Dismissed

Boya Thimmappa, Anantapura Dt., v. the State of Ap., Rep Pp.

Andhra Pradesh HC2 Nov 2022CRLA/189/2017

Case brief

AI extract

What is this about?

Appeal against conviction for murder and robbery. Court upheld lower court conviction relying on circumstantial evidence, specifically the immediate pledging of deceased's gold ornaments by accused and recovery of the deceased's cell phone with matching IMEI number, ruling out alternative hypotheses.

What did the court decide?

Appeal dismissed; conviction and sentence under Sections 302 and 392 IPC by Sessions Court upheld.

Boya Thimmappa, Anantapura Dt., Vs the State of Ap… — Cheque Dishonour | Andhra Pradesh HC (2022)

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THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

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CRIMINAL APPEAL No.189 of 2017

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JUDGMENT:- (Per Hon’ble Sri Justice C.Praveen Kumar)

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Heard Smt D.S. Lakshmi, learned Legal Aid Counsel for the appellant/accused and Sri S. Dushyanth Reddy, learned Public Prosecutor for the respondent State.

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The present Criminal Appeal came to be filed under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgment, dated 07.10.2015, passed by the learned VI Additional Sessions Judge, Anantapuramu at Gooty in Sessions Case No.277 of 2013.

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The sole accused in Sessions Case No.277 of 2013 was tried for the offences punishable under Sections 302 and 392 I.P.C. Vide judgment, dated 07.10.2015, the learned Sessions Judge convicted the accused on both the counts and accordingly, sentenced him to undergo imprisonment for life and to pay a fine of Rs.500/-, in default of payment of fine, to undergo simple imprisonment for a period of three months for the offence punishable under Section 302 I.P.C.; and to undergo rigorous imprisonment for a period of five years and to pay a

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fine of Rs.500/-, in default of payment of fine, to undergo simple imprisonment for a period of three months for the offence punishable under Section 392 I.P.C.. Substantive sentences were directed to run concurrently.

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The graveman of the charge levelled against the accused is that on 04.09.2012, at Housing Board Colony, Guntakal, the accused intentionally caused the death of one T. Mahalakshmi (hereinafter, referred to as “the deceased”) and thereafter, committed robbery of four gold bangles, gold chain and a pair of gold ear studs.

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The case of the prosecution, as unfolded from the evidence of prosecution witnesses, is as under:-

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P.W.1 is the daughter of younger sister of the deceased. P.Ws.2 and 3 are the residents of the same locality. On 04.09.2012, in between 6:30 and 7:00 P.M., the deceased visited the house of P.W.3. At that point of time, there were gold ornaments i.e., M.Os.1 to 4 on the person of the deceased. She was there in the house of P.W.3 for about half an hour and thereafter, left to her house. It is also to be noted here that the deceased, who lost her husband, was living alone in her house situated in Housing Board Colony, Guntakal. On 05.09.2012,

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as the deceased did not appear outside the house till 10:00 A.M., P.W.2 informed about the same to one of her relatives by name Sathyamma. At the instance of the said Sathyamma, P.W.2 accompanied her to the house of the deceased where they found the front door of the house unlocked, either from outside or inside. They called the deceased but there was no response. The said Sathyamma informed the same to her husband – Rajendra Prasad Reddy, who in turn, instructed them to come out by closing the door stating that the deceased might have gone somewhere and she would come back. On the same day, at about 11:00 or 11:30 A.M., at the instance of one Shaik Shabeera, P.W.2 and Sathyamma again went to the house of the deceased and called her but there was no response. Both of them went inside the house and found the deceased on the ground in the kitchen room facing downwards and with a towel around her neck. Almyrah in the house of the deceased was found open and the clothes and other articles were in pelmel condition. The gold ornaments found on the body of the deceased were missing. Suspecting foul play, they initially informed one P.N. Vishnuvardhan Reddy, who in turn informed the same to P.W.1., who was at Bellary. On receipt of information, P.W.1 came down to Guntakal along with her husband and other family members. They noticed the deceased

