HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No. 1556 of 2009 Dated: 08.07.2014 Between:
Singam Ramakrishna. Vs.
The State of Andhra Pradesh, Represented by Public Prosecutor, High Court, Hyderabad.
… Appellant/Accused … Respondent HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No. 1556 of 2009 JUDGMENT: (Per Hon’ble Sri Justice G. Chandraiah) This criminal appeal is filed by the Accused through the counsel, apart from another appeal - Crl.A.No.411 of 2010 filed by the counsel appointed through the Legal Aid Committee, aggrieved by the same judgment and awarding conviction in S.C.No.407 of 2007, dt.11.06.2008 by the learned II Additional Metropolitan Sessions Judge, Hyderabad.
2. It is submitted by both the learned counsel that without knowing about the filing of the present appeal by the accused, the appeal vide Crl.A.No.411 of 2010 is filed on reference by the legal- aid. Therefore, the learned counsel submits that with an intention to pursue the present appeal only, the other appeal i.e., Crl.A.No.411 of 2010 was already withdrawn with the permission of the Court, which was dismissed as withdrawn. Therefore, the dismissal of the said appeal – Crl.A.No.411 of 2010 as withdrawn, will have no effect on the judgment now being rendered on merits in the present appeal.
3. The case of the Prosecution, in brief, is that the accused Singam Ramakrishna, who is the native of West Godavari District, was appointed as Machinist in Bharath Dianamic Ltd., Co., Kanchanbagh, Hyderabad, during the year 1987. He married Smt.Sujatha-PW.1 during the year 1988 and out of wedlock they are blessed with one daughter Singam Cherishma-PW.2, aged about 16 years, and one son Singam Chaitanya @ Shyam, aged about 14 years, the deceased. The accused is addicted to all sorts of bad habits. He is having illicit intimacy with one woman viz., Subbalaxmi and through her blessed with two daughters. Due to financial problems, the accused used to harass and torture his wife Sujatha-PW.1. Unbearable with the said harassment and torture, PW.1 filed a case against the accused under Section 498- A IPC at L. B. Nagar police station, which was pending before the Court of Ranga Reddy District Head Quarters. The accused by visiting the house of his wife Sujatha, forced her to come to compromise and they agreed for the compromise on the condition that the accused has to sell his house at Balapur, clear the debts and purchase a house in the name of Sujatha and her children, for which the accused agreed which resulted in compromise of the case under Section 498-A IPC. When the compromise was reported, the Magistrate directed them to live together for a period of three months, and if they live happily the matter will be closed. Accordingly, the accused sold the house at Balapur and purchased a house at LCH Colony, Hyderabad in the name of Sujatha and her children. The accused has no permanent residence and as the case is still pending, he bore grudge against his wife Sujatha and her son and accordingly decided to eliminate his wife and children one after the other. As per the said plan, on 10-12-2006 at about 11 a.m. the accused went to the house of his wife Sujatha at LCH Colony and having come to know that his son is playing alone on the terrace of the house, went over there, pulled a saree, tied around the neck of his son and killed him by strangulation. To confirm the death, again the accused pulled a nylon rope, tied the same around the neck of his son due to which his son Chaitanya fell over the floor and died on the spot, as the blood oozed from his nostrils and mouth. Thus, the accused committed the offence punishable under Section 302 IPC.
4. On behalf of the prosecution, PWs.1 to 13 were examined, Exs.P-1 to P-14 are marked, and Mos.1 to 5 are taken on record. On behalf of the defence, DWs.1 to 4 were examined and Ex.D-1 was marked.
5. PW.1 is the complainant and mother of the deceased, PW.2 is the elder sister of the deceased, PWs.3 and 4 are the alleged eye witnesses to the incident, PWs.5 and 6 are circumstantial witnesses, PW.7 is a photographer, PW.8 is a panch witness, PW.9 is a panch for confessional statement of accused and seizure of weapon, PW.10 is a panch for inquest panchanama, PW.11 is the Professor of Forensic Medicine, Osmania Medical College, PW.12 is one of panch witness for the inquest conducted over the dead body of the deceased, and PW.13 is the Investigating Officer.
DW.1 is the accused, DW.2 is the pastor trainee, DW.3 is the supervisor and DW.4 is the Deputy of Manager of BDL, Kanchanbagh.
