State's criminal appeal against acquittal dismissed. High Court held prosecution failed to establish recovery of stolen property at accused's instance and fingerprints alone were insufficient to conclude guilt.
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THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD
Crl.A.No.1020 of 2008
ORDER: (per the Hon’ble Sri Justice P.Durga Prasad)
This appeal at the instance of the State is directed against the acquittal of the accused in S.C.No.335 of 2005 by the VII Additional District and Sessions Judge (Fast Track Court), Madanapalle on 08.01.2007.
The respondents herein are A.1 and A.2 and they were prosecuted for the offences under Sections 376, 302 and 380 IPC.
According to the prosecution P.W.1, Konangi Thimmaiah is the husband of the deceased Konangi Munemma and they are residents of R.Nadimpalle, Ramasamudram Mandal. The accused are the residents of Katharlapalle, h/o Madanapalle, Panjani Mandal. About 1 ½ months prior to 25.08.2004, P.W.2, P.W.6 and others of Jangalapalle went to Bangalore for coolie work. On 25.08.2004 P.W.1 also left for coolie work and joined P.Ws.2, 6 and others at Bangalore. On the night of 25.08.2004 the deceased was alone present in her house. On the same night at about 08.30 p.m. both the accused visited the house of the deceased on the Kenetic Spark Moped bearing registration No.ATC 4690 found the deceased alone present in the house and both have planned to commit rape and murder the deceased and to commit theft of gold jewellery and valuables in the house of the deceased. In pursuance of their plan, on the same night at about 1000 p.m. after the deceased slept on a mat, the accused have committed rape on her, A.1 throttled her to death, while A.2 caught hold of her legs. After the death of the deceased, A.1 picked up a knife from the house and stabbed the deceased on her throat and chin and caused injuries. Both the accused committed theft of gold jewellery on
the person of the deceased and also from the almyrah, BPL colour TV and VCD player worth of Rs.30,400/-. On the next day morning as the deceased did not come out of the house, P.Ws.3 and 4 went to the house of the deceased and found the dead body of the deceased in a pool of blood and came out of the house and informed the same to P.Ws.12 and 5, who in turn visited the house of the deceased and found the dead body of the deceased and sent a word to P.Ws.1, 2 and 6, who were at Bangalore, about the murder of the deceased. On 26.08.2004 at about 01.00 p.m. P.Ws.1, 2 and 6 came to the house of the deceased and found the deceased with bleeding injuries and on the same day P.W.1 went to the police station and lodged a complaint. Basing on which, P.W.20, Head Constable has registered a case in Crime No.51 of 2004 under Sections 302 and 380 IPC. Thereafter, P.W.21 took up the investigation being in-charge of the Punganur police station and visited the scene of offence, held inquest over the dead body of the deceased in the presence of P.W.11, conducted the scene of offence panchanama, drawn the rough sketch of the scene of offence, examined and recorded the statements of the witnesses. He also took the assistance of Finger Prints Inspector, P.W.24 to take out the finger prints at the scene of offence. The mediators, who conduced inquest over the dead body of the deceased, opined that the deceased was subjected to rape and murder and committed theft of gold jewellery from the person of the deceased and also theft of BPL colour TV and VCD player. P.W.21 sent the dead body for postmortem examination. P.W.18, doctor, has conducted autopsy over the dead body of the deceased and opined that the deceased died due to asphyxia as a result of strangulation and found semen and spermatozoa in the private parts of the deceased. P.W.21 seized the remote of BPL colour TV and VCD player on production by P.W.1 under the cover of panchanama. Thereafter, P.W.23 took up the investigation and on 13.09.2004 at about 5.00 a.m. he arrested A.1 Vemakula Tank Cross on Nimmanapalle – Kandur road in the