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in the kitchen room which they saw through the window of that kitchen room. Law was set into motion by P.W.1 by lodging a report with P.W.12 – Sub Inspector of Police, Guntakal I Town Police Station. Ex.P-1 is the report. Basing on the said report, P.W.12 registered a case in Crime No.102 of 2012 for the offences punishable under Sections 302 and 380 I.P.C. and issued Ex.P-17 – F.I.R. Further investigation was taken up by P.W.13 – Inspector of Police, Guntakal Urban Circle, who on receipt of a copy of the F.I.R. and information about the murder of the deceased residing at D.No.29, MIG, Housing Board Colony, Beside R.T.O. Office, Guntakal, rushed to the scene of offence along with his staff. At the scene of offence, he conducted inquest over the dead body of the deceased in the presence of P.W.9. Ex.P-13 is the Inquest Report. During inquest, he examined the family members of the deceased. They also noticed a ligature mark around the neck of the deceased with one abrasion on her right wrist and another abrasion on her right hand little finger. They did not find any gold ornaments on the body of the deceased. After completing the inquest proceedings, he prepared a rough sketch of the scene of offence, which is placed on record as Ex.P-18. After completing the said proceedings, he sent the body of the deceased for post mortem examination.

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P.W.11 – Civil Assistant Surgeon, Area Hospital, Guntakal conducted autopsy over the dead body of the deceased on 05.09.2012 and issued Ex.P-16 – Post Mortem Certificate. According to the Doctor, the cause of death of the deceased was due to asphyxia because of ligature around the neck.

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P.W.13, who continued with the investigation, examined P.W.1 and recorded her statement on 06.09.2012 and on that day, she produced the cell phone, cash bill with empty box of the cell phone and jewellery bill issued by P.W.4, which were seized under Ex.P-19. M.O.6 is the cell phone box, M.O.8 is the cell phone cash bill and M.O.7 is the jewellery receipt issued on a letter pad. It is also to be noted here that M.O.6 - cell phone box contains IMEI No.359073048157303, Model Nokia – 101 (black). On receipt of the said information, P.W.13 recorded the statement of P.W.4 on the very same day and thereafter, visited the cell phone shop of P.W.5 and examined him. He seized the bill book produced by P.W.5 under Ex.P-20. M.O.10 is the bill book.

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On 01.10.2012, P.W.13 received credible information about the accused and accordingly, left the station along with his staff. While proceeding near Tank Bund on Guntakal – Gooty Road, they requested P.W.10 and one Lakshmi Narayana

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Reddy to act as panchayatdars and accordingly, all of them left in two police jeeps and reached Abhaya Anjaneyaswamy Temple situated on Pamidi – Vajrakarur Road, which is 3 kms. away from Pamidi and way laid there. At about 2:45 P.M., one person, who was coming on a motor cycle, tried to skulk away on seeing the police. He was chased and apprehended. On interrogation, he disclosed his name and also confessed about his involvement in several crimes including the crime in question. When P.W.13 searched the accused, he found in his possession one gold ring, one Nokia cell phone with IMEI No.359073048157303 with two SIM cards bearing Nos.9640089520 and 9618906861. The accused also produced two mortgaged slips dated 05.09.2012 and 06.09.2012, issued by Shriram City Union Finance Limited, Pamidi Branch apart from one gold chain with two rows, which were seized under panchanama. Ex.P-14 is the admissible portion of the said mahazar. M.O.5 is the said cell phone. The mortgage receipts were marked as M.Os.14 and 15. On the same day i.e., on 01.10.2012, P.W.13 visited Shriram City Union Finance Limited, examined P.W.6 and enquired about pledging of gold ornaments on 05.09.2012 and 06.09.2012. The gold ornaments viz., one pair of ear studs, four bangles, one chain having two rows with Lakshmi dollar with letters “PRJ” on that chain and also one

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dollar, were recovered from the said finance company. The relevant documents relating to said mortgage were recovered and marked as M.Os.12 and 13. Thereafter, P.W.10 conducted identification of the property on 02.10.2012 wherein P.W.1 and her family members identified the said property. After completing the investigation, P.W.13 filed charge sheet, which was taken on file as P.R.C.No.18 of 2012 on the file of the learned Judicial First Class Magistrate, Guntakal.

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On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to him. As the offences are triable by a Court of Sessions, the case was committed to the Court of Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of learned VI Additional Sessions Judge, Anantapuramu for trial and disposal in accordance with law.

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Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, he pleaded not guilty and claimed to be tried.

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To substantiate its case, the prosecution examined P.Ws.1 to 13 and got marked Exs.P-1 to P-20, Exs.X-1 and X-2 and

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M.Os.1 to 16. After closure of the prosecution 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 his behalf.