Ex.P.1 is the complaint marked by PW.1, Ex.P-2 is the relevant entry at Sl.No.110 at relevant sheet in the customers arrival register as Mr.Ramesh Babu, S/o.Mr.Appa Rao marked by PW.5, Ex.P.3 is the daily chart and relevant entry in Sl.No.3, Bed No.203, marked by PW.5, Ex.P-4 is the duplicate copy of receipt evidencing payment of Rs.50/- towards bed charges, Exs.P-5 to P.20 are the photographs with one C.D., Ex.P.6 is the crime scene observation panchanama, Ex.P.7 is the rough sketch, Ex.P.8 is the admissible portion in the confessional statement of accused dated 12-12-2006, Ex.P.9 is the seizure panchanama of sickle (MO.5), Ex.P.10 is the seizure panchanama of Exs.P.2 to Ex.P.4, Ex.P.11 is the post mortem report marked by PW.11, Ex.P.12 is the inquest report, Ex.P-13 is the FIR and Ex.P-14 is the FSL report.
Ex.D-1 is the Certificate issued by Joseph P.Kurain dt. 05- 01-2008. MO.1 is a nylon rope, MO.2 is a saree, MO.3 is a white colour shirt-button, MO.4 is cotton swab and MO.5 is a hunt sickle.
6. Basing on the above evidence available on record, the trial Court held that the prosecution proved its case beyond any shadow of reasonable doubt and the accused is found guilty of the charge under Section 302 IPC in causing the homicidal death of his son Chaitanya-deceased and accordingly convicted him under Section 235(2) Cr.P.C. and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/- in default in payment of fine to under go simple imprisonment for one month. Aggrieved by the said judgment, the present appeal is filed.
7. Learned counsel for the appellant would submit that it is a case of no evidence, that there is no motive on the part of the accused to kill the deceased, that the evidence of PWs.1 and 2 is not corroborated by any independent evidence, that the prosecution failed to establish the ‘last seen theory’ by proving circumstances that the accused visited the house of PWs.1 and 2 and deceased, and that the accused left the house of PW.1 immediately after the incident, and no strong and solid evidence to show that the accused committed the offence, that the circumstances are not consistent with the guilt of the accused but also consistent with his innocence and the accused is entitled for benefit of doubt, that the trial Court erred in placing reliance on the evidence of PW.1 coupled with the contents of Ex.P.11, post- mortem report, which clearly go to show that the death of the deceased is homicidal, that the prosecution failed to establish that there were differences, misunderstandings and disputes between PW.1 and the accused, and that the accused used to visit the house of PWs.1, 2 and the deceased, in view of compromise, and that there is no proof of his visiting to the house of PW.1 on the date of offence except alleged evidence of PWs.3 and 4, that the prosecution failed to examine the independent witnesses. Therefore, for all the above grounds, the learned counsel for the appellant would submit that the accused is liable to be acquitted and that the impugned judgment is liable to be set aside.
8. On the other hand, the learned public prosecutor submits that no doubt PWs.1 and 2 are the mother and sister of the deceased and by virtue of their statement corroborated by evidence of PWs.3, 4 and 5, the prosecution proved the presence of the accused at the scene of offence. In view of the evidence of PWs.11, 12 and 13 it is clear that the accused killed the deceased by strangulation, and there is no possibility for any person other than the accused to kill the deceased. Therefore, he submits that the learned trial Court basing on the oral and documentary evidence on record, particularly placing reliance on the statements of PWs.1 and 2, corroborated with the evidence of PWs.11 and 13, imposed punishment of life and therefore, there is no need to interfere with the judgment passed by the trial Court, and therefore, the appeal is liable to be dismissed.
9. The point for consideration is whether the Court below was right in rendering the impugned judgment, imposing punishment on the appellant for the offence under Section 302 IPC ?
10. PW.1-Smt.Singam Sujatha, who is no other than the wife of the accused, is the de facto-complainant, who set the criminal law into motion and is examined as a circumstantial witness. PW.2- Kum.Singam Cherishma, is no other than the daughter of the accused and PW.1, and is examined as eye witness to the incident proper in which the accused said to have murdered his son Chaitanya. PW.3 - S.Srinivas and PW.4 -K.Srinivas are the circumstantial witnesses examined to speak about their noticing the accused on 10-12-2006 while going into the house of PWs.1 and 2 and going out of the house of PWs.1 and 2 in a hurried manner. PW.5 Md.Sadullah Khah is the proprietor of Hyderabad Lodge, Imiliban Bus-stand and is a circumstantial witness examined to prove about the accused staying in the said lodge from 9.00 p.m. on 10-12-2006 till 11 a.m. on 11-12-2006 by entering fictitious name in the relevant records. PW.6-B.Babu Rao, a government employee is examined as a circumstantial witness to prove about the accused staying in a portion of his house as tenant at Jillelaguda, Hyderabad during the relevant period and seizure of MO-5 sickle from the said portion. PW.7- N.Rajeshwar Rao is a photographer, who photographed the scene of offence and the dead body, under Ex.P-5 photographs. PW.8 - S.Sravan Kumar is one of the panch witness for the crime scene observation panchanama, rough sketch and seizure of Mos.1 to 4 from the crime scene. PW.9-Md.Wajid is one of the panch witness for the alleged confessional statement said to have made by the accused about the commission of the offence and the seizure of MO-5 hunting sickle and relevant records pertaining to Hyderabad Lodge of PW.5. PW.10-P.Krishnaiah is the alleged panch witness for the inquest conducted over the dead body of the deceased.