presence of P.Ws.14 and 15 and recorded his confessional statement and recovered the rold-gold chain, kenetic spark moped bearing No.ATC 4690 under the cover of panchanama. Thereafter, he seized the BPL colour TV and VCD player from the shop of P.W.10 in the presence of P.Ws.14 and 15 and sent A.1 to judicial custody. P.W.24 made a request to send A.1 to community health centre, Punganur to know his potency and he sent the material objects to RFSL, Tirupati for analysis. On 22.09.2004 at about 08.30 a.m. he arrested A.2 near Saneswaraswami temple on Punganur-Mulbagal road and interrogated him in the presence of P.Ws.16 and 17 and seized the gold jewellery at his instance. Thereafter, he sent A.2 to judicial custody. P.W.23 sent the articles seized from A.1 to P.W.14 for conducting test identification parade of the property by P.W.1. He conducted test identification parade of the property on 15.09.2004 in the Gram Panchayat office, Ramasamudram and P.W.1 identified the properties as belong to him. P.W.23 also sent the property seized from A.2 to P.W.22 for conducting test identification parade of the property. On 25.09.2004 at 10.15 a.m. he conducted test identification parade of the property in the office of MPDO, Ramasamudram and P.W.1 identified the properties as belong to him. The analyst, who analyzed the material objects, opined that the vaginal swabs containing spermatozoa. P.W.23, after arrest of the accused sent the finger prints of the accused to P.W.24. He compared the same with that of the chance prints found at the scene of offence and opined that the chance prints are of A.1. After completion of the investigation, P.W.23 has filed the charge sheet against the accused.
The learned Sessions Judge has framed the charges under Sections 376 and 411 IPC against A.1 and A.2, under Section 302 IPC against A.1, under Section 302 read with 34 IPC against A.2, and they pleaded not guilty for the said charges.
In order to establish the said charge, the prosecution has
examined P.Ws.1 to 24 and got marked Exs.P.1 to P.26 and M.Os.1 to 15. No oral or documentary evidence was adduced on behalf of the accused.
Taking into consideration of the said oral and documentary evidence, the trial Court has acquitted the accused for the charges framed against them.
Aggrieved by the said acquittal, the State has preferred the present appeal.
Now, the point that arises for consideration is:
Whether the prosecution could able to establish the offences under Sections 376 and 411 IPC against A.1 and A.2, under Section 302 IPC against A.1, under Section 302 read with 34 IPC against A.2 beyond reasonable doubt? P O I N T:
The Additional Public Prosecutor on behalf of the State has pleaded that the case of the prosecution is based on circumstantial evidence and as the property that was stolen from the person and house of the deceased was recovered at the instance of A.1 and A.2 and the finger prints of A.1 were found at the scene of offence the prosecution could establish the charges framed against the accused and pleaded for convicting the accused for the charges framed against them.
The respondent’s counsel on the other hand has pleaded that the mediators for recovery of the property at the instance of A.1 and A.2 turned hostile to the prosecution and the only circumstantial evidence of P.W.24, who compared the chance prints with the finger prints of A.1 and A.2, cannot be the sole basis for conviction of the accused when there is no corroboration to the said evidence of P.W.24 and supported the acquittal of the accused by the trial Court.
The case of the prosecution is that the deceased Munemma is alone in the house on the night of 25.08.2004 as her husband, P.W.1, her son, P.W.2 and other villagers went to Bangalore for coolie work and taking advantage of the loneliness of the deceased in the house, A.1 and A.2 planned to commit rape on the deceased and murder her and to commit theft of the properties, entered into the house of the deceased at about 10.00 p.m. and when she was sleeping on the mat, the accused committed rape on her and A.1 throttled her to death while A.2 caught hold of her legs and after the death of the deceased, A.1 picked up a knife from the house and stabbed the deceased on her throat and chin. Thereafter, the accused committed theft of gold jewellery from the person and from the almyrah of the said house and also BPL colour TV and VCD player. On the next day morning P.Ws.3 and 4 found the dead body of the deceased in the house and informed the same to P.Ws.1 and 2. Thereafter, they came and found the dead body of the deceased and P.W.1 lodged the complaint with the police and after arrest of the accused, police recovered the properties at the instance of the accused and got the said properties identified by P.W.1.
