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2003 DIGILAW 412 (AP)

KODAMALA PRABHAKAR v. State Of A. P.

2003-03-12

S.R.K.PRASAD

body2003
RAMESH MADHAV BAPAT, J. ( 1 ) THE sole accused in Sessions Case No. 361 of 1999, which was decided by the Additional sessions Judge, Hindupur, is the appellant herein. The accused was tried for the offence punishable under Section 302 IPC. On evidence, the learned Judge found him guilty of the said offence and therefore the accused was convicted and sentenced to suffer imprisonment for life and also pay a fine of rs. 1,000/- in default to suffer simple imprisonment for six months. Aggrieved by the aforesaid order of conviction and sentence, the accused has filed the present appeal. ( 2 ) THE substance of the charge against the accused was that on the night of 1st February, 1999 at about 8. 00 p. m. on the river bed of the Penna situated in the fields of one Chikkareddygari Narasimha reddy of Balireddypalli, Parigi Mandal, the accused was alleged to have caused the death of one Kogira Chakali Sai Prathap by hacking him with a sickle on the head, neck and throat. ( 3 ) THE Prosecution story can briefly be narrated as follows:- The accused is a resident of Puttaparthi. He migrated to hindupur and was staying with his eider sister. He was employed in Super Spinning mills at Hindupur as a casual labour. The accused was running a pesticide shop in the first floor of B. S. T. Lodge building. It is further stated by the prosecution that the accused, PW6, PW10 and the deceased were close friends and they used to consume liquor together. The accused was working under one Shiva in a medical shop. The wife of Shiva and the accused developed extra-marital relationship. After sometime, she secured a Job at Madakasira. But her relationship with the accused continued. The owner of the medical shop named shiva shifted his family to Madakasira. But, his wife was continuing the relationship with the accused. It is further stated by the prosecution that the accused, PW6, PW10 and the deceased used to consume liquor together in Ajay Bar, which is situated opposite to the R. T. C. Bus Stand. About 2 years prior to the incident, a quarrel took place in Ajay bar in between the deceased and the accused with regard to a woman and both of them abused with each other. PW6 intervened and separated them. About 2 years prior to the incident, a quarrel took place in Ajay bar in between the deceased and the accused with regard to a woman and both of them abused with each other. PW6 intervened and separated them. At that time, the accused tried to beat the deceased but the blow fell on the right eyebrow causing an injury to PW6. At that time, the accused threatened the deceased that he would kill him. When the deceased went to the house of PW3, she questioned him regarding the injuries on the right cheek and the right side of the ribs. The deceased informed her that the accused beat him. It is further stated by the prosecution that on the evening of 31st January, 1999 the accused was passing in front of the house of PW3 when questioned, he was informed that he would see the end of the deceased as he was having an affair with his concubine. It is further stated by the prosecution that on the evening of 1st February, 1999 by about 8. 00 p. m. , the accused went to the house of PW3 and called the deceased and informed him that he has some work with him. Further, he informed PW3, that they compromised the dispute. At that time the accused was holding a plastic cover. Both of them went towards Balireddypalli. PW8, the night watchman of Z. P. High school, Muddireddipalli, saw the accused and the deceased going together towards the riverside. When P. W. 8 enquired the deceased, he informed that they were going to Penna River. He also informed that they were going there to have a compromise. PW8 found a packet in the hands of the accused. At about 9. 30 or 10. 00 p. m. , PW8 found the accused coming alone and when he questioned him, the accused replied that the deceased had gone to Muddireddipalli. He was holding something wrapped in a newspaper. When enquired by PW10, he said that he had some urgent work and left the place. On 2-2-1999, PW. 2, the Talari of sasanakota Village, found one dead body on the bank of River Penna in Balireddypalli limits. Then, he went to PW. 1, the Village administrative Officer of Kodigenahalli village and informed the same. Then, P. Ws. When enquired by PW10, he said that he had some urgent work and left the place. On 2-2-1999, PW. 2, the Talari of sasanakota Village, found one dead body on the bank of River Penna in Balireddypalli limits. Then, he went to PW. 1, the Village administrative Officer of Kodigenahalli village and informed the same. Then, P. Ws. 1 and 2 proceeded to the scene of offence and found the dead body with injuries on the head. PW. 1 found the Identity Card in the pant pocket of the deceased. At about 10. 