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2008 DIGILAW 24 (AP)

Nandikanuma Lakshmamma v. State of Andhra Pradesh

2008-01-18

B.PRAKASH RAO, L.NARASIMHA REDDY

body2008
L. NARASIMHA REDDY, J, These two appeals are filed under Section 374 Cr.P.C. by A1 and A2 in S.C. No.16 of 2003 on the file of the Special Judge for trial of offences under SCs and STs (Prevention of Atrocities) Act, 1989, Prakasam District at Ongole. The appellants were charged with offences under Sections 302 and 201 IPC as well as under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (prevention of Atrocities) Act, 1989 (for short 'the Act'). They were accused of committing the murder of one Chennaiah. Through its judgment, dated 1.10.2005, the trial Court convicted the appellants of the above said offences. Sentence of imprisonment for life and fine of Rs.2,500/each, in default, to undergo simple imprisonment for two months, was imposed in common, for all the offences under the provisions referred to above. 2. The prosecution alleged that the deceased was a resident of Sunkureddipalem Village and that he had illicit intimacy with the first appellant, a resident of neighbouring Village Cherukuru, for about 5 to 6 years prior to the incident. It was stated the first appellant had also developed illicit relation with the second appellant, her brother-in-law, and both of them have hatched a plan to do away the life of the deceased. 3. The wife of the deceased, P.W.1, submitted a complaint-Ex.P.1, at 9.00 a.m., on 15.4.2002, alleging that her husband had illicit intimacy with the first appellant and that 4 or 5 days earlier to the date of Ex.P1, the first appellant took away the deceased and that the same was witnessed by P.Ws.4, 5 and 6 and certain others and thereafter, he did not return. On coming to know that the dead body of her husband was found in a well belonging to one Mr. Kotaiah she went to that place at 7.00 a.m., on 15.4.2002 and recognized the dead body, as that of her husband. 4. Initially, the investigation was taken up by the C.I. of Police, P.W.17. Subsequently, on account of the fact that the deceased belongs to Scheduled Caste, the investigation was taken up under the provisions of the Act by P.W.19. Statements of the persons, who had knowledge about the offence, were recorded and ultimately, charge-sheet was filed. The appellants pleaded not guilty. The trial Court convicted and sentenced the appellants herein for the charges framed against them. 5. Statements of the persons, who had knowledge about the offence, were recorded and ultimately, charge-sheet was filed. The appellants pleaded not guilty. The trial Court convicted and sentenced the appellants herein for the charges framed against them. 5. Sri C. Padmanabha Reddy, learned Senior Counsel for the appellants submits that there are serious contradictions in the case of the prosecution and the statements of various witnesses. He contends that the statements recorded by P.W.12 under Section 161 Cr.P.C., were neither made as part of the record nor supplied to the appellants. He points out that only the statements recorded by P. W .19 under Section 161 Cr.P.C. were made as part of the record. He further contends that the theory of 'last seen together' invoked by the prosecution, cannot be accepted for the reason that there existed a considerable gap between the time, at which, the appellants and the deceased were said to have been seen together and the time, at which, the death of the deceased took place. Learned Counsel pointed out certain contradictions in the evidence of various witnesses, particularly, with reference to the inquest report marked as EX.P8. Placing reliance upon precedents, learned Counsel submits that the conviction and sentence against the appellants cannot be sustained in law or on facts. 6. Learned Public Prosecutor submits that though the investigation was taken up by the two Officers of the Police Department, the statements recorded by P.W.19-Investigating Officer under the Act were made available and it was not even suggested that there were any contradictions between the statements' recorded by P.W.17 on the one hand and P.W.19 on the other much less improvements. He submits that having regard to the fact that the dead body was not noticed for quite some time after the death, it cannot be said that there existed any gap, as such, between the time, at which, the appellants and the deceased were seen together and the time, at which, the offence took place. Learned Public Prosecutor contends that the so called contradictions pointed out by the learned Senior Counsel are only on trivial in nature and the evidence on the record is consistent with regard to the principal aspects. 