesses and marked M.Os.1 to 32. The case of the prosecution entirely rests on circumstantial evidence. The learned Sessions Judge convicted the accused based on the following circumstantial evidence:

The evidence of P.W.18, the hotel desk-clerk who found A-1 and another person nearabout the scene of of fence shortly before midnight on 1-5-86.

The existence of injuries on the fingers of A-1 as observed by P.W.10 immediately after the incident and the bite marks found on A-1''s fingers by the Doctor P.W. 24 recorded in Ex.P.4 wound certificate.

Extra-judicial confession by A-1 made before P.W.13.

The recovery of gold and silver ornaments M.Os. 1 to 20 and 22, belonging to the deceased and her daughter P.W.9 at the instance of A-1.

The recovery of M.Os.21, 23 and 24 at the instance of A-2.

Sri Padmanabha Reddy, learned Counsel for the appellants contended that the alleged circumstances pointing out to the guilt of the accused are not proved by credible evidence by the prosecution and that even if the circumstances are held to be proved, they are wholly insufficient to convict A-1 u/s 302 I.P.C. The extra-judicial confession said to have been made before P.W.13 by A-1 which was later retracted by him, cannot be relied on and if the evidence of P.W.13 is excluded, the other circumstances are not sufficient to bring home the guilt of A-1. With regard to the recovery of articles said to have been made form A-1, the learned counsel contended that the premises from which the gold and silver ornaments belonging to the deceased and her daughter belong to the father of A-1 and it was an open place which was accessible to one and all and that it was improbable that A-1 would keep the said ornaments in such a place if he were the real culprit. It was further submitted that there was no evidence to show that the articles said to have been recovered from A-2 belong neither to the deceased nor P.W.9. He also contended that there was no sufficient evidence to prove that the injuries found on the fingers of A-1 are due to his being bitten by somebody and that, at any rate, no effort was made by the prosecution to connect M.O.32 the teeth of the deceased found at the scene of offence with the bite marks found on the fingers of A-1.

The learned Counsel argued that the deceased was a woman of dubious character and that many people were visiting her and that it was possible that one such visitor might have done away with her and the accused were falsely implicated.

As the case of the prosecution rests purely on circumstantial evidence, we have to carefully scan the evidence adduced by the prosecution to establish the various circumstances alleged against the accused.

We first deal with the evidence relating to the presence of A-1 nearabout the scene of offence on the night of occurrence. The sole witness for the prosecution in respect of this is P.W.18. He is a desk-clerk of a restaurant situated nearabout the scene of offence. He is said to have seen A-1 and another going towards the house of the deceased shortly before midnight of 1-5-86, after taking tea in his restaurant. This witness admitted that A-1 was not a regular customer to his restaurant and that he did not see him earlier to the date of occurrence. No identification parade was held soon after the offence and it is not possible to accept his evidence that he was able to remember A-1 two years after the death of the deceased when he was examined in Court on 7-7-88. He did not tell the investigating officer P.W.33 that he saw A-1 and another going towards the house of the deceased when he was examined ten days after the incident. We are therefore, not prepared to place any reliance on the testimony of this witness. We have to hold therefore that there is no acceptable evidence to show that A-1 was found near the place of occurrence on the intervening night of first/second May, 1986.

Dealing with the alleged extra-judicial confession said to have been made by A-1 before P.W.13, we have to recall at the outset the evidence of P.W.33, the Inspector of Police. He stated that P.W.13, according to him, is a person of dubious character. It was rightly contended by Sri Padmanabha Reddy that P.W.13 was not a close friend of A-1 and that it was improbable that A-1 would have made the confession to a person with whom he is not very intimate. The evidence of P.W.13 is artificial and cannot be relied upon. He admitted that he went to A-1 only once and both went to movies only once or twice. If that be so, it is difficult to believe that A-1 would have confessed before him. P.W.13 did not report to the police that A-1 told him that he (A-1) and A-2 committed the murder of the deceased. He did not even inform any inmates of his house about the confession made by A-1. It was only for the first time when he was examined u/s 161 Cr.P.C. P.W.13 is said to have revealed about the alleged confession made to him by A-1. The alleged confession having been retracted by A-1, cannot be accepted in the absence of corroboration in material particulars. Such a confession is a very weak type of evidence as held by the Supreme Court in Makhan Singh v. State of Punjab, 1988 SC 1705. We do not find any legal evidence corroborating the evidence of P.W.13, and we therefore, reject the contention of the learned Public Prosecutor that the extra-judicial confession is one of the strong circumstances in favour of the case of the prosecution.

