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2003 DIGILAW 824 (AP)

Dumala Mallaiah v. State Of A. P.

2003-07-04

BILAL NAZKI, ELIPE DHARMA RAO

body2003
E. DHARMA RAO, J. ( 1 ) ACCUSED 1 to 3 who faced trial for the offences under sections 376 (2) (g), 302 and 201 of the Indian penal Code in Sessions Case No. 292 of 1998 before the learned II Additional sessions Judge (Fast Track Court), nizamabad, are the appellants herein in criminal Appeal No. 418 of 2003, while rt. No. 2 of 2003 was referred by the learned trial Judge for confirmation of death sentence awarded by him to Accused No. 1/ appellant No. l for the offence under section 302 EPC. ( 2 ) THE factual matrix in a narrow compass is that on 5-11-1995 in the morning the deceased Kotha Laxmi left for collecting the firewood in the limits of Jangampally village and while she was collecting firewood near Pedda Cheruvu Alugu Vorre, noticing the victim alone, Accused Nos. l to 3 went to her and Accused No. 1 caught hold of her, forcibly laid her on the ground in the bushes and committed rape on her, while Appellants 2 and 3 kept surveillance, that hearing the screams of the victim, PW9 is said to have witnessed the incident, that when the victim stated that she would inform about the incident to the villagers, Accused 2 and 3 caught hold of her legs and hands while the Accused No. l strangled the deceased with her voni, then all the accused threw her dead body into the rivulet of the cheruvu, then they chased PW9, who escaped from them. PW3 noticed the dead body and informed the same to the complainant - PW1 and a case came to be registered. PW17, Inspector of Police took up investigation, conducted panchanama of the scene of offence in the presence of pw11 under Ex. P6 and Ex. P7 is the sketch and seized M. Os 1 to 3 from the scence of offence. On the next day i. e. , 6-11-1995 inquest was held over the dead body of the deceased in the presence of PWs 11 and 12 under Ex. PS report and sent the dead body for post mortem examination and PW16 conducted autopsy over the dead body under ex. P37. Basing on the said report Section 376 IPC was added. PW17 examined PW9, said to be an eye-witness, on 7-11-1995. On requisition, the Judicial Magistrate of First class, Yellareddy, recorded Section 164 statement of PW9, under Ex. PS report and sent the dead body for post mortem examination and PW16 conducted autopsy over the dead body under ex. P37. Basing on the said report Section 376 IPC was added. PW17 examined PW9, said to be an eye-witness, on 7-11-1995. On requisition, the Judicial Magistrate of First class, Yellareddy, recorded Section 164 statement of PW9, under Ex. P10. He also conducted test identification parade of the accused on 25-11-1995 under Ex. P14, wherein PW9 is said to have identified the appellants. On 9-11-1995 PW17 arrested the appellants 1 to 3 and recorded the confessional statement of A1 in the presence of PW15 and got recovered MO4 under ex. P-42. Likewise, M. Os. 5 to 7 were recovered from A2 under Ex. P42 and M. Os. 8 to 10 from A-3 were recovered. After completion of investigation, the accused were charged for the offences as stated supra. ( 3 ) TO bring home guilt of the accused, the prosecution has examined as many as 18 witnesses and marked Exs. Pl to P45. The defence of the accused was one of a total denial and none were examined on their behalf. ( 4 ) THE Trial Judge having regard to the evidence of PW10 who stated that in the month of November, 1995 when he was in panchayath Office, PW3 came to him and informed that he had seen the dead body of the deceased, that two days thereafter one rudraboila Yellaiah brought his son-in-law sidda Ramulu and also his son i. e. PW9, and PW4 told him that while he was going to his agricultural well, near tank culvert he heard cries of a woman and when he went there he found that appellant was committing rape on her while A-2 and A3 were guarding the scene and committing rape when the victim warned the accused that she would inform to the villagers, they strangled her and threw the dead body in the vague. The court below further observed that if the evidence of PW9 cannot be taken into consideration, the evidence of PW10 can be considered inasmuch as PW9 narrated all the facts to him prior to PW9 s examination by the police. Thus relying on the evidence of PW-10 completely and the circumstantial evidence appearing in this case, though section 164 Cr. The court below further observed that if the evidence of PW9 cannot be taken into consideration, the evidence of PW10 can be considered inasmuch as PW9 narrated all the facts to him prior to PW9 s examination by the police. Thus relying on the evidence of PW-10 completely and the circumstantial evidence appearing in this case, though section 164 Cr. P. C. statement recorded from pw-9 by PW-13, is retracted by PW-9 alleging that it was made under threat of beating by the police, found the appellants guilty for the offence under Section 302 ipc, convicted and awarded death sentence to Appellant No. l, subject to the confirmation by the High Court, while Appellants 2 and 3 were sentenced to suffer imprisonment for life. All the appellants were further convicted for the offence under Section 376 (2) (g) and sentenced each of them to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 5,000. 