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Andhra High Court · body

2000 DIGILAW 791 (AP)

Chelluri Govindu v. State Of A. P.

2000-10-17

D.S.R.VERMA, R.M.BAPAT

body2000
R. M. BAPAT, J. ( 1 ) ACCUSED 1 to 7 who were tried by the IV Additional Sessions judge, Visakhapatnam are the appellants herein. The accused were charged under four charges. The first charge against A1 was under Section 302 IPC. The learned judge found him guilty of the said charge and convicted him to suffer imprisonment for life. The second charge against A1 to A7 was under Section 201 IPC. The learned judge found them guilty and convicted them to suffer rigorous imprisonment for one year and imposed a fine of Rs. 500/ -. The third charge against A1 and A2 was under section 302 IPC and the learned Judge found them guilty and convicted them to suffer imprisonment for life. The fourth charge against A3 to A7 was under section 302 read with Section 34 IPC and the learned Judge found them guilty of the said charges and convicted them to suffer imprisonment for life and imposed a fine of Rs. 500/- each and in default, directed them to suffer rigorous imprisonment for two years. ( 2 ) THE substance of the charge against the accused was that on 29-10-1994 A1 took the deceased from his village and subsequently with the assistance of A3 to a7, A1 and A2 caused the death of the deceased Appanna alias Apparao. ( 3 ) THE case of the prosecution can be briefly narrated as follows: pw1 is the wife of the deceased. PW2 is the brother of the deceased. PW9 is another brother of the deceased. The accused and the material witnesses belong to lovapalem village. About four years back on one Saturday, at about 7. 00 p. m. , while the deceased, P. W. I and other family members were talking together, A3 and A4 came to their house and called the deceased saying that they are having some work with the deceased. The deceased told them that he would come on the next day. A-3 and A-4 told him that his presence is necessary and took the deceased. It is said that A-1, A-2 , a-5 and A-6 were standing in front of their house at that time and they followed A-3 and A-4. As the deceased did not return even on the next day, P. W. I went to the house of A-3, but it was found locked. It is said that A-1, A-2 , a-5 and A-6 were standing in front of their house at that time and they followed A-3 and A-4. As the deceased did not return even on the next day, P. W. I went to the house of A-3, but it was found locked. P. W. I went to the house of A-4, A-5 and a-6 and did not find anybody in the house. While P. W. s. 1 and 2 were returning from their houses, they met P. W. 4, who told them that A-1 to A-6 took the deceased towards coconut garden belonging to A-4. PW1 went to the coconut garden in search of the deceased, but she should not trace him. P. W. 2 also accompanied P. W. I in the search of the deceased. At about ( 4 ) 00p. M. , P. Ws. 1 and 2 returned to the house. 4. According to P. W. 18 the S. I. of police, on 30. 10. 1994 at 11. 00 a. m. , A-1 came to the police station and gave a confessional statement in the presence of p. W. 10, the Village Administrative Officer. Ex. P-3 is the admissible portion of the confessional statement. On the basis of the said statement, P. W. 18 registered the case in Crime No. 38 of 1994 under Section 302 i. P. C. and issued Ex. P-4 F. I. R. to all the concerned. It is further alleged that in pursuance of the confession, A-1 lead them to the place where the head portion of the body was buried. A-1 dug a pit at that place but nothing was found. They went to the scene of offence and found M. Os. 9 and 10 i. e. , brandy bottle and the cap and also the blood stains on the ground. Ex. P-4 is the observation report. P. W. 19 also prepared a sketch of the scene, which is marked as ex. P-44. A-1 then lead them to the mango garden of P. Venkata Krishnamraju and showed a well. In that well, the trunk portion of the body of the deceased was found. P. W. 19 got it removed with the help of P. W. 8. Ex. P-45 is the rough sketch of that place and Ex. P-5 is the observation report. P-44. A-1 then lead them to the mango garden of P. Venkata Krishnamraju and showed a well. In that well, the trunk portion of the body of the deceased was found. P. W. 19 got it removed with the help of P. W. 8. Ex. P-45 is the rough sketch of that place and Ex. P-5 is the observation report. ( 5 ) IT is further alleged by the prosecution that according to P. Ws. 1 and 2, by the time they returned home, the police were at their house. The police took them to the scene and were asked to identify the trunk. P. Ws. 1 and 2 identified the trunk portion as that of the deceased on the basis of clothes and waist thread (molathadu ). ( 6 ) P. W. 19 conducted the inquest over the dead body of the deceased in the presence of P. W. 10 and others. Ex. P-18 is the inquest report. P. W. 14, the Medical officer at Government Hospital, yellamanchil conducted the post mortem examination over the trunk portion of the deceased at the scene itself on 31. 