7. The case of the prosecution rested upon circumstantial evidence and there was no eye-witness account. On its part, the prosecution examined P.Ws.1 to 20 and marked Exs.P 1 to P 15. 7. The case of the prosecution rested upon circumstantial evidence and there was no eye-witness account. On its part, the prosecution examined P.Ws.1 to 20 and marked Exs.P 1 to P 15. Contradictions and some statements were marked as Exs.D1 and D2. M.Os.1 to 5 were also taken on record. 8. P.W.1 is the wife of the deceased. Her evidence is about the alleged illicit relationship of her husband with the first respondent and his not returning home for about two days. She did not speak about the occurrence of offence. P.W.2 is the elder brother of the deceased and his evidence is almost on the same lines as that of P.W.1. P.W.3 is a resident of Sunkureddipalem and is acquainted with P.Ws.1 and 2. Incidentally, he is the nephew of the deceased. His evidence is only to the effect that he has seen the deceased leaving the house four days prior to the death. P.Ws.4, 5 and 6 are the witnesses, who are said to have last seen the deceased in the company of the appellants, and in particular, the first appellant. The purport of their evidence would be considered at a later stage. Other witnesses are mostly the panch witnesses, photographers, Investigating Officers, Medical Officers etc. 9. On hearing the learned Senior Counsel for the appellants and the learned Public Prosecutor, we are of the view that the following questions arise for consideration in these appeals. 1. Whether failure of the prosecution to supply the statements recorded by P.W.17, under Section 161 Cr.P.C. is fatal to its case ? 2. Whether the gap between the point of time, at which, P.Ws.4, 5 and 6 are said to have seen the deceased and the first appellant together, and the time, at which, the deceased is said to have been murdered, is such, that it cannot constitute the sole basis for convicting the appellants? 10. It has already been pointed out that the investigation in this case was taken up initially, by P.W.17. He proceeded with it, to a substantial extent. Having regard to the fact that the deceased belonged to Scheduled Caste, the provisions of the Act were invoked and the investigation was entrusted to P.W.19. 10. It has already been pointed out that the investigation in this case was taken up initially, by P.W.17. He proceeded with it, to a substantial extent. Having regard to the fact that the deceased belonged to Scheduled Caste, the provisions of the Act were invoked and the investigation was entrusted to P.W.19. Before P.W.19 could assume the charge of investigation, P.W.17 has recorded the statements of several witnesses under Section 161 Cr.P.C. P.W.19 felt the necessity of recording the statements of same witnesses once again, under Section 161 CLP.C. The statements recorded by him were made as part of the record, but those statements recorded by P.W.17, were not made available to the Court or for that matter, to the appellants. Therefore, it needs to be seen as to whether any illegality or irregularity has crept into the matter, on this account. 11. The Code of Criminal Procedure mandates that the statements recorded under Section 161 CLP.C., by the Investigating Officer must be made available to the accused. Reference, in this context, is made under Sections 173 and 207 Cr.P.C. The manner, in which, the statements so recorded can be put to use, is stipulated under Section 162 of the Code. It is true that a statement recorded under Section 161 CLP.C., is not a substantive evidence. The fact however remains that a statutory rights accrues to an accused to cross-examine the witnesses cited by the prosecution, with reference to such statements, as provided under Section 145 of the Evidence Act. 12. In Noor Khan v. State of Rajasthan, AIR 1964 SC 286 , the Supreme Court held that mere non-supply of the statements recorded under Section 161 Cr.P.C., by itself would not vitiate the prosecution or the trial. At the same time, their Lordships emphasized that failure to make such statements available to the accused would have its own impact on the rights conferred upon him under Sections 162, 173 and 207 Cr.P.C. and Section 145 of the Evidence Act. A direct decision on the point namely, when two sets of statements are recorded under Section 161 of the Code from the same witnesses, the effect of non-production or of supply one of them, to the Court or the