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2019 DIGILAW 124 (AP)

M. Paul v. State Rep. by Inspector of Police

2019-07-11

C.PRAVEEN KUMAR, M.SATYANARAYANA MURTHY

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JUDGMENT : C. PRAVEEN KUMAR, J. 1. The sole accused in Sessions Case No. 259 of 2011 on the file of VIII Additional District and Sessions Judge (Fast Track Court) at Chittoor, is the appellant herein. He was tried for the offence punishable under Sections 302 and 404 of Indian Penal Code (for short “I.P.C.”) for causing the death of deceased T. Suresh. By his judgment dated 21.10.2011, the learned VIII Additional District and Sessions Judge (Fast Track Court), Chittoor, convicted the accused and sentenced him to suffer imprisonment for life and also to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for three months for the offence punishable under Section 302 of I.P.C. and the accused was further sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/- in default to suffer rigorous imprisonment for a period of one month for the offence punishable under Section 404 of I.P.C. 2. The facts as culled out from the evidence of prosecution witnesses are as under: PW-1 T. Sudhakar is the brother and PW-2 M. Thangaraj is the father of the deceased-T. Suresh and they were living in Pernambut village, Gudiyatham Taluk. The deceased was working in Royal Agro Dairy Limited at Pernambut. On 23.10.2010 at about 09.15 a.m. the deceased left on his motor cycle to go to his office, but did not return home and his mobile phone was also switched off. PW-1 and his family members searched for the deceased but could not trace him. On 26.10.2010 at about 12.00 noon, they came to know about a dead-body near Nayakaneri Forest. PW-1 and his family members went there and found the dead-body of the deceased with head injury. They found the deceased with a banian and underwear and his shoes were found lying near the dead-body. PW-1 went to V. Kota Police Station and lodged a report Ex.P.1, basing on which the S.I. of police, V. Kota registered a case in Crime No. 129 of 2010 under Section 302 of I.P.C. and issued Ex.P.13-F.I.R. 3. On 26.10.2010, PW-12 - C.I. of police proceeded to the scene and held inquest over the dead body of the deceased in the presence of PW-3 and another. Ex.P.2 is the inquest report. On 26.10.2010, PW-12 - C.I. of police proceeded to the scene and held inquest over the dead body of the deceased in the presence of PW-3 and another. Ex.P.2 is the inquest report. PW-12 also prepared Ex.P.14, the rough sketch of the scene and seized M.O.9 - blood stained earth and M.O.10-controlled earth and M.Os.2 to 4 viz. Banian, Drawer and Leather shoes (2 in number). He also got photographed the dead body of the deceased. Ex.P.15 is the photos of the deceased. On 26.10.2010, PW-10 Dr. V. Ravisankar Babu, conducted autopsy over the dead body of the deceased and opined that the cause of death was due to head injury. Ex.P.9 is the Postmortem report. On 27.10.2010, PW-12 gave a requisition to S.D.P.C. Gudiyatham of Vellur District regarding identification of I.M.E.I. of mobile phone of the deceased. 4. On 16.02.2011 the accused approached PW-4 and is said to have made a confession about the commission of the offence. Ex.P.3 is the statement of accused recorded by PW-4 in Tamil language. He confessed that in July 2010 he murdered Shahil Ahmed and committed theft of cash of Rs. 4,000/- Motor Cycle, Cell phone of the deceased. It is said that he developed friendship with the deceased due to the habit of homosexuality. On 23.10.2010, he came to Bathampalle; asked the deceased to drive the vehicle and he sat as a pillion rider. After reaching Andhra Pradesh Border and while proceeding to some distance in forest area, the deceased stopped the vehicle and removed his shoes, pant, shirt, caught hold of the accused and kissed him, then the accused took a big black stone and hit on the head of the deceased two or three times. The deceased died on the spot. Then the accused took the gold ring, motor cycle, clothes and cell phone of the deceased and proceeded towards V. Kota. On the way near Check Dam, he threw the clothes of the deceased in a pit and reached V. Kota and sold the ring for Rs. 5,700/-. The deceased died on the spot. Then the accused took the gold ring, motor cycle, clothes and cell phone of the deceased and proceeded towards V. Kota. On the way near Check Dam, he threw the clothes of the deceased in a pit and reached V. Kota and sold the ring for Rs. 5,700/-. Thereafter, to avoid suspicion, he went to Bethamangalam, left the vehicle in front of the house of one Jilani Basha and informed Jilani Basha that there was no petrol in the vehicle or any amount with him and went to his house; on the same day night, Permambut police arrested him in connection with the murder of Shahil Ahmad and sent to Vellore Central Jail. After releasing from Jail on 22.01.2011, accused came to know