10. 1994 and issued Ex. P-32 the postmortem certificate. According to him the cause of death was due to incised injury to neck decapitation. ( 7 ) P. W. 19 sent A-1 to medical examination as he was having an injury. P. W. 14 examined A-1 on 30-10-1994 at 7. 00 p. m. itself and issued Ex. P-35 the wound certificate. He noticed an incised injury on the left ankle and opined that the age of injury was about 26 to 28 hours prior to examination. ( 8 ) ON 1. 11. 1994 on the basis of information furnished by one Yerupalli narayana, skull of the deceased was found in casurina tope of the father of the deceased. He conducted inquest over the skull portion in the presence of P. W. 10. Ex. P-19 is the inquest report. On 4. 11. 1994, P. W. 14 the government Medical Officer conducted the postmortem examination on the skull and issued Ex. P-34, the postmortem certificate. ( 9 ) ON 7. 11. 1994, P. W. 19 arrested A6 at Atchutapuram junction and interrogated him in the presence of mediators. A-6 confessed that he would show the blood stained lunge of A-1 and other accused. Ex. P-42 is the relevant portion. P-34, the postmortem certificate. ( 9 ) ON 7. 11. 1994, P. W. 19 arrested A6 at Atchutapuram junction and interrogated him in the presence of mediators. A-6 confessed that he would show the blood stained lunge of A-1 and other accused. Ex. P-42 is the relevant portion. A-6 lead them to AKP Saw Mill and showed A-2 to a-5. They were arrested in the presence of p. Ws. 10 and 15. Pursuant to the confession of A-2, he lead them to the garden of A-4 and showed the hay-heap and a knife, m. 0. 4, which was recovered from it under ex. P-5. A-3 lead them to garden of A-4 and showed blood stained shirt, which was recovered under Ex. P-52. A-4 lead them to his garden and showed M. Os. 3 and 7 (a stick and a drawer) which was seized under Ex. P. 33. A-5 showed two glasses, which were seized under Ex. P-54. A-6 lead them to garden of Krishnamraju and produced a lunge of A-1, which was seized under Ex. P-4. P. W. 19 arrested A-7 on 8. 11. 1994. On 17-11-1994, A-1 was produced before him after completion of treatment. ( 10 ) ON 26. 12. 1994, P. W. 19 sent the skull of the deceased with a life size photograph of the deceased,, for superimposition to the Forensic Science laboratory, Hyderabad. He also sent a knife, shirt, etc. , for analysis. Ex. P-57 is the analysis report. ( 11 ) P. W. 12 the Assistant Director of Forensic Science Laboratory, on receipt of the skull and the photographs, conducted the superimposition test. Ex. P-27 is the opinion. According to him, the skull M. O. 15 is the human skull and it would have belonged to the person in photograph M. O. 8. ( 12 ) ON 16-11-1994, P. W. 13 the Finger Print Inspector received the phalanges from the Government Medical Officer, yellamanchili and prepared the fingerprint slip from them to life little finger. On 28. 9. 1995, he received a loan application ex. P. 28 containing the left thumb impression purporting to be that of the deceased. He compared the thumb impression and gave ex. P-29 the opinion. The fingerprints of S1 and D1 are identical and belong to the deceased. On 28. 9. 1995, he received a loan application ex. P. 28 containing the left thumb impression purporting to be that of the deceased. He compared the thumb impression and gave ex. P-29 the opinion. The fingerprints of S1 and D1 are identical and belong to the deceased. ( 13 ) P. W. 19 conducted further investigation, recorded the statements of the other witnesses and his successor filed the charge sheet. ( 14 ) THE case of the defence is of total denial. ( 15 ) IN order to bring home the guilt of the accused, the prosecution examined p. W. s. 1 to 19 and got marked Ex. P1 to P57. The defence also got marked Exs. D1 to D3. There are no eyewitness to the incident in question and the entire case rests on the circumstantial evidence. ( 16 ) IN order to prove that the deceased died homicidal death, the prosecution relied upon the evidence of P. W. 19, who conducted the inquest over the skull of the deceased, which was found in the casurina tope of the father of the deceased. The inquest was conducted in the presence of P. W. 10, who acted as a mediator. Ex. P-19 is the inquest report. On finding of the trunk portion of the deceased, P. W. 19 also conducted the inquest over the trunk portion of the deceased in the presence of P. W. I0, who had acted as punch and issued Ex. P-18 the inquest report in respect of trunk portion of the deceased. ( 17 ) AFTER the inquest was over and also as soon as the two portions of the dead body were found, they were sent to P. W. 14 the Deputy Civil Surgeon, Government hospital, Yalamanchali for conducting the autopsy. On receipt of requisition, he conducted the autopsy over the skull portion belonging to a male, aged about 25 years and found the following injuries"external Injuries: there