00 in default to suffer simple imprisonment for one year. They were further convicted for the offence under Section 201 ipc and sentenced each of them to suffer rigorous imprisonment for two years and to pay a fine of Rs. 2,000. 00 in default to suffer simple imprisonment for six months and ordered that all the sentences shall run concurrently. The learned Trial Judge sent the records for confirmation of death sentence awarded against Appellant No. 1 which was numbered as RT 2 of 2003 while and Appellants 1 to 3 preferred Criminal appeal No. 418 of 2003. ( 5 ) IT is contended by Mr. C. Padmanabha Reddy, learned Senior Counsel appearing on behalf of the appellants that the learned Trial Judge has erred in placing reliance on the highly discrepant testimony of PWs. 9 and 10, though PW-9 was declared hostile and the evidence of PW-10 is only hearsay and inadmissible. It is also contended that Section 164 Cr. P. C. statement recorded from PW-9 cannot be used a substantive piece of evidence, more particularly when it is stated by him that the said statement was given before the Magistrate under threat of beatings from the police. It is also contended that reliance ought not have been placed by the Trial Judge on the identification parade proceedings. Contending so, he sought for honourable acquittal of the appellants. It is also contended that reliance ought not have been placed by the Trial Judge on the identification parade proceedings. Contending so, he sought for honourable acquittal of the appellants. ( 6 ) ON the other hand, the learned public Prosecutor vehemently tried to justify the reasons and grounds for conviction. She submits that PW-9 is an eye-witness and inspired confidence of the Court and the evidence of PW-10 is cogent and clinching inasmuch as he has narrated the facts stated by PW-9 before narrating to the police. She further submitted that the detection of semen and spermatozoa of human origin further lends support to the prosecution theory. Therefore, it cannot be said that the conviction and sentence recorded by the Trial Court are unsustainable in law. ( 7 ) BEFORE dwelling on the contentions of both the Counsel and scrutinising the evidence on record, let us examine what is the degree of proof and under what circumstances the capital punishment can be imposed. Mr. Justice V. R. Krishna lyer in ediga Anamma v. State of Andhra Pradesh, (1974) 2 SCC 443, has taken into consideration the social and personal factors to substitute the sentence of life imprisonment in place of death sentence, imposed by the Courts below, having regard to circumstantial evidence and extra judicial confession from the person, which does not necessarily inspire great confidence. ( 8 ) THE Apex Court in yet another case Bachan Singh v. State of Punjab, (1980) 2 SCC 684 , when the constitutional validity of Section 302 IPC and Section 354 (3) of the Code of Criminal Procedure came up for consideration as violative of Articles 14, 19 and 21 of the Constitution of India, after scrutiny of plethora of decisions and reviving the entire case law on the point, upheld the constitutional validity and in paragraph 209 it is held as under:". . . THERE are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing policy writ large in Section 354 (3 ). Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing policy writ large in Section 354 (3 ). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of india, show that in the past, Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354 (3) viz. , that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unequestionably foreclosed. . . " ( 9 ) THEIR Lordships further observed that there are several other indications, also, in the Constitution which show that constitution makers were fully cognizant of the existence of death penalty for murder and certain other offences in Indian Penal code, that in view of the Constitution, by stretch of imagination it can be said that the death penalty under Section 302 IPC either per se or because of its execution by hanging, constitutes an unreasonable, cruel or unusual punishment. It is further observed that most of the countries including those who have subscribed to this international