Allowed

Javoji Mallaiah , Mallesh, v. The State

Telangana HC30 Dec 2013CRLA/898/2009

Case brief

AI extract

What is this about?

In an appeal against conviction for murder and concealing evidence, the High Court analyzed circumstantial evidence. Finding the prosecution failed to complete the chain of evidence and lack direct proof implicating the appellant, the court acquitted him and set aside the trial court's guilty verdict.

What did the court decide?

The conviction and sentence under Sections 302 and 201 IPC are set aside. The appellant is acquitted and shall be released forthwith if not detained elsewhere.

Javoji Mallaiah , Mallesh, Vs The State — Murder and Culpable Homicide | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SMT. JUSTICE ANIS

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CRIMINAL APPEAL No. 898 OF 2009

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JUDGMENT: (per the Hon’ble Sri Justice K.C.Bhanu)

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1. This Criminal Appeal, by appellant/A.1, is directed against the judgment dated 27.07.2009 in Sessions Case No.691 of 2007 on the file of the I Additional Sessions Judge, Mahabubnagar, whereunder and whereby the appellant/A.1 was found guilty of the offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (for short, ‘I.P.C.’), accordingly convicted of the said offences and sentenced to undergo imprisonment for life and to pay fine of Rs.100/- for the offence punishable under Section 302 I.P.C. and to undergo rigorous imprisonment for a period of three years for the offence punishable under Section 201 I.P.C.

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2. The case of prosecution, in brief, may be stated as follows:

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P.W.1, who is complainant, is native of Marepally village, Thimmajipet Mandal, Mahaboobnagar District. She got one son by name B.Venkataiah and 3 daughters viz. Smt. Earragolla Manemma (hereinafter referred to, as ‘the deceased’) and 2 others who are no more alive. P.W.1 got Ac.2.00 of land in the limits of Marepally village. About 20 years prior to the incident, the deceased

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married one Anjaneyulu of Pullagiri village and discarded him due to family affairs, and since then, she had been residing at Marepally village separately, doing coolie and labour work. She was blessed with a male child by name Parashuramulu aged 18 years. During his life time, Pedda Bachanna, who is husband of P.W.1, gave entire Ac.2.00 of land to the deceased, and the same was cultivated and enjoyed by the deceased. Venkataiah, son of P.W.1, and his family members bore grudge against the deceased and used to quarrel frequently for the Ac.2.00 of land. About eight months prior to the incident, the said Pedda Bachanna died. During his life time, he got registered Ac.1.00 of land each in favour of his son Venkataiah and daughter, who is the deceased, and since then, the accused and the deceased were having Ac.1.00 of land each. P.W.2, who is son of the deceased, intended to purchase an Auto for his livelihood for which the deceased intended to sell Ac.1.00 of land and requested P.W.3 to arrange for selling the land early. Family members of the accused raised objection saying that the land was given to the deceased for livelihood and the land belongs to them only. A.1 and A.2 planned to kill her. Accordingly, on 5.9.2006 evening hours, the deceased was alone at the agricultural land while A.1 and A.2 were present at their land attending work. A.1 and A.2 picked up a quarrel with the deceased and A.1 dealt with sickle on the neck causing severe injury. As a result, the

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deceased fell down and A.2 caught hold her head and hair and A.1 cut the neck and separated from the trunk by hacking with a sickle. A.2 took away silver ornaments from the dead body of the deceased. They shifted the trunk and head to nearby dilapidated well belonging to Golla Bachamma and threw in the well to conceal evidence.

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On coming to know that the deceased disappeared since 05.09.2006, P.W.1 searched for her at the houses of relatives, but could not trace her. On 12.09.2006, dead body of the deceased was found floating on water in dilapidated well belonging to Golla Bachamma. The head was cut from the trunk. Then, P.W.1 lodged a complaint to police, who registered it as a case in crime no.58 of 2006 for the offences punishable under Sections 302 and 201 read with 34 I.P.C. During course of investigation, P.W.15 along with P.W.14 visited the scene of occurrence, examined the witnesses and recorded their statements, got photographed the dead body and scene of occurrence by P.W.8, conducted inquest over the dead body in the presence of mediators, drew rough sketch of the scene and sent the dead body to post-mortem examination. P.W.11 conducted post-mortem examination and opined that the cause of death of the deceased is ‘separation of head and neck from thorax leading to failure of cardiac respiratory and nervous system’. After collection of relevant documents and

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completion of investigation, police laid the charge sheet.

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3. The trial Court framed the following charges against the accused.

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“Firstly, That on 5.9.2006, in the evening hours at Marepally village, A1 and A.2 of you did commit murder by intentionally or knowingly causing the death of deceased Munemma by cutting her neck and neck separated from trunk with sickle and that you thereby committed the offence punishable U/s. 302 r/w 34 IPC and within my cognizance.