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Taking into consideration the evidence available on record, more particularly, the evidence of P.Ws.4, 5 and 6 coupled with identification of articles seized/mortgaged on the very next day of incident with Shriram City Union Finance Limited, the learned Sessions Judge convicted the accused and sentenced him, as stated supra. Challenging the same, the present appeal came to be filed by the accused.

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Smt D.S. Lakshmi, learned counsel for the

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appellant/accused, mainly submits that there are no eye witnesses to the incident and the circumstances relied upon by the prosecution are not sufficient to connect the accused with the crime. According to her, identification of M.Os.1 to 4 by P.W.1 cannot be believed for the reason that she is not an immediate family member of the deceased and her identification of the property cannot be accepted. Even otherwise, she would contend that the accused was arrested on 01.10.2012 and the

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recovery made thereafter cannot lead to a conclusion that it is the accused who was responsible for the death of the deceased. Learned counsel also contended that having regard to the delay in lodging the report, the entire case has to be viewed with suspicion.

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Sri S. Dushyanth Reddy, learned Public Prosecutor for the respondent State, would submit that it is an open and shut case for the prosecution. According to him, the incident in question took place on 04.09.2012 and the gold ornaments, which are subject matter of this incident, were pledged with P.W.6 on the very next day and thereafter, receipts issued towards pledging the gold ornaments were recovered from the accused at the time of his arrest. When the same were verified, the Manager of Shriram City Union Finance Limited categorically stated that it was the accused to whom the receipts were issued and that the accused, along with the gold ornaments, kept his identity card also for the purpose of identification, which were seized by the police on the date of arrest. In view of the judgment of the Hon’ble Supreme Court in Geejaganda Somaiah vs. State of

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Karnataka¹ , learned Public Prosecutor would contend that the prosecution proved its case beyond reasonable doubt in all

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1 (2007) 9 SCC 315

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aspects. He further submits that there was no reason for the witnesses to speak false against the accused more so, when P.W.1, who is none other than the daughter of younger sister of the deceased, is the proper person to identify the articles.

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The point that arises for consideration is:-

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“Whether the prosecution has proved the guilt of the for the offences punishable under Sections 302 and 392 I.P.C. beyond all reasonable doubt or in other words, whether the circumstances relied upon by the prosecution form a chain of events connecting the accused with the crime?”

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13. POINT :-

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The fact that there are no eye witnesses to the incident is not in dispute. The entire case rests on circumstantial evidence. In a case arising out of circumstantial evidence, the prosecution has to prove each of the circumstance relied upon by them and the circumstances so proved should form a chain of events connecting the accused with the crime. In Jawaharlal Das v. State of Orissa’s case,² the Apex Court held that to base a conviction in a case arising out of circumstantial evidence, three conditions are required to be satisfied viz., 1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, 2) those circumstances should be of a definite tendency unerringly

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2 AIR 1991 SC 1388

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pointing towards the guilt of the accused and 3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.

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Keeping in view the principles laid down by the Apex Court in the judgment referred to above, we shall now deal with the case on hand. P.W.3, who is the neighbour of the deceased, in her evidence, categorically states that on 04.09.2012, in between 6:30 and 7:00 P.M., the deceased came to her house. At that time, there were gold ornaments i.e., two rows gold chain, four gold bangles, gold ear studs and one gold ring on her person. She was there in the house of P.W.3 for half an hour and thereafter, left. It is to be noted here that this witness was not cross examined by the accused and the cross examination was reported as “nil”. This witness speaks about the event which took place on 04.09.2012 i.e., a day prior to the date on which the dead body was recovered.

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P.W.2, in his evidence, deposed that on 05.09.2012, the deceased did not come out of the house till 10:00 A.M. Suspecting foul play, he informed Sathyamma, who is a relative,

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and both of them went into the house only to notice the door being open. They called the deceased but there was no response. However, they informed the husband of Sathyamma about the same but he asked them to wait thinking that the deceased might have gone out. At 11:00 or 11:30 A.M., P.W.2 along with Sathyamma went into the house of the deceased and called her. As there was no response, they went inside the house and noticed the deceased on the ground in the kitchen room facing downwards, with a towel around her neck. There was ligature mark around her neck and the gold ornaments which were found normally on the body of the deceased were missing. The steel almyrah was open and the clothes of the deceased and other articles were thrown out. Under those circumstances, intimation about the same was sent to P.W.1, who came to Guntakal from Bellary and lodged the report.