The most important circumstance in support of the prosecution case is the recovery of gold and silver articles belonging to the deceased and P.W.9 at the instance of A-1. From the evidence of P.W.33 it is seen that A-1 led the investigating officer to his workshop and took out M.Os.1 to 20 and 31 in the presence of P.W.22 which were seized under Ex.P.10 mahazar. The contention of the learned counsel for the appellants that Ex.P. 10 mahazar is not reliable, as P.W.22 tried to oblige the police as the police were giving their clothes for washing in his dry-cleaning shop. The evidence of P.W. 22 cannot be rejected only on this ground. There is nothing to show that he was obliging the police and that he was deposing falsely. The premises from which the articles were recovered belongs to A-1 and his father. An attempt was made to show that the premises did not belong to A-1 and his father by marking Ex.D-5 plan and by putting it to P.W. 22. We cannot accept Ex. D-5 which is only a plan attached to a sale deed said to have been executed in favour of a third party. We are unable to agree that by mere production of Ex.D-5 a doubt is thrown as to the ownership of the premises. As rightly contended by the learned public prosecutor that the defence counsel at the trial court only tried to confuse P.W.22 by putting Ex.D-5 plan to him and nothing turns on the alleged admission of P.W. 22 stating that the recovery was made from a particular room mentioned in Ex. D-5. The evidence of P.Ws. 33 and 22 is very clear that the premises belongs to A-1 and his father and he produced the ornaments from a tin placed under a cot. We have therefore no hesitation in holding that the gold and silver ornaments belonging to the deceased and her daughter P.W. 9 were recovered from the possession of A-1 at his instance.

It is next contended by Sri Padmanabha Reddy that mere recovery of articles from A-1 does not prove that A-1 was guilty of murder of the deceased. At best, it might mean that he was in possession of stolen articles. To appreciate this contention we have to examine the other circumstances, namely, the injuries found on the fingers of A-1 soon after the commission of the offence and also the subsequent examination of A-1 by the doctor. Soon after the occurrence, A-1 went to P.W. 10 a private medical practitioner. The doctor found lacerated injuries on the hands of A-1 and applied antiseptic ointment and gave an injection. P.W. 24 the casualty medical officer at Gandhi Hospital, who examined A-1 on 9-5-86, opined that the injuries found on the fingers of A-1 appear to be bite marks and might have been caused when somebody had bitten him during a struggle. The learned counsel for the appellants contended that the teeth of the deceased M.O.33 do not match with the bite marks found on the fingers of A-1 and that not only the forensic expert but a dentist also must give an opinion on that aspect. He referred to "The Essentials of Forensic Medicine and Toxicology" by Dr. K.S. Narayan Reddy, Second Edition", page 66 and argued that bite marks are useful in identification because the alignment of teeth is peculiar to the individual, and in the absence of any evidence to show that the teeth of the deceased match with the bite marks found on the fingers of A-1, it cannot be concluded that A-1 was bitten by the deceased in the struggle. He also referred to ''Medical Jurisprudence & Toxicology'' by John Glaister, Eleventh Edition, page 64, and argued that an examination of the teeth may prove of high value in connecting the teeth of the deceased with the bite marks found on the fingers of A-1. It may be noted that A-1 in his examination u/s 313 Cr.P.C. totally denied every aspect of the case. He did not explain as to how he received the injuries on his fingers. Of course, the accused is entitled to remain silent and such a conduct cannot strengthen the case of the prosecution, unless the prosecution proved its case affirmatively. On the evidence of P. Ws.10 and 24 we are inclined to hold that A-1 must have been bitten by the first accused during the struggle between them and in that struggle the teeth of the deceased must have been knocked out. It is in evidence that A-1 is a friend of P.W.12, the son of the deceased. Taking advantage of the absence of P.W.12 from Hyderabad on the date of occurrence, A-1 must have felt it opportune to. steal the ornaments from the deceased as she was alone in the house. M.Os.1 to 22 and 31 which were recovered from A-1 were identified by P.Ws.9 and 12, the daughter and the son of the deceased as belonging to the deceased. In view of the same, the contention of the learned Counsel for the appellant that the prosecution failed to prove that the said articles belonged to the deceased and P.W.9 cannot be accepted.