PW.11-Dr.P.Hari Krishna, Professor of Forensic Medicine, Osmania Medical College, is examined to prove the handwriting, signature and the post-mortem certificate issued by Dr.M.Sattaiah, who worked as Asst. Professor in the said department. PW.12- B.Manoj Kumar is one of the panch witness for the inquest conducted over the dead body of the deceased. PW.13-M.Ram Mohan Rao is the then Inspector of Police, Saidabad, Hyderabad, who conducted investigation and laid the charge-sheet against the accused.
11. After completion of the examination of the prosecution witnesses, the trial Court examined the accused under Sec.313 Cr.P.C. with reference to the incriminating circumstances found against him in the evidence of the prosecution witnesses for which the accused denied the same as false. The accused further stated that in the month of March 2001, as he questioned about the adulterous life of PW.1, she left his house along with PW.2, leaving their son-deceased, and he does not know the residential house of PWs.1 and 2 as he never went there. Apart from that on 10.12.2006 as it was Sunday, at about 8.30 am., he went to Hebron Church, Golconda X Roads, Hyderabad and came out on the next day morning at about 5.30 a.m. and went to his office, where the police apprehended him in the presence of Mr. Ajay Kumar, General Manager. To prove his case, the accused got examined DWs.1 to 4 and marked Ex.D.1.
12. The case of the prosecution is that the marriage of the accused with PW.1 was performed in the year 1988 at Santhoshnagar, Hyderabad and out of their wedlock, they are blessed with a daughter-Cherishma, PW.2 and son – Chaitanya, the deceased. Further, when the deceased Chaitanya was aged about 3 years, the accused addicted to bad habits and used to go to the house in fully drunken condition and used to harass PW.1 with a demand to bring Rs.1.00 lakh from her parents. Further, on the request of PW.1, her brothers got purchased 216 sq. yards of house plot in Ayodhyanagar Colony, Balapur cross-roads, Meerpet, Ranga Reddy district, where a house was constructed with Rs.2.00 lakhs by the loan obtained by the accused from his company and Rs.1.5 to Rs.2.00 lakhs provided by the brothers of PW.1. The accused shifted his family into the said house in the year 1995 and even thereafter also he did not mend his ways, used to bring women to the house, assault and scold PW.1 in filthy language, while demanding some more money, and thus lived in the same house till March, 2002. Further, on 6.3.2002, the accused returned to the house at midnight and attempted to kill PW.1. Therefore, PW.1 along with PW.2 left her matrimonial home and lodged a complaint, basing on which a case was registered against the accused for the offence under Sec.498-A IPC and the same is pending. Thereafter, the accused contacted second marriage with one Subbalaxmi on 14.5.2002 without the knowledge of PW.1 and blessed with two daughters through her. Further, on 1.7.2006, the deceased Chaitanya, left the house of the accused and went to PW.1, complaining that the accused and his second wife were harassing him.
It is further alleged that in the month of August, 2006, on the eve of birthday of their daughter Cherishma-PW.2, the accused went to the residence of PW.1 and proposed for compromise to withdraw the pending case for the offence under Sec.498-A IPC with a promise to look after them well. On the approach of the accused and PW.1, the Court advised them to live together initially for a period of three months. Therefore, by selling their house at Balapur, they have purchased another house at LCH Colony, Saidabad and started residing therein. Even thereafter also, the accused used to go to the house of his second wife at Jillelaguda, Hyderabad.
On 10.12.2006 at about 11.00 am – Sunday, the accused went to the house of PW.1, which was noticed by PW.3, enquired PWs.1 and 2, and went to Chaitanya, who is playing on the terrace. Thereafter, as directed by PW.1 to call both the accused and the deceased for lunch, their daughter Cherishma (PW.2) went to the terrace through stair case, and noticed that the accused trying to tie a saree and thereafter a nylon rope around the neck of the deceased. On seeing PW.2, the accused hurriedly came down and left the house, as was noticed by PW.4. PW.2 on noticing the blood oozing from nostrils and mouth of Chaitanya, who fell down on the terrace, immediately went and informed PW.1, and both of them again came to the terrace, and noticed the dead body of Chaitanya; and on hearing their cries neighbours came there, took the dead body from the terrace to the hall and kept the dead body on the cot. Thereafter, PW.1 lodged Ex.P.1 complaint with the police, basing on which the police registered a case in Crime No.335 of 2006 against the accused for the offence under Sec.302 IPC and issued FIR, Ex.P.13.