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The circumstances relied upon by the prosecution are mainly three viz., 1) pledging of gold ornaments by the accused with Shriram City Union Finance Limited, 2) the cell phone recovered from the accused was purchased by the deceased from the shop of P.W.5, which tallies not only with the make of the cell phone but with IMEI number and 3) identification of the articles by P.W.1 and others and the recoveries made from the

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accused pursuant to the disclosure statement made by the accused.

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In order to prove the circumstances referred to above, it would be appropriate for us to refer to the evidence of the Investigating Officer – P.W.13. According to him, the accused was arrested on 01.10.2012. On such arrest, the accused confessed about his involvement in number of crimes including the incident in question. When searched, one gold ring, one Nokia cell phone with IMEI No.359073048157303 with two SIM cards bearing Nos.9640089520 and 9618906861 along with two mortgage slips, dated 05.09.2012 and 06.09.2012 issued by Shriram City Union Finance Limited were found in possession of the accused. Immediately thereafter, the Investigating Officer proceeded to the office of Shriram City Union Finance Limited and enquired with P.W.6 - Manager, who in his evidence, categorically deposed that on 05.09.2012, the accused approached their finance company and obtained a loan of Rs.1,20,000/- by pledging four gold bangles and two rows gold chain with Lakshmi dollar. In that connection, the accused is said to have submitted a loan application duly affixing his passport size photograph along with photostat copy of his Voter ID card and also executed a promissory note. M.O.12 is the

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said application, photostat copy of Voter ID Card and promissory note. On the very next day, i.e., on 06.09.2012, the accused once again approached their bank and obtained loan of Rs.6,000/- by pledging a pair of gold ear studs by submitting another application – cum – promissory note with passport size photograph and Voter ID Card. M.O.13 is the application – cum – promissory note. He issued receipts acknowledging the receipt of gold ornaments from the accused. M.O.14 is the receipt dated 05.09.2012 and M.O.15 is the receipt dated 06.09.2012, while the gold ornaments, which are pledged and identified by P.W.1, were marked as M.Os.1 to 4. Though P.W.6 was examined at length, but nothing useful came to be elicited to discredit his testimony. On the other hand, it has been categorically elicited that only gold ornaments were taken on pledge as security. In the cross examination, it was further elicited that the entire ledger book for the period 19.08.2012 to 27.09.2012 was brought to the Court by P.W.6 and on perusal of the same, it was found that the loan was advanced to the accused on 05.09.2012 and 06.09.2012, which is appearing in page Nos.96 and 110 respectively in the ledger. Ex.X-1 is said to be attested photostat copy of the said ledger pertaining to accused at page No.96 relating to loan, dated 05.09.2012, and Ex.X-2 pertains to the attested Photostat copy of said ledger

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pertaining to the accused at page No.110 relating to the loan, dated 06.09.2012. The evidence of this witness, in our view, amply establish that immediately after the incident, the accused pledged the gold ornaments of the deceased with P.W.6 and obtained loan of Rs.1,26,000/-.

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Insofar as the cell phone is concerned, it is to be noted that immediately after the seizure of the cell phone from the accused on 01.10.2012, the Investigating Officer proceeded to the shop of P.W.5 and enquired about the sale of the cell phone. He verified the bill issued and stated that the said bill was issued in the name of “T. Mahalakshmamma” for purchase of Nokia 101 black colour cell phone for Rs.1,500/-. He placed on record bill book, which indicates the counterfoil of the said bill and also the sale of the said cell phone with IMEI number to the deceased. M.O.10 is the Bill book while M.O.11 is the duplicate bill No.33 in M.O.10. These two circumstances, in our view, establish the involvement of the accused in the commission of offence.

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Apart from the above two circumstances, there is evidence of P.W.4 - the jewellery shop owner of “Prasad Jewelers” with whom the deceased used to deal in purchase or sale of gold ornaments. According to him, about six or seven years prior to

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the death of the deceased, she purchased four gold bangles, two rows gold chain with Lakshmi dollar, one gold ring with green stone, one pair of gold ear studs with white and red stones. He identified the said gold ornaments in the test identification parade. Though this witness was cross examined, nothing has elicited to discredit the same. All the suggestions given were denied.

