Research › Search › Judgment

Andhra High Court · body

2006 DIGILAW 1586 (AP)

BANDARU RAMESH v. STATE OF A. P.

2006-12-15

A.GOPAL REDDY, G.YETHIRAJULU

body2006
G. YETHIRAJULU, J. ( 1 ) APPEAL is directed against the judgment of the I Additional Metropolitan Sessions judge, Hyderabad in S. C. No. 104 of 2004, dated 19-4-2005. The appellant is the sole accused in the said case. He was charged for the offence under Sections 302, 380 and 411 of IPC for killing the deceased sri B. Rajanikanth for gain between 9-00 and 10-00 a. m. , on 2-9-2001 in the house of the deceased at Mangalhat, Hyderabad. He denied the charge and claimed for trial. ( 2 ) THE accused was convicted for the offence under Section 302 of IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 200/- in default to suffer simple imprisonment for one month. He was also convicted for the offence under Section 380 of IPC and sentenced to undergo rigorous imprisonment for five years and also to pay a fine of rs. 200/- in default to suffer simple imprisonment for one month. He was also convicted for the offence under Section 411 of IPC and sentenced to pay a fine of rs. 100/- in default to suffer simple imprisonment for 15 days. All the sentences of imprisonment are directed to run concurrently. ( 3 ) THE factual matrix leading to the conviction of the appellant is briefly as follows : The deceased is a resident of Mangalhat, hyderabad. PW-1 is the mother and PW-2 is the maternal uncle of the deceased. PW-1 used to do saree business. The accused is the son of the paternal uncle of the deceased. On 1-9-2001 at about 6-00 p. m. , the accused went to the house of PW-1 and on that night, he slept along with the deceased in the hall. On 2-9-2001. e. , on the next morning at about 9-00 a. m. PW-1 went to the market to get vegetables and returned by 10-00 a. m. By the time she returned to the house, the deceased was found absent in the house. She enquired the accused about the deceased and he informed that he sent the deceased to bring a pan. As the deceased did not return till 12-00 noon, PW-1 and the accused searched for him, but he could not be traced, therefore, on the advise of the neighbours, PW-1 lodged Ex. P-1 complaint to the police. She enquired the accused about the deceased and he informed that he sent the deceased to bring a pan. As the deceased did not return till 12-00 noon, PW-1 and the accused searched for him, but he could not be traced, therefore, on the advise of the neighbours, PW-1 lodged Ex. P-1 complaint to the police. On the same day at about 7-00 p. m. , the police registered a crime and issued FIR covered by Ex. P-10. PW-12 took up the investigation and at about 8-15 p. m. , he visited the house of PW-1 and during the course of observation, he found the dead body of the deceased in the house under a cot. On summoning the clues Team, they found M. O. 4, woolen blanket and M. O. 5, plastic packing thread. Thereafter, PW-13 took over the further investigation, prepared an observation report and held inquest over the dead body of the deceased. The section of Law was altered and altered FIR was issued. On 3-9-2001, the post-mortem examination was conducted over the dead body of the deceased and the doctor opined that the death body of the deceased was due to asphyxia due to strangulation. On 7-9-2001, the accused was arrested and at his instance, cash of Rs. 70,600/-, keys and gold ornaments were recovered under a panchanama. On 14-9-2001, the police got identified the ornaments by PW-1. After completion of the investigation, the police laid the charge-sheet. ( 4 ) THE prosecution, in order to prove the guilt of the accused, examined PWs. 1 to 13 and marked Exs. P1 to P 12 and M. Os. 1 to 18. On defence side, no oral or documentary evidence was adduced. ( 5 ) THE accused challenged the judgment of the lower Court and his plea is one of denial of the commission of the offence, therefore, the point for consideration is : "whether the prosecution proved the guilt of the accused beyond reasonable doubt and whether the conviction and the sentences imposed on the accused are liable to be set aside?" ( 6 ) THE prosecution alleged that the accused killed the deceased by strangulation and screened the dead body under the cot and committed theft of gold ornaments and cash in the absence of PW1 in the house. There are no eye-witnesses to the occurrence. The prosecution relied on the circumstantial evidence. There are no eye-witnesses to the occurrence. The prosecution relied on the circumstantial evidence. To prove the circumstances, the prosecution relied on the evidence of PWs. 1 to 4. ( 7 ) PW1, the mother of the deceased, stated that the deceased was her eldest son. Her second son Srikanth used to help her in saree business. The deceased rajanikanth used to stay along with her and used to remain in the house whenever she goes out of the house for selling sarees. The accused used to reside at Langar House area. On 1-9-2001 at about 6-00 p. m. , the accused came to their house and informed that he came to that locality on his personal work. The accused remained in their house till 9-00 p. m. By then, the deceased prepared food and all of them had food together. After taking dinner, she slept in the bed room. The deceased and the accused slept in the hall of the house. In the next morning. e. , on 2-9-2001 she woke up at 9-00 a. m. The deceased asked her to bring some vegetables from market. Keeping the accused and the deceased in the house she went to the market, purchased beans and returned to the house at about 10-00 a. m. After reaching the house, she noticed the absence of the deceased from the house