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Secondly, That A1 and 2 of you, during the course of same transaction stated supra, after committing murder of Manemma, you committed theft of silver ornaments from the dead body of deceased and that you thereby committed the offence punishable U/s. 379 IPC and within my cognizance.

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Thirdly, That on the same day in the same course of transaction, A.1 and 2 of you after committing murder of the deceased Manemma, you shifted the trunk and head to nearby dilapidated well belonging to one Golla Bachamma and threw it in the well to cause disappearance of evidence and that you thereby committed the offence punishable U/s 201 IPC and within my cognizance.”

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When the charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried.

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4. To substantiate its case, prosecution examined P.Ws. 1 to 16 and got marked Exs.P1 to P24, besides case properties M.Os. 1 to 6.

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5. After closure of prosecution side evidence, the accused were examined under Section 313 Cr.P.C. to explain the incriminating circumstances found against them in the evidence of prosecution witnesses. The accused denied the same. No oral or documentary evidence was adduced on behalf of the defence. Ex.C1 was got marked.

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6. The trial Court, upon appreciation of the evidence on record, found the A.2 not guilty of the offences punishable under Sections 302 read with 34, 201 and 379 I.P.C. and accordingly acquitted him, but found the appellant/A.1 guilty of the offences punishable under Section 302 and 201 I.P.C., accordingly convicted and sentenced him as stated supra. Aggrieved thereby, the present Criminal Appeal is preferred by the appellant/A.1.

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7. Now, the point that arises for determination is whether the prosecution is able to bring home the guilt of the appellant/A.1 for the offences punishable under Sections 302 and 201 IPC beyond all reasonable doubt and whether the convictions and sentences recorded by the learned Sessions Judge are liable to be set aside or modified ?

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8. The learned counsel appearing for the appellant contended that there is no direct evidence to the incident

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in question to show that A.1 is the assailant of the deceased, and that even if all the circumstances relied on by the prosecution are taken as true and correct, at this stage, they do not form a chain so complete that within all human probability, the crime was committed by the appellant and none else; that except recovery of M.O.1sickle, there are no incriminating circumstances to show that the appellant is the assailant of the deceased; that even recovery of M.O.1-sickle cannot taken as an incriminating circumstance against the accused because it does not contain any human blood, and that basing on surmises and conjectures, the trial court found the appellant guilty, and hence, he prays to set aside the convictions and sentences recorded by the trial court.

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9. On the other hand, the learned Additional Public Prosecutor contended that except recovery of M.O.1 at the instance of appellant, there is no other evidence to show that the appellant is the assailant of the deceased, and that from the circumstances relied on by the prosecution, it is clear that the appellant is the assailant of the deceased and that, the trial Court, upon considering the evidence on record, rightly convicted and sentenced the appellant, and there are no grounds to interfere with the same. Hence, he prayed to dismiss the Criminal Appeal.

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10. The deceased is none other than daughter of

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P.W.1. Marriage of the deceased with one Anjaneyulu was performed long prior to the incident and they were blessed with a son. After the said Anjaneyulu discarded the deceased, she started living in Marepally village, which is the native place of P.W.1. The deceased was eking out her livelihood by doing coolie work. P.W.1 was having Ac.2.00 of land and out of it, gave Ac.1.00 of land to the deceased and Ac.1.00 of land to her son Venkataiah. The deceased intended to sell away the said Ac.1.00 of land to buy an auto for her son, and informed the same to P.W.3. On knowing about it, A.1 objected. From 05.09.2006, the deceased was found missing from the house. P.W.1, after making efforts to trace the deceased, lodged Ex.P19-complaint on 13.09.2006 to P.W.14, who registered it as a case. In Ex.P19, P.W.1 entertained suspicion against A.1 and A.2. A.1 is grand son of P.W.1 i.e. son of her son Venkataiah. A.2 is wife of said Venkataiah.

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11. There is no direct evidence to show that the appellant is the assailant of the deceased. Entire case rests upon circumstantial evidence. When a case rests upon circumstantial evidence, law is well settled that all the circumstances must firmly and unerringly point out the guilt towards the accused; that all the circumstances, if taken cumulatively, should form a chain so complete that within all human probability, the crime was committed by

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the accused and none else. All the circumstances should not only consistent with the case of prosecution but also should be inconsistent with the hypothesis of the guilt of the accused. On this aspect, it is pertinent to refer to a decision reported in Sharad Birdhichand Sarda Vs. State of Maharashtra^[1] wherein it is held at para No.153 as under:

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“A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made :

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"certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

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(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

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(3) the circumstances should be of a conclusive nature and tendency.