accused was rendered by the Privy Council in Pulukuri Kottaya v. Emperor, AIR (34) 1947 PC 67. A direct decision on the point namely, when two sets of statements are recorded under Section 161 of the Code from the same witnesses, the effect of non-production or of supply one of them, to the Court or the accused was rendered by the Privy Council in Pulukuri Kottaya v. Emperor, AIR (34) 1947 PC 67. The importance of the statements recorded under Section 161 Cr.P.C. for an accused was emphasized. As in the present case, in that case also, two Investigating Officers have recorded the statements of the witnesses separately and one set of statement was not produced before the Court at the initial stage, though, made available, at later stage. Their Lordships made the following observations in relation to the same. "The facts material upon this part of the case are these. The offence took place at about 6.30 p.m. on 29.12.1944, and at 7.00 a.m., on the 30th December, the Police, Sub-Inspector held an inquest on the body of one of the murdered men. He examined five of the prosecution witnesses, including four of the alleged six eye-witnesses, and wrote down their statements in his notebook. After the conclusion of the inquest the Circle Inspector took over the investigation from the police Sub-Inspector and on the same day, that is 30th December, he examined all the alleged eye-witnesses and others, including all the witnesses who had been examined by the police Sub-Inspector, and their statements were recorded in the case diary prepared by the Circle Inspector. It is the failure to produce the note book of the police Sub-Inspector which constitutes the alleged infringement of the proviso to Section 162, and the facts as to this are stated in an affidavit of Gutlapaly Venkata Appayya sworn on 19.10.1945, and are not challenged. Prior to the commencement of the preliminary inquiry before the Magistrate an application was made on behalf of the accused for grant of copies of statements under Section 162. Criminal P.C. recorded by the Sub-Inspector and the Circle Inspector of Police from the prosecution witnesses in the case during investigation. The accused were supplied with copies of statements made by witnesses before the Circle Inspector of Police and were informed that statements made to the Sub-Inspector of Police were not available. Criminal P.C. recorded by the Sub-Inspector and the Circle Inspector of Police from the prosecution witnesses in the case during investigation. The accused were supplied with copies of statements made by witnesses before the Circle Inspector of Police and were informed that statements made to the Sub-Inspector of Police were not available. During the Sessions trial, when prosecution witness No.2, who was the principal prosecution witness, was in the witness-box, Counsel for the accused represented to the Court that he had not been supplied with copies of statements recorded by the Sub-Inspector at the first inquest, and requested the Court to make those statements available to enable him to cross-examine the important prosecution witnesses with reference to the earliest statements. The learned Sessions Judge directed the Public Prosecutor to comply with the request. The Public Prosecutor, after consulting the Sub-Inspector and Circle Inspector, who were present in Court, submitted to the Court that except what was recorded in the inquest report itself, no other statements were recorded by the Sub-Inspector, and the learned Judge directed the defence Counsel to proceed. The next day, when the cross-examination of prosecution witness No.2, was continued Counsel for the accused submitted to the Court that he desired to file an application for copies of statements recorded by the Sub-Inspector at the first inquest so that it might be endorsed by the prosecution that no such record of statements existed. Then the Public Prosecutor stated to the Court that he fully realized his responsibility in making the statements he had made on the previous day, but there was no record of any statement made at the inquest available. On the fourth day of the trial, after the principal prosecution witnesses had been discharged, the police Sub-Inspector gave evidence, and he then produced in the witness box his notebook containing the statements of the five witnesses he had examined at the inquest, and a copy of such statements was then supplied to the accused. There are some discrepancies between the statements made to the police Sub-Inspector and the statements of the witnesses in the witness box, but it is not suggested that such discrepancies are of a vital nature. 