is tissued fracture over the right side of the occipital bone 2 cms. , behind the mastoid process extending upward obliquely 8 cms. , long. Inflitration of blood into peristeal and tissue present. The injury is of antemortem in nature involving the outer table and inner table of the occipital bone. Internal injuries: the skull is washed with water and separated the vault and base with a saw. Brain matter liquefied and poured out. Foul smell. , long. Inflitration of blood into peristeal and tissue present. The injury is of antemortem in nature involving the outer table and inner table of the occipital bone. Internal injuries: the skull is washed with water and separated the vault and base with a saw. Brain matter liquefied and poured out. Foul smell. Dure matter detached from the base with a forceps. Fracture lines is seen in the occipital bone on the right side corresponding to the external injury. Duro matter cut in the corresponding area of the injury". ( 18 ) AS per his observations, he issued Ex. P-34 the postmortem report relating to the skull of the deceased. ( 19 ) AS stated earlier, the trunk portion of the dead body was taken out from a well. After conducting the inquest. P. W. 10, sent the dead body to P. W. 14, who had conducted the autopsy over the trunk portion of the body and had issued Ex. P-32 the postmortem certificate. From the evidence lead by the prosecution on the point of homicidal death, we hold that the prosecution was able to prove that the deceased died homicidal death. ( 20 ) THE learned senior Counsel appearing for the appellants Sri Padmanabha reddy submitted at the bar that as far as A-2 to A-7 are concerned, there is no legal evidence to connect them with the crime. According to P. W. 1, A-3 and A-4 had gone to the house of the deceased to call him and the deceased reluctantly had accompanied them on 29. 11. 1994. Though prosecution witnesses 1 and 2 have stated in their evidence that the other accused were standing outside their house when the deceased went along with the other accused, a-3 and A-4 have also followed them. But this portion of the evidence does not appear in the statement recorded under Section 161 cr. P. C. and, therefore, the omission was brought on record by the defence Counsel. With this factual position on record, it was contended by the learned Counsel that the theory put forward by the prosecution through the mouth of P. Ws. 1 and 2 had to be disbelieved. We are in agreement with this submission of the learned Counsel. P. Ws. 1 and 2 are not the eye witnesses to the incident. With this factual position on record, it was contended by the learned Counsel that the theory put forward by the prosecution through the mouth of P. Ws. 1 and 2 had to be disbelieved. We are in agreement with this submission of the learned Counsel. P. Ws. 1 and 2 are not the eye witnesses to the incident. They have spoken about the deceased going along with A-3 and A-4 and not returning till the next day morning. Therefore, both these witnesses went in search of the deceased, but they could not find him. They have further deposed that on their way to home, they met P. W. 4, who is alleged to have told them that A-3 and A-4 had taken the deceased to coconut garden of A-4. Therefore P. Ws. l and 2 went in search of the deceased in the coconut garden of A-4. But they could not find him. P. Ws. 4 and 5 did not support the case of the prosecution by corroborating that portion of the evidence, wherein the evidence of P. Ws. l is to the effect that p. W. s 1 and 2 have met P. W. 4 on their way to home and P. W. 4 directed them towards the coconut garden of A-4. ( 21 ) THE learned Counsel Mr. Padmanabha Reddy further pointed out from the evidence of P. W. 6 that A-1 was alleged to have made a confession before him confessing the guilt. He further submitted that P. W. 6 did not disclose the above matter till the next day evening and that too only after the arrival of the police on the next day evening, he came forward with a case that a-1 made an extra judicial confession before him, alleging to have killed the deceased with the help of the other accused. From this it is clear that the conduct of P. W. 6 is not natural. If at all A-1 had made a confession before him, admitting that he had killed the deceased with the help of other accused, he as a prudent man, should have reported to the police or to the V. A. O. , or at least to the close relations of the deceased i. e. , P. Ws. 1 and 2. Therefore, we are not inclined to place reliance on the evidence of P. W. 6. 