covenant, retain death penalty for murder and certain other crimes even today, that neither the new interpretative dimensions given to articles 19 and 21 by the Apex Court in menaka Gandhi v. Union of India (1978) 1 scc 248 and Charless Sobraj v. Supdt, central Jail, (1978) 4 SCC 104 , nor the acceptance by India of the International covenant on Civil and Political Rights, makes any change in the prevailing standards of decency and human dignity. The international covenant, does not outlaw capital punishment for murder. The international covenant, does not outlaw capital punishment for murder. ( 10 ) THE Apex Court while considering the aggravating circumstances for imposition of capital punishment, has regarded preplanned, calculated, cold blooded murder as one of the aggravated kind. It is also observed that if the murder is diabolically conceived and cruelly executed, it would justify the imposition of the death penalty on the murderer. The said principle was also substantially explained by Mr. Justice V. R. Krishna Iyer, in Ediga Anamma s case, as early as in 1974 in the following terms:". . . THE weapon used and the manner of their use, the horrendous features of the crime and the hapless, helpless state of victim, and the like, steel the heart of the law for a sterner sentence. . . " ( 11 ) FOLLOWING the above judgments, the apex Court in Machhi Singh and others v. State of Punjab, (1983) 3 SCC 470 , formulated the following questions as the test to determine the rarest of the rare case in which death penalty can be inflicted. (A) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (B) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?the Apex Court further observed that the following guidelines that emerge from bachan Singh s case will have to be applied to the facts of each individual case where the question of imposition of death sentence arises: (I) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (II) before opting for the death penalty the circumstances of the offender also requires to be taken into consideration along with the circumstances of the crime (III) life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (IV) a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. ( 12 ) THE Court further observed that in rarest of the rare cases when the collective conscience of the community is so shocked , that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regard desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances. (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community; (2) When the murder is committed for a motive which evinces total depravity and meanness, i. e. murder by hired assassin for money or reward, or cold-blooded murder for gains or a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course of betrayal of the motherland (3) When murder of a member of a Scheduled caste or minority community etc. , is committed not for personal but in circumstances which arouse social wrath, or in cases of bride burning, or dowry deaths, or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of the family or a large number of persons of a particular caste, community or locality, are committed. (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of the family or a large number of persons of a particular caste, community or locality, are committed. (5) when the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed by way of test for the rarest of rare case, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so. . . " ( 13 ) APPLYING these principles to the facts and circumstances of the case on hand, now let us examine the evidence on record to know whether the evidence is sufficient to bring home guilt of the accused-appellants for the offences for which they stood convicted and whether the circumstances warrant capital punishment. ( 14 ) PRIMA facie, a glance of the evidence shows that the case rests on circumstantial evidence, though PW-9 is cited as an eye-witness, whose evidence we are not able to accept for the reasons, which we discuss presently. ( 15 ) IN order to establish the fact that the deceased died a homicidal death, the prosecution examined PWs. 12 and 14 panch for inquest. The inquest is proved under ex. P-8. After inquest, the dead body was sent for post mortem examination and on requisition from the police, PW-16 conducted autopsy over the dead body of the deceased and opined that the death was due to strangulation and issued post mortem certificate under Ex. P-31. Therefore, we hold that the deceased died a homicidal death. ( 16 ) WE shall now examine the evidence as to whether the Appellant No. l has committed rape on the deceased. It is the evidence of PW-2 that on the fateful day at about 9. 00 a. m. the deceased left the house for collecting firewood and at about 1. 