that Andhra Police are searching for him regarding murder of Suresh and requested PW-4 to protect him. 5. After recording the confession, PW-4 produced the accused bef V. Kota police station. PW-13 arrested the accused and with the assistance of P.C. No. 149 Ramesh, the confession of the accused was reduced into writing in the presence of PW-5-mediator. Thereafter, at the instance of accused, PW-13 seized one M.O.5-gold ring from the gold shop of PW-7 and visited Bethamarigalam, Karnataka State and seized M.O.1-Motor Bike and sent the accused to the Judicial Custody. Thereafter, one Venugopal Reddy, C.I. of police, Kuppam took up further investigation. After collecting the final opinion from the medical officer, he filed the charge-sheet against the accused before the Court of Judicial Magistrate of First Class, Palamaner, which was taken on file as P.R.C. No. 18 of 2011, who after complying with Section 207 Cr.P.C. committed the case to the Sessions Division under Section 209 of Cr.P.C. On committal, the same came to be numbered as S.C. No. 259 of 2011. 6. Basing on the material available on record, a charge under Sections 302 and 404 of I.P.C. came to be framed, read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. 7. To substantiate its case, the prosecution examined PWs. 1 to 13 and got marked Exs.P.1 to P.15 and M.Os.1 to 10. After closure of evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him, in the evidence of the prosecution witnesses, to which he denied. 7. To substantiate its case, the prosecution examined PWs. 1 to 13 and got marked Exs.P.1 to P.15 and M.Os.1 to 10. After closure of evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him, in the evidence of the prosecution witnesses, to which he denied. No oral or documentary evidence was adduced on behalf of the accused. 8. Relying upon the extra judicial confession made by accused before PW-4 and the recovery of clothes - M.Os.6 and 7 of the deceased and M.O.5 - gold ring, pursuant to the confession made by the accused, the learned Sessions Judge convicted the accused for the offence punishable under Sections 302 and 404 of I.P.C. and sentenced him to suffer imprisonment for life and also to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for three months for the offence punishable under Section 302 of I.P.C. and the accused was further sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/- in default to suffer rigorous imprisonment for a period of one month for the offence punishable under Section 404 of I.P.C. Challenging the same, the present appeal came to be filed. 9. Sri P. Veera Reddy, learned counsel for the appellant, would contend that there are no eyewitnesses to the incident and the circumstances relied on by the trial Court viz. confession made by the accused before PW-4 and recovery of clothes (M.Os.6 and 7) of the deceased and M.O.5 - God ring are not proved and even if proved are not sufficient to convict the accused as the accused made confession nearly 3½ months after the incident and the identification of property was done contrary to the provisions of Criminal Rules of Practice and prayed to allow the appeal. 10. On the other hand, learned Public Prosecutor opposed the same contending that the evidence of PW-4 coupled with the recovery of clothes of the deceased and gold ring pursuant to the confession made by the accused establish the involvement of the accused in the commission of offence and hence prays to dismiss the appeal. 11. 10. On the other hand, learned Public Prosecutor opposed the same contending that the evidence of PW-4 coupled with the recovery of clothes of the deceased and gold ring pursuant to the confession made by the accused establish the involvement of the accused in the commission of offence and hence prays to dismiss the appeal. 11. The point that arises for consideration in this appeal is: “Whether the circumstances relied upon by the prosecution are proved and if proved, whether they are sufficient to connect the accused with the death of the deceased-T. Suresh?” POINT: 12. It is not in dispute that there are no eyewitnesses to the alleged incident and the entire case rests on circumstantial evidence. In order to establish their case, the prosecution has to prove all circumstances relied upon by them and those circumstances so proved should form chain of events connecting the accused with the crime. The two circumstances relied upon by the prosecution are (1) Extra judicial confession made by the accused 3½ months after the incident i.e. on 16.02.2011 before PW-4 and (2) recovery of clothes and ring of the deceased at the instance of the appellant - accused pursuant to his arrest on 16.02.2011. 