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2008 DIGILAW 113 (AP)

Latika Koteswara Rao v. State of A. P.

2008-02-13

B.PRAKASH RAO, L.NARASIMHA REDDY

body2008
JUDGMENT (L. Narasimha Reddy) The learned Sessions Judge, Guntur, framed three charges against the appellant herein, viz., 1) that he committed the murder of his daughter Latike Lakshmi Durga, aged about 3 years, by beating her with a stick, and thereafter threw her into the waters of Guntur Canal, and thereby committed offence under Section 302 I.P.C; 2) that he attempted to commit the murder of his wife, by name, Latike Venkata Lakshmi Kumari, and thereby committed the offence punishable under Section 307 I.P.C; and, 3) that he caused disappearance of the evidence by throwing the dead body of Lakshmi Durga, into water, which is an offence punishable under Section 201 I.P.C. Through its judgment dated 18-01-2006, the trial Court held all the charges against the appellant, proved. It sentenced him to undergo imprisonment for life, for the offence under the first charge; rigorous imprisonment of five years and fine of Rs.500/-, for the offence under second charge; and rigorous imprisonment for three years with fine of Rs.300/-, for the one, under the third charge. All the sentences were directed to run concurrently. Hence, this appeal. 2. The appellant was married to Venkata Lakshmi Kumari, PW-1, and they had a daughter, by name, Lakshmi Durga. It was alleged that the appellant developed illicit intimacy with one Jainabee, and used to hate and abuse his wife, PW-1, particularly, after the latter has seen the appellant, in the company of Jainabee. On 23-06-2003, the appellant is said to have taken PW-1, and their daughter, Lakshmi Durga, on a TVS Moped, to the agricultural fields, to remove the thorny bushes, at about 3:00 p.m. When both of them were in the work, at about 5:30 p.m., there was rain, and they went to a motor shed nearby the Guntur Canal bund. The appellant is said to have questioned PW-1, as to why she has informed others about his illicit intimacy with Jainabee, and that he vowed to eliminate PW-1. 3. In the process, the appellant is said to have hit PW-1 with a stick, on her neck, and when she tried to ward off, she received the blow on her hands. It is alleged that the appellant indiscriminately beat her on the ribs, mouth etc, and when their daughter, Lakshmi Durga, come there weeping, he beat her and thereafter, driven PW-1 in the injured condition, into the canal, hardly with any water. It is alleged that the appellant indiscriminately beat her on the ribs, mouth etc, and when their daughter, Lakshmi Durga, come there weeping, he beat her and thereafter, driven PW-1 in the injured condition, into the canal, hardly with any water. Thereafter, he is said to have left the place, together with the daughter. In the early morning of 24-06-2003, PW-1 is said to have gained conscious, when it rained; came out of the canal, and was lying on the road, nearby it. Her father, PW-2, and brother are said to have noticed her, and thereafter, taken to the Hospital. Her statement, Ex.P-1 was recorded by the Police, and F.I.R. was registered. 4. The appellant was apprehended and his confessional statement, marked as Ex.P-7, was recorded. He is said to have revealed that apart from causing injuries to PW-1, and throwing her into the canal, he has killed their daughter, Lakshmi Durga, and threw her body into another canal, which had flowing water. The efforts made by the prosecution, to recover the dead body of the child, are said to have proved futile. After the investigation, charges were framed, and the accused pleaded not guilty. The trial Court held him guilty of the charges, and punished accordingly. 5. Sri C. Padmanabha Reddy, learned Senior Counsel appearing for the appellant submits that except that PW-1 had accused the appellant of attempting to murder her, and committing murder of the child, there is no other evidence to implicate or convict the appellant. He contends that whatever be the truth of the allegation, as to the appellant, causing injuries to PW-1, the charge, as to the murder of the child, Lakshmi Durga, cannot be believed at all. Learned Senior Counsel submits that even the theory of "last seen together", cannot be applied to the facts of the case, because the whereabouts of the child are not known. He further contends that the confessional statement recorded from the appellant, marked as Ex.P-5, can not at all be relied upon. 6. Learned Additional Public Prosecutor, on the other hand, submits that there is a clear eye-witness account about both the crimes, viz., of attempting to kill PW- 1, and committing the murder of the child. He contends that the evidence of PW- 1 is corroborated by the deposition of other witnesses, as well as the circumstances under which, PW-1 was found on the next day. He contends that the evidence of PW- 1 is corroborated by the deposition of other witnesses, as well as the circumstances under which, PW-1 was found on the next day. He submits that the confessional statement of the appellant deserves to be accepted, and taken on its face value. 