IN THE COURT OF THE VII ADDITIONAL DISTRICT & SESSIONS
JUDGE :: GUDUR.
Wednesday, this the 11 th day of September, 2019
Present: Dr. B. SATYANARAYANA,
VIII Additional Sessions Judge-cum-
Special Judge for trial of offences against women, Nellore
(FAC) VII Additional District Judge, Gudur
****
SESSIONS CASE No.195/2007
(Crime No.10/2004 of Vakadu Police Station)
(P.R.C.No.31/2004 on the file of Judicial Magistrate of I Class,
Kota)
1 Name of the Complainant:State Inspector of Police, Vakadu Police Station, SPSR Nellore District. 2 Name of the accused:1. Kaduru Kasturaiah (A1), S/o Polaiah, age 45 years, Dalitha ( Mala)Buradagalikotchapalem, Chittamur mandal.
2. Usurupati Polaiah (A2), S/o Nagaiah,65 years, SC ( Madiga), H.No. 24, Swathantranagar, Lowyards road, Triplicane, ChennaI.
3. Usurupati Balaji ( A3), S/o Polaiah, age 42 years, SC(Madiga), H.No 24, Swathantranagar, Lowyads road, Triplicane, Chennai.
3 Charges:Charge No.1:Sec.302 of IPC for committing murder of the deceased/Veeravalli Viswanatham.
Charge No.2 : Sec. 120-B of IPC for criminal conspiracy.
Charge No.3: Sec.201 of IPC for causing disappearance of evidence of the offences.
4 Plea of Accused: Not guilty 5 Finding of the Judge:Guilty of the offences U/ss.302 and 201 of IPC against A1 only. 6 Sentence or Order:In the result, the accused/A1, Kaduru Kasturaiah is found guilty of 11/9/2019 2 SC 195 of 2007 the offences punishable u/s.302 and 201 of IPC and is convicted under Section 235(2) of Cr.P.C.
However, the accused/A1 is found not guilty of the offence punishable u/s.120-B of I.P.C and is acquitted under section 235 (1) of Cr.P.C. The accused/A2 and A3 arefound not guilty of the offences punishable u/ss.302,120-B and 201 of IPCand are acquitted under section 235 (1) of Cr.P.C. The bail bonds of the accused/A2 & A3 and their sureties bonds shall stand cancelled after expiry of six months from the date of this Judgment as contemplated u/s 437-A Cr.P.C.
The accused/A1 is examined and heard U/s.235 (2) of Cr.P.C and questioned about the quantum of sentence that has to be imposed against him, the accused has stated that he is a married person and his wife is a paralytic patient and she is in hospital. He has further stated that he has got two male children and one female child. He has further stated that he has got Ac.1-00 of land previously, but, he sold away the same and now, he is doing coolie work.
Heard both sides.
In view of the facts and circumstances of the case, I am of the considered opinion that the accused is not entitled for the benefit of Probation of Offenders Act or u/s.360 of Cr.P.C.
In view of circumstances, it can be said that there are no reasons to award sentence of death as it is not a rarest rare case and it is not a fit case to punish the accused with death. However, the accused is deserved for imprisonment for Life. In view of the judgment of the 11/9/2019 3 SC 195 of 2007
Hon’ble Supreme Court in Swamy
Shraddananda v. State of Karnataka 1 the accused/A1 is deserved for rigorous imprisonment till the end of his life.
Hence, (1) the accused/A1 is sentenced to suffer Rigorous Imprisonment till the end of his life and also sentenced to pay a fine ofRs.5000/-(Rupees Five Thousand only) in default to pay fine to suffer simple imprisonment for a period of one year for the offence punishable u/s.302 of I.P.C; (2) The accused/A1 is further sentenced to suffer rigorous imprisonment for Seven (7) years and further sentenced to pay a fine ofRs.5000/-(Rupees Five Thousand only) in default to pay fine to suffer simple imprisonment for a period of one year for the offence punishable u/s.201 of I.P.C.
Both the sentences shall run concurrently as contemplated u/s.31 of Cr.P.C.
Mos.1 , 2 and 8, which are non- valuablepropertiesshallbe destroyed after expiry of appeal time. The valuable properties ie., MO3 cash of Rs.100/-, MO4 cash of Rs.20/-, MO5 cash of Rs.10/-, MO6, cash of Rs.5/- and MO7, quarz meya watch shall be returned to PW14/ V. Usha after expiry of appeal time.
In view of the facts and circumstances, I am of the considered opinion that it is a fit case to invoke Section 357A Cr.P.C for victim compensation scheme for recommending the award of compensation to the wife of the deceased/PW14, as contemplated U/Sec.357(A) (3) Cr.P.C.
The Office is directed to address a letter to the District Legal 1(AIR 2008 SC 3041) 11/9/2019 4 SC 195 of 2007
Services Authority as required Under Section 357A(2) Cr.P.C.
The accused/A1 is informed that he has got right to prefer an appeal before the Appellate Court and copy of Judgment furnished to him.
7 Prosecution conducted by:Miss.Y. Suhasini, Addl.Public Prosecutor, Gudur .
8 Defence conducted by:Smt.M.V.Vijaya Kumari, Advocate for the Accused for A1 Sri. R.Roja Reddy, advocate for A2 and A3.
J U D G M E N T
1. The accused A1 to A3 stand charged U/s.302 IPC for committing murder of the deceased/Veeravalli Viswanatham, U/s.120(B) IPC for
Criminal Conspiracy and U/s.201 IPC for causing disappearance of evidence of the offences.
2. The case of the prosecution as mentioned in the charge sheet is as follows:-
a) A1 is resident of Buradagali Kothapalem of Chittamur Mandal and whereas A2 and A3 are residents of Chennai city and A2 is father of A3 and A3 is son-in-law of PW.15, P.Penchalamma.
b) The deceased, Veeravalli Viswanatham, worked as Senior
Assistant, SBI Tirumala branch, resided at Tirupati and while he was working in Tirumala branch an amount of Rs.50,000-00 was missed from his cash counter in the month of July, 2003 and since the said amount was not traced out. The deceased had paid the said amount, personally .