Another circumstance pointing to the guilt of A-1 is the immediate recovery of the entire gold and silver ornaments belonging to the deceased and P.W.9 except one diamond nose-ring from the possession of A-1 at his instance. The learned Counsel for the appellants contended that out of the three wrist watches said to have been missing from the house of the deceased, only one watch was recovered and the cash of Rs. 3,000/- or Rs. 3,500/- was never recovered and that it cannot be said that the entire property was recovered from A-1. It should be noted that A-1 left for Delhi immediately after the occurrence and it is quite probable that he must have taken the cash and utilised it towards expenses. What is important is that most of the missing articles were recovered from the possession of A-1. If it were to be a case of A-1 receiving stolen articles from the real culprits, the recovery of the articles could not have been effected soon after the occurrence, as one would expect some time gap between the date of removal of the articles from the house of the deceased and the receipt of articles by A-1 after distribution among the culprits. The occurrence was on First/Second May, 1986 and A-1 left for Delhi on 4-5-86 and was brought back to Hyderabad on 9-5-86 by P.W. 31 and the recovery of the articles from A-1 was made on the same day. In The Emperior v. Sheikh Neamatulla, XVII Calcutta Weekly Notes Page. 1077, to the court held that recent possession of stolen ornaments from the deceased woman is a fact from which the court may presume not merely theft or receipt of stolen property but a more aggravated offence with which the accused is charged. In Sanwat Khan and Another Vs. State of Rajasthan, it was held that no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. In the present case the recovery of the stolen property is not the solitary circumstance. As discussed earlier, the bite injuries found on the fingers of A-1 immediately after the death of the deceased is an important circumstance to connect A- with the death of the deceased.

It could therefore be safely concluded that A-1 was the sole culprit or one of the culprits who have done away with the deceased and taken the articles from her house. One of the contentions raised by Sri Padmanabha Reddy is that P.W.21 was last seen with the deceased on the date of the incident and that he might have committed the offence. He further argued that a mat and two pillows were found at the scene of of fence and that two persons must have been present at the time of the death of the deceased and that the doctor P.W. 24 who conducted the post-mortem admitted that he preserved the vaginal swabs for analysis, but no analyst report was filed which could have revealed whether there was any sexual contact between the deceased and the other two persons who must have spent the night with her. As rightly contended by the learned public prosecutor, nothing turns upon this suggestion, as the mat and the two pillows might have been lying there during day time prior to the occurrence and the sexual contact if any, might have occurred during day time. We agree with the contention of the learned public prosecutor and hold that the absence of any analyst report is immaterial. The conviction and sentence imposed by the learned Sessions Judge, as far as A-1 is concerned under Sections 302 and 380 IPC are confirmed.

With regard to the second accused, the case of the prosecution rests entirely on the single circumstance, namely, the recovery of M.Os. 21, 22 and 24. The learned counsel for the appellants rightly contended that there was no proper identification of those articles. The evidence of P.W.9 in this regard does not inspire full confidence. She could not say the make of the watch or any other descriptive particulars. We are also not prepared to believe that video games or the "Hotshot" camera belong to the deceased or P.W.9. It may be that the recovery of the articles from A-2 is true, but they are not proved to belong to the deceased or P.W.9. Hence, there is nothing to connect A-2 with the crime and he is entitled to be acquitted.

In the result, we dismiss the Criminal Appeal No. 932/90, confirming the conviction and sentence of imprisonment imposed by the learned Sessions Judge on A-1 under Sections 302 and 380 IPC. We allow the Criminal Appeal No. 933/90 setting aside the conviction and sentence of imprisonment imposed by the learned Sessions Judge on A-2 and he is set at liberty forthwith, if not required in any other case.