7. The prosecution examined PWs 1 to 14 and marked Exs.P-1 to P-21. PW-1 is the wife of the appellant, and PW-2 is his father-in-law. PWs 3 and 4 were examined to prove that they have seen the appellant, PW-1, and their daughter, while going on a moped on 23-06-2003, between 3:00 and 4:00 p.m. Out of them, PW-3 turned hostile. PW-5 is another circumstantial witness. PWs 6 and 7 were treated hostile. PWs 8 and 9 are the persons, before whom the appellant is said to have made confessional statement. The Doctor, who treated PW-1, was examined as PW-10, and PW-11 is the Radiologist, who took her X-rays. PW-12 is the Doctor, who treated PW.1 in a private hospital. The S.I. of Police, who registered the case, was examined as PW-13, and PW-14 is the Inspector of Police, who conducted the investigation. 8. The appellant faced two sets of charges: While the first one relates to the attempt to commit murder of PW-1, the second is about committing murder of his minor daughter, and of causing disappearance of the evidence thereof. These two need to be dealt with separately. 9. The relationship between the appellant and PW-1 is not disputed. In her statement recorded under Section 161 Cr.P.C., marked as Ex.P-1, PW-1 narrated the manner in which injuries were caused to her, by the appellant, and as to how she was driven into the canal. She stated that the appellant took her, and their daughter, on a moped, to the agricultural land, and when all of them were taking shelter in a motor shed, when it rained, the appellant started questioning her, as to why she informed others about his intimacy with one Jainabee. 10. It would have been difficult to believe the statement of PW-1, without any further corroboration, had there been no injuries on her. The prosecution has proved this beyond any pale of doubt that PW.1 received injuries. She was found in an unconscious condition in the morning of 24-06-2003, by her father, PW-2, and others. Immediately she was shifted to hospital. It would have been difficult to believe the statement of PW-1, without any further corroboration, had there been no injuries on her. The prosecution has proved this beyond any pale of doubt that PW.1 received injuries. She was found in an unconscious condition in the morning of 24-06-2003, by her father, PW-2, and others. Immediately she was shifted to hospital. The wound certificate, marked as Ex.P-11, was proved by examining PWs 10, 11 and 12. PW-2 stated that his daughter complained of harassment and ill-treatment by the appellant. PW-4 stated that he has seen the appellant and PW-2 together with their child, going on a moped. It was, no doubt, elicited through PW-1 that the appellant does not own a moped. However, even if there exists any doubt, as to the manner in which the appellant took PW-1, to the scene of occurrence, it is evident that the injuries were caused to PW-1 by none other than the appellant. To arrive at this conclusion, it is not necessary to place reliance upon the confessional statement of the appellant, marked as Ex.P-5. The reliability of that statement would be considered, in detail, while discussing the other set of charges. 11. The nature of injuries mentioned in Ex.P-11, broadly accord with those, mentioned by PW-1, and the Doctors, who treated her. The evidence of an injured witness commends greater degree of reliability. The trial Court has arrived at a correct and proper conclusion on the charge, referable to Section 307 I.P.C., against the appellant. We do not find any basis to interfere with the same. 12. The second set of charges relates to the alleged murder of the minor daughter of the appellant. The charges are based, more on circumstances, than any direct evidence. PW-1 stated that when the appellant started beating her, the child came in between, crying, and out of anger, the appellant beat the child also. Inasmuch as the child was not seen later on, PW-1 as well as the prosecution assumed that the appellant might have killed the child. Three circumstances are pleaded to support this charge: The first is that PW-4 has seen the appellant, taking PW-1 and the child on a moped, on 23-06-2003. The second is that PW-1 had seen the appellant beating the child and thereafter leaving the place. Three circumstances are pleaded to support this charge: The first is that PW-4 has seen the appellant, taking PW-1 and the child on a moped, on 23-06-2003. The second is that PW-1 had seen the appellant beating the child and thereafter leaving the place. The third is the extra judicial confession said to have been made by the appellant, before the Police. The first two circumstances, if found true, would create the ground, for application of the theory of "last seen together". 