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(4) they should exclude every possible hypothesis

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except the one to be proved, and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

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12. P.W.11 is the Doctor, who conducted postmortem examination on the dead body of the deceased. She opined that the cause of death of the deceased was due to severance of head from the trunk. Material prosecution witnesses P.Ws.1 to 6 and 9 did not support the case of prosecution. Except marking their statements recorded under Section 161 (3) Cr.P.C., nothing has been elicited to connect the accused with the crime. The mediators for the observation of scene of occurrence, preparation of rough sketch of scene of occurrence and holding inquest over dead body of the deceased, also did not support the case of prosecution. P.W.15 is the investigating officer, whose evidence would disclose that he held inquest on the dead body of the deceased in the presence of mediators. The inquest mediators found that head was separated from the body and opined that the cause of death of the deceased was due to severance of the head. The opinion as expressed by the inquest mediators in column no.15 of Ex.P17-inquest report, remained unchallenged.

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13. Death of the deceased is not in dispute. Floating of the dead body in the dilapidated well belonging to Golla Bachamma in the outskirts of Marepally village is not in dispute. Her head was severed from the body. P.Ws.6 and 7 removed the dead body from the well at the instance of police. P.W.8 is the photographer, who took photographs of the dead body and the scene of occurrence.

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14. The other evidence on record is the evidence of P.Ws.15 and 12, who are investigating officer and mediator for recovery of material objects, respectively. At the instance of A.1, M.O.1-sickle used in commission of the offence, was recovered, whereas, basing on the confessional statement of A.2, M.Os. 2 and 3-silver articles which were said to be possessed by the deceased, were seized. The learned Sessions Judge disbelieved the evidence of both the witnesses with regard to recovery of M.Os.2 and 3 at the instance of A.2, but, relying on the statement of the same witnesses with regard to recovery of M.O.1 at the instance of A.1, convicted A.1. Recovery of M.O.1 can be said to be an incriminating circumstance against A.1 provided it is shown that it was used in commission of the offence. Admittedly, M.O.1 does not contain any blood stains because in all probability blood stains were wiped out from the weapon as it was thrown into the tank. As per the

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evidence of prosecution, M.O.1 was taken out from the tank and the same was produced before mediators and police, and the police seized the same. M.O.1 is not shown to the Doctor who conducted necropsy on the dead body of the deceased, to show whether severance of neck can be possible with a weapon like M.O.1. Therefore, in the absence of such medical opinion and also in the absence of blood stains on M.O.1, it cannot be said that recovery of M.O.1 is an incriminating circumstance against the appellant/A.1 so as to take it as one circumstance relevant for the purpose of proving the charge leveled against the appellant/A.1.

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15. Learned counsel for the appellant/A.1 relied on a decision in Wakkar and another v. State of Uttar Pradesh^[2] , wherein it is held thus: (para 12 & 26)

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“It is well settled and needs no restatement at our hands that the principle for basing a conviction on the basis of circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible.

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It is true that recovery of certain incriminating articles at the instance of the accused under Section 27 of the Evidence Act by itself cannot form the basis of conviction. THE recovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances as well and the

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chain of events suggesting the involvement of the accused. THE trial Court and as well as the appellate Court did not rest the conviction of the appellants solely based on the recoveries. THE fact remains that the recovery of articles used in the commission of offence has been taken into consideration together with other incriminating circumstances brought on record by the prosecution.”

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16. In the case on hand, even if all the circumstances relied on by the prosecution are accepted as true and correct, they do not lead to draw an irresistible conclusion that the crime was committed by the appellant/A.1. After perusing the evidence, we do not find any circumstances to say that the appellant/A.1 is the assailant of the deceased. Even in the absence of any legal evidence, the trial court convicted and sentenced the appellant/A.1. Therefore, the appellant/A.1 is entitled for acquittal.

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17. In the result, the Criminal Appeal is allowed. The convictions and sentences recorded against the appellant/A.1 in the judgment dated 27.07.2009 in Sessions Case No.691 of 2007 on the file of the I Additional Sessions Judge, Mahaboobnagar for the offences punishable under Sections 302 and 201 I.P.C. are set aside. The appellant/A.1 is found not guilty of the said charges and is, accordingly, acquitted of the said charges. The appellant/A.1 shall be released forthwith if he is not required in any other case. Fine amount, if any, paid by the appellant/A.1 shall be refunded to him.

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-----------------------(K.C. BHANU, J.)

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----------------( ANIS, J.)

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30.12.2013 DRK

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THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SMT. JUSTICE ANIS

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CRIMINAL APPEAL No. 898 OF 2009 (per the Hon’ble Sri Justice K.C.Bhanu)

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30.12.2013