and the accused alone was present. She enquired about the deceased with the accused and he informed that he sent the deceased to bring a pan from the pan shop. As the deceased did not return till 12-00 noon, she along with the accused went in search of the deceased and enquired in the pan shops of the locality about the deceased. At about 2-00 p. m. , they returned back to the house. At about 3-00 p. m. , she again went- in search of the deceased keeping the accused outside the house by locking the door and handing over keys to him while leaving the house. She searched for the deceased till 6-30 p. m. , but did not trace him. She returned back to the house at 6-30 p. m. , and the accused was not present. The lock of the house was not opened. She sat weeping in front of the house. The neighbours came and asked her to report to the police. She searched for the deceased till 6-30 p. m. , but did not trace him. She returned back to the house at 6-30 p. m. , and the accused was not present. The lock of the house was not opened. She sat weeping in front of the house. The neighbours came and asked her to report to the police. At about 7-00 p. m. , she went to Mangalhat police Station and narrated about the missing of the deceased. The police obtained a complaint under Ex. P-1 and she returned to the house at 7-30 p. m. along with the police. The police broke open the lock of the house and searched the house. She noticed edge of the blanket under the cot. When she pulled the blanket, she found the dead body of the deceased under the cot. She found the lips of the dead body swollen and oozing of the blood from the mouth. She also noticed a plastic packing thread around the neck of the deceased. She immediately tried to contact her brother, but she noticed the disconnection of the telephone by cutting the wire. She also noticed a blade lying near the telephone. The police conducted the scene of offence panchanama and sent the dead body to Osmania Hospital for post-mortem examination. On the instructions of the police, she opened the almirah and found that the cash of Rs. 80,000/-, a pair of gold kankanams having lion face weighing 5 tulas, a gold chain of 3 rows weighing 3 tulas and one gold ring missing from the almirah. On 7-9-2001 she again verified small articles of gold in the almirah and they were also missing. She observed two small pieces of gold and two silver coins missing and informed the police about the missing of those articles also. One week later, the police summoned her to the police station and she identified the ornaments kept on the table of the police station mixed with other ornaments. She also identified M. Os. 1 to 3 clothes of the deceased. In the cross-examination, she stated that her second son escaped from the house since about 8 months prior to the offence. Since the date of marriage, she and her husband were living separately from her parents-in-law. She denied a suggestion that the accused had nothing to do with the deceased and she is speaking falsehood. In the cross-examination, she stated that her second son escaped from the house since about 8 months prior to the offence. Since the date of marriage, she and her husband were living separately from her parents-in-law. She denied a suggestion that the accused had nothing to do with the deceased and she is speaking falsehood. ( 8 ) PW2, the brother of PW1 and maternal uncle of the deceased, deposed that he knows the accused and the deceased. On 2-9-2001 at about 1-30 p. m. , PW1 telephoned him and enquired about the deceased and he replied that the deceased did not come to their house. At 3-15 p. m. , while he was proceeding to the house of pw1 and when he reached near Ghodi ka khabar, he found the accused holding a plastic cover in his hand. When he called the accused, the accused did not stop and proceeded towards pan mandi without caring for his words. He went to the house of PW1 and saw her in the ground floor and enquired her about the deceased. At 7-00 p. m. , PW1 again telephoned and informed him that the accused killed the deceased in the house and the dead body was lying under the cot. She also informed that the cash and gold ornaments kept in the almirah were also missing. At about 8-00 p. m. , he went to the house and saw the dead body. ( 9 ) PW3, a resident of the opposite house of PW 1, deposed that on 2-9-2001 at about 2-00 or 2-30 p. m. , he sat on the pial of his house. At that time, he saw PW1 enquiring about the deceased by weeping. He informed that he did not see the deceased. At about 4-00 p. m. , all the locality people advised PW1 to go to the police station and give a complaint. At about 8-00 p. m. , the police came to the house of pw1 and saw the dead body in the house. He further stated that on 1-9-2001 at about 8-00 p. m. , he found the accused in front of the gate of the house of PW 1. At about 8-00 p. m. , the police came to the house of pw1 and saw the dead body in the house. He further stated that on 1-9-2001 at about 8-00 p. m. , he found the accused in front of the gate of the house of PW 1. ( 10 ) PW4, a resident of the same locality, deposed that on 2-9-2001 at about 8-15 p. m. , he came out of the Masjid and observed commotion in front of the house of PW 1. A Constable took him to the place of offence, which is the upstair portion of the building. On entering the house, he saw a cot in the bed room and the dead body of the deceased lying under the cot with plastic packing wire around the neck and blood oozing from the nostrils. He also noticed a ligature mark on the neck. The police conducted the scene of offence panchanama in his presence and he attested the same. ( 11 ) PW7 an Assistant Professor of the department of Forensic Medicine, Osmania medical College, deposed that on 3-9-2001 at about 1-45 p. m. , he conducted post-mortem examination over the dead body of the deceased and found the following ante-mortem injuries : 1. A horizontally placed ante-mortem ligature mark of 32 cms length and 2 to 1 cm variable width present all around the lower part of the neck below the thyroid cartilage. 