13. This is one of the rare cases, where the corpus delicti is not available for verification. Notwithstanding the same, if there is an element of truth and reliability in the circumstantial evidence, there must not be any difficulty in upholding the finding of the trial Court against the appellant on the above charges. 14. PWs 3 and 4 have stated that they have seen the appellant taking PW-1 and child on the moped. Out of them, PW-3 turned hostile. Though it is a the fact that the appellant is not the owner of the moped, there is nothing unnatural about the evidence of PW-4. In fact, the allegation against the appellant that he took PW-1 and the child to the agricultural land and there, he attempted to commit the murder of PW-1; was held proved and we upheld the same. The said finding would hold good, for the charge in relation to the death of the child also, but limited to the extent of the appellant, taking PW-1 and the child, to the agricultural field. 15. The second circumstance is based upon the evidence of PW-1. In Ex.P-1, she stated that when the appellant was beating her with a stick, the child came in between, and out of anger he beat the child also with the same stick. The relevant portion of Ex.P-1 reads as under: "...When my daughter came to the rescue he beat the child. Afterwards by stating again as CHATCHINDIRA LANJA throwed me into the canal. Thinking that I died, he went away by taking the girl. I am having suspicion that he might have done something to the girl...". 16. In her deposition, in the Court, PW-1 stated to the following effect: "...Then my daughter Lakshmi Durga came to me by weeping. Afterwards by stating again as CHATCHINDIRA LANJA throwed me into the canal. Thinking that I died, he went away by taking the girl. I am having suspicion that he might have done something to the girl...". 16. In her deposition, in the Court, PW-1 stated to the following effect: "...Then my daughter Lakshmi Durga came to me by weeping. Then the accused also beat my daughter Lakshmi Durga on her head saying that he would also remove her along with me. The head of my daughter was broken and she fell down unconscious. The accused again beat me and pushed me into the canal. There were no waters in that canal and there was only mud in the said canal. I felt that my daughter died on the spot. Later, the accused had taken away my daughter...". 17. The difference between these two versions is not difficult to discern. The deposition in the Court a the substantial improvement upon the statement made, in Ex.P-1. On account of these variations, the statement of PW-1, to the extent that the child was with the appellant, at the relevant point of time, can no doubt be believed, but the version presented by her as to the nature of injuries, alleged to have been caused to the child, by the appellant, does not gain acceptance. 18. The third circumstance is based upon the extra judicial confession of the appellant said to have been made before PW-13 on 05-07-2003, marked as Ex.P-5. PW-8 is a witness for the same. From this witness, it was elicited that the accused was in the custody of the Police for about 12 days, before the statement was recorded. Several contradictions, as to the depth of water in the canal, in which the child is said to have been thrown away; have been elicited. According to Ex.P-5, the child was thrown into a canal, in which water was flowing. An inference was drawn that the dead body might have been driven away gone, in the flow of water. It was elicited in the cross-examination of the concerned witness that the depth of the water is hardly one foot, and that most of the water being pumped through pipes. 19. An inference was drawn that the dead body might have been driven away gone, in the flow of water. It was elicited in the cross-examination of the concerned witness that the depth of the water is hardly one foot, and that most of the water being pumped through pipes. 