00 p. m. , P. W. I went to Parigi Police station and gave a report to the police. Ex. P. 1 is the report. P. W. 15, the Asst. Sub- inspector of Police, registered the case in crime No. 5 of 1999 under Section 302 i. P. C. , and prepared the copies of F. I. R, and sent the same to all concerned. Ex. P. 11 is the F. I. R. sent to the Court. Then he enquired from the Super Spinning Mills whether the deceased was working there. Thereafter at about 10. 30 p. m. , Tie proceeded to the scene of offence. Then, P. W. 15 examined p. Ws. 1 and 2. Thereafter, he proceeded to the house of P. W. 3 and informed her about the dead body and requested her to come to the scene of offence on the next day morning. On 3-2-1999, P. W. 16 Fingerprint inspector, District Police Inspector, Anantapur went to the scene of offence and examined the article. He obtained two chance fingerprints on Haywards 5000 beer bottle. He also obtained finger impressions of the deceased for comparison. PW17, the Inspector of Police, Hindupur rural Police Station, took up Investigation and went to scene of offence and held inquest over the dead body of the deceased between 8. 00 a. m. and 11. 30 a. m. During the inquest, he examined PWs. 2, 3,4 and others and recorded their statements. Thereafter, he prepared a rough sketch, Ex. P16. He also seized MOs. 15 and 16, the liquor bottles. Thereafter the dead body was sent for post-mortem examination. PW12 Dr. T. S. Divakar, Civil Assistant surgeon, Government Hospital, Hindupur conducted autopsy over the dead body of the deceased at 2. 00 p. m. On 3-2-1999, he found four external injuries on the person of the deceased. Ex. P16. He also seized MOs. 15 and 16, the liquor bottles. Thereafter the dead body was sent for post-mortem examination. PW12 Dr. T. S. Divakar, Civil Assistant surgeon, Government Hospital, Hindupur conducted autopsy over the dead body of the deceased at 2. 00 p. m. On 3-2-1999, he found four external injuries on the person of the deceased. Ex. P6 is the post-mortem certificate. According to the doctor, the death was due to multiple injuries. On the same day, he also examined pw6 and found a contusion on the right eye. Ex. P7 is the wound certificate. On 18-2-1999 at about 3. 00 p. m. , the accused went to the house of PW13, the Village administrative Officer, Hindupur town and confessed that on 1-2-1999, he killed the deceased and requested him to help him to surrender before the Police. Then, pw13 prepared Ex. PS report addressed to the Inspector, Hindupur Rural Police station and produced the accused in the police Station. The Inspector of Police interrogated the accused and recorded his confessional statement. Ex. P21 is the confessional statement of the accused. In pursuance of confessional statement, the accused led them to the Central Enterprises in B. S. T. lodge and produced MOs. 4 and 5 wrapped in a newspaper. MOs. 17 and 18 are the newspapers. On 19-2-1999, PW17 obtained the fingerprints and after obtaining the report, PW17 laid the charge-sheet on 18. 6. 1999. ( 4 ) THE defence of the accused is one of total denial. ( 5 ) IN order to prove that the deceased died homicidal death, the prosecution wants to rely upon the evidence of PW17, who had conducted inquest over the dead body of the deceased. PW11 had acted as inquest panch. Ex. P5 is the inquest report. After the inquest was over, the dead body of the deceased was sent to PW12 for conducting post mortem examination. PW12 happened to be working as Civil Assistant Surgeon, government Hospital at Hindupur. On a requisition from the Station House Officer, parigi, he conducted autopsy over the dead body of the deceased and noticed the following features and external injuries on the person of the deceased. Rigour mortis present in upper and lower limbs. Blebs over the abdomen present. Eyes closed. Mouth open. On a requisition from the Station House Officer, parigi, he conducted autopsy over the dead body of the deceased and noticed the following features and external injuries on the person of the deceased. Rigour mortis present in upper and lower limbs. Blebs over the abdomen present. Eyes closed. Mouth open. External injuries : (1) Lacerated injury over the head extending from the middle of the left side of the head to the left angle of the mouth. Left eye crushed. Skull was broken into multiple fractures. Brain matter escaped. Length of the wound is 9 x 3 inches. (2) Cut injury over the left side of upper neck 6x1x2 inches horizontally placed. Clotting blood present. (3) Cut injury below injury No. 2 horizontal 3 x 1/2 x 1/2 inches. (4) Seven stab injuries over upper part of chest extending from the middle of upper chest to right shoulder point, each