13. On receipt of a copy of Ex.P.13, the Inspector of Police, PW.13 rushed to the scene, took up the investigation, examined and recorded the statements of PWs.1 to 4, conducted the scene of offence panchanama-Ex.P.6 in the presence of PWs.8 and 12, seized MOs.1 to 4, drafted Ex.P.7-rough sketch of the scene, got photographed the dead body, conducted inquest over the dead body of the deceased in the presence of PWs.10 and 12, and sent the dead body for post mortem examination, where Dr.M.Sattaiah, who is no more, conducted autopsy and issued Ex.P.11 Postmortem report, opining that the death of the deceased was due to ligature and strangulation, 24 hours prior to the said examination. Thereafter, PW.13 arrested the accused on 12.12.2006, interrogated him, recorded his confessional statement, and seized MO.5 sickle, and the accused lead him to Hyderabad lodge, Imliban Bus-stand, Hyderabad where Exs.P.2 to 4 were seized under cover of Ex.P.10 seizure panchanama, and the owner of the hotel PW.5 identified the accused as the person, who stayed in the hotel on the night of 10.12.2006. Further, PW.13 forwarded MOs.1 to 4 to FSL, Hyderabad and obtained Ex.P.14 FSL report, and after completion of the investigation PW.13 filed the charge sheet against the accused for the offence punishable under Sec.302 IPC.
14. The defense of the accused is one of total denial about his complicity in the death of his deceased son and pleaded alibi.
15. From the above it is clear that the marriage of the accused with PW.1-Sujatha was performed in the year 1988 and they are blessed with PW.1 daughter and the deceased son, who are aged about 16 years and 14 years respectively, as on the date of the offence. However, due to disputes between the wife and husband, PW-1 left the matrimonial home, unable to bear with the ill- treatment by the accused, leaving the deceased son with him, and to that extent a criminal case was registered against the accused, which was ended in compromise, and after the said compromise the accused was living with PWs.1 and 2 and the deceased at their new house at Saidabad. However, the accused used to visit the house of his second wife at Jillelaguda, now and then. On 10.12.2006 in between 11.00 am to 12.00 noon, the deceased Chaitanya, the son of the accused and PW.1, was found dead on the terrace of their residential house at Saidabad. Therefore, keeping in view the above facts, which are not in dispute, it is to be decided whether the death of the deceased is a homicidal death.
16. Ex.P.11 is the Postmortem report pertaining to the deceased Chaitanya conducted on 11.12.2006 by Dr. N.Sattaiah, Asst. Professor of Forensic Medicine, Osmania Medical College, Hyderabad. As the said doctor was expired on 29.5.2007, he is not examined to testify with reference to Ex.P.11. However, the prosecution examined PW.11-Dr. P. Hari Krishna, who was a colleague of Dr. Sattaiah and has acquaintance with his hand- writing and signature. PW.11 deposed that Ex.P.11 postmortem report is in the hand-writing of Dr.N.Sattaiah and bears the signature of Dr. Sattaiah, who conducted autopsy over the dead body of the deceased and found three major injuries, as mentioned in Ex.P.11. Ex.P.11 is proved by examining PW.11, the colleague of the doctor, who is no more and not available for giving testimony before the Court. The examination of the person, who has acquaintance with the hand-writing and signature of the person, who is no more, to prove the document is one of the mode recognized by the Evidence Act.
17. Ex.P.12 is the inquest report pertaining to the dead body of the deceased conducted by PW.13 in the presence of PWs.10 and 12, at about 3.30 p.m. on 10.12.2006 at H.No.437, LCM Colony, Saidabad, the house of PWs.1 and 2. PW.10 panch-witness did not choose to support the case of the prosecution and declared hostile. However, PW.12, another panch witness, testified about his presence at the time when PW.13 conducted inquest over the dead body of the deceased, and his signature on Ex.P.12, as one of the panch-witness. Nothing substantial is elicited from PWs.12 and 13 to discard their testimony about the case of the prosecution that PW.13 conducted inquest over the dead body of the deceased in the presence of PW.12 on 10.12.2006 in the house of PWs.1 and 2. Ex.P.5 are the positive photographs showing the injuries on the dead body, particularly the ligature mark around the neck and blood oozing out from the mouth and nostrils. The factum of taking photographs is established by PW-7, photographer.
Thus, the evidence of PW.1 coupled with the contents of Ex.P.11 – Post mortem report, and the evidence of PWs.12 and 13, coupled with the contents of Ex.P.12 inquest clearly establishes that the death of the deceased on 10.12.2006 is nothing but homicidal death.
