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2004 DIGILAW 1345 (AP)

Nelapati Luka Babu v. State Of A. P.

2004-11-10

P.S.NARAYANA

body2004
( 1 ) (CRIMINAL Appeal under Section 374 (2) Crl. P. C. against the judgment dated 12/07/1999 made in SC No:679 of 1998 on the file of the Court of the IV Additional Sessions Judge, Guntur) a-1 in Sessions Case No. 679 of 1998 on the file of IV Additional District and Sessions Judge, Guntur preferred the present criminal appeal. The learned Judge on appreciation of the evidence of PWs. 1 to 13. Exs. P1 to P16 and M. Os. 1 to 3 recorded acquittal of A1 and A2 relating to the charge under Section 302 of Indian Penal Code and found A1 alone of an offence under Section 201 IPC and sentences him to suffer rigorous imprisonment for a period of 5 years and imposed a fine of Rs. 5,000/- in default to suffer simple imprisonment for six months. Hence, the present criminal appeal by the appellant-A1. ( 2 ) SRI C. Padmanabha Reddy, the learned Senior Counsel representing appellant-A1 would contend that having recorded acquittal as far as the charge under Section 302 of IPC is concerned, convicting A1 under Section 201 IPC, in the facts and circumstances of the case, cannot be sustained. The learned counsel also would submit that Ex. P1 is the report, on the strength of which the criminal law set in motion. But, however PW. 1 disowned Ex. P1 stating that she was asked to sign the same by the police. Apart from this aspect of the matter, none of the witnesses had supported the version of the prosecution. The learned counsel also would point out that just on the strength of the medical evidence to the effect that it is homicidal death and there were several external injuries on the face and head of the deceased, conviction was recorded as against A1. In a case of this nature based on circumstantial evidence, unless there is clear proof beyond reasonable doubt conviction imposed by the learned Judge cannot be sustained. Even otherwise, the ingredients of Section 201 IPC are not satisfied in the present case. ( 3 ) PER contra, Sri Osman Shaheed, the learned Additional Public Prosecutor would contend that the medical evidence would clearly show that it is a homicidal death and there are as many as seven external injuries on the head and face of the deceased and this would be sufficient to cause death. ( 3 ) PER contra, Sri Osman Shaheed, the learned Additional Public Prosecutor would contend that the medical evidence would clearly show that it is a homicidal death and there are as many as seven external injuries on the head and face of the deceased and this would be sufficient to cause death. The death occurred in the house of A1 only. Despite the same, definitely it should be taken to be within the exclusive knowledge of A1 and A1 made a serious attempt to screen the same as revealed by his conduct. The learned Additional Public Prosecutor also would submit that mere fact that PW. 1 disowned Ex. P1 or other witness were declared hostile would not definitely entitle the appellant/a1 to get acquittal in view of the medical evidence, in view of his conduct and in view of other circumstances which would definitely point out the guilt of the appellant/a1. The learned Additional Public Prosecutor also had taken this court through the evidence available on record in general and medical evidence in particular. Heard both the counsel. ( 4 ) PERUSED the evidence available on record and also the findings recorded by the learned by the learned judge. As already specified supra, the accused were charged with Section 302 IPC and also Section 201 IPC and acquittal was recorded as far as A2 is concerned and in view of the specific charge framed as against A1 under Section 201 IPC, the appellant/a1 was found guilty of the said offence. The case was registered as P. R. C. No. 29 of 1998 by Additional Munsiff Magistrate, Sattenapally and the same was committed to the Court of Sessions and the learned Sessions Judge made over the same to the IV Additional Sessions Judge, Guntur which had recorded the evidence of PWs. 1 to 13 and marked Ex. P1 to P16 and M. Os. 1 to 13 and found appellant-A1 alone guilty of an offence under Section 201 IPC. ( 5 ) THE case of the Prosecution is that appellant/a1 and Kamalakshi (hereinafter referred to as the deceased) were married in the year 1974 and they got four children. A1 used to harass the deceased to part her money earned as ANM. A1 developed illicit intimacy with A2 and both of them were harassing the deceased and the deceased used to inform this to her sister Kamalamma-P. W. 1. A1 used to harass the deceased to part her money earned as ANM. A1 developed illicit intimacy with A2 and both of them were harassing the deceased and the deceased used to inform this to her sister Kamalamma-P. W. 1. It is also the case of the prosecution that on 21. 2. 1998 at about 9. 00 A. M. , A1 and A2 picked up a quarrel with the deceased and thereafter A2 left the house under suspicious circumstances and A1 was found calling the neighbors informing the death of his wife. P. Anjaneyulu, Thota Sreenu and Puli Rambabu, who are masons and workers attending their work in the neighboring house, witnesses A2 leaving the house under suspicious circumstances and also A1 calling the neighbours. Meduri George William Carrey, Kota Kanakavalli and A. Koteswaramma came there. A1 gave contradictory version stating that his wife died due to gas leakage and due to heart attack and she was found lying dead on the ground. Her death was confirming by a Private Medical Practitioner and later at Government Hospital, Sattenapally. PW. 1 after coming to know the death of her sister, came to the scene of offence, but by the time she came, the dead body was already shifted to Pulidevarlapadu village, native place of A1 where she was buried as per caste customs. On a report given by PW. 1 on 22. 