13. There are some discrepancies between the statements made to the police Sub-Inspector and the statements of the witnesses in the witness box, but it is not suggested that such discrepancies are of a vital nature. 13. One distinguishing feature between this case and the case referred to above is that, the statements recorded by the Sub-Inspector of Police in that case was made available to the Court during the trial, though at a belated stage. The High Court as well as the Privy Council took the review that no prejudice, as such, was caused to the accused therein since both the statements were made available and no contradictions were pointed out. 14. In the instant case, the statements recorded by P.W.17, which were earlier in point of time, were completely withheld from the Court as well as the appellants. Therefore, there is a serious lapse on the part of the prosecution, which had adversely affected the rights of the appellants under Section 162 Cr.P.C. and, Section 145 of the Evidence Act; apart from infraction of Sections 173 and 207 of the Code. We, accordingly, answer the first point in favour of the appellants. 15. We do not intend to base our conclusions in this appeal on the answer to the first question alone. We have also examined the evidence on record in greater detail. The trial Court rested its conclusions only upon the theory of last seen together. Therefore, it needs to be seen as to how far, the prosecution has established the theory of 'last seen together'. 16. P.WA said that about 4 or 5 days prior to the recovery of the dead body of the deceased, he saw the deceased, first appel1ant, one Macherla, P.W.6 and some others at a today tope. He has also stated that the deceased and the first appellant were proceeding towards east of the village. He did not speak about the presence of P.W.5. The latter stated that he too has seen the deceased and the first appellant almost at the same point of time and at the same place. He too did not make any reference to the presence of P.W.4. P.W.6 is said to have seen the deceased at 3.00 p.m., on the same day, on which, P.Ws.4 and 5 are said to have seen him. He too did not make any reference to the presence of P.W.4. P.W.6 is said to have seen the deceased at 3.00 p.m., on the same day, on which, P.Ws.4 and 5 are said to have seen him. According to this witness, the deceased was consuming toddy and at that time, he and 7 or 8 persons were present. He said that he has seen the first appellant and the deceased going towards Cherukuru and some others joined them. 17. On a perusal of the evidence of these three witnesses, it becomes clear that while according to P.Ws.4 and 6, the deceased was in the company of the first appellant and some others. P.W.5 said that the deceased and the first appellant alone were there. These witnesses did not implicate the second appellant. P.Ws.10 and 11, on the other hand, stated that almost at the same point of time, at which, P.Ws.4 and 5 have seen the first appellant and the deceased together, they have seen the deceased and both the appellants and that the second appellant was having a nylon rope in his hand. P.W.11 is said to have seen the accused at a well in a hurried mood. He is said to have heard a sound from the well. However, he did not state as to whether he has verified the source or cause of the sound or whether he has revealed the same to anyone, particularly, even after coming to know that the deceased was missing for quite some time. The evidence of other witnesses is not of much use on this aspect. However, a reference is being made to EX.P8 inquest report, in which, mention is made not only to the appellants, but also several persons in column 15. The relevant portion reads as under: "As per the contents of the first Information Report, state of the dead body and the stone tied to the dead body and dropped in the well as per the evidence of the blood relations and witnesses. The deceased Chennaiah was having illegal intimacy with Nandikanuma Lakshmamma and the same is known to the families of both and deceased Chennaiah was visiting house of the Lakshmamma often, Lakshamma her brother-in-law Madhava and some others hatched plan to do away Chennaiah. The deceased Chennaiah was having illegal intimacy with Nandikanuma Lakshmamma and the same is known to the families of both and deceased Chennaiah was visiting house of the Lakshmamma often, Lakshamma her brother-in-law Madhava and some others hatched plan to do away Chennaiah. On 11.4.2002 Thursday at 4.00 p.m. Lakshamma went to the Palimyrah trees at Sunkireddipalem Village took away Chennaiah to her house, 1. Varikuti Obula Reddy. 