11/9/2019 5 SC 195 of 2007
c) PW.15 Penchalamma had developed illegal intimacy with the deceased as she worked as Sweeper in the said Bank Branch and deceased used to visit the house of PW.15, frequently, and the same was noticed by the husband of PW.15, and warned her and during that period PW15 has informed to the deceased that her daughter,
Srilakshmi, who is wife of A3 was taken to A1, by A2 as Srilakshmi was suffering from ill-health, to perform pooja and thereafter, the ill- health of Srilakshmi was cured and advised the deceased to approach
A1 through A2 and A3.
d) In the meantime, A3 came to know the illegal intimacy between PW.15 & deceased and informed the same to his father A2 and warned PW.15 and thereafter husband of PW15 had shifted his residence from Tirumala to Ramnagar of Tirupati with a view to prevent the deceased from visiting the house of PW.15, but, PW.15 continued her illegal intimacy with the deceased and on that A2 and
A3 bore grudge against the deceased and hatched up a plan to murder the deceased and as such they consulted A1, who is a sorcerer and is an accused in Cr.No.47/2003 U/s.302, 201 IPC of
Chittamur P.S, and were waiting for an opportunity to take revenge against PW.18 Y.Ramanaiah and PW.19 R.V.Ramanaiah as the accused
A2 and A3 suspected Pws. 18 & 19 were informers to the police in respect of the Cr.No.47/03 and prevented A1 to perform “Ksudrapuja” in the village.
e) A1 had accepted to kill the deceased and asked A2 and A3 to bring the accused to him on the pretext of “Kshudra pooja” performance to find out the persons, who had taken away Rs.50,000/- 11/9/2019 6 SC 195 of 2007 pertaining to the bank and as per the advise of PW.15 the deceased had consulted A1 through A2 and A3 and met A1 at Buradagali and
Kotagunta villages for 3 or 4 times in the month of January, 2004.
f) A1 gave a date i.e. 29.1.2004 to perform the Main pooja at the western bank of “Swarnamukhi” river and asked the deceased to come over to him to see the culprits by “ Anjanam “ and on that day at about 5.30 hours the deceased received a phone call at his residence and left the house after informing the same to his wife
Usha (PW.14) that he was going to A1 .
g) The deceased reached Kota and met A1 to A3 and went to
STD booth of PW.17/E.Ravikumar and made a call to his father,
LW.13/R.V.Siva Subramanyam (since died) and informed him that his work was above to complete and he would come to Tirupati at late hours and requested him to inform the same to his wife, Usha to prepare tiffin for him, however, the deceased did not return home and his relatives made enquiry and on 3.2.2004. PW.14, Usha gave a report to Alipiri P.S. and the same was registered as a case in Crime
No.18/2004 as “Man missing” case.
h) While the matter stood thus, on 6.2.2004 at about 6.00 p.m,
PW.2/Ch. Parusuramaiah, Talari noticed a dead body at the western bank of Swarnamukhiu river, which was covered with sand and a wrist watch, a Wig, black in color and pair of chappals were found and on that PW2 went there and noticed that the two foots of dead body cut away and on that PW.11 informed the same to Surpanch of
Vakadu(PW.1/V.Kistamma) and on that PW.1/V.Kistamma gave report to SI of police, Vakadu P.S and on that PW.28 K.V.Ramanaiah SI of 11/9/2019 7 SC 195 of 2007 police Vakadu registered a case in Cr.No.10/2004 of Vakadu
P.S.U/s.174 Cr.P.C. on 6.2.2-004 at 21.00 hours and investigated into.
i) On 7.2.2004 the in charge MRO, Bharati (PW.23) and PW.28
K.V.Ramanaiah, S.I of police secured the mediators, photographer, village servants and medical officer and reached the spot and PW.23, in charge MRO, observed the scene in the presence of PW.21
B.Penchalaiah and PW.24 V.Penchalasyam and found pieces of torn letter at a distance of 10 yards and also saw Hawai slipper, plastic rope, coconut , pair of chappals, Identity card of the deceased, loose white threads containing small wooden sticks and on that PW.23 seized the same under cover of scene of observation report and
PW.28 prepared rough sketch at the place of occurrence and got removed the sand over the dead body of deceased and exhumed the dead body and later PW.23 conducted inquest over the dead body of deceased and during inquest the dead body was identified as that of the deceased and thereafter PW.23 examined the witnesses and recorded their statements and handover the same to PW.28.
j) PW.27, S.Ramanaiah, Medical officer has conducted P.M.
examination over the dead body of the deceased on that spot and hand over the same to the blood relatives of the deceased and based on the opinion of the panchayatdars, the SI of Police (PW28) altered the section of law to 302 IPC and U/s.201 IPC from 174 Cr.P.C and on that P.W.29 A.Balareddy Inspector of police, Vakadu circle took up the case and investigated into the offences.
k) During the course of investigation, PW.29 visited the residence of the deceased, examined the witnesses recorded the 11/9/2019 8 SC 195 of 2007 statements and seized a letter which is similar to that of the letter seized at the scene of offence and also recorded the statement of
PW.22, ASI of Alipili Police station.
l) On 22.2.2004 PW.29 Inspector of police secured the mediators and arrested the accused A1 to A3 at Subramanyeswara
Temple, recorded their confession statements and proceeded to the western bank of Swarnakukhi river at Vakadu and seized torn pant, underwear of the deceased which were concealed in the bushes and also seized currency notes in the pocket of the pant of the deceased.
m) Subsequently A2 led PW.29 and mediators to some extent and produced wrist watch and the same was seized by PW.29 and thereafter A3 proceeded to some extent and produced spectacles of the deceased which was concealed covering sand and on that PW.29 seized the same and brought the accused A1 to A3 to Vakadu P.S and forwarded them to JFCM, Kota for judicial remand.
n) On 21.2.2004 PW.21, B.Penchalaiah, MRI and PW.24
B.Penchala Syam, Secretary , Vakadu conducted identification parade of the properties through the wife of deceased. PW.29 forwarded the viscera and other material objects to the Chemical examiner, Guntur and also sent the letter seized in scene of offence and another letter seized at the residence of the deceased to the handwriting expert and after receipt of P.M. certificate, FSL report, PW.29, Inspector of police laid charge sheet against the accused U/s.302 IPC, 120(B) and 201 IPC r/w 34 IPC.