2. 1998, case was registered under Section 174 of Code of Criminal Procedure by the Sub-Inspector of Police, Sattenapally, who visited the burial ground, observed the same and seized partly burnt clothes in the presence of mediators under the cover of mahazar. The body was exhumed and inquest was held by the Mandal Revenue Officer and later spot post-mortem was conducted by Dr. Vijaya Saradhi and Dr. Parasu Ramaiah, who opined that the external injuries found on the body of the deceased were sufficient to cause death. The case of the prosecution is that A1 is having illicit intimacy with A2 and they together harassed the wife of A1, i. e. , the deceased and mother four children and ultimately killed her on 21. 2. 1998 at about 9. 00 P. M. There are no eyewitness to the incident. PWs. The case of the prosecution is that A1 is having illicit intimacy with A2 and they together harassed the wife of A1, i. e. , the deceased and mother four children and ultimately killed her on 21. 2. 1998 at about 9. 00 P. M. There are no eyewitness to the incident. PWs. 2 to 4, masons and workers are said to be the eye witnesses relating to what happened in the house of A1 and A2 leaving the house under suspicious circumstances and subsequent thereto A1 making hue and cry about the death of his wife. PWs. 5 to 7 are the neighbours. The deed body of the deceased was taken away by A1 prior to the arrival of PW1 and the same was buried. The defence was one of total denial and acquittal had been recorded both as against A1 and A2 in relation to the charge under Section 302 IPC. 5. PW. 1, the sister of the deceased, deposed that the marriage between the deceased and A1 was not an arranged marriage and it was a love marriage. She also deposed that she received a phone call as to the demise of her sister, hence herself, her husband and her relatives came to the Sattenapally to the house of her sister and found her dead. A1 took the body of the deceased to Pulidevarlapadu village, the native village of A1, and on that day the body of the deceased was buried. PW. 1 also deposed that they all went to the burial ground and the police obtained her signature on a written report and she does not know who scribed it, as the said report was not written in her presence. The said report, on which PW. 1 scribed her signature, is Ex. P1. This witness was declared hostile and the statement said to have been made by her to police was marked as Ex. P2. PWs. 2 to 7 were declared hostile. PW. 8, the Village Administrative Officer deposed that he acted as mediator on 28. 2. 1998 at the time of observation of scene of offence by police. Ex. P9 is the mediators report. At that time police seized saree and pant M. Os. 1 and 2 respectively. PW. 9 deposed that he had signed the mediatornama, Ex. P10 and he also acted as inquestdar and Ex. P11 is the inquest report. 2. 1998 at the time of observation of scene of offence by police. Ex. P9 is the mediators report. At that time police seized saree and pant M. Os. 1 and 2 respectively. PW. 9 deposed that he had signed the mediatornama, Ex. P10 and he also acted as inquestdar and Ex. P11 is the inquest report. M. O. 3 is the silk saree found on the dead body. Mandal Revenue Officer was present at that time. PW. 10 is another Village Administrative Officer, who acted as mediators at the time of inquest over the dead body of the deceased. PW. 11 is the Doctor, who deposed about conducting of inquest over the dead body of the deceased. This witness deposed that on 23. 2. 1998 at about 10. 20 A. M. on written requisition from Mandal Revenue Officer, Muppalla, himself and his senior colleague Dr. Parasu Ramaiah, proceeded to Pulidevarlapadu village and they were present at the time of exhumation of the body and after conducting the inquest, the body was handed over at 2. 10 P. M. , for post mortem examination. Spot post-mortem was held and they noted the injuries as external and internal in the presence of inquestdars. Though they preserved hyoid and viscera for examination of R. F. S. L. , they did not sent it. On 27. 2. 1998, the Sub-Inspector of police had given them the questionnaire asking them to certify whether ante-mortem injuries found by them are sufficient to cause death and they expressed opinion that they were sufficient to cause death. Ex. P12 is the post-mortem report and Ex. P13 is the questionnaire given to them with answers Ex. P14. ( 6 ) THE learned Additional Public Prosecutor placed strong reliance on this evidence and would submit that there is no cross-examination and hence, in the light of the evidence of PW. 11, the learned Additional Public Prosecutor would contend that it can be taken that the deceased died under strong suspicious circumstances. PW. 12 is the Sub-Inspector of Police, Sattenapally, who deposed about the details of investigation and exhibit-P series, which had been marked in relation to the witnesses who were declared hostile, also had been proved through the investigating officer. Ex. P1 said to have been given by PW. 1, reads hereunder: my younger sister Perupogu Grace Kamalakshi, A. N. M. , died on 21. 