measuring about 1 inch length, 1x2x1/2 inch width and one inch depth. (5) Lacerated injury over skull horizontal to injury No. 1 measuring 6" x 1/2" (6) Cut injury below the jaw 4x2x1 inches. (7) Cut injury below injury Nos. 6, 4 x 1 1/2 x 1/2 inches. Tongue was bitten. Left incisor teeth absent. On internal examination, he noticed the following internal injuries on the person of the deceased. Internal injuries :scalp was lacerated on left side. Skull : multiple fractures present. Brain and meninge lacerated. Brain matter soft. Neck was cut at the level of Thyroid cartilage. Hyoid fracture present at right cornu. Thorax : Right second rib fractured. Other ribs normal. About 100 ml of blood present in right thoracic cavity. Left thoracic cavity empty. Right lung congested. Upper lobe contused. Left lung congested. Heart pale both chambers empty. Abdomen distended Peritoneal cavity free. Stomach : Mucasa red about 100 gm of orange red colour partially digested food present. Liver pale. Spleen congested. Kidneys both pale. Small and Large intestines distended and filled with Gas. Bladder empty. Spinal cord in intact. The Doctor has opined that the deceased might have died due to shock and haemorrhage due to multiple injuries within 24 to 48 hours prior to the post mortem examination. He has further opined that injuries 1 and 2 mentioned in Ex. P6 are possible with a weapon like sickle, which has been shown in the Court. The Doctor has opined that the deceased might have died due to shock and haemorrhage due to multiple injuries within 24 to 48 hours prior to the post mortem examination. He has further opined that injuries 1 and 2 mentioned in Ex. P6 are possible with a weapon like sickle, which has been shown in the Court. According to him, the other injuries 3 to 7 are possible with a weapon like knife, which has been shown in the Court. All the above injuries are ante mortem in nature. As per his observation, he issued Ex. P6 the post-mortem certificate. Considering the evidence led by the prosecution on the point of homicidal death; we do hold that the deceased did die homicidal death. ( 6 ) IN order to bring the guilt to the home of the accused, the prosecution led the evidence of P. Ws. 1 to 17. The documents produced and proved by them were marked as Exs. P-1 to P-24. Certain contradictions in the cross-examination of prosecution witnesses were brought on record by the defence and they were marked as Exs. D1 to D10. The incriminating articles produced by them were marked as m. Os. 1 to 18. Out of the witnesses examined, PW1 happened to be the Village Administrative officer of Kodigenahalli village. He was informed about the finding of the dead body by PW2, who was the Talari of sasanakota village. On getting the information from PW2, PW1 went along with PW2 to the scene of offence and noticed the dead body. He also found the identify card in the pant pocket of the deceased. Thereafter he went to the Police station and lodged the first information regarding the finding of dead body. The first Information was received by P. W. 15, who was working as A. S. I. On the strength of first information Ex. P-1, he registered the case in Crime No. 5 of 1999 under section 302 IPC. Thus, the Police machinery was set in motion. PW3 happened to be the elder sister of the deceased with whpm the deceased was staying. The prosecution examined the said witness in order to prove the fact that on the night of the incident, the accused has visited her house and had called the deceased and both of them went towards penna river. PW3 happened to be the elder sister of the deceased with whpm the deceased was staying. The prosecution examined the said witness in order to prove the fact that on the night of the incident, the accused has visited her house and had called the deceased and both of them went towards penna river. Thus, PW3 was made to speak that the deceased was found in the company of the accused. PWs. 4, 5, 6 and 7 are the witnesses from Ajay Bar. Out of these witnesses P. Ws. 6 and 7 did not support the prosecution. The evidence of PWs. 4 and 5 shows that they were the persons employed in Ajya Bar. According to their evidence, the accused, the deceased and p. W. 6 were visiting their Bar regularly for consuming liquor. Their evidence further shows that on one occasion there was a quarrel in between the accused and the deceased with regard to a woman, who was the concubine of the accused. The deceased alleged to have developed illicit relations with her. At that time the accused alleged to have threatened the deceased to see his end. The evidence of PW8 discloses that he was working as Night Watchman in Z. P. High School, Muddireddipalli, which was situated on the road leading to Penna river. According to his evidence, he knew the accused and the deceased