18. Keeping in view of the above, coupled with the fact that the accused is not disputing that the death of their deceased son is homicidal death, the trial Court held that the death of the deceased Chaitanya on 10.12.2006 in between 11.00 a.m. and 12.00 noon is nothing but homicidal death, for which there is no controversy. The controversy is about the plea of alibi taken by the appellant as to his presence at the scene of offence is the crucial issue in this case.
19. Now, the oral and documentary evidence adduced is to be scrutinized to find out whether there is any nexus between the homicidal death of the deceased-Chaitanya and the accused facing the charge.
PW.1 – Sujatha is no other than the wife of the accused, mother of the deceased Chaitanya and PW.2 Cherishma. PW.1 is the de facto complainant, who set the criminal law into motion by lodging Ex.P.1 - complaint against her husband for the death of their son, at about 2.00 p.m. on 10.12.2006. It is clear from the evidence of PWs.1 and 2 that as on the date of the incident proper there were differences and disputes between PW.1 and the accused, and that PW.1 has been residing separately along with PW.2, and after the compromise, the accused used to visit the house of PWs.1 and 2 now and then. Admittedly, a case against the accused for the offence punishable under Sec.498-A IPC was registered at her instance and the same was pending as on the date of the incident proper. Therefore, the contention of the learned defence counsel that PW-1 is not only interested but also inimical witness cannot be brushed aside. It is no doubt true that the evidence of interested and inimical witnesses cannot be thrown out on that ground alone, but has to be scrutinized with great care and caution so as to find out whether it can be safely relied upon.
According to PW.1 on 10.12.2006 at about 11.00 a.m. the accused came to their house, enquired from their daughter PW-2 about the whereabouts of the deceased, and went to the terrace, where the deceased was playing; and on her request to call both the accused and the deceased, PW-2 went to the terrace to call them for lunch, and noticed that the accused in a hurried manner got down and left the house, and PW-2 returned and informed by crying that the accused killed the deceased, and therefore both of them went to the terrace and noticed the deceased-Chaitanya fell down on the terrace, facing downwards with bleeding from his nose and mouth, and that she also noticed a nylon rope and a saree tied around the neck of the deceased, and after hearing their cries, the neighbours gathered there and took the dead body into the house from the terrace. Thus, it is clear from the evidence of PW.1 that she is not a direct eye-witness to the incident proper, and she is a circumstantial witness to speak about the accused coming to their house on the date of incident, going to the terrace where their deceased son Chaitanya was playing, and leaving the house in hurried manner when PW.2 was going to the terrace to call them for lunch, and noticing the dead body on the terrace with bleeding from nostrils and mouth. Though it was suggested to PW.1 that her brothers, who wanted to kill the accused, thinking that on his death, the job will be given to PW.1 and since their son heard about the said criminal conspiracy, they killed their son during the night of 09.12.2006 and placed the dead body on the terrace, PW-1 denied the same. It is not in dispute that the deceased is the only son of PW.1 and the accused.
The trial Court observed that the incident proper in which the deceased Chaitanya was murdered was allegedly taken place in between 11.00 am to 12.00 noon on 10.12.2006. Ex.P.1 written complaint was lodged before the S.I. of police at about 2.00 p.m. on the same date. Therefore, there is no delay in lodging Ex.P.1 written complaint. We do not find any difficulty in approving the same as there is no delay in lodging Ex.P.1 written complaint with the police. The Court below further observed that the incident occurred on the terrace of the residential house of PW-1. Therefore, the presence of PW-1, a house-wife, PW-2 student and the deceased son is quite natural and probable. The evidence of PW.1 that in view of the compromise and the advise of the learned Magistrate, the accused used to come to their house is also quite acceptable. Therefore, the trial Court observed that the evidence of PW.1 is fully corroborated by the contents of Ex.P.1, the earliest document in point of time, and the evidence of PWs.2 to 4 is quite clear, cogent and can be safely relied upon.