2. 1998 at 9. Ex. P1 said to have been given by PW. 1, reads hereunder: my younger sister Perupogu Grace Kamalakshi, A. N. M. , died on 21. 2. 1998 at 9. 00 hours under suspicious circumstances. ( 7 ) BY the time of our arrival together with the relatives from Krosuru, the dead body was removed to Paludevarlapadu from Nagarjunasagar colony. Without out knowledge, they are trying to keep in the tomb. Sir, four children to my younger sister. Due to the present circumstances, the children are also with fright. Hence, I request to cause investigation regarding this death and do justice to us. However, PW. 1 when examined in Court had given a go-by to the said version and had deposed that she is not aware of the contents of Ex. P1 and just police asked to sign her. Much comment was made on the conduct of appellant/a1 in hurriedly taking away the dead body of the deceased and burying the same. It is no doubt true that this would create strong suspicion. As per the evidence available on record there is sufficient time gap in between the burial and exhumation and conducting post-mortem over the dead body of the deceased. This is a case based on circumstantial evidence and none of the witnesses had supported the version of the prosecution. The evidence available on record is that of mediators, the medical evidence and the evidence of the Investigating Officer. It is needless to say that in a case based on circumstantial evidence, the prosecution should be able to establish the circumstances in such a fashion so as to point out the guilt of the accused and guilt of the accused alone and in the absence of the same benefit of doubt may have to be given to the accused. ( 8 ) SECTION 201 IPC deals with causing disappearance of evidence of offence, or giving false information to screen offender. Section 201 IPC reads: section 201. CAUSING DISAPPEARANCE OF EVIDENCE OF OFFENCE, OR GIVING FALSE IFNORMATION TO SCREEN OFFENCER:- whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with intention gives any information respecting the offence which he knows or believes to be false. ( 9 ) IF a capital offence shall if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. ( 10 ) IF punishable with imprisonment for life and if the offence is punishable with imprisonment for life, or with imprisonment which may extent to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punished with less than ten years imprisonment and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extent to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both. ( 11 ) ILLUSTRATION a knowing that B has murdered Z assists B to hide the body with the intention of screening B from punishment. A is liable to imprisonment of either description for seven years, and also a to fine. In Palvinder Kaur vs. State of Punjab ( AIR 1952 SC 354 ) while dealing the aspect of circumstantial evidence in relation to Section 201 IPC, the Apex Court held: whether Jaspal committed suicide or died of poison taken under a mistake or whether poison was administered to him by the appellant or by Mohinderpal or by both of them are questions the answers to which have been left very vague and indefinite by the circumstantial evidence in the case. In view of the situation of the parties and the belated investigation of the case and the sensation it created it was absolutely necessary for the Courts below to safeguard themselves against the danger of basing their conclusions on suspicions howsoever strong. In view of the situation of the parties and the belated investigation of the case and the sensation it created it was absolutely necessary for the Courts below to safeguard themselves against the danger of basing their conclusions on suspicions howsoever strong. It seems to us that the trial Court and to a certain extent the High Court fell into the same error against which warning was given by Baron Alderson in Reg v. Hodge, (1838) 2 Lewin 227, where he said as follows: the mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete. ( 12 ) WE had recently occasion to emphasize this point in Hanmant Govind Nargundkar v. The State of Madhya Pradesh, Cri. Appeals Nos. 56 and 57 of 1951 (S. C. ). In order to establish the charge under S. 201, Penal Code, it is essential to prove that an offence has been committed mere suspicion that it has been committed is not sufficient that the accused knew or had reason to believe that such offence had been committed and with the requisite knowledge and with the intent to screen the offender from legal punishment causes the evidence thereof to disappear or gives false information respecting each offences knowing or having reason to believe the same to be false. It was essential in these circumstances for the prosecution to establish affirmatively that the death of Jaspal was caused by the administration of potassium cyanide by some person (the appellant having been acquitted of this charge) and that she had reason to believe that it was so caused and with that knowledge she took part in the concealment and disposal of the dead body. There is no evidence whatsoever on this point. There is no evidence whatsoever on this point. The following facts, that