Research › Search › Judgment

Andhra High Court · body

2006 DIGILAW 193 (AP)

Mukkera Mallesh v. State Of A. P.

2006-02-15

M.E.N.PATRUDU

body2006
( 1 ) AGGRIEVED by the conviction and sentence of the Additional Sessions Judge, Adilabad in S. C. No. 185 of 1998 the appeal is preferred. ( 2 ) APPELLANTS herein are A-1 and A-2 before the trial Court. They were convicted for the offence under section 201 IPC and. sentenced to undergo imprisonment for 3 years and pay a fine of Rs. 200/- each. ( 3 ) BRIEFLY the facts are:[1]. Dongari Bhojanna (hereinafter referred to as the deceased ) is resident of kondukurand his whereabouts are not known and the villagers were of the opinion that he went Bombay for avocation. He went out , his house on 12-10-1996 and did not return. While so, on 5-8-1997 in the afternoon at about 3. 00 p. m. , both the appellants made extra judicial confession before P. W. 1 to the effect that they killed the deceased on 12-10-1996 along with four more others and wrapped the dead body of the deceased with blanket tied with iron wries and pipes and threw the dead body into the well of ex-Member of Parliament by name narasimha Reddy. Thus as per the extra judicial confession the murderoccurred about 10 months ago. P. W. 1 lodged a report on the basis of the extra judicial confession before the police. They registered the crime and bones and skull of human being was discovered from the well. Post mortem was conducted and as per the scientific analyst. The skull of the deceased whose photograph was supplied to the forensic science expert. Thereafter the investigation agency filed charge sheet against all the six accused. Three charges are framed at the trial court and they are under sections 148, 302 read with section 149 IPC and 201 IPC. [2]. All witnesses were examined and 16 documents and 6 material objects were marked for prosecution. [3]. The learned Sessions Judge acquitted all the accused for the offence under Section 148 and 302 read with section 149 IPC. However, convicted both the appellants for the offence under section 201 IPC. ( 4 ) SRI Nazeer Khan, learned counsel for the appellants Vehemently argued that the entire case rests on circumstantial evidence and the only circumstance is the extra judicial confession and it is a very weak shape of evidence. Hence the appellants are entitled forclean acquittal. However, convicted both the appellants for the offence under section 201 IPC. ( 4 ) SRI Nazeer Khan, learned counsel for the appellants Vehemently argued that the entire case rests on circumstantial evidence and the only circumstance is the extra judicial confession and it is a very weak shape of evidence. Hence the appellants are entitled forclean acquittal. It is also contended that the identification of the dead body is also doubtful. It is also contended that the trial court convicted the accused purely on the basis of the evidence of P. W. 1 and there is no other evidence. Hence they are entitled for acquittal. ( 5 ) THE point for my determination is:[1]. Whether the charge under Sec. 201 ipc is established against the appellants. [2]. point: The learned Sessions Judge at para 28 observed that the cause of the death of the deceased is due to head injury as discovered on the skull portion of the skeletal remains and not due to knife injury. The learned Sessions Judge also observed that as per the confession of the appellants before P. W. 1, but they have stabbed the deceased. It is also observed that the head injury might be caused due to the fact that when the dead body was thrown into the well. In the instant case, P. W. 1 deposed about the extra judicial confession and P. W. 2, the elder brother of the deceased and P. W. 3, the mother of the deceased, deposed about the motive part. P. Ws. 6 and 7 mediators did not support the case of the prosecution about the arrest of the accused and their interrogation and their confession before the police. The other witnesses are official witnesses. [3]. The entire case of the prosecution rests on the cirumstantial evidence. Conviction can be based on circumstantial evidence when the following conditions are fulfilled viz. The circumstance from which the consequent of guilt is to be drawn should be fully established and not may be established as there is legal distinction between may proved and must be proved. The second condition is the fact was established should be consistent not only with the hypothesis of the guilt of the accused, but there should not be of any other hupothesis except that the accused is guilty. The second condition is the fact was established should be consistent not only with the hypothesis of the guilt of the accused, but there should not be of any other hupothesis except that the accused is guilty. The third condition is that the circumstance should be conclusive nature and the fourth one is the circumstance should exclude any possible hypothesis except the one to be proved. [4]. Before a person is convicted on the circumstantial evidence the circumstances in question must be satisfactorily established and the proof of circumstance must bring home the offence of the accused beyond all reasonable doubt. [5]. Enmity between the accused and the victim is a double-edged weapon. It may provide incentive to a crime and it may also provide reasons for fulfilling and to implicate the accused. Similarly the enmity is no ground