2. The mark is 6 cm below the right mastoid 8 cms below the right ear 8 cm below the right angle of the jaw. 8 cms below the chin on extension of the neck, 9 cms above the supra sternal notch, 6 cms below the left angel of the jaw, 6 cms below the left ear and 7 cms below the left nastero. 3. Multiple abrasions of 0. 25 x 0. 25 cm present 2 cms below the ligature mark on the front side. 4. A ligature mark of 7 cms length and 2 cms width is extending from the midline of front of the neck and 1 cms below the above ligature mark. 5. The ligature mark is reddish brown and parchmentised. 6. Both the boarders of the mark are abraded. 7. The underlying subentaneous tissues are contused. 8. The total circumference of the neck is 32 cms. 9. The inner side of both the lips are contused. 10. 5. The ligature mark is reddish brown and parchmentised. 6. Both the boarders of the mark are abraded. 7. The underlying subentaneous tissues are contused. 8. The total circumference of the neck is 32 cms. 9. The inner side of both the lips are contused. 10. Thyrohyoid are intact. The doctor opined that the death of the deceased was due to asphyxia due to ligature strangulation. ( 12 ) PW5, one of the panchas for the inquest, deposed that the inquest was held by the police in his presence and the panchas came to a conclusion that the deceased died due to strangulation. ( 13 ) FROM the evidence of the above witnesses, it is established by the prosecution that the deceased met with a homicidal death on account of asphyxia due to strangulation. The ligature mark on the neck, the recovery of the plastic thread, which was used for strangulation and the swelling of the lips and oozing of the blood from mouth and nostrils are clear indication of strangulation. To prove that the ligature mark found on the deceased was ante-mortem in nature, the doctor observed contusion of the underlying subcutaneous tissues. ( 14 ) PW6, a resident of Mangalhat, deposed that he acted as a mediator for the interrogation of the accused at the police station and when the accused was interrogated, he volunteered that he kept the stolen ornaments and cash in the mechanic shed belonging to him at Chevella and lead the police to the said mechanic shed. They reached the shed at 8-00 or 8-30 p. m. After showing the shed, he handed over the keys of the shop to the Inspector of police. The Inspector got the locks opened through the accused. After opening the doors, the accused have shown the stolen articles in a black plastic cover under the old span and other articles under the bench. The police seized those articles under a cover of panchanama including cash. ( 15 ) PW8, the Scientific Officer of the clues Team, deposed that he visited the scene of offence and assisted the investigating Officer in collecting the physical evidence, bloodstains etc. ( 16 ) PW9, a resident of Shaikpet, deposed that on 14-9-2001 at about 10-00 am, pw1 identified the gold ornaments in his presence when they were mixed in the other ornaments in the police station. ( 16 ) PW9, a resident of Shaikpet, deposed that on 14-9-2001 at about 10-00 am, pw1 identified the gold ornaments in his presence when they were mixed in the other ornaments in the police station. ( 17 ) PW11 is the Sub-Inspector who recorded the statement of the PW1 and registered the FIR. ( 18 ) PW12, a Sub-Inspector of Police, deposed that when they searched the house by breaking open the locks, they noticed the dead body under a cot with ligature mark on the neck tied with plastic wire and he assisted the Inspector in conducting the further investigation. ( 19 ) PW13, the Inspector of Police, deposed about the observation of the scene of offence, inquest held over the dead body of the deceased, arrest of the accused, recovery of the articles in the presence of the mediators, identification of the ornaments by PW1 and recovery of cash etc. ( 20 ) THE learned Senior Counsel Sri C. Padmanabha Reddy representing the appellant submitted that though PW1 gave fir on the date of offence, she did not mention about the missing of the ornaments or cash, therefore, the recovery of cash and ornaments from the possession of the accused is created to strengthen the prosecution version and the accused did not commit theft of articles or murder of the deceased. He further submitted that had the accused murdered the deceased for gain, he would have escaped from the house and would not have waited for the arrival of PW1 and would not have helped PW1 in searching the deceased. He further submitted that simply because the accused was in the house of PW1, it cannot be inferred in the absence of any evidence that he killed the deceased. He further submitted that the prosecution failed to establish the circumstances to rule out the possibility of any other person committing the offence and to come to a conclusion that the accused alone was responsible for the commission of the offence. He further submitted that the prosecution failed to establish the circumstances to rule out the possibility of any other person committing the offence and to come to a conclusion that the accused alone was responsible for the commission of the offence. He further submitted that if at all the recovery of the