2. Nuthalapati Bala Kotaiah, 3. Varikuti Nagi Reddy 4. Gudipalli Macherla were present there at that time and witness the same. Later, Nallapu Chennaiah disappeared, then the wife of the deceased was searching for her husband, on 14.4.2002 at 5.00 p.m. herself and some other went to the agricultural well of Anumolu Kotaiah situated on western side of Cherukuru Village and came to know that a dead body of male person was lying in the well, went to the well and found that the dead body was of Nallapu Chennaiah. On 15.4.2002 at 7.00 a.m., took the witnesses 8 to 11 shown in Colunm No.I(b) and remove the dead body from the well by a cot tied with ropes, kept the dead body by the side of the well and observed a black stone weighing above 25 Kgs. was tied to the body. The dead body was swollen and ugly and foul smell was emanating. Hence, we, the panchayatdars opined that Nandikanuma Lakshmma, her brother-in-law Madhava and some others took dead body of Nallapu Chennaiah to the agricultural well of Anumolu Kotaiah situated on the western side of Cherukuru Village and thrown in the agricultural well. 18. In State of Goa v. Sanjay Thakran, 2007 (2) ALD (Crl.) 949 (SC), the Supreme Court enunciated the principles that govern the theory of 'last seen together' and the circumstances under which, it can constitute the basis for convicting the accused. Several decided cases were preferred to and ultimately, it was observed that if there is a considerable gap between the point at which the deceased and the accused were last seen together and the occurrence of incident, the Courts must be careful in applying the theory. 19. From the post-mortem report, it becomes clear that the deceased died about 5 or 6 days prior to the date of examination and nobody was sure as to when the actual death occurred. 19. From the post-mortem report, it becomes clear that the deceased died about 5 or 6 days prior to the date of examination and nobody was sure as to when the actual death occurred. The evidence on record suggests that the deceased was seen in the company of not only the appellants, but also several other persons. Even if the evidence of P.Ws.4, 5, 6, 10 and 11 is believed, notwithstanding inconsistencies pointed out earlier the theory of last seen together, cannot be invoked. Particularly, when the possibility of any third parties intervening is cannot be ruled out. 20. Motive is another circumstance, which assumes significance in the matters of this nature. The mere fact that two persons were last seen together and one of them was found dead, cannot by itself lead to an inference that the other person must have committed the murder of his companion. The prosecution must suggest some motive. Though motive cannot be proved with mathematical precision, in a given case, to connect the accused with the offence, motive, as such, must be pleaded to the satisfaction of the Court. Where no direct evidence exists and the case proceeds on the circumstantial evidence, the necessity becomes more acute. 21. In the instant case, every witness ranging from P. W.1, the wife of the deceased to P.Ws.4, 5, 6 and 10 uniformly stated that the deceased had illicit intimacy with the first appellant for about 5 to 6 years before the date of incident. None of them have spoken to about the difference or causes warranting the commission of offence by A.1 and A2. Even, while the first appellant and the deceased were said to have been going towards Cherukuru Village, it was not even suggested that any ill-will became manifest to the level of motive. It was necessary for the prosecution to take steps to lead evidence, referable to Section 8 of the Evidence Act. No such effort was made. 22. The cumulative effect of our discussion is that the conviction against the appellants cannot be sustained in law or on facts. Accordingly, we allow the appeals, and the conviction and sentence recorded in S.C. No.l6 of 2003, on the file of the Special Judge for trial of offences under SCs and STs (prevention of Atrocities) Act, 1989, Prakasam District at Ongole, dated 1.1 0.2005, against the appellants is set aside. Accordingly, we allow the appeals, and the conviction and sentence recorded in S.C. No.l6 of 2003, on the file of the Special Judge for trial of offences under SCs and STs (prevention of Atrocities) Act, 1989, Prakasam District at Ongole, dated 1.1 0.2005, against the appellants is set aside. They shall be set at liberty, forthwith, unless their presence is needed in any other case.