for discarding the evidence of the witnesses. [6]. When the prosecution bands on circumstantial evidence, the only motive and conduct of the accused are not only relevant, but very important. [7]. MOTIVE: in the instance case, P. W. s. 2 and 3 deposed that the deceased has advanced rs. 20,000/- to A-6 and A-6 did not repay the amount. Hence the dispute took place. In the trial Court A-6 is acquitted. Therefore the said circumstance is not useful to link the present appellants with the crime. P. W. 2 further testified that the deceased has got illicit relationship with the sister of A-1 and in that regard there was panchanama in the village. The prosecution made an attempt to canvass it as enmity between the deceased and A-1. P. W. 3, the mother also deposed that A-1 bore grudge aginst the deceased as the deceased developed illicit intimacy with the sister of A-1. According to P. Ws. 2 and 3 there was a panchanama in the village. But the so-called panchanama are not examined either to prove about the allegation of illegal intimacy or the enmity between A-1 and the deceased. Except the evidence of P. Ws. 2 and 3, there is no other evidence about the motive, Admittedly, P. Ws. 2 and 3 are the brother and mother of the deceased and they are interested. They did not reveal about the motive or the enmity between the deceased and A-1 till the investigation commenced in this case. The delay in revealing this facts is fatal to the prosecution. [8]. 2 and 3 are the brother and mother of the deceased and they are interested. They did not reveal about the motive or the enmity between the deceased and A-1 till the investigation commenced in this case. The delay in revealing this facts is fatal to the prosecution. [8]. If the motive part is rejected, the only circumstance available on record is extra judicial confession. [9]. EXTRA JUDICIAL CONFESSION: section 24 of the Indian Evidence Act deals with extra judicial confession and the same by itself is very weak piece of evidence. In State of Punjab v. Bhajan Sing it it is clearly held that when the Court after taking into consideration as surrounding circumstances entertains any doubt of the voluntary nature of extra judicial confession, conviction cannot be recorded. Further the prosecution is sought to rely on the extra judicial confession. The entire burden lies on the prosecution to show its trustworthiness and to render such confession worth to believe, the following are to be verified: (a) the person to whom the confession was made; (b) the connection if any of the accused with the person; (c) the occasion or reason to give such confession; (d) the circumstance in which the judicial confession is made. Besides these, the extra judicial confession must be considered in the overall context of the prosecution case and the evidence on record. If an extra judicial confession is belived and found to be voluntary, it can form the basis for conviction. If the extra judicial confession made to a person whose testimony inspires confidence in the mind of the Court, the same can be accepted. Otherwise the Court must look for corroboration. In Paira Singh v. State of Punjab it is held that if extra judicial confession is spoken to by a person, the same is to be proved through an inependent witness and if the same is corroborated by recovery of the material object, it may form the basis for conviction. Therefore, extra judicial confession of the accused is admissible against such accused and it should be examined with caution though it is very weak piece of evidence and if it inspires confidence the same can be acted. [10]. In this case, the extra judicial confession was made to P. W. 1. He is the first informant to the police. Thus it is necessary to verify the contents of his first report. Ex. [10]. In this case, the extra judicial confession was made to P. W. 1. He is the first informant to the police. Thus it is necessary to verify the contents of his first report. Ex. P-1 is the report given by P:w. 1 It is dated 5-8-1997. P. W. 1 has stated in Ex. P-1 that the deceased went out of his house on 12-10-1996 and he did not return and his parents and brotherstated that the deceased took Rs. 100/- under the pretext of going to bombay and he has not returned and they are of the opinion that he is in Bombay. The confession part is mentioned in EX. P-1 as follows:"on 5-8-1997 at about 3. 00 p. m. , the farm servant of P. W. 1 by name Billaveni ravi (A-2) and Mukkera Mallesh (A-1) came and informed him that the village youth association are suspecting that they along with Jeevan Redy killed the deceased and the youth intend to take action against them and on that P. W. 1 enquired from A-1 and A-2 and they have disclosed that as the deceased fell in love with Lalitha who is the sister of A-1 and developed illicit intimacy and a-1 quarreled with the deceased and jeevan Reddy promted A-1 that the deceased is intending to elope with lalitha to Bombay. Therefore all of them have decided to kill the deceased and accordingly they conspired a plan and killed the deceased. "ex. P-1 also disclosed that after killing the deceased the dead body was thrown into the well of P. Narasimha Reddy. All these facts are supported by P. W. 1 and he has clearly narrated in his evidence. In cross-examinition it was elicited that he was convicted in one case for excise offence. It is not a ground to reject his evidence. A