ornaments and cash is believed by the Court, the accused is liable at best for the offence under Section 380 or 411 of IPC, but not for the offence under Section 302 of IPC, therefore, he requested the Court to give the benefit of doubt to the accused and acquit him for the offence under Section 302 of IPC. ( 21 ) THE learned Additional Public prosecutor Sri Prahlada Reddy submitted that though there is no direct evidence, the circumstances placed by the prosecution clearly established that the deceased was killed by no other person than the accused and the recovery of the ornaments and cash also strengthened the case of the prosecution, therefore, the lower Court rightly came to a conclusion that the accused was responsible for the offences covered by the charges and there are no grounds to interfere with the judgment of the lower court. ( 22 ) AFTER going through the above evidence, it is noticed that the following circumstances were proved by the prosecution: 1. The accused was in the house of the deceased by coming in the previous night. 2. The accused and the deceased were last seen in the house when PW1 left to market for purchase of vegetables at about 9-00 a. m. 3. When PW1 returned to the house at 10-00 a. m. , she found the deceased missing from the house and the accused mislead PW 1 by representing that the deceased went to the pan shop to bring a pan for him. 4. When PW1 went in search of the deceased in the afternoon, the door was locked and the key was left with the accused. 5. When PW1 returned to her house at 6-30 p. m. , she found the accused missing and being unable to open the door for want of key, she remained outside the house. 6. On the arrival of the police, the door was broke opened and after thorough search, they detected the dead body of the deceased under a cot covered with a blanket. 6. On the arrival of the police, the door was broke opened and after thorough search, they detected the dead body of the deceased under a cot covered with a blanket. On search of the almirah at the instance of the police, pw-1 found the ornaments and cash missing from the almirah. 7. The plastic thread was found on the neck of the deceased as an indication of strangulation. 8. The police recovered the ornaments and cash at the instance of the accused including the key of the house of PW1 and PW1 identified the ornaments and cash in the presence of police. ( 23 ) THE above circumstances would indicate that the deceased was alive at about 9-00 a. m. on the date of offence in the company of the accused and he was found missing by the time PW1 returned to the house from the market at 10-00 a. m. The accused alone was in the house. The dead body was recovered in the house under the cot. When the house was in the exclusive possession of the accused till the recovery of the dead body, it is for him to explain as to how the dead body emerged in the house under the cot. ( 24 ) IN respect of cases where the offence took place in privacy and if the accused alone was in the house, the burden is on him to explain under what circumstances the dead body was in his house. The following observation of the supreme Court in Trimukh Maroti Kirkan v. State of Maharashtra, 2006 (2) ALD (Crl.) 872 (SC) = 2006 AIR SCW 5300, is relevant in this regard. "if an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to place and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. In case of no explanation or false explanation from the accused, it would cause an additional link in chain of circumstances. " In view of the above judgment, when the offence took place in the house, which is in exclusive possession of the accused, the burden is on him to explain under what circumstances, the offence took place. In the absence of any explanation, it can be safely concluded that the accused was responsible for the commission of offence. ( 25 ) THERE is also no explanation from the accused from what source he got the jewellary and cash and what was his financial capacity to acquire those properties. When the dead body was in the house, why the accused mislead PW1 that the accused went out to bring a pan for him. Because the deceased was cooking food, pw1 was anxious to trace him to cook the food. When the accused killed the deceased and about to leave the house, PW1 emerged at the house, therefore, the accused has no way to escape from the house and therefore, he misrepresented to PW 1 that the deceased went out from the house. ( 26 ) THE above circumstances placed by the prosecution are amply establishing that the accused killed the deceased by strangulation and committed theft of gold and cash from the house of PW1. ( 26 ) THE above circumstances placed by the prosecution are amply establishing that the accused killed the deceased by strangulation and committed theft of gold and cash from the house of PW1. The non-explanation of the accused about the presence of the dead body in the house is also a strong circumstance that he was responsible for the commission of the offences. ( 27 ) THE lower Court, after considering the entire evidence, rightly came to a conclusion that the prosecution proved the guilt of the accused beyond reasonable doubt and rightly convicted him for the offences covered by the charges. After going through the entire evidence, the judgment of the lower Court and after hearing the arguments of the learned Counsel, we are of the view that the lower Court rightly found the accused guilty for the offences and there are no grounds to interfere with the judgment of the Court. ( 28 ) IN the result, the appeal is dismissed by confirming the judgment of the lower court in all respects. .