13. PW-1 is the brother of the deceased. In his evidence PW-1 deposed that on 23.10.2010 at about 09.15 a.m. the deceased left on his motorcycle to go to his office, but did not return. When PW-1 telephoned to the mobile of the deceased, the same was switched off. On 26.10.2010 at about 12.00 noon they came to know about a dead body lying near Nayakaneri forest. Immediately, PW-1 and other family members went to the forest and found the dead body of the deceased with head injury. The deceased was found with Banian and drawer only and his shoes were found lying near the dead body and they did not find motor cycle and mobile phone of the deceased nearby. On the same day, at about 01.00 p.m. they lodged a report with the police. PW-1 identified M.O.1 - Motorcycle, M.O.2 - Banian, M.O.3 - Drawer and M.O.5-Gold Ring as that of the deceased. 14. From the evidence of PW-1, it is clear that he is not an eyewitness to the incident, but he claims to have gone to the forest, where the dead body of the deceased was found nearly 3 days after the incident. 15. 14. From the evidence of PW-1, it is clear that he is not an eyewitness to the incident, but he claims to have gone to the forest, where the dead body of the deceased was found nearly 3 days after the incident. 15. PW-2 is none other than the father of the deceased. According to him at the time of incident, the deceased was working in L.S. Company. In his evidence he deposed that on the fateful day i.e. on 23.10.2010 at about 09.45 a.m. the deceased left to his office on his motorcycle, but did not return. When they telephoned to him by 12.00 noon, the mobile was “switched off”. Later, they searched for the deceased. After three days, they came to know about the dead body lying near Nayakaneri forest near by Anjaneyaswamy temple. All the family members went there and identified the deceased. His evidence is also of no avail since he is not direct witness to the incident. However, it is appropriate to mention here that, in the cross-examination he admits that they did not mention about theft of gold ring in their report, but they had informed these facts to the police when they were examined. 16. PW-3 is a witness for inquest. In the cross-examination it has been elicited that Ex.P.2-inquest report was signed at the house of the deceased though the said report was prepared in the forest on the spot. He pleads ignorance about the other person who signed inquest report. He also admits that he does not know Telugu language and denied the suggestion that he had not gone to the forest where the dead body was lying. He also denied the suggestion that he signed on the inquest report at the instance of police. 17. PW-4 is the main witness relied upon by the prosecution to prove the extrajudicial confession made by the accused. According to him about 5 months prior to his date of evidence, on one day at about 11.00 a.m. or 12.00 noon, the accused came to his shop, confessed about the commission of offence, and also about the theft of motorcycle and gold ring. The accused sought his help apprehending harassment in the hands of police. The said statement was reduced into writing in Tamil language. Ex.P.3 is the statement of the accused recorded by PW-4, which bears his signature. The accused sought his help apprehending harassment in the hands of police. The said statement was reduced into writing in Tamil language. Ex.P.3 is the statement of the accused recorded by PW-4, which bears his signature. Thereafter, he took the accused and produced him before PW-13, Inspector of Police. Police who said to have recorded the confession of accused. He further admits that he knew Tamil and Telugu languages. He further admits that he had narrated what the accused had stated before him and what was written in Ex.P.3 in Telugu language. 18. In the cross-examination, PW-4 admits that he got acquaintance with the accused as he used to come to his shop regularly, whenever he was present alone at the shop and Ex.P.3 was prepared in his shop. Later, he handed over the accused and Ex.P.3- statement of the accused, to the police. He further admits that after Ex.P.3 was translated to Telugu by the police, he came back. He further admits that in his presence, the accused did not state anything before the police and in his presence police did not enquire accused. He denied the suggestion that the accused did not approach him and confessed about the incident and that he deposed at the instance of police. He further admits that he cannot read and write Telugu, but he can speak Telugu. He further admits that he does not know what was written by the police in Telugu when he had translated Ex.P.3 contents from Tamil to Telugu. He also admits that he does not know as to who signed on the translated version. 19. This evidence of PW-4 is mainly relied upon by the prosecution to show that Ex.P.3 is sufficient to convict the accused. As seen from the evidence of PW-4, the alleged confession is said to have been made nearly 3½ months after the incident. According to PW-4, the accused was known to him. If really, the accused person is known to him, coming of the accused to his shop after 3½ months after the incident and confessing about the incident before him is doubtful. 