3. The learned Judicial Magistrate of First Class, Kota had taken cognizance of the offences U/s.302, 201, 120(B) r/w 34 IPC on 11/9/2019 9 SC 195 of 2007 25.5.2004 against the accused and numbered it as P.R.C.No.31/2004 and after appearance of the accused, copies of documents were furnished to the accused u/s 207 Cr.P.C. and committed the case to the Court of Sessions, Nellore. The Hon'ble Principal Sessions Judge,
Nellore has numbered the same as Sessions Case No.195/2007 and made over the same to III Additional Sessions Judge’s Court, Nellore.
4.After appearance of the accused/A1 to A3 before that court and after hearing both sides under section 228 of Cr.P.C, charges under sections 302, 120(B), 201 of IPC have been framed against the accused/A1 to A3, read over and explained to them in Telugu for which the accused pleaded not guilty and claimed to be tried.
5. When the Sessions case is coming for fixation of schedule, the
Hon’ble Prl. District and Sessions Judge, Nellore has withdrawn the
said case from the file of III Additional Sessions Judge’s Court, Nellore and transferred to VII Additional Sessions Judge’s Court, Nellore on the point of jurisdiction.
6.To prove the case, the prosecution has examined as many as
P.Ws.1 to 30 and got marked Exs.P1 to P24 and Mos. 1 to 8. The learned Addl. Public Prosecutor has given up the evidence of
LW2/V.Ramamurthy, ( since died) LW4/S.Madhusudhan Kumar,
LW13/R.V.Siva Subrahmanyam ( since died) LW14/V.Sandheep @
Dheep, LW15/Lakshmi chand Suresh Chand, (since died)
LW16/Ch.Bhujanga Rao, ( since died) LW19/P.Subba Rao,
LW20/D.Selvam,LW23/P.Narasimhulu@Narasimha,
LW27/K.Venkataiah,LW32/B.Subbarayudu,LW34/P.Viswanatham,
LW38/M.G.Seshagiri Rao, PC 1237 (since died) LW39/R.L.Narayana 11/9/2019 10 SC 195 of 2007
Raju, PC 2320.(since died).
7. After closure of prosecution evidence, the accused/A1 to A3 were examined under Sec.313 Cr.P.C., explaining to them in Telugu, the incriminating evidence and the circumstances appearing against them, for which, they denied the same and have stated that they have no defence evidence. In 313 Cr.P.C examination the accused have stated that police took them to the police station, and obtained the signatures and foisted this case.
8.The learned advocates for the accused have filed their written arguments along with catena of decisions.
9. Heard both sides, on the points of facts and law.
10.Now, the points for determination are:
(1) whether the prosecution has proved that the accused/A1 to A3 have committed murder of
deceased/Veeravalli Viswanatham?
(2) whether the prosecution has proved that the accused/A1 to A3 have committed Criminal Conspiracy?
(3) whether the prosecution has proved that the accused/A1 to A3 have caused disappearance
of evidence of the offences?
POINTS 1 to 3:-
11.For the sake of convenience, points 1 to 3 are discussed together.
12.It is the case of he prosecution that the accused A1 to A3 conspired together, hatched a plan and murdered the deceased,
Viswanatham and covered the dead body with sand at Swarnamukhi
River.
13.Coming to the evidence on record, PW1/Vallem Kistamma the then Surpanch of Vakadu, who lodged alleged report to the Vakadu 11/9/2019 11 SC 195 of 2007
Police, has not supported the case of the prosecution. She was again recalled as per orders in Crl.M.P. 213/19 dated 16.8.2019 and further examined and she has admitted her signature on the report dated 6.2.2004. Her signature is marked as Ex.P23. The learned Additional
Public Prosecutor cross examined her with the permission of the court, however, could not elicit anything, except, marking the report
dated 6.2.2004 in Ex.P24. She has denied the contents in Ex.P24
report. But, her signature on the report can be used for the purpose of corroboration.
14.PW2/Parusuramaiah, Talari of Vakadu Police station, has deposed that he found the leg and the dead body near Swranamuki river and he informed the same to PW1/Surpanch and on that PW1 gave a written report to him and he submitted the same in the Vakadu Police station and on the next day his MRO came to Swarnamuki river and on the instructions of MRO, he has taken out the dead body from the river and he noticed that the legs and fingers were found chopped and he also noticed shirt, cut bunian, “Jandhyam” on the dead body of the deceased and the doctor came and conducted postmortem examination over the dead body of the deceased.
15.PW2 was recalled as per the orders in Crl.M.P No 21/18 dated 5.3.2018 and in further cross examination he has admitted that he has stated before police that the dead body was with a pant and there was a Wig, pair of chappals and wrist watch at a distance of 25 feet from the dead body.
16. PW3/D. Narasaiah, another Talari has also stated on the similar lines of PW2 and he also noticed waist thread ( Molathradu ) on the 11/9/2019 12 SC 195 of 2007 dead body of the deceased. In the cross examination, Pw3 has deposed that on that day one Bharathamma (PW23) was in charge
Tahsildar.