00 p. m. he heard some commotion in the village and when he went to the spot, he found dead body of the deceased in a stream. It is the evidence of PW-2 that on the fateful day at about 9. 00 a. m. the deceased left the house for collecting firewood and at about 1. 00 p. m. he heard some commotion in the village and when he went to the spot, he found dead body of the deceased in a stream. What all PW-3 stated is that when he took his sheep to the stream at about 12. 00 noon, he saw a dead body and informed to the Sarpanch, PW-10. Thus no witness spoke about seeing the deceased in the company of the accused or they going to the stream. PWs. 5, 6, 7 and 8 who are supposed to speak about the presence of the accused at the scene of offence have turned hostile and did not support prosecution case. ( 17 ) PW-9, who is said to have witnessed the incident also turned hostile and stated that he does not know how the deceased died. Further, the Doctor PW-16 admitted that the blood clot found in the vagina may be due to menses and that there is possibility of tearing of hymen in the case of hard work by some girls. Thus the chain of circumstances required to connect the accused with the crime when prosecution theory is based on circumstantial evidence is absolutely absent. There are laches on the part of PW-17, Investigating Officer. The prosecution has failed to obtain Expert opinion with regard to blood group. Over and above, PW-9, who is supposed to be the eye-witness, has failed to identify the victim of rape. It is a settled principle of law that when the prosecution case solely rests on circumstantial evidence, the circumstances should form a chain which should point to the guilt of the accused, that the evidence should prove particular facts relevant for the purpose of the case and the proved facts should be such that they should wholly be consistent with the guilt of the accused. Thus the evidence let in by the prosecution is absolute feeble and the chain of events required to connect the accused with the offence is completely absent. Absolutely there is no iota of evidence to hold that the appellant No. l committed rape on the deceased. Thus the evidence let in by the prosecution is absolute feeble and the chain of events required to connect the accused with the offence is completely absent. Absolutely there is no iota of evidence to hold that the appellant No. l committed rape on the deceased. ( 18 ) HAVING held that the deceased died a homicidal death, we shall now proceed to scrutinise the evidence whether it is the accused who have committed her murder. ( 19 ) IT is the evidence of the Sarpanch - pw-10 that PW-3 informed him about lying of the dead body of the deceased near the stream and they informed the matter to the police and two days thereafter, rudraboina Yellaiah brought his son PW-9, who stated to him that while he was going to his agricultural field, near culvert he heard cries of a woman, when he went there he found A-l raping the deceased while A-2 and A-3 were watching the scene. After the rape, when the deceased started taunting the accused - appellants and warned that she will narrate the same to the villagers, the accused caught hold of her and strangled with her voni and threw the dead body in the stream. When the accused started chasing him, being afraid of them, in the darkness he walked upto Muthyampet, boarded a bus, went to Bibipet and from there went Naskal and due to fear did not return to his village for one day. Thus there is delay of two days in informing the incident to his brother-in-law and his father. Therefore, if the evidence of PW-9 who was declared hostile by the prosecution is eschewed from consideration which has to be, the only independent evidence available on record is that of PW-10, which is hearsay in nature and is inadmissible. ( 20 ) IT is the prosecution case that some broken bangle pieces were recovered from the scene of offence, which are supposed to have been broken when the deceased tried to wriggle out from the clutches of the Appellant No. l. Had it been true, certainly there would have been some injuries on the hands of the deceased. But the medical evidence is very much silent about the same. Therefore, the recovery of the bangle pieces MO-1 appears to be planted. But the medical evidence is very much silent about the same. Therefore, the recovery of the bangle pieces MO-1 appears to be planted. ( 21 ) THOUGH PW-9 has deposed all the event before PW-13 in his statement under section 164 Cr. P. C, but when he entered into the witness box in the Court, during the course of trial, stated that the statement was made by him under threat of police as they detained him for two days in the Police Station and wanted him to make such a