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At this stage, learned counsel for the appellant tried to comment on the identification of the gold ornaments by P.W.1 but it is to be noted that though P.W.1 identifies all the gold ornaments, which were seized from Shriram City Union Finance Limited, cell phone and other articles seized from the accused, but strangely, neither P.W.1 nor P.W.2 were cross examined. On the other hand, the endorsement shows that the learned counsel for the accused reported the cross examination as “nil”. Hence, it goes to show beyond doubt that the version of P.Ws.1 and 2 remained unrebutted, which establish the identity of the articles as that of the deceased. The Hon’ble Supreme Court, in Geejaganda Somaiah vs. State of Karnataka³ , observed in para No.28 as under:-

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3 (2007) 9 SCC 315

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“Besides Section 27 the Evidence Act, the courts can draw presumptions under Section 114, Illustrations (a) and Section 106 of the Evidence Act. In Gulab Chand v. State of M.P. AIR (1995) SC 1598, where ornaments of the deceased were recovered from the possession of the accused immediately after the occurrence, this Court held: (SCC pp. 577-78, para 4)

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"It is true that simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery. But culpability for the aforesaid offences will depend on the facts and circumstances of the case and the nature of evidence adduced. It has been indicated by this Court in Sanwat Khan v. State of Rajasthan AIR (1956) SC 54, that no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances. It has also been indicated that where only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder. A note of caution has been given by this Court by indicating that suspicion should not take the place of proof. It appears that the High Court in passing the impugned judgment has taken note of the said decision of this Court. But as rightly indicated by the High Court, the said decision is not applicable in the facts and circumstances of the present case. The High Court has placed reliance on the other decision of this Court rendered in Tulsiram Kanu v. State, AIR (1954) SC 1. In the said decision, this Court has indicated that the presumption permitted to be drawn under Section 114, Illustration (a) of the Evidence Act has to be drawn under the 'important time factor'. If the ornaments in possession of the deceased are found in possession of a

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person soon after the murder, a presumption of guilt may be permitted. But if several months had expired in the interval, the presumption cannot be permitted to be drawn having regard to the circumstances of the case. In the instant case, it has been established that immediately on the next day of the murder, the accused Gulab Chand had sold some of the ornaments belonging to the deceased and within 3-4 days, the recovery of the said stolen articles was made from his house at the instance of the accused. Such close proximity of the recovery, which has been indicated by this Court as an 'important time factor', should not be lost sight of in deciding the present case. It may be indicated here that in a latter decision of this Court in Earabhadrappa v. State of Karnataka, [1993] 2 SCC 330, this Court has held that the nature of the presumption and Illustration (a) under Section 114 of the Evidence Act must depend upon the nature of evidence adduced. No fixed time-limit can be laid down to determine whether possession in the recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been absconding during that period. In our view, it has been rightly held by the High Court that the accused was not affluent enough to possess the said ornaments and from the nature of the evidence adduced in this case and from the recovery of the said articles from his possession and his dealing with the ornaments of the deceased immediately after the murder and robbery a reasonable inference of the commission of the said offence can be drawn against the appellant. Excepting an assertion that the ornaments belonged to the family of the accused which claim has been rightly discarded, no plausible

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explanation for lawful possession of the said ornaments immediately after the murder has been given by the accused. In the facts of this case, it appears to us that murder and robbery have been proved to have been integral parts of the same transaction and therefore the presumption arising under Illustration (a) of Section 114 Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her ornaments."

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Having regard to the ratio laid down in the judgment referred to above; as the gold ornaments came to be pledged by the accused on the very next day of incident; in the absence of any explanation given by the accused as to how he came into possession of those articles; the offence of murder and robbery have been proved to be integral parts of same transaction and in view of illustration (a) of Section 114 of the Indian Evidence Act, 1872, the irresistible conclusion would be that, it is the appellant and no one else has committed the offence of murder and robbery.

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Hence, this appeal is liable to be dismissed and accordingly, this Criminal Appeal is dismissed confirming the conviction and sentence recorded by the learned VI Additional Sessions Judge, Anantapuramu at Gooty vide judgment, dated 07.10.2015, in Sessions Case No.277 of 2013 against the

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appellant/accused for the offences punishable under Sections 302 and 392 I.P.C.

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Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.

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_______________________________ JUSTICE C.PRAVEEN KUMAR

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___________________________________ JUSTICE B.V.L.N.CHAKRAVARTHI

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Date : 02.11.2022 AMD

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