20. The relationship between the accused, PWs.1 and 2 and the deceased is not in dispute. PWs.1 and 2 happened to be mother and daughter. To rely and accept the same, their evidence should be based on the nature, place, date and the mode of occurrence of the incident. In the instant case, as observed by the Court below, there was a matrimonial dispute between the accused and PW.1, which was registered as a crime punishable under Sec.498-A IPC, and the same is pending. It is also not in dispute that a plot being purchased by the brothers of PW.1 and by availing loans from the Company of the accused, the house was constructed, and later it was sold at the instance of PW.1 and her brothers, and got purchased another house in the name of PW.1, which is the place of occurrence, in which PWs.1 and 2, and the deceased were staying on the date of incident. It is also seen from the record and even as per the statement of PW.1, that much before the incident, the deceased came out from the house of the accused and staying along with them. Thus it is clear that the deceased is the only son for PW.1 and the accused and that there are no other male- children even through his second wife. Before the date of incident, how many days or times, the accused went to the house of PW-1 is not available on record, and even there is no mention in Ex.P.1 complaint or in the statement of PW-1 in this regard. To prove that the accused has visited the house of PWs.1 and 2 on the date of incident, it is only the statements of PWs.1 and 2. PW.1 stated that when the accused came to their house, she was in the kitchen and PW-2 was in bed room. If that is the case, it is not known whether PW-1 had seen the accused personally or heard the voice of the accused. PW-2 also did not personally see the accused when he came to their house, nor the accused see the daughter, who was in bed room. It is not the case of the prosecution that PW-2, who is the natural daughter of the accused, had any quarrel or differences and not interested to see him. It is an admitted fact that the deceased stayed for some time with the accused, and PW-2 is staying with PW.1. It is also not in dispute that the deceased left the company of the accused and was staying with PWs.1 and 2 in their house, much before the date of incident. The alleged conspiracy by the brothers that they will kill the accused, and that the deceased having heard the same, may carry the information to the accused or the alleged harassment meted out by the deceased through the second wife and the accused, is not at all believable for the reason that when such harassment was meted by the deceased and how many times it was happened in the hands of the accused and his second wife is not placed on record. It is not the case of PW-1 that on several occasions, she received complaint through the deceased that while he was staying with the accused, the deceased was subjected to any harassment in the hands of the accused or his second wife. Therefore, the version of the prosecution that because of the controversy between the accused and the family of PW.1, the accused hatched a plan to do away all her family members, and started with the deceased is unbelievable. Therefore, in our view the finding of the trial Court that the evidence of PWs.1 and 2 is trustworthy and can be safely relied upon is unsustainable.
21. While considering the evidence of PWs.3 and 4, who are said to be independent witnesses and whose evidence is found to be corroborative with the evidence of PW-1, the Court below observed that PW-3 is doing business in real-estate and has acquaintance with the family of the accused. PW.3 deposed that on 10.12.2006 he went near the Water Tank in Saidabad Colony, Hyderabad in connection with his business and near the house of PWs.1 and 2, he noticed the accused entering into the house and on seeing him he wished and went inside. The Court below further observed that the accused is a known person to PW.3, who has no motive or grudge to speak falsehood against the accused. But, there is no evidence that on that particular date of incident, why PW-3 came near the house of PWs.1 and 2 at about 11.00 a.m., and why he was silent, as a person dealing with real-estate business, when a known person is entering into the house of known people i.e., PWs.1 and 2, and did not talk anything; and how long PW-3 was stayed near that house is not on record. Merely because PW-3 happened to see the accused entering into the house of PWs.1 and 2 and that amounts to corroborative with the statements of PWs.1 and 2, who themselves had not seen the accused personally, and whose evidence is not itself is a trustworthy, does not mean to be corroborative with the evidence of PW.3. Therefore, it cannot be presumed that the accused was present at the scene of offence.
22. Similar is the evidence of PW.4 – Srinivas, who was working as a real-estate agent and has acquaintance with the accused. PW.4 deposed that on 10.12.2006 at about 12.00 noon while he was proceeding on his Scooter from Erragunta towards Malakpet and reached near Water Tank, Saidabad, he noticed the accused going in a hurried manner; stopped his scooter and asked the accused as to what happened to the proposal to sell their house, and that the accused just went away in a hurried manner saying that he will talk later, and in the evening he came to know that the accused killed their son in the house. The Court below held that PW-4 is an independent witness and he has no axe to grind against the accused, and he is neither related to PWs.1 and 2 nor in any way interested in the prosecution, and therefore felt that the evidence of PW.4 is corroborative with the evidence of PWs.1 and 2.
As far as the evidence of PW.4 is concerned, except the stereotyped statement on par with the statement of PW.3, nothing is new in his evidence, except to the effect that he tried to talk to accused in connection with the sale of his house at Balapur Cross Roads and that the accused gone in hurried manner. When it is already observed by us that the statements of PWs.1 and 2 are not trustworthy and believable with regard to the presence of the accused at the scene of offence, the statement and the manner in which PW.4 made it, cannot be held to be corroborative with the statements of PWs.1 and 2 to say that the accused is responsible for the alleged offence.
23. The case is purely based on circumstantial evidence. The allegation is that the accused, being the father of the deceased Chaitanya, aged about 14 years, has killed him by strangulating while the boy was playing on the roof-top of the house bearing No.437-LCH, Saidabad, Hyderabad. Admittedly, there were long standing disputes between PW.1, the mother of the deceased boy, and the accused, father of the deceased. They are also involved in a criminal case, which is said to have been compromised just three months prior to the incident, which took place on 10-12- 2006. The accused-husband was living separately from his wife PW.1, who was staying in the house where the incident took place along with her teenaged daughter PW.2. For several years in the past, the deceased boy had been staying with the accused father. It is also on record that it is the accused, who got the deceased boy admitted in the school i.e., Bharatiya Vidya Bhawan, Tadepalligudem, West Godavari District.