20. At this stage, it would be relevant to refer to the evidence of PW-13 Inspector of Police. According to PW-4, the accused was known to him. If really, the accused person is known to him, coming of the accused to his shop after 3½ months after the incident and confessing about the incident before him is doubtful. 20. At this stage, it would be relevant to refer to the evidence of PW-13 Inspector of Police. In his evidence, PW-13 deposed that on 16.02.2011 at 11.30 a.m. while he was present in V. Kota Police Station, PW-4 appeared before him and produced the accused along with the report in Tamil. Then he sent his police constable to collect mediators i.e. PW-5 and one Chakrapani. In their presence, he questioned the accused about the offence and the accused voluntarily admitted the offence. He took the assistance of P.C. No. 149 Ramesh and reduced the confession of the accused and arrest mahazar into writing. Ex.P.4 is the admissible portion in the arrest mahazar. He arrested the accused at 02.30 p.m. pursuant to his confession and left the place, proceeded to the fields of PW-6 and seized M.Os.6 and 7 i.e. pant and shirt under Ex.P.5. He examined PW-6. Thereafter, he proceeded to Nanda Jewellery shop pursuant to the confession of the accused and seized M.O.5-gold ring under Ex.P.6 - Mahazarnama. However, in the cross-examination, PW-13 admits that he got translated the contents of Ex.P.3 into Telugu through P.C. No. 149, who knows Tamil language. At the same time, he admits that the accused does not understand Telugu. At this stage, it would be useful to extract the relevant portion in the cross-examination of PW-13, which is as follows: “I do not know where Ex.P.3 was written. I got the contents in Ex.P.3 translated into Telugu through P.C. No. 149 who knows Tamil and learnt the contents. It is true the accused does not understand Telugu.” 21. From the answers elicited in the cross-examination of PW-13, it is very clear that the prosecution relied on document viz. translated Telugu version of the extrajudicial confession i.e. the language which is not understood by the accused. Even PW-4 was aware of the language into which Ex.P.3 was translated, the translated version was neither read over to PW-4 nor to the accused. Hence, a doubt arises as to the contents of Ex.P.3. 22. translated Telugu version of the extrajudicial confession i.e. the language which is not understood by the accused. Even PW-4 was aware of the language into which Ex.P.3 was translated, the translated version was neither read over to PW-4 nor to the accused. Hence, a doubt arises as to the contents of Ex.P.3. 22. Further, the appellant-accused did not figure as an accused in the F.I.R. and nobody complained that it was the accused, who was responsible for the death of the deceased; that being the position it is difficult to believe that he would have gone to PW-4 and confessed about the commission of offence nearly 3½ months after the incident when no suspicion was entertained against him. Further, PW-4 deposed that he handed over the accused to the Sub-Inspector of Police in the police station along with Ex.P.3 and returned from there. But the evidence of PW-13 shows that PW-4 was present in the police station till the proceedings are over, which is not the version of PW-4. 23. The other circumstance relied upon by the prosecution is recovery of articles pursuant to the statement made by the accused. Nearly 3 ½ months after the incident, M.Os.6 and 7 i.e. pant and shirt were recovered from the fields of PW-6. Neither PW-1 nor PW-2 identified the clothes of the deceased, which are discovered as that of the deceased. 24. PW-7 N. Shyamsundar was running a Jewellery shop. According to him, about 8½ months prior to the date of his evidence, accused came to his shop and sold a gold ring, which was purchased for Rs. 5,700/-. Later, Police came to his shop along with the accused and enquired whether the accused had sold one gold ring. He kept the same along with ten other gold rings and is said to have identified the gold ring, which was sold to him. The said gold ring came to be seized under Ex.P.6. In the cross-examination he admits that he maintains a register for the articles sold, but not for the articles purchased by him. The average turnover of his business was about Rs. 7,000/- per day. He further admits that, without knowing the particulars of the person, normally, he would not purchase gold items. In the cross-examination he admits that he maintains a register for the articles sold, but not for the articles purchased by him. The average turnover of his business was about Rs. 7,000/- per day. He further admits that, without knowing the particulars of the person, normally, he would not purchase gold items. He further admits that, he does not know the particulars of the accused and to which place he belongs to, but he purchased the gold ring as the accused told that he is in urgent need of money. He denied the suggestion that, he is in the habit of purchasing stolen articles. Further, he denied the suggestion that, at the instance of police normally, he gives evidence in their favour. 