19. At one point of time, the principle of corpus delicti was treated as essential, for proving a charge of a murder, against an individual, particularly when, the only punishment for such an offence was death sentence. Opinions changed with the passage of time, and as of now, it is no longer necessary that the corpus delicti must exist, to prove a charge of murder. The judgment of the Supreme Court in Rama Nand v. State of H.P., AIR 1981 SC 738 , is both informative and instructive on the point. The relevant portion thereof reads as under: "...Ordinarily, the recovery of the dead body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death of the victim. There was a time when under the old English Law, the finding of the body of the deceased was held to be essential before a person was convicted of committing his culpable homicide. "I would never convict", said Sir Mathew Hale, "a person of murder or manslaughter unless the fact were proved to be done, or at least the body was found dead". This was merely a rule of caution, and not of law. But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the deadbody of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the deadbody is impossible. A blind adherence to this old "body" doctrine would open the door wide for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Hale's enunciation has to be interpreted no more than emphasizing that where the deadbody of the victim in a murder case is not found, other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution. In the context of our law, Hale's enunciation has to be interpreted no more than emphasizing that where the deadbody of the victim in a murder case is not found, other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eye-witness, or by circumstantial evidence, or by both". Recently, the Supreme Court reiterated the said principle. 20. Having been the way for conviction of an accused even in the absence of a corpus delicti, the Supreme Court had sounded a note of caution as to manner of appreciation, in the matters of that nature. It was observed that the circumstantial evidence must be such that, hardly any doubt must exist. It may be noted that in both the cases referred to above, corpus delicti did exist, but in a partial or deteriorated form. The relevant circumstances were subjected to scrutiny of a very high degree and the benefit of doubt was, naturally extended to the accused. The present case stands on a higher footing, on account of the fact that there were not even traces of the dead body of the child. 21. It has already been pointed out that the first two aspects discussed above attract the theory of "last seen together". The third one had a close relation with the same theory. 22. The theory or phenomenon of "last seen together" is no doubt recognized as a circumstance, on the basis of which a conclusion can be rested as to the involvement of an accused. This, however, would become relevant, only when there is certainty about the point of time at which, the accused and the deceased were last seen together, and the one at which crime was said to have been committed. In such an event, Courts do not find any difficulty in drawing inference, as to the involvement of the accused in the crime, though no direct evidence exists. One of the settled principles to be observed in this regard is that the gap between the two events must be such that there is no possibility for the intervention of an external factor that may result in the commission of the very offence. If such a possibility is shown to exist, the reliability of the theory of 'last seen together' suffers a dent. If such a possibility is shown to exist, the reliability of the theory of 'last seen together' suffers a dent. In other words, to push the theory of last seen together, to its logical conclusion and to convince the Court to treat it as an independent circumstance, to convict the accused, the prosecution must prove to the level of certainty, the point at which the offence has taken place, apart from the time at which, the accused and the deceased were seen together. Reference in this context, may be made to the judgment of the Supreme Court in Amit alias Ammu v. State of Maharashtra, 2003(2) ALD (Crl.) 806(SC) = 2003(8) SCC 93 and Keshav v. State of Maharashtra, (2008) CCR 20(SC). 23. In the instant case, even if the entire version of the prosecution is accepted, as true, it becomes difficult to discern the point of time at which the crime, viz., the commission of murder of the child has taken place. Therefore, the mere fact that PW-1 has seen the child and the appellant together, when she herself was attacked, does not lead to an inference, much less conclusion, that the appellant might have committed the murder of the child. For that reason, the conviction of the appellant for the charge under Sections 302 and 201 of I.P.C., cannot be sustained. 24. We, accordingly, allow the appeal in part, upholding the conviction and sentence against the appellant for the offence under Section 307 I.P.C., for attempting to commit the murder of PW-1, but setting aside the conviction and sentence ordered against him, under Sections 302 and 201 of I.P.C.