24. As it is well settled, motive for commission of a crime play a prominent role in determining the guilt or otherwise of the accused in the case based on circumstantial evidence unlike a case where there is availability of direct evidence. Perusal of the record shows that absolutely there is no motive, whatsoever, for the accused father to kill the deceased son, which can be said to be a factor driving the accused to kill his only son. In the charge-sheet, it is mentioned that the cause for the accused to resort to the extreme step of killing his son is that the deceased son used to carry words and convey to his mother namely the estranged wife of the accused. No other details are mentioned. When it came to evidence, the mother-PW.1 is conspicuously silent about this aspect and did not whisper a word as to what was the reason for the accused-father to have killed the deceased.
25. The other circumstance is the last seen theory which is relied upon by the prosecution. According to the case of the prosecution, on 10-12-2006 at about 11.00 a.m., when PW.1 was in the kitchen and her daughter PW.2 was in the room, and the deceased playing on the roof- top, the accused came to the house and enquired about the whereabouts of his son, and on being told that the boy is playing on the roof-top, he went there and strangulated him to death with the help of a saree and a rope, which is meant for drying the cloths. It is alleged that on being told by mother-PW.1, the daughter PW.2 went to the roof-top to call both the accused and the deceased for lunch and at that time, PW.2 has noticed the accused strangulating the deceased and seeing her, the accused escaped from there.
26. This theory is difficult to believe for more than one reason. The evidence of PWs.1 and 2 on this aspect is inconsistent. According to PW.1, by the time PW.2 went to the rooftop, she found her deceased-brother lying dead and the accused was not there. However, according to PW.2, she has virtually seen her father (accused) strangulating her deceased-brother to death in her presence. But, this material aspect has not been spoken to by PW.2 in her earlier statement recorded during the course of investigation or inquest.
27. The incident took place on Sunday at about 11.00 a.m., on the roof-top of a two storied building. It was having a small railing wall and there were several residential houses around the building. The house is also abutting the main road in the colony. The deceased was a well-built boy of height about 5.2’. Therefore, it is difficult to believe that the accused father could have killed such a boy in broad day light on the roof-top, at a place where there were several residential houses. It is nobody’s case that when the deceased was being strangulated, he raised any cries or shouts so as to attract the attention of either the inmates staying in the first floor or the neighbouring residents or the persons passing on the road. Therefore, considering the physical structure of the deceased-boy, it is difficult to believe that he would have been done to death by strangulation for the reason that the place where the incident took place is on the roof-top, which is a hard surface. Significantly, not even a scratch is noticed on the body of the deceased either on hands or legs etc. If such a boy is suddenly strangulated and pushed down to the terrace, there were bound to be injuries on different parts of the body, more particularly when the deceased boy was forcibly made to fall down on the hard surface. Except a ligature mark on the neck, nothing is noticed on the dead body.
28. The other circumstance is that the accused if really wanted to eliminate his deceased son, he would not have chosen that place and time, more particularly in view of the fact that the deceased-boy had been staying more often with the accused himself.
29. The post-mortem of the corpus in the case based on strangulation is very important piece of evidence. In the instant case, it is unfortunate that the Doctor, by name Dr.N.Sathaiah, who conducted the autopsy over the dead body, has died and therefore his evidence could not be secured. PW.11 is the Doctor who gave evidence on the basis of the post-mortem report– Ex.P.11. The person who actually conducted the post-mortem will be in a better position to explain the nature of injuries and the cause of death as against the person who gave evidence only with reference to what is written in the post-mortem report. Unfortunately, the Court is deprived of the valuable evidence of the Doctor, who conducted the post-mortem examination.
30. Be that as it may, the post-mortem report Ex.P.11 shows that there was an internal abdominal cavity of right kidney, which according to the Doctor-PW.11 will be caused if the person is given a blow with the blunt object on the abdomen. It is not the case of the prosecution that it is the accused, who gave any blow with a blunt objection on the abdomen of the deceased. It is further noticed that the prosecution failed to place on record the opinion of the Forensic Science Laboratory as to the nature of the ligature and the cause of death. Usually, in a case of this nature, the report of the Forensic Science Laboratory will be obtained before the final opinion is given. However, the Medical Officer, who is no more, has recorded his opinion in the post-mortem report itself as being due to ligature and strangulation.