17. PW4/G. Maraiah, another Thalari ( Village Servant), has stated on the similar lines of Pws 2 and 3 and has further deposed that he noticed Yellow colour shirt. In the cross examination, Pw4 has deposed that they went to the river at a time and there was small quantity of water in the river by that time.
18.PW5/Ch. Kotaiah, another Thalari, has stated on the similar lines of Pws 2 to 4 and further has stated that the dead body was badly perished. In the cross examination, PW5 has deposed that they have followed the instructions of MRO.
19. PW6/V.Venkatarathnam, another Talari, has stated on the similar lines of Pws 2 to 5.
20. PW7/Sk. Subhani, Tailor cum Auto Driver, PW8/K. Venkatesu agricultural coolie, PW9/G. Kotaiah, Journalist PW10/R.Venkateswarlu, agriculturist, PW13/Y. Venakta Ramana, Photographer, PW15/
P.Penchalamma, relative of A2 and A3 (mother-in-law to A3) who worked as sweeper in the bank where the deceased worked, have not supported the case of the prosecution. PW16/U.Srilakshmi W/o A3 and daughter-in-law of A2 and daughter of PW15 has not supported the case of the prosecution. PW17/E. Ravi Kumar, advocate clerk, PW18/
Y.Ramanaiah, agriculturist, PW19/R.Venkataramanaiah, another agriculturist, PW20/K.Kistaiah, coolie, have not supported the case of the prosecution. The learned additional public prosecutor has cross examined them with the permission of the court, however, could not 11/9/2019 13 SC 195 of 2007 elicit anything, except marking their 161 Cr.P.C statements in Exs.P2 to P11 respectively (except the statements of PW13 photographer).
21. (i) PW11/S.Somasekhar has deposed the deceased is the brother of his brother-in-law and the wife of the deceased informed him that cash of Rs 50,000/- was found missing in the bank, where the deceased had worked, and the deceased had paid the said amount and the attender of the bank, Penchalamma (PW15), suggested to the deceased to approach the Kasturaiah (A1) to know the truth as to who had taken the said cash and accordingly the deceased went to A1 and since then the deceased was found missing and on that on 3.2.2004 wife of deceased Usha gave a report to police.
(ii)PW11/S.Somasekhar has further deposed that two days thereafter police called them to the house of PW15/Penchalamma and accordingly they went there and went inside the house of
PW15/Penchalamma, and had discussions with her, A1 and A2 and two days thereafter i.e., on 7.2.2004 Alipiri police asked them to identify the dead body in Swarnamuki river of Vakadu and accordingly they all went there and found the dead body and at that time, MRO and local police were present there and the dead body was taken out from the sand and they identified the dead body as that of Veeravalli
Viswanadham and they identified the deceased based on “Jandhyam” and SBI identity card apart from sharpened nose and after conducting postmortem examination, the dead body was handed over to them.
(iii)In the cross examination PW11/S. Somasekhar has 11/9/2019 14 SC 195 of 2007 deposed that he stated before police that wig and watch were laying near the dead body and further stated that SBI card was laying at a distance of five feet towards left side of the dead body.
22.(i) PW12/V.Ramamanohar, brother of deceased, has deposed that at on 24.1.2004 he enquired with the deceased as to why he came late to the house and on that the deceased replied that he went to Naidupeta, but, did not tell the work and on the next day he found the deceased was in depression and he was trying to approach a country astrologist to know about the missing of cash of Rs 50,000/- and under those circumstances wife of deceased informed him that the accused had got acquittance with A1/Kasturaiah and on 3.2.2004 his another brother LW2/Veeravalli Ramamurthy, (since died) informed him over phone about the missing of the deceased and on the next day he came to know through wife of deceased(PW14/Usha) that a case was registered in Alipiri police station and thereafter they all went to that police station and police took them to the house of
PW15/Penchalamma and accused A1 and A2 were in the house of
Penchalamma (PW15) and as PW14/Usha informed them that she heard the voice of A1 over phone and then the police took A1, PW15 and A2 to the Alipiri police station and he came to know two days thereafter that police set free of A1, Pw15 and A2.
(ii) PW12 has further deposed in the chief examination that on 7.2.2004 morning he received phone call from Alipiri police station and asked them to identify the dead body in the Swarnamuki river of
Vakadu and accordingly they went there and inspector of police and
MRO have shown the dead body of the deceased and based on the 11/9/2019 15 SC 195 of 2007 clothes, hair, chest and identity card, they have identified the deceased and they found the deceased was in decomposed state and both foot and palms of the dead body were found cut.
(iii)In the cross examination PW12 has deposed that Vakadu police did not examine him when they went to the dead body and he never met A2 at Madras though he is working in Chennai for the last 20 years.
23.(i)PW14/Veeravalli Usha, wife of deceased, has stated on the similar lines of PW11 and 12 and further stated on oath that in the month of January the deceased went to A1, twice, and came late and on 29.01.2004 the deceased met A1 and at about 5.30 pm the deceased talked with her father-in-law and at about 7.30 p.m the deceased again telephoned to her father-in-law and asked him to inform her to prepare tiffins for him as the work is going to be completed and he would return, but, the deceased did not return and on that she informed the same to Janaki, wife of LW2 another brother of her husband and others and on 3.2.2004 she went to Alipiri police station and gave a report.
(ii) PW14 has further deposed that on 4.2.2004 police took her, wife of LW2, Janaki, PW.11 and others to the house of
Penchalamma and there they found Kasturaiah, A1 and he called her as “ Amma” and as such she identified A1, by his voice as A1 enquired about my husband, previously. She has further deposed that
A1 changed his name and stated that he is calling from Naidupet and on another occasion he stated that he is calling from Tada and on that police took Kasturaiah, A1 and his junior paternal uncle Polaiah/A2 to 11/9/2019 16 SC 195 of 2007 police station and police kept them in police station for one day and enquired with them, and on the next day, police set them free.