P.W.1 is the husband of the deceased. According to him, he went to Bangalore for coolie work and at the time of incident the deceased was alone in the house and after coming to know about the death of his wife he came to the village and reported to the police by giving a complaint, Ex.P.1. According to him, the properties, which were missing were handed over to him through Court and he has stated that he did not identify his properties earlier to receiving from Court and he identified the properties M.Os.1 to 13.
P.W.2, son of the deceased, also stated about his going to Bangalore for coolie work and on the date of death of his mother after receiving the information, he came to the village and found the dead
body of the deceased. He observed the injuries on the neck of his mother. He found that the gold ornaments, T.V. and V.C.D were missing from their house. In the cross-examination, he admitted that his mother was having bad habits like drinking and debauchery and the accused are not persons of any criminal record.
P.Ws.3 and 4 are the neighbours and they only came to the house of the deceased on the next day morning and found the dead body of the deceased.
P.W.5, father of the deceased, also came to the house of the deceased on coming to know about the death of the deceased and found the dead body of the deceased. According to him there were no ornaments in the house belongs to his daughter.
P.W.6, daughter-in-law of the deceased, also turned hostile to the prosecution and she has stated that she did not observe missing of articles from the house.
P.Ws.7 and 8 are the father and mother of P.W.6 and they turned hostile to the prosecution. According to them, both have gone to the Punganur hospital and saw the dead body of the deceased.
P.W.9, brother of P.W.7, also stated about his going to the Punganur hospital and seeing the dead body of the deceased. Therefore, from the above evidence it is evident that the deceased was found dead in the house and according to P.Ws.1 and 2 the deceased was alone in the house on the date of incident.
P.W.11, mediator for the inquest, even though has stated in the chief-examination that he was present at the time of police observing the dead body and preparing the record and he signed in the inquest report, in the cross-examination he stated that he did not know the contents of Ex.P.6 and he signed in Ex.P.6 at the request of police.
P.W.13, another mediator for the inquest, supported the version of the prosecution with regard to their conducting inquest in his presence. According to him, the mediators came to the conclusion that the death of the deceased was due to murder.
P.W.18, doctor, who conducted autopsy over the dead body of the deceased, has found 3 external injuries. According to him, the deceased appears to have died of asphyxia due to strangulation and as per the FSL report, the deceased appears to have had intercourse prior to her death. Thus, from the above evidence it is established by the prosecution that the death of the deceased was homicidal death and she had intercourse prior to her death.
The prosecution has relied upon the circumstance of recovery of property, which was lost from the house of the deceased, at the instance of A.1 and A.2 to connect them with the offence.
According to P.W.23, investigating officer, that on 13.09.2004 on credible information he arrested A.1 at Nimmanapalle cross and recorded his confessional statement and seized two wheeler Kenetic spark and Bharathi model rold gold chain under the cover of mahazar, Ex.P.9. In pursuance of the statement of the accused, he reached Nagapalem at Punganur at about 09.00 a.m. and visited the shop of P.W.10 and seized BPL colour TV and VCD and also seized one woolen blanket. Thereafter, he remanded him to judicial custody. According to him
on 22.09.2004 at about 08.30 a.m. he arrested A.2 near Saneswaraswami temple on Mulabagala road and seized one pair of ear studs, gold tubes, two gold gundlu and two nose screws under cover of mahazar, Ex.P.10. He forwarded the accused to judicial custody on the same day.
P.Ws.14 and 15 are the mediators fro the arrest of A.1 and
recovery of property at his instance. P.W.14 has stated that he did not follow the police and the police obtained his signature on the mahazar at about 05.00 a.m. at police station and Ex.P.9 is the mahazar containing his signature. He further stated that the C.I of police sent gold ornaments for conducting identification parade through P.W.1 and he collected some other similar type of articles and mixed them and placed before P.W.1 for identification and P.W.1 identified one pair or gold ear studs, 3 gold tubes, two gold gundlu, two nose screws, which were marked as M.Os.3 to 6 and prepared identification proceedings, Ex.P.8 and he was declared hostile and in the cross-examination by Additional Public Prosecutor he denied the suggestion that the M.Os.3 to 6 were recovered in his presence at the instance of A.1.