31. The case of the prosecution is that immediately after the deceased fallen dead, his dead body was brought to the ground floor portion by the neighbours. Not even single neighbour is examined on this aspect. The Investigating Officer, at the time of conducting scene of offence panchanama, has seized the blood soaked cotton swabs from the roof. If the sample of the blood is collected from the scene of offence, the same may be sent to the laboratory for analysis as to whether it is that of the human origin or whether it belongs to the deceased. Instead of that, the Investigating Officer has seized the cotton swabs soaked with blood from the roof-top and produced the same before the Court, which is marked as MO.4. What could be gathered from it is the cotton swabs containing blood was also present on the roof-top at the scene of offence but that belong to deceased or any other person is not known. It is nobody’s case that either the accused or any of the prosecution witnesses have tried to prevent the blood oozing from the body of the deceased, while bringing to the ground floor from the roof-top.
32. The above circumstances tend to show that the scene of offence is not the place where it is alleged but there is something more than meets the eye. As could be culled out from the cross- examination, the specific defence of the accused is that the deceased boy was done to death in the first floor portion itself by the inmates or their people and thereafter the body was shifted to the roof-top and laid there. This defence of the accused gains strength from the different circumstances stated above, namely the absence of even a single injury on the body of the deceased, internal injury on the kidney of the deceased, which is only possible with a blunt force, the absence of any of the neighbouring residents having noticed the incident, not even a single neighbour is examined to speak about the presence of the accused and the deceased on the roof-top at 11.00 a.m. on 10-12-2006.
33. Another aspect of the matter is about the arrest of the accused. According to the Investigating Officer, the accused was arrested on 12-12-2006 at a bus stop. This is proved to be false from the evidence of DW.4, who is the Deputy Manager of Bharath Dynamics Ltd., Kanchanbagh, Hyderabad, where the accused was working. DW.4 categorically stated that on 11-12-2006 itself the police came to the Office and took away the accused at 9.57 a.m. and these aspects are borne out from the records of Bharath Dynamics Ltd., Kanchanbagh. The evidence of DW.4 further shows that the accused has reported to duty on 11-12-2006 at 06.19 a.m., and was taken away by the police at about 9.57 a.m. This aspect demonstrates that the accused was not even informed about the death of the deceased on 10-12-2006. It may be recalled that it is not as though that the relations between the accused, the deceased, and P.Ws.1 and 2 were so strained, so as not to inform the father of the deceased on 10-12-2006 itself immediately after the boy was dead.
34. The accused has no doubt taken a plea of alibi and examined defence witnesses. It is established fact that when a plea of alibi is taken, it is for the accused to prove it. Failure to prove a plea of alibi will not automatically lead to an inference that the accused was at the place where the prosecution alleged but not at the place where the accused claims. Though the duty is cast upon the accused to prove the plea of alibi, at the same time, it is also obligatory on the part of the prosecution to disprove the same, so as to draw an adverse inference against the accused about his presence at the place where the prosecution alleged. The accused examined the defence witnesses to prove his plea of alibi but that do not satisfactorily established the plea of alibi. However, it cannot be said that the prosecution has made any endeavour to disprove the plea of alibi as raised by the accused.
35. The prosecution examined PWs.3, 4 and 5, but their evidence is neither inspiring nor has got a direct bearing to the point in controversy. PWs.3 and 4 are the persons who claim to have seen the deceased around the house where the incident took place at that time. Even if what they said is believed, it cannot be said that it conclusively establishes that the deceased was seen in the company of the accused for the last time when he was alive. The evidence of PW.5 is also not satisfactory. It only shows that one person by name Ramesh Babu took a dormitory bed in the night of 10-12-2006. The prosecution could not establish any nexus in between the person who took the dormitory bed on rent and the accused.
36. For the above reasons, we are of the view that the prosecution has failed to prove its case. Therefore placing reliance on the evidence/statements of PWs.1 and 2 on the ground that it is trustworthy and is corroborated by the evidence of PWs.3 to 5 is not sustainable and contrary to law. Therefore, we are of the view that the Court below had committed an error in not considering various other relevant aspects in the case, which is based on circumstantial evidence, as discussed above.
37. For the above reasons, we hold that the impugned judgment is not sustainable and the same is accordingly set aside.
38. In the result, the Criminal Appeal is allowed. The conviction and the sentence ordered against the appellant-accused in S.C.No.407 of 2007, dt.11.6.2008, by the II Additional Metropolitan Sessions Judge, Hyderabad, for the offence punishable under Section 302 I.P.C., is set aside. The appellant–Accused shall be set at liberty forthwith unless his detention is required in any other case. The fine amount, if any, paid by the appellant - accused shall be refunded to him. The material objects, if any, shall be destroyed after the appeal time is over.
G. Chandraiah, J.
M.S.K. Jaiswal,J.
Dt.08.07.2014
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HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No. 1556 of 2009 (Judgment of the Division Bench delivered by Hon’ble Sri Justice G. Chandraiah) Dated: 08.07.2014
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