(iii)PW14 has further deposed that on the night of 6.2.2004 or in the morning of 7.2.2004 LW2, V. Ramamurthy, received a phone call from Alipiri police asking them to identify dead body near Vakadu, and on that she herself, PW12. LW2, LW4/S.Madhusudhana Kumar and
PW11 went to Vakadu, and identified the dead body and on the same day she along with colleagues of the deceased and cousins of the deceased brought the dead body. In the cross examination Pw14 has deposed that A1 did not call her and she has stated before police that on 2.2.2004 Alipiri police station informed that one dead body was buried in the Swarnamukhi river, Vakadu and watch and wig were found near the dead body.
(iv) I have perused Sec 161 Cr.P.C statement of PW14. She has stated before police regarding the date as 7.2.2004 but not 2.2.2004 as suggested to her in her cross examination. The said date was not confronted to PW29/Investigation officer as required U/sec 145 of
Indian Evidence Act.
24.(i) PW22/E.Krishna Murthy has deposed that he worked as ASI of police at Alipiri police station from 1.9.2000 to 10.6.2005, and on 3.2.2004 while he was in charge of the police station at 08.00 am one
Veeravalli Usha/PW14, wife of Viswanatham, resident of D.No.6-7-619,
Sripuram colony, Tirupathi came to police station and lodged a report and based on the report he registered a case in Cr.No.18/2004
U/s.“Man missing”, and original FIR and report was submitted to
III ADM court, Tirupathi and remaining copies were submitted to 11/9/2019 17 SC 195 of 2007 concerned officers. He has further deposed that on 3.2.2004 he examined PW14 and her daughter, Swathi and recorded their statements, and he informed about the case facts to his S.I over phone, and on that the S.I of police sent two constables namely,
Sivaraj and Narayana to Naidupet and Chittamuru to trace out the missing person and to verify the antecedents of Polaiah of
Buradaguntapalem village of Chittamur mandal, and later he handed over the CD file to his SI for further investigation.
(ii) The report of PW14 and registered FIR were not produced
before the court. Nothing is elicited in the cross examination of PW22
in respect of the defence of the accused.
25.(i)PW23/R. Bharathi, has deposed that previously she worked as In-charge Mandal Revenue officer of Vakadu for two days as MRO,
Vakadu was on C.L. and on 7.2.2004 Inspector of Police, Vakadu called her to conduct inquest as there was a dead body in Swarnamukhi
River, and on that she along with her staff, PW21, Pw 24, Pw 26 and some other Talayaris went to Swarnamukhi River and identified the dead body in Swarnamukhi River, wherein there was no water and with the help of her Talayari she got dug and brought out the dead body and examined the dead body and she noticed that there was no underwear and pant to the dead body and she has noticed banian, shirt, “Janjam”, “Molathradu” and “Tayath” near the dead body, and has also noticed Wig and I.D. card at some distance from the dead body and on that she has secured the doctor and got conducted inquest, in the presence of the relatives of the deceased and the doctor in Ex.P16.
11/9/2019 18 SC 195 of 2007
(ii) PW23 has further deposed that the relatives of the deceased have identified the dead body and on that the dead body of the deceased was handed over to the relatives of the deceased including PW14. In the cross examination of PW23 has deposed that
PW2 has stated that he found black wig, wrist watch, pair of chapals which were lying near dead body.
(iii) It is mentioned in Ex.P16/inquest report at last column VII that the wrist watch and wig are not found near the dead body but they were mentioned in the FIR.
26.(i) PW21/Boligarla Penchalaiah has deposed that he is resident of Sydapuramm and previously he worked as Mandal Revenue
Inspector at Vakadu from July, 2002 to September, 2009 and on 20.2.2004 Inspector of Police. Vakadu called him to identify the accused in the murder case of Viswanatham and on that he went to
Vakadu Police station and Vakadu police took him and
PW24/Penchalashyam to Mallam village, and they found three persons sitting beside the temple of Subramanyaswamy, and on seeing the police those three persons tried to escape, but the police went and caught hold of them, and inspector of police informed to the three persons that they are accused in the murder case of
Viswanatham, and on that they admitted that they have committed the offence of murder, and disclosed their names as Kaduru kasthuraiah of Buradagali village of Chittamur Mandal, Polaiah and
Balaji ( A1 to A3).
(ii) He has further deposed that a mediatornama was prepared by him and A1 to A3 have admitted that they committed murder at 11/9/2019 19 SC 195 of 2007
Swarnamukhi River of vakadu and stated that they would show the articles, if they are taken to Swarnamukhi River and then they went to Swarnamukhi River with police, and there A1 dug out and brought drawer and pant of the deceased, A2 went to some other place and dug out and brought one Wig and watch of the deceased, and A3 went to some other place and dug out and brought spectacles of the deceased and on that Inspector of police seized the same. PW21 has identified the drawer, pant, wig, spectacles and wrist watch shown to him as the articles of the deceased. PW21 has further deposed that inspector of police seized the articles under the cover of mediatornama scribed by him and he himself and PW24 have attested the same. Ex.P12 is the portion in mediator report dated 20.2.2004, which reads “ Meeru Police Varu Ma Venta Vachhina
YedalaMeekuPudchinaVastuvulanuVelekiTeesi
Chupinchagalamu”.Ex.P13 is the mediator report dated 20.2.2004 at 12.00 noon. Ex.P14 is the mediator report dated 20.02.2004 at 12.35 pm. Ex.P15 is the mediator report dated 20.2.2004 at 1.10 pm.
(iii)In the cross examination Pw21 has deposed that the accused did not sign in Ex.P13 to Ex.P15 and the material objects were not packed and sealed.
27.(i)PW24 /V. Penchala Shyam, secretary, Vakadu has deposed that on 7.2.2004 he himself PW26/V. Kotaiah, PW23 in charge MRO went to Swarnamukhi river and has stated on the similar lines of
PW23.
(ii) PW24 has further deposed that on 20.3.2004 police took him and Pws 21 panchayatdar to near by a tree in Mallam 11/9/2019 20 SC 195 of 2007 village and has stated on similar lines of PW21. Pw24 has further deposed that the accused A1 to A3 have confessed the murder of the deceased and thereafter A1 went to Ranganagunta area and brought a spade and dug the sand and buried the deceased in the sand and left that place.
(iii)PW24 has further deposed that on 29.2.2004 police took him A1 to A3, PW26 V. Kotaiah to Srinivasa Teli links and asked PW17
E, Ravi Kumar and enquired about A1, regarding his telephone calls, and on that PW17 has stated that one month back A1 brought another person and the said person telephoned to Tirupathi at 5.00 pm and 7.00 pm and police asked PW17 about the telephone bill and on that PW17 gave the telephone bills to police.
(iv)In the cross examination, PW24 has deposed that more than one hour taken place for preparing the report near the tree and the movement of public was not there, where the dead body was dug out and there are no villages on either side of the bund of the river, and the dead body was not fully decomposed.
28.PW25/T.Venkatapathi deposed in his evidence that previously he worked as Branch Manager, in Thirumala Branch and during that time the deceased worked as Cashier in the same branch and in 2003 cash of Rs.50,000-00 was found missing and as it was not traced, the deceased himself paid the amount and after that incident the deceased went in depression and he was not regular in attending to the bank and in 2004 January ending the deceased telephoned and sought for leave for 3 days stating that he would come and give leave letter, but subsequently he did not come to the bank and later he 11/9/2019 21 SC 195 of 2007 came to know through his brother that he is no more. Nothing is elicited in favour of the accused in the cross examination of PW25.
29.PW26/V. Kotaiah has deposed that he is working as Pharmacist, in Balireddypalem U.G.P.H.C, since 2016 and previously, he worked as
Panchayat Secretary, Nellipudi from 2002 to 2016 and on 21.2.2004
Inspector of police took him and PW.24/Penchalashyam to Kota Cross road, to Srinivasa Tele Links and Police asked a boy in the counter of tele links whether anybody came and made calls to Thirupathi and on that the boy has stated that Kasturaiah/A1 made calls to Thirupathi on 29.1.2004 and on that Inspector of police obtained three receipts and obtained their signatures in token of obtaining of three receipts.
In the cross examination PW26 has deposed that he has not verified the receipts obtained by inspector of police and Kota cross road is a busy locality.
30.PW.27/Dr.S. Ramanaiah has supported the case of the prosecution regarding the cause of the death of the deceased and conducting postmortem examination.
31.(i) PW28/K.V. Ramanaiah, the then S.I of police vakadu police station has deposed that PW1/V. Kistamma lodged a report, dt.6.2.2004 at 9.00 pm and based on it he registered the same as a case in crime no 10/2004 Under section 174 Cr.P.C ( death cause not known) and Ex.P18 is the registered FIR and he sent copies of FIR to all the concerned officers, and sent requisition to the M.R.O to examine the dead body and conduct inquest over the dead body and went to the place of dead body, which was located of Swarnamukhi river and informed the same to S. I of police, Alipiri as he has received 11/9/2019 22 SC 195 of 2007 phone call from him about the missing the deceased and asked S.I of police, Alipiri to send the persons to identify the dead body.
(ii)PW28 has further deposed that as it was late night he had posted a guard and he also stayed there and on 7.2.2004,
PW23/in charge MRO visited that place along with her staff at 10.00 am and PW23 got dug through salaries and took out the dead body from Swarnamukhi river and placed on the southern side of the place where it was buried and he prepared rough sketch/Ex.P20.
(iii) PW28 has further stated on the similar lines of PW23/in charge MRO and further deposed that on 7.2.2004 at 7.00 pm he altered the section of law from 174 Cr.P.c to 302 and 201 IPC and issued altered express FIR/Ex.P19 and sent the same to JFCM, Kota and copies to other officials concerned and on that the inspector of police took up further investigation.
iv) In the cross examination, PW28 has deposed that as per
Ex.P18/FIR u/s 174 Cr.P.C the dead body was with pant up to legs. He has denied the contention of accused A1 to A3 in the cross examination.
32.(i) PW.29 A.Bala Reddy, the then Inspector of Police Vakadu circle has deposed that he verified the investigation done by SI of police Vakadu and on 8.2.2004 he resumed further investigation and visited the scene of offence situated at a distance of one and half KM from Vakadu PS i.e. onwestern bank of Swarnamukhi river and he secured the presence of Vallem Kistamma/PW1 and Arcot Sivakumar and recorded the statement of Arcot Sivakumar son of Venugopal only as statement of PW1 was already recorded by SI of Police.
11/9/2019 23 SC 195 of 2007
(ii)He has further deposed that on 9.2.2004 he visited
TirupathiandsecuredthepresenceofPW14,
R.V.Subramanyam/LW13,LW.14/V.Sandeep,Veeravalli
Ramamurthy/LW2, PW.12, PW.11 and LW.4 Surabhi Madhusudhan
Kumar and recorded their 161 statements and on the same day he also seized the copy of a letter/Ex.P-21 said to have be written by the deceased in the presence of mediators LW15/Lakshmichand,
LW16/Chennapatnam Bhujanga Rao, and on 10.2.2004 he also secured the presence of PW.25 and P.W22 and recorded their statements u/s.161 Cr.P.C.
(iii)He has further deposed that on 13.2.2004 he secured the presence of PW.13 and recorded his statement U/.s.161 Cr.P.C.
and on 14.2.2004 he secured the presence of P.Subba Rao/LW.19 and
LW.20 at Kothagunta village of Chiuttamur Mandal and recorded their statements U/s.161 Cr.P.C. and on 16.2.2004 he visited Tirupathi and secured the presence of Podili Penchalamma/PW.16, and
P.Narasimhulu LW.23 and recorded their statements U/s.161 cr.P.C.
and on 20.2.2004 on credible information he rushed to the village of
Mallam along with mediators, Pws. 21 and 24 and arrested the accused A1 to A3 and throughly interrogated them, separately, and recorded their confession statements from 6.30 a.m. to 11.30 a.m.
iv)He has further deposed that A1 to A3 lead the police party and mediators to Swarnamukhi River near Vakadu at about 12.00 noon and A1 has shown the belongings of the deceased in the presence of mediators and removed the sand and picked up a torn pant and a drawer and on the observation of the torn pant he also found a torn 11/9/2019 24 SC 195 of 2007 money purse and found Rs.100 rupee note, Rs.20 note, Rs.10 note and Rs.5 note and immediately, he seized the above belongings of the deceased in the presence of said mediators and Mo-1 torn pant,
Mo-2 drawer and Mo-3 Rs.100 rupee note, Mo-4 Rs.20 note, Mo-5
Rs.10 note, Mo-6 Rs.5/- note respectively.
v)He has further deposed that A2 has also shown the place where he also removed some sand and picked up Quartz Mega
Watch/Mo-7 and a Wig/Mo-8 used by the deceased before the death and he seized the above belongings of the deceased before the death.
vi)He has further deposed that A3 also removed some sand at a distance of 50 yards and picked up a spectacles/Mo-9 and shown to him and the same was seized by him, in the presence of the same mediators.
vii)He has further deposed that he brought A1 to A3 to
Vakadu PS and sent them for judicial custody and on 21.2.2004 and he has also secured the presence of PW.17 and recorded his statement U/s.161 Cr.P.C., and while recording the statement of
PW.17 has produced the Telephone computer bill dt.29.1.2004 evening 17.32 hours and 19.02 hours in triplicate and the same bills/Ex.P-22 were seized by him in the presence of mediators PW.24 and PW.26 and drafted proceedings to that effect.
viii)He has further deposed that on 23.2.2004 he visited
Kothagunta village of Chittamur Mandal and secured the presence of
Shaik Subhan PW.7, Kamatham Venkatesu /PW.8, Kamatham
Venkataiah/LW.27 and Gorrepati Kotaiah/PW.9 and recorded their 11/9/2019 25 SC 195 of 2007 statements U/s.161 Cr.P.C. and on 24.2.2004 he secured the presence of yerabothi Ramanaiah/PW.18, Routhu Venkataramanaiah/PW.19,
Rapau Venkatesu/PW.10, Bandi Subbarayulu/LW.32, Kamatham
Kistamaiah/PW.20 and Pokala Viswanatham/LW.34 and recorded their statements U/s.161 Cr.P.C. and on 24.2.2004 he prepared a letter of advise and sent the Viscera of the deceased and belongings of the deceased i.e. torn pant, drawer, half hands shirt, Cooltex white banian and white Janjam, black waist thread two rows to chemical examiner for test and opinion and later the torn letter pieces seized at the scene of offence by MRO and a similar copy of the deceased said to have been written by deceased was seized in Tirupathi have been sent to handwriting expert on 27.2.2004 and after receipt of final opinion of the medical officer as well as chemical report he laid charge sheet against accused.
ix)He has further deposed that on 20.5.2004 a memo has been filed by him before JMFC, Kota requesting to address the concerned court to send the FIR copy in Cr.No.18/2004, man missing of Alipiri PS. He has deposed that Pws. 7 to 10,15 to 20 have stated
before him as in Ex.P-2 to P5 and Ex.P-6 to Ex.P-11 respectively.
x)Nothing is elicited in the cross examination of PW29 in respect of the defence of A1.
xi)In the cross examination by A2 and A3, PW29 has admitted that the dead body was with pant up to leg as per Ex. P18, and he did not obtain the signatures of the accused A1 to A3 on Ex.
P13 to P15 and did not seal the seized articles. He has admitted that he did not file Form-66 along with charge sheet and he has sent the 11/9/2019 26 SC 195 of 2007 seized articles to S.D.P.O through H.C.No 94, AVM Radha Krishnayya (Pw30) and there is no reference of the accused in Ex.P21 letter.
xii)PW29 has denied the defence of the accused A1 to A3 and further denied the suggestion that he planted Mo-1 to Mo-8 and when they found an unidentified dead body he had linked the same to the deceased Viswanadham and falsely implicated the accused.
33.PW30/A.V.M Radha Krishnaiah, the then Head constable has deposed that as per the instructions of PW29, inspector of police he handed over the viscera in the card board box at R.F.S.L, Guntur. In the cross examination he has deposed that he does not know what item are there in the card board.
34.The learned advocates for the accused A1 to A3 have contended that there are laches in the evidence of prosecution witnesses, more particularly, the pant,wig and wrist watch of the deceased, which are near to the place of dead body and as such the question of recovery of the said material objects at the instance of the accused by removing the sand by the accused is creating a doubt regarding the case of the prosecution.
The learned Additional Public Prosecutor has argued that the prosecution has proved its case and the accused are liable to punishment.
The learned advocates for the accused have relied upon a several decisions.
1) In Surendra V. State of Rajasthan 2 the Hon'ble Supreme court considered the aspect of last seen theory which is unacceptable. Both the appellants were identified by the witnesses in 22012 CRI.L.J.2096 (SC) 11/9/2019 27 SC 195 of 2007 the court for the first him. The arrests were made on 11.1.2001 and whereas the recoveries were made two or three days thereafter and the articles were sent to the laboratory on 19.3.2001.
2) In Malkiat Singh & another etc., V. State of Himachal
Pradesh 3 the Hon'ble court discussed the aspect of last seen theory and seizure under Sec 27 of the Evidence Act. The accused therein did not state where the dead body was lying while disposing the statement to the police.
3) In Mohd.Abdul Hafeez V. State of Andhara Pradesh 4 wherein the Hon'ble Supreme court has considered the aspect of recovery U/sec 27 of the Evidence Act. It is a case of robbery and the disclosure statement of the accused was along with others.
4) In Jackaran Singh V. State of Punjab 5wherein the Hon'ble
Supreme court considered the aspect of recovery ( revolver and cartridges) based on the disclosure statement of the accused. In this case the prosecution has not examined the punch witnesses to testify the disclosure statement of the accused and there is no signature/thumb impression of the accused. In the instant case on hand the prosecution has examined the punch witnesses.
5) In Ramesh Govind Thakur V. State of
Maharashtra 6wherein the Hon'ble Bombay High court considered the extra judiciary confession and motive. In the instant case the prosecution has established the motive and it is not based on extra judicial confession.
6) In Salim Akhtar alias Mota V. State of Uttar Pradesh 7 wherein the Hon'ble Supreme court considered disclosure statement of accused with reference to recovery of arms and ammunition. A photographer, who was frequent visitor to police station had acted as a mediator.
32010 CRI.L.J.635 (Himalchal Pradesh High Court) 4(1983) AIR (SC) 367 51995 CRI.L.J.3992 (SC) 62008 CRI.L.J.2169 (Bombay High Court) 72003 CRI.L.J.2302 (SC) 11/9/2019 28 SC 195 of 2007
7) In Sahib Singh V. State of Punjab 8where in the Hon'ble
Supreme court considered Sec 25 of Arms Act with reference to the
Provisions Terrorist and Disruptive Activities ( Prevention) Act.
8) In Ashraf Hussain Shah V. State of Maharashtra 9 wherein the Hon'ble Bombay High court considered the aspect of delayed interrogation and the seized articles( blood stained clothes and knife) were not sealed. In the present case the prosecution has not seized any crime weapon and the dead body of the deceased was found in the sand of Swarnamukhi river.
9) In Deoraj Deju Suvarna and etc., V. State of
Maharashtra 10 wherein the Hon'ble High court of Bombay considered the aspect of the recovery and motive, in respect of the case of the murder by the members of unlawful assembly. Names of two accused, use of swords and soda water bottles were interpolated as on after thought. Recovery of chopper made while accused was hand cuffed.
10) In Navaneethakrishna V. State 11 wherein the Hon'ble
Supreme Court has considered the aspect of the confession statement leading to discovery of some new facts. It is the case of robbery with murder and the case based upon the last seen theory which requires corroboration.
11) In Pawan Kumar V. State of Haryana 12 wherein the
Hon'ble High court of Punjab and Hariyana considered Sec 9 of
Evidence Act with reference to identification of articles of the gold chain and ring belonging to the deceased and no family member identified them.
12) In Chanda Venkateswarlu V. State of Andhra
Pradesh 13 where in the Hon'ble High court of A.P considered the aspect of last seen theory and held that there is no connecting link 81997 CRI.L.J.2978 (SC) 91996 CRI.L.J.3147 (Bombay High Court) 10 1994 CRI.L.J.3602 (Bombay High Court) 11 2018 (1) ALD (Crl.) 1020 (SC) 12 AIR 2003 Supreme Court 2987 13 2011 (1) ALD (Crl.) 538 (AP) 11/9/2019 29 SC 195 of 2007 evidence regarding the seized gold ornament. It is the case pertaining to rape and murder.
13) In Onteru Venkata Subba Reddy V. State of Andhra
Pradesh 14where in the Hon'ble High court of A.P considered dowry death. The dead body was not claimed by father and it was handed over to municipality.
14) Mandla Ranga Swami and others V. State of Andhra
Pradesh 15 wherein the Hon’ble High court of A.P considered the presumption U/sec 114-g of Evidence Act, Sec 3 & 8 of Evidence Act and pointed out the laches on the part of investigation officer as he failed to examine the main person who brought the disputes between two families. It is a case of direct attack on the victim and on hearing the cries the other persons went there and on seeing them the culprits escaped from there.
15) In Ashish Batham V. State of Madhya Pradesh 16 wherein the Hon’ble Supreme court considered the plea of alibi in respect of murder of two young girls and identity of the recovered property was not established by the prosecution.
16) In V.Mangamma V. State of Andhra Pradesh 17 wherein the Hon’ble High court of A.P considered the conduct of the investigation officer who availed dog squad services and having obtained report did not filed the same. In the instant case on hand no such dog squad report prepared by the investigation officer and as such the question of filing such report does not arise.
17) In Mani V. State of Tamil Nadu 18 where in the Hon’ble
Supreme court considered the case of murder and held that the inspector did not search near by places and all the articles remained in open, unguarded for more than 10 days.
18) In Hatti Singh V. State of Haryana 19 wherein the Hon’ble 14 (2008) 2 ALT (Crl) 89 15 2008 (2) ALT (Crl.) 47 (DB) (A.P) 16 2002 CRI.L.J.4676 17 2008 (1) ALT (Crl.) 164 (DB) (A.P) 18 2008 CRI.L.J. 1046 19 2007 CRI.L.J. 2726 11/9/2019 30 SC 195 of 2007
Supreme court considered a case of kidnap and murder vis-a-vis the presumption and 114 of Evidence of Act and last seen theory.
19) In Kansa Behera V. State of Orissa 20wherein the Hon’ble
Supreme court held that the evidence of blood group is only conclusive to connect blood stains with the accused.
The learned advocate for the accused.A1 to A3 have further relied upon the following decisions.
20) In Katta Mondaiah V. State of Andhra Pradesh 21 the
Hon'ble High court of A.P considered the aspect of last seen theory
with reference to