M. Jayanth Kumar Reddy alias Jayanth vs State of Andhra Pradesh

Radhakrishna Rao, J.—The sole accused in Sessions Case No. 157/91 on the file of the learned I Addl. Sessions Judge, Chittoor is the appellant herein. In the trial court he was charge-sheeted u/s 302, IPC for committing murder of the deceased Syed Imran Ahmed, aged 6 years by throwing him into the well on 28-1-1991 at about 7.45 p.m. in Balaji colony, Chittoor.

The prosecution case, in brief, is as under : The accused is a student residing in Ramnagar colony, in Chittoor. The deceased aged 6 years is the son of P.Ws. 1 and 2. P.W. 1 is tenant of the father of the accused. On 28-1-1991 at about 7.30 p.m. while P.W. 1 was in this house, the deceased left the house stating that he is being called by the accused and he will return after a short time. After some time P.W. 1 went to bazar. When he returned from the bazar, his wife P.W. 2 informed him that the deceased had not gone to the portion of the accused, as informed by the mother of the accused. Then P.W. 1 went to the Police Station and gave a complaint. P.W. 8 the S.I. of Police registered the case as Cr. No. 17/91 and issued F.I.Rs. to the concerned. P.W. 9 the Inspector of Police took up investigation, examined Police took up investigation, examined P.Ws 1 and 2 and the parents of the accused and recorded their statements. He deputed the searching party to search the missing boy (the deceased). On 29-1-1991, P.W. 9 examined P.W. 3, a friend of the accused and recorded his statement. On the same day in the evening, on the information he received, P.W. 9 along with P.W. 5 the Municipal Councillor and others proceeded to Anjanayaswamy temple and found the accused moving in front of the said temple under suspicious circumstances. Seeing the police the accused tried to skulk away. But P.W. 9 arrested the accused. On interrogation the accused admitted the offence and gave a statement in pursuance of which the accused led the Police to the drainage well of one Jayaramareddi in Balaji colony. In the drainage well the deadbody of the deceased was found. The dead body was taken out of the well with the help of hooks. P.Ws. 1 and 2 identified the dead body as that of their son. P.W. 9 held inquest P.W. 9 held inquest over the dead body in the presence of P.Ws. 1, 2, 4 and others seized M.Os. 1 to 3, the clothes of the deceased. After inquest P.W. 9 sent the dead body to the Govt. Hospital, Chittoor for post mortem examination. P.W. 6 the doctor conducted the autopsy over the dead body and issued the post-mortem certificate Ex. P5. He opined that the deceased would have died due to asphyxia due to drowning. After completion of investigation, P.W. 9 laid the charge-sheet u/s 302, IPC.

To bring home the guilt of the accused, the prosecution, in all, examined P.Ws. 1 to 9 and marked Exs. P1 to P7 and M.Os. 1 to 3. When examined u/s 313, Cr.P.C. the accused defined the offence. On a careful consideration of the evidence, the learned Sessions Judge found the accused guilty of the offence punishable u/s 302, IPC and accordingly convicted the accused u/s 302, IPC and sentenced him to suffer imprisonment for life and also to pay a fine of Rs. 100/- i.e. to suffer S.I. for one month and directed the sentence of imprisonment to run concurrently with the sentence passed in S.C. No. 156/91.

Aggrieved by the said conviction and sentences, the accused preferred this appeal.

The entire evidence against the accused consists of circumstantial evidence. The circumstances relied upon by the prosecution are : The accused having taken away the deceased to the knowledge of P.Ws. 1 and 2, the deceased and the accused were seen together by P.W. 7 on the way; P.W. 3 saw the accused coming from the direction of the well which is at a 20'' distance; the evidence of P.W. 4 is that he saw the accused running away from the well in Ramnagar colony; the recovery of the dead body from the well in pursuance of the statement given by the accused.

The first circumstance is that the deceased was taken away by the accused P.Ws. 1 and 2 have not seen actually the accused taking away the deceased out of the house. The evidence shows that the deceased took permission of P.W. 1 stating that the accused asked him to come and left the house; afterwards as he could not find the deceased, he instructed his wife P.W. 2 to enquire into the matter. P.W. 2 says that the deceased left the house saying that he wanted to meet the accused. The evidence of P.Ws. 1 and 2 coupled with their earlier statement Ex. P1 shows that the deceased went to the accused and hence they are the persons last seen the deceased alive and that their evidence shows that the accused was not seen in the house nor the deceased was seen along with the accused. The first circumstance relied upon by the prosecution has been proved and the learned Sessions Judge has given a well reasoned finding after appreciation of evidence on this point.

With regard to the second circumstance, we are unable to accept the testimony of P.W. 4., P.W. 4 was examined much later. He was an autodriver. Without special acquaintance with the family members of the accused and deceased, it is difficult for P.W. 4 to identify the accused and deceased. P.W. 3, who is the friend of the accused, says that he saw the accused running away from the well which is at a distance of 20'' from his house. On the same day (28-1-1991) night, he was taken into custody by the Police and was interrogated. The person that can see near about the well is P.W. 3., P.W. 3 is friend of the accused, P.W. 3''s presence at that time cannot be ruled out and also his observing the person coming out from the direction of the well cannot be ruled out.