very well. On the date of the offence during night time he had seen the accused and the deceased going towards Penna river. Then he asked both of them as to where they were going. Thereafter both of them alleged to have replied to PW8 that they were going towards Penna river. Thus, this witness was examined by the prosecution that he had also seen the deceased in the company of the accused before his death. PW9 does not throw much light on the prosecution case. He is the owner of the land where the dead body of the deceased was found lying. By the evidence of PW9, the prosecution story does not proceed further. PW10 is the friend of the deceased and the accused. After committing murder of the deceased, the accused was returning all alone. PW10 had found him carrying something wrapped in a newspaper. By the evidence of PW9, the prosecution story does not proceed further. PW10 is the friend of the deceased and the accused. After committing murder of the deceased, the accused was returning all alone. PW10 had found him carrying something wrapped in a newspaper. When questioned, the accused alleged to have replied that he was in hurry to go and he left the place without answering the query made by PW10. PW10 was one of the partners in the company of the accused, deceased and PW6, who were consuming liquor regularly in Ajay Bar. PW11 is the inquest panch. PW12 is the Doctor, who had conducted autopsy over the dead body of the deceased and issued post mortem certificate Ex. P6. There is one more important piece of evidence relied by the prosecution by examining PW13, who happened to be the village Administrative Officer of Hindupur town. According to the version of PW13, the accused went to him on 18-2-1999 at about 3-00 p. m. and alleged to have confessed guilt before him having killed the deceased on 1-2-1999. P. W. 13 gave his report stating that the accused confessed guilt before him and whatever confession made was reduced into writing by PW13. PW13 himself took the accused to the taluk Police Station, Hindupur. Thus, his arrest was affected. PW14 is the panch witness for the confessional statement. According to the prosecution, the accused was arrested. When he was in the police custody, he made a confessional statement expressing his willingness to discover the incriminating articles. However, PW14 turned hostile and did not support the prosecution. PW15 is the A. S. I, who has registered the case in Crime No. 5 of 1999 on the strength of the report given by PW1. PW16 is the Finger Print Expert. On a requisition made to him, he had visited the scene of offence and tried to find out whether there were any chance prints on the articles lying here and there. The evidence of PW16 shows that he could find some impressions on the beer bottle. He had also obtained fingerprints of the deceased for the purpose of comparison. They were found to match each other. PW15 also found some fingerprints on other liquor bottle. The Police supplied him with the fingerprints of the accused by registered post. The evidence of PW16 shows that he could find some impressions on the beer bottle. He had also obtained fingerprints of the deceased for the purpose of comparison. They were found to match each other. PW15 also found some fingerprints on other liquor bottle. The Police supplied him with the fingerprints of the accused by registered post. On receipt of fingerprints of the accused, he had made comparison of the fingerprints, which was found on the liquor bottle and they were found to be identical with each other. PW17 is the Investigating Officer, who had investigated the case. Thus, after the scrutiny of the evidence, we can say that the prosecution mainly relied upon the motive on the part of the accused to kill the deceased. The second ground on which the prosecution wants to rely upon is the confessional statement, which is alleged to have been made by the accused to the Village Administrative Officer confessing his guilt and the last part of evidence is that the accused was found in the company of the deceased. All these points stand proved by the evidence recorded by the prosecution. White summing up the circumstances constituting links to form complete picture, the learned Sessions Judge observed in his judgment at para (37) as under:1. The motive for killing the deceased by the accused was with regard to a woman by name Vijaya and the jealously for the accused in deceased developing close illegal intimacy with that lady with whom he was introduced by the accused;2. The accused purchasing Hayward whisky bottle, Bagpiper, whisky bottles and hayward 5000 beer bottle on the evening of 1-2-1999 from Ajay Wine shop proved through the evidence of PWs. 5 and 7, then also purchasing Non-Vegetarian food and approaching PW3 s house and taking the deceased on the