25. Two things crop up for consideration to disbelieve the recovery. In Ex.P.1, PW-1 did not disclose about the missing of M.O.5 - Gold Ring. In fact, PW-2 admits that he did not disclose about the loss of M.O.5 - Gold Ring in the report given to police. It would be relevant to extract the admission made by PW-2 in his cross-examination, for better appreciation, which is as follows: “We did not mention about theft of gold ring in our report, but we had informed these facts to the police when we were examined.” 26. There is a suspicion with regard to recovery of M.O.5 - gold ring. PW-7 did not give exact date as to when the accused came to his shop and sold the gold ring, as he deposed by him it was about 8½ months prior to the date of his evidence. PW-7 admits in his cross-examination that without knowing the particulars of the person, normally, he would not purchase gold items, but though the accused is stranger to PW-7, he claims to have purchased gold items, which throws suspicion. 27. Further, identification proceedings of M.O.5 - Gold Ring came to be conducted in the village by PW-9, but the same is contrary to Rule 35 of the Criminal Rules of Practice, which prescribes a procedure for holding identification of the articles seized. Admittedly, the identification of the property was neither held in the court nor in the presence of Magistrate. PW-9, who is an agriculturist, is said to have conducted the identification proceedings, which is contrary to the said rule. 28. Admittedly, the identification of the property was neither held in the court nor in the presence of Magistrate. PW-9, who is an agriculturist, is said to have conducted the identification proceedings, which is contrary to the said rule. 28. A Division Bench of the High Court of Judicature for the State of Telangana and for the state of Andhra Pradesh in Middela Parvaiah vs. State of Andhra Pradesh, 2016 (3) ALT (Crl.) 373 (DB) observed that when once the Test Identification Parade of property was not conducted in accordance with the procedure prescribed in Criminal Rules of Practice, much credence cannot be given to the alleged identification of the said property by the witnesses. 29. The Hon’ble Apex Court in Jarapala Deepala @ Babu Rao and Others vs. State of A.P. (2005) 2 ALD (Crl.) 818 while dealing with the matter where the test identification parade of the property was not in accordance with procedure, held as under: “As seen from Rule 35 of the Criminal Rules of Practice the identification of properties shall be held in the Court of Magistrate where the properties are lodged and each item of property shall be put up separately for the parade and it shall be mixed up with four or five similar objects and before calling upon the witnesses to identify the property, he shall be asked to state the identification marks of his property and the witnesses shall be called in one after the other and on leaving shall not be allowed to communicate with the witnesses not yet called in. The said procedure of conducting identification parade in respect of the property has not been followed in this case, as admittedly the identification parade was not conducted in the Court of the Magistrate. Thus, it is clear that the test identification in respect of the properties are not conducted in accordance with the procedure prescribed in Criminal Rules of Practice. Therefore, much credence cannot be given to the alleged test identification of the properties.” 30. In view of the two judgments referred to above, we feel that the identification of the property by PW-1 cannot be given much weight. 31. Having regard to the aforesaid discussion, we feel that the two circumstances relied upon by the prosecution are not legally proved and sufficient to connect the accused with the crime. In view of the two judgments referred to above, we feel that the identification of the property by PW-1 cannot be given much weight. 31. Having regard to the aforesaid discussion, we feel that the two circumstances relied upon by the prosecution are not legally proved and sufficient to connect the accused with the crime. Consequently, the conviction and sentence recorded by the trial Court is liable to be set aside. 32. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed against the appellant-accused - M. Paul, for the offences punishable under Sections 302 and 404 of I.P.C. in Sessions Case No. 259 of 2011 on the file of the VIII Additional District and Sessions Judge (Fast Track Court) Chittoor, by judgment dated 21.10.2011, are set aside. The appellant-accused is acquitted and he shall be set at liberty forthwith, if he is not required in any other case. 33. Consequently, miscellaneous applications pending if any, shall also stand closed.