1 and 2. Therefore, we are not inclined to place reliance on the evidence of P. W. 6. ( 22 ) WE have the evidence of one more witness i. e. , P. W. 7 on the same point, who also stated that A-1 confessed before him stating that he with the help of other accused, killed the deceased. But this witness also kept quiet for about four days and only on the fifth day he made a statement before the police that A-1 confessed before him having killed the deceased. ( 23 ) WE have the evidence of P. W. 8, who acted as punch witness when the trunk of the dead body was taken out from the well. The defence has no quarrel with the said evidence of P. W. 8 and in fact the defence admits that the dead body of the deceased was taken out from the well. ( 24 ) P. W. 9 is the brother of the deceased, who had also gone in search of the deceased. His evidence is not of much use to connect the accused with the crime. ( 25 ) WE have the evidence of P. W. 10. But we shall come to the evidence of P. W. 10 little later. The other evidence is the evidence of P. W. 11, who had taken the photographs of the trunk portion of the deceased and the well from which the trunk portion was taken out. But this evidence does not lead the prosecution story anywhere. ( 26 ) P. W. 12 who happened to the Assistant Director of Regional Forensic science Laboratory, Visakhapatnam, speaks about the superimposition test. According to him the big size of the photograph of the deceased was given to him. He conducted the superimposition text on the skull and opined that the photograph and the skull tally with each other. ( 27 ) P. W. 13 is the Finger prints Inspector. He also opined that the disputed signature of the deceased tallies with the admitted signature. ( 28 ) THE evidence of P. Ws. 12 and 13 does not add anything to the story put forward by the prosecution to connect the accused with the crime. ( 29 ) P. W. 15 did not support the case of the prosecution and he turned hostile. P. Ws. ( 28 ) THE evidence of P. Ws. 12 and 13 does not add anything to the story put forward by the prosecution to connect the accused with the crime. ( 29 ) P. W. 15 did not support the case of the prosecution and he turned hostile. P. Ws. 16 and 17 are the Constables, who escorted the trunk portion and skull portion of the deceased to the post-mortem examination. ( 30 ) NOW we would like to deal with the evidence of P. W. 10. who acted as punch witness and who also stated that the accused confession before him alleging to have committed the crime. ( 31 ) P. W. 10 happened to be working as Village Administrative Officer at the relevant period. He was called, when S. I. of police recorded the confessional statement of A-1. The confessional statement made by A-1 is brought on record as Ex. P-3. According to this witness, A-1 lead him and the police officer to casurina tope and showed the place where the head portion of the dead body of the deceased was buried. Further according to this witness, A-1 is alleged to have dug that portion of the field, but nothing was found. Therefore, this evidence is absolutely no use to connect the accused with the crime. ( 32 ) ACCORDING to the prosecution A-1 went to the police station and gave first information in the presence of other witnesses. The confessional statement made by A-1 was recorded by the police and on the strength of the statement of A-1, an offence in Cr. No. 38 of 1994 was registered. In the confessional statement made by A-1, he not only involved himself, but also other accused. ( 33 ) WHILE commenting on this evidence, the learned senior Counsel Sri padmanabha Reddy invited our attention to the portion of the judgment, in which the learned trial Judge observed as under:"the trunk portion of the dead body of the deceased was recovered only in pursuance of the disclosure statement made by A-1. A-1 made confession and have voluntarily confessed before P. Ws. 6 and 7 regarding the death of the deceased that himself and other accused are responsible for the cause of the death of the deceased. The first information report ex. A-1 made confession and have voluntarily confessed before P. Ws. 6 and 7 regarding the death of the deceased that himself and other accused are responsible for the cause of the death of the deceased. The first information report ex. P-43 under the confession of A-1 can be used as piece of evidence against A-1 and other accused also as there is sufficient corroboration and there are no contradictions in the evidence of prosecution witnesses in connecting the accused with the crime. " ( 34 ) THE observations made by the learned Judge as extracted above in our considered view are totally erroneous and they are in contravention to the law laid down by the Supreme Court in the decision reported in Haricharan Kurmi v. State of bihar, AIR 1964 SC 1184 . In the said judgment, the Hon ble Supreme Court held as under:"as a result of the provisions contained in Section 30, Evidence Act, the confession of a co-accused has to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a coaccused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. "in one more case reported in A. Nagesia v. Bihar State, AIR 1966 SC 119 , the Apex court of this country held as under:"the law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 to 164 of Code of Criminal Procedure, 1898. Confession is a species of admission, and it is dealt