Jaspal died, that his body was found in a trunk and was discovered from a well and that the appellant took part in the disposal of the body do not establish the cause of his death or the manner and circumstances in which it came about. As already stated, there is no direct evidence to prove that potassium cyanide was administered to him by any person. The best evidence on this question would have been that of the doctor who performed the post-mortem examination. That evidence does not prove that Jaspal died as a result of administration of potassium cyanide. On the other hand, the doctor was of the opinion that there were no positive post-mortem signs, which could suggest poisoning. He stated that potassium cyanide being corrosive poison, would produce hyperemia, softening and ulceration of the gastro-intestinal track and that in this case he did not notice any such signs. He further said that potassium cyanide corrodes the lips and the mouth, and none of these signs was on the body. This evidence therefore instead of proving that death was caused by administration of potassium cyanide, to the extent it goes, negatives that fact. ( 13 ) THE circumstantial evidence referred to by the High Court which according to it tends to establish that Jaspal did not die a natural death is of the following nature: That Palvinder and Mohinderpal had a motive to get rid of the deceased as she was carrying on with Mohinderpal. The motive, even if proved in the case, cannot prove the circumstances under which Jaspal died or the cause which resulted in his death. That Mohinderpal was proved to be in possession of a quantity of potassium cyanide and was in a position of administer it to the deceased is a circumstance of a neutral character. Mere possession of potassium cyanide by Mohinderpal without its being traced in the body of Jaspal cannot establish that this death was caused by this deadly poison. In any case, the circumstances is not of a character which is wholly incompatible with the innocence of the appellant. Mere possession of potassium cyanide by Mohinderpal without its being traced in the body of Jaspal cannot establish that this death was caused by this deadly poison. In any case, the circumstances is not of a character which is wholly incompatible with the innocence of the appellant. The other evidence referred to by the High Court as corroborating the latter part of Palvinders alleged confession in the view of the case that we have taken does not require any discussion because if the confession is inadmissible, no question of corroborating it arises. ( 14 ) IN Ram Saran Mahto v. State of Bihar (1999 (4) Crimes P-125) the Apex Court at para-11 held: it is not necessary that the offender himself should have been found guilty of the main offence for the purpose of convicting him of offence under Section 201. Nor is it absolutely necessary that somebody else should have been found guilty of the main offence. Nonetheless, it is imperative that prosecution should have established two premises. First is that an offence has been committed and second is that the accused knew about it or he had reason to believe the commission of that offence. Then and then alone the prosecution can succeed, provided the remaining postulates of the offence are also established. ( 15 ) IN Hanuman and Others vs. State of Rajasthan (1994 Supp-2 SCC 39) it was held that: mere fact that the deceased died un-natural death would not be sufficient to bring home a charge under Section 201 IPC unless the prosecution shall further able to establish that the accused person knew or had reason to believe that an offence had been committing, caused the evidence of the commission of the offence to disappear. ( 16 ) RELIANCE was also placed on Kalavati and Another v. State of Himachal Pradesh ( 1953 SCR 546 ) and Natu and Another v. State of Uttar Pradesh ( 1979 (3) SCC 574 ) and also on V. L. vs. State of Kerala ( AIR 2001 SC 953 ). Except the fact that there is some material available on record under suspicious circumstances the deceased died and there were certain injuries found on the body of the deceased, which had been exhumed after some time, there is no other acceptable evidence before this Court. Except the fact that there is some material available on record under suspicious circumstances the deceased died and there were certain injuries found on the body of the deceased, which had been exhumed after some time, there is no other acceptable evidence before this Court. It is pertinent to note that the criminal law was set into motion by PW. 1 by giving Ex. P1, but PW. 1 herself had disowned the same. It is no doubt true that the circumstances pointed out by the learned Additional Public Prosecutor would create some suspicion as against the conduct of appellant/a1. But, suspicion however strong it may be, cannot be substituted for proof of a charge. Hence, in the light of the facts and circumstances, the circumstances placed before the Court are not sufficient to prove the guilt of the accused under Section 201 IPC beyond all reasonable doubt and hence, the findings are hereby set aside and the appellant/a1 is given benefit of doubt of the charge in relation to Section 201 IPC. ( 17 ) ACCORDINGLY, the conviction and sentence recorded by the learned Judge are hereby set aside and the appeal is allowed. The bail bonds of the accused shall stand cancelled.