suggestion was made thatthebrotherofa-6 developed illicit intimacy with the wife of his brother and he denied the same. Even if the said suggestion is accepted, the enmity between P. W. 1 is with regard to a-6 and not with regard to the appellants. A suggestion is also made that A-1 and A-2 never worked under him and he denied the same. Even if the said suggestion is accepted, the enmity between P. W. 1 is with regard to a-6 and not with regard to the appellants. A suggestion is also made that A-1 and A-2 never worked under him and he denied the same. Therefore, on a careful scrutiny the evidence of P. W. 1 discloses that there is no enmity between P. W. 1 and A-1 and A-2 and there is no reason for P. W. 1 to lodge a false report against A-1 and A-2 or deposed against them. The contents of Ex. P-1 and the evidence of P. W. 1 are further strengthened the fact that the bones and skull of the deceased which discovered from the well of Narasimha reddy are that of the deceased. Ex. P-3 is the inquest report held on 6-8-1997 at the agricultural well of Narisimha Reddy and the contents of the inquest discloses that dead body is found as skull bones, arm bones and leg bones, collar bones, lower jaw and other parts of body. It is also mentioned that the dead body of the deceased was found tied with a black blanket (white lines) with two ceramic pipes tied to the dead body weigh about 15 K. Gs each pipe. Thus whatever is statued by P. W. 1 in Ex. P-1 is almost found at the time of inquest. This is another circumstance strengthening the evidence of p. W. 1 about the extra judicial confession. The inquest is further strengthened with ex. P-4 Post-mortem report and the expert report of the Forensic Science Laboratory, which is marked as Ex. P-5. The expert compared the skull with the photographs of the deceased and found that they could have been belonged to the same person. Therefore, the required circumstances are etablishing that the dead body of the deceased was recovered from the well of narasimha Reddy as per the confession of a-1 and A-2 before P. W. 1 and that they have concealed the offence by throwing the dead body into the well. Therefore, the necessary links are established to prove the offence against the appellants. ( 6 ) THE learned counsel for the appellants has relied on the following decisions: hanuman v. State of Rajasthan verified the facts and circumstances of the said judgment. They are entirely different from facts of the case before me. Therefore, the necessary links are established to prove the offence against the appellants. ( 6 ) THE learned counsel for the appellants has relied on the following decisions: hanuman v. State of Rajasthan verified the facts and circumstances of the said judgment. They are entirely different from facts of the case before me. In that case the accused gave bath to the dead body without waiting for the arrival of police and they have cremated the dead body despite protests. There is no convincing evidence and therefore the Supreme Court has given benefit of doubt. In this case the Madras High Court has given benefit to the accused as the extra judicial confession is entirely uncorroborated and there in no other evidence an therefore the guilt of the accused is not established beyond doubt. Balvinder Singh v. State of Punjab in this case there was a delay of three days in lodging police complaint after the alleged extra judicial confession before the person. Under those circumstances, the supreme Court has given benefit to the accused. State of Punjab v. Gurdeep Singh in this case the accused is alleged to have made extra judicial confession to a person who is wholly unconnected. Hence, the sureme Court has held that the so-called confession made to a person who has not known to the accused is unbelievable. The above cases cited before me are not at all connected with the facts and circumstances of this case. Hence the above citations will not help the appellants in any manner. ( 7 ) THE trial Court has clearly held that the skeletal remains of the deceased were recovered from the well and it is at the instance of the confession of A-1 and A-2. Since A-1 and A-2 confessed before P. W. 1, the trial court has believed the same and convicted them. I do not see any illegality in the said finding. Men may lie, but the circumstances do not lie. In the instant case, various circumstances such as motive, enmity and the extra judicial confession leading to the recovery of skeletal remains in the well of narasimha Reddy clearly established that the appellants are guilty for disappearance of the dead body soon after the incident. ( 8 ) THEREFORE, I hold that the offence under Section 201 (PC is established. Thus, the conviction and sentence of the appellants under Section 201 are confirmed. ( 8 ) THEREFORE, I hold that the offence under Section 201 (PC is established. Thus, the conviction and sentence of the appellants under Section 201 are confirmed. ( 9 ) THE punishment prescribed in an offence under Section 201 IPC is three years if the main offence is punishable with imprisonmen for life or imprisoment up to 10 years. The trial Court imposed maximum punishment of three years and taking the surrouding circumstances the sentence of three years is reduced to two years. The period of remand and the sentence already undergone shall be set off. The appeal is accordingly allowed in part.