statement. Therefore, the statement under Section 164 Cr. P. C. and the evidence of PW-10 cannot be looked into muchless can be relied upon to base conviction. That apart, it is a settled principle of law that Section 164 Cr. P. C. statement is. not a substantive piece of evidence, but it can be used only for collateral purpose either to corroborate or to contradict the maker of it. When the maker of such statement has turned hostile and disowned about the making of such statement, the evidentiary value of such a statement cannot be emphasised. ( 22 ) IDENTIFICATION of the accused by the prosecution witnesses during the Test identification Parade conducted by PW-13 is hardly of any significance, inasmuch as the accused and the prosecution witnesses reside in the same village, as admitted by the witnesses themselves. That apart, in a small village where people know each other by names, the identification of accused during the identification parade hardly lends any support to the prosecution story. ( 23 ) THERE is nothing on record to show that the accused have caused disappearance of evidence of the offence. The version of the prosecution that all the appellants lifted the corpse and threw it in the stream to cause disappearance of evidence, is not supported by any clinching and acceptable evidence. ( 24 ) THUS facts of the case are not uncommon and that the murder is not committed in an extremely brutal, grotesque, diabolic and dastardly manner so as to arouse intense and extreme indignation of the community, nor the appreciation of the evidence by the learned Trial Judge falls within the guidelines set out by the honourable Supreme Court in the above cases. Thus this is not the rarest of the rare case and there are no special circumstances to record death sentence against the Appellant no. Thus this is not the rarest of the rare case and there are no special circumstances to record death sentence against the Appellant no. l. Therefore, we have no hesitation in holding that the prosecution has utterly failed to prove any of the charges framed against the appellants - accused. We are further constrained to hold that this is not a case of insufficient evidence but it is a case of no evidence and the learned Trial Judge has grossly erred in accepting the hearsay evidence of PW-10 and retracted statement of PW-9 recorded under Section 164 Cr. P. C. and recorded fancy conviction. Accordingly, the Referred Case No. 2 of 2003 is dismissed and the Criminal Appeal 418 of 2003 is allowed setting aside the conviction and sentence recorded against the appellants herein. They are directed to be released forthwith, if they are not required in any other offence. ( 25 ) BEFORE parting with the case, noticing the present tendency of the Judicial officers, we are constrained to observe that it is high time to impress upon the Judicial officers to follow the guidelines enumerated in Bachan Singh s case and Machhi Singh s case, referred supra, and then record conviction whenever there is clinching and satisfactory evidence and after recording special reasons, giving a balance sheet of aggravating and mitigating circumstances, they can award capital punishments. ( 26 ) IT is a clear case of acquittal. There is not an iota of evidence connecting the accused with the crime. On hearsay evidence, as my brother pointed out, the Trial Court convicted the appellants under an offence of murder without there being an iota of evidence. The learned additional Sessions Judge also went to the extent of sentencing one of the appellants with death sentence. Life and death of persons, if treated so shabbily by Senior judicial Officers like Sessions Judges, the judicial system of this country itself would be at stake. We are pained to note that the officers of the cadre of the Sessions Judges are not aware of even the basics of criminal law and to satisfy their sadistic pleasures they award sentences of death. A copy of this order shall remain placed on the personal file of the II Additional Sessions Judge (Fast tract Court), Nizamabad. We are pained to note that the officers of the cadre of the Sessions Judges are not aware of even the basics of criminal law and to satisfy their sadistic pleasures they award sentences of death. A copy of this order shall remain placed on the personal file of the II Additional Sessions Judge (Fast tract Court), Nizamabad. We also recommended that the Officer shall be not placed as Sessions Judge at least for some time till he improves and once a report is given by a Portfolio Judge about the improved capability of the Officer, then only he may be considered for being posted as a Sessions judge. For the present the High Court should consider the possibility of posting him at a place where there is no criminal work.