The other mediator, P.W.15 also turned hostile to the prosecution and he has specifically stated that nobody was arrested in his presence and nothing was seized in his presence, but he signed in Ex.P.9 at the police station. Therefore, the recovery of property at the instance of A.1 was not established by the prosecution as P.Ws.14 and 15, who are mediators for the recovery, have not supported the prosecution.
P.Ws.16 and 17 are the mediators for the arrest and recovery of property at the instance of A.2. P.W.16 has turned hostile to the prosecution. He has specifically stated that he was not present when police arrested A.2 and the police did not seize anything in his presence, but Ex.P.10, mahazar contains his signature.
P.W.17, another mediator, also turned hostile to the prosecution and he also specifically stated that he was not present when police arrested A.2, but Ex.P.10 contains his signature and he did not know the contents of Ex.P.10 and the police did not seize anything in his presence. Therefore, from the evidence of P.Ws.14 to 17, the prosecution could not establish the recovery of articles at the instance
of A.1 and A.2.
The prosecution has relied upon the identification of the said property by P.W.1 in the test identification parade conduced by P.Ws.14 and 22. According to them, P.W.1 identified the property in the test identification parade conducted by them. The identification mahazars, Exs.P.8 and P.19 did not disclose what are the other properties, which were mixed with the properties to be identified by P.W.1. Even if the evidence of P.Ws.14 and 22 is accepted that P.W.1 identified the property in their presence, but P.W.1 has stated in the chief-examination itself that the properties, which were missing were handed over to him through Court and he did not identify his properties earlier to receiving the same from Court. As P.W.1 denied about his identification of the property before receiving the same from the Court, the prosecution could not establish the identification of property by P.W.1. Even though the properties, M.Os.1 to 13 belongs to P.W.1, as already observed above there is no evidence on record to show that the said properties were recovered at the instance of A.1 and A.2. With regard to recovery of T.V. and V.C.D. player, the prosecution has relied upon the evidence of P.W.10. P.W.10 has only stated about the police coming to his shop and informing that the said properties are stolen property and he handed over the same to the police and he has specifically stated that he did not know who showed the shop to the police. Therefore, the recovery of said T.V. and V.C.D. player at the instance of A.1 was also not established by the prosecution.
The only circumstantial evidence available on record is the evidence of P.W.24, who is a finger prints expert. According to him, he tallied the chance prints, which were collected from the scene of offence, with the finger prints supplied by the investigating agency and stated that the chance prints are tallied with the finger prints slips of A.1 i.e. right ring finger impression. In the cross-examination he
admitted that the finger print slips were sent to him on 01.01.2005 and as per the finger print slips, they were obtained on 13.09.2004. P.W.23, investigating officer, did not disclose that when he has obtained the finger print slips of A.1 and A.2 and there is a delay of more than 3 months in sending the finger print slips obtained by the investigating agency to P.W.24. Moreover, as admitted by P.W.24 the chance prints were taken from inside almyrah and he did not find any chance prints on the handle outside the door. Therefore, the aforesaid circumstance only establish that the finger prints of A.1 was found on the almyrah at the scene of offence, but the said circumstance is not sufficient to conclude that the accused is responsible for committing the theft and murder of the deceased as the prosecution failed to establish the recovery of properties at the instance of A.1 and A.2, which were lost from the house of the deceased. Moreover, there is no evidence to show that the accused has committed rape on the deceased and murdered her. Therefore, in the above circumstances, the trial Court has rightly acquitted the accused for the charges framed against them and there is no material on record to come to a different conclusion with that of the findings recorded by the trial Court.
In the result, the criminal appeal is dismissed.
_______________________ JUSTICE N.V.RAMANA.
_____________________________ JUSTICE P. DURGA PRASAD
Dated:29-10-2012 Ksp
2 issues framed by the court
Whether the prosecution could establish the offences of rape, murder, and theft beyond reasonable doubt?
Whether the trial Court's acquittal of the accused was correct given the lack of evidence regarding recovery of stolen property at the instance of the accused?
State
Accused A.1
Accused A.2
N.V. Ramanathan
P. Durga Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