with Sections 24 to 30. Confession is a species of admission, and it is dealt with Sections 24 to 30. A confession or an admission is evidence against the maker of it, if its admissibility is not excluded by some provision of law. Section 25 is imperative, and a confession made to a police officer under no circumstances is admissible in evidence against the accused. The section covers a confession made when he was free and not in police custody, as also the one made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. The partial ban imposed by Section 26 relates to a confession made to a person other than a police officer. The absolute ban imposed by Section 25 on a confession made to a police officer is not qualified by section 26 Section 27 is in the form of a proviso. It partially lifts the ban imposed by Sections 24, 25 and 26. The words section 162 Criminal P. C. are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under section 164 of the Code of Criminal procedure subject to the safeguards imposed by the section. Thus, except as provided by Section 27 of the Evidence act, Section 25 of that Act absolutely protects a confession by an accused to a police officer and it is also protected by section 162 of the Code of Criminal procedure if it is made in the course of an investigation, and a confession to any other person made by him while in the custody of a police officer is protected by Section 26 unless it is made in the immediate presence of a Magistrate. These provisions proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. The provisions are based upon grounds of public policy, and they should be given fullest effect. A confession may be defined as an admission of the offence by a person charged with the offence. The provisions are based upon grounds of public policy, and they should be given fullest effect. A confession may be defined as an admission of the offence by a person charged with the offence. A statement containing self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. When an admission of an accused is sought to be used against him, the whole of it should be tendered in evidence, and where a part of the admission is exculpatory and a part inculpatory, the prosecution cannot use in evidence the inculpatory part only. AIR 1952 SC 343 and AIR 1952 SC 354 , Rel. on the accused can insist that the entire admission including the exculpatory part must be tendered in evidence. But this principle is of no assistance to the accused whereon part of his statement is self exculpatory, and the prosecution intends to use the whole of the statement against the accused. (Para 12) a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation , the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. When the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence ad a non-confessional statement. Each part discloses some incriminating fact i. e. , some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. When a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession. When a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession. (Para 13) in proof of the confession is excluded by any provision of law, such as Section24, section 25 and Section 26 of the Evidence act, the entire confessional statement in all its parts including the admissions of minor incriminating facts has also to be excluded, unless proof of it is permitted by some other section such as Section 27 of the Evidence Act. No substance and content would be left in Sections 24, 25 and 26, if proof of admissions of incriminating facts in a confessional statement is permitted. (Para 14) on a plain construction of Section. 24, proof of all the admissions of incriminating facts contained in a confessional statement made under inducement, threat or promise is excluded by the section. In the same way, Sections 25 and 26 bar not only proof of admissions of an offence by an accused to the police officer or made by him while in the custody of a police officer but also admissions contained in the confessional statement of all incriminating facts related to the offence. (Para 15)" ( 35 ) CONSIDERING the established principles of law, as laid down by the hon ble Supreme Court in the above referred judgments, we are of the view that the learned trial Judge made a gross mistake in believing the confessional statement of A-1, made before the police officer, confessing the guilt and also the guilt of other accused. Under sucuh circumstances, looking to the entire evidence lead by the prosecution, we hold that absolutely there is no evidence against any of the accused. Therefore, we hold that the order of conviction and sentence recorded by the learned trial Judge against the accused appellants is totally erroneous and accordingly we set aside the said sentence and direct that all the accused be set at liberty forthwith if not required in any other case. Fine if paid, be refunded. ( 36 ) THE appeal is accordingly allowed.