The next circumstance relied upon by the prosecution is that the accused was arrested and was taken into custody near Anjaneyasway temple and thereafter he made a confessional statement in pursuance of which the dead body of the deceased was recovered. The first attack made against this circumstance is : that P.W. 3 made an admission that the accused was in the custody of police even before the alleged arrest made is not correct. The statement made by witness does not take away the value of the evidence of P.W. 5, who is an independent witness. P.W. 5 is the Municipal Councillor. He was examined as panch-witness. He has no axe to grind against the accused. He has no motive for him to give false evidence. Nothing elicited from his cross-examination to discredit his evidence. The circumstantial evidence given by P.W. 5 indicates that he was summoned to be present and his house is in between the place of arrest and the well. When a responsible person like Municipal Councillor was alleged to be present and accompanied the Police at the time of arrest of the accused, it is very difficult to discredit his testimony on the ground that P.W. 3 stated that he was taken into custody along with some others. The investigation Officer denied this suggestion. When the Investigation Officer supports the evidence of the responsible person, P.W. 5, about the arrest of the accused, we find that the arrest of the accused, we find that the arrest as stated by P.W. 5, and corroborated by the Investigating Officer is correct. The learned Public Prosecutor contends that even if he was taken into custody at the earliest point of time, still it can be said that he is the person who made the statement. We are not prepared to accept this alternative theory. Nothing elicited from his cross-examination to discredit his testimony. Hence we feel that the arrest as stated by P.W. 5 is correct.

8A. The recovery of the dead body of the deceased was by the Police. It is known to the persons who have knowledge about it. The accused himself led the Police to the well where the dead body of the deceased was floating. The statement (Ex. P2) was not hit by any provisions of law or the recovery of the dead body. The dead body of the deceased was taken out of the well in the presence of the panch witnesses. After that the deceased was identified by P.Ws. 1 and 2 as their kin. It is contended by the learned counsel for the appellant accused that since the dead body was floating in the well, P.Ws. 1 and 2 were able to see it by 6 a.m. The Inquest Officer''s observance report indicates the fact. Nothing has been elicited in the cross-examination of the doctor to establish that the body was in a floating condition. Taking into account the recovery of the body made, it has to be found that the accused alone is the person who has exclusive knowledge that the body was in the well. It must be held that the recovery of the body at the instance of the accused is fully established.

Mr. Padmanabha Reddy, learned counsel for the appellant argued, relying upon the decision reported in Lakhanpal Vs. State of Madhya Pradesh, that the accused was last seen with the deceased is not a sufficient ground. In that case only two circumstances were taken; while in our case us to circumstances which were discussed above established that the accused is the person who took the deceased to the knowledge of their parents and he was seen by P.W 7 at the earliest point of time and the body was recovered in pursuance of the confessional statement made by the accused. These circumstances were interlinked and the circumstances relied upon by the evidence of P.W. 4 is discarded, and the chain of links is completed.

It is next contended by Mr. Padmanabha Reddy, learned counsel that the evidence of P.W. 7 cannot be accepted and his presence cannot be accepted. P.W. 7 is a person working as Mechanic in the APSRTC depot, where P.W. 1 is working as Asst. Engineer. When a person like an Asst. Engineer of the same department is living near his house, naturally P.W. 7 is expected to have knowledge of P.W. 1 and has acquaintance as spoken to by P.W. 7 cannot be said that he has no acquaintance with P.W. 1 at all. The statement made by him that he had seen the accused and the deceased going together is a correct version as in one way P.Ws. 1 and 7 are connected with the same department. Merely because P.W. 7 was examined at a later stage and was not examined during the inquest, it does not mean that his evidence has to be rejected. Hence we feel that the prosecution has made out all the circumstances and the reasoning given by the learned Sessions Judge for convicting the accused is correct and cogent. We find no grounds to disagree with it.

Next it is contended that the accused was below 16 years, his dated of birth being 9-2-1975 and on 28-1-1991 (the date of offence) he is 15 years 11 months 2 days of age. Hence the accused should not have been tried by the Sessions Court. The charge-sheet was filed stating that the accused is 17 years old. This was not challenged by the accused at any point of time before the Sessions Court. It is only at the appellate stage an enquiry was made about the age of the accused. When the accused is at the age of 17 years, the same can be presumed by the Court as he was studying Intermediate by then and made the Court to believe as such and no material was placed before the Sessions Court, it cannot be said that the subsequent material placed before the High Court will enure to give a finding that the entire process of trial made by the learned Sessions Judge has to be set aside.

The prosecution has not relied upon motive as a circumstance. In circumstantial evidence, if motive has been relied upon as a circumstance it has to be proved beyond reasonable doubt. Since the prosecution has not relied upon the motive as one of the circumstances and the three circumstances relied upon by the prosecution have been duly established, we feel that non-pleading of the motive or producing material in support of it is not a fatal circumstance.

For all these reasons we hold that the accused is the person solely responsible for the death of the deceased and dismiss the appeal confirming the conviction and sentence passed against the accused u/s 302, I.P.C.

This court by order dated 28-11-1991 directed the Govt. to put the accused in Juvenile Home pending appeal. As the Govt. has already considered the case of the accused after a direction given by this court for sending the accused to Juvenile Home, and as the Govt. ordered that the accused be sent to the Borstal School, we feel that the sending of the accused to Borstal School is in conformity with the provisions of the Act 53/86. It has to be noted that this Court cannot direct the Govt. to send the accused to Borstal School as it is the duty of the Govt. Hence the accused-appellant shall be kept in Borstal School till he completes 20 years of age and for serving the remaining sentence of imprisonment, the provisions mentioned in the Code of Criminal Procedure shall be followed.

Appeal dismissed.