premise that they intend to patch up their differences by celebrating the occasion, as established by the evidence of PW3;3. The deceased was last seen in the company of the accused, established through the evidence of PW8 and the accused alone returning established by pws s evidence and PWlo s evidence establishing the accused moving hurriedly without answering when he was questioned from where he was coming with paper packet, hiding behind his back in his hands;4. Finding Hayward whisky bottle, Hayward beer Bottle and Bagpiper whisky bottle. Finding Hayward whisky bottle, Hayward beer Bottle and Bagpiper whisky bottle. Which were empty and left-over non- vegetarian stuff near the dead body;5. The Fingerprints Inspector PW16 examining b chance print and finding in the light of ten identical ridge characteristics with that of middle finger prints of the accused and tendering report eliminating everyone, except the accused s complicity;6. Extra-judicial confession before PW13 under Ex. P. 8 by the accused on 18-2- 1999 at 3. 00 p. m. , at his house, which is admissible as per Section 25 of Evidence act, though not associated with recovery of any incriminating object; ( 7 ) DISCLOSURE statement proving through the evidence of PW14, leading to the recovery of M. Os. 4 and 5 from the shop of the accused; ( 8 ) THE medical evidence probablishing that the injuries 1 and 2 were possible with mo4 and other injuries 3 to 7 were possible with M. O. 5 and thus corroborating other incriminating material on record; ( 9 ) REPORT of the Regional FSL, Anantapur, establishing that the blood found on m. Os. 4 and 5 is that of human origin; the learned Counsel appearing on behalf of the accused-appellant submitted that according to the prosecution, the accused made a confessional statement before the village Administrative Officer confessing his guilt, which was retracted subsequently and therefore retracting confession cannot be the sole basis for conviction and it requires corroboration. While rebutting the aforesaid arguments, the learned Public Prosecutor drew our attention to the recent decision of the Apex court reported in Gura Singh v. State of rajasthan, (2001) 2 SCC 205 , their Lordships in para 6 of the judgment were pleased to observe as under:"6. It is settled position of law that extra- judicial confession, if true and voluntary, it can be relied upon by the Court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier Judgment in Rao shiv Bahadur Singh v. State of Vindhya pradesh this Court again in Maghar Singh v. State of Punjab held that the evidence in the form of extra-judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of M. P. this Court cautioned that it is not open to the Court trying the criminal case to start with a presumption that extra- judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extra-judicial confession, which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand v. State of H. P. this Court held that an unambiguous extra-judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent sections 25 and 26. The Court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. The Court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutizied. To the same effect is the judgment in Baldev raj v. State of Haryana. After referring to the judgment in Piara Singh v. State of punjab this Court in Madan Gopal Kakkad v. Naval Dubey held that the extra-judicial confession which is not obtained by coercion, promise or favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration. "as laid down by their Lordships of the supreme Court and applying the ratio to the present set of facts, we are of the considered view that PW13 had not obtained the confessional statement of the accused by coercion. The accused himself went to PW13 and confessed the guilt before him voluntarily. That confession is retracted and it does not required any corroboration as per the latest ruling cited above because the evidence of PW13 inspires confidence. From the above legal position, retracted confession does not require any corroboration but we are inclined to say that there is corroboration in the present case in the form of last seen the deceased in the company of the accused. There is further corroboration that the prosecution was able to establish the motive. There is further more corroboration in the form of medical evidence. There is also corroboration of finding of chance fingerprints of the accused on the material objects recovered from the scene of offence. Considering the entire prosecution case, we are of the considered view that the judgment of the Trial Court does not require any interference at the hands of this Court. Therefore, we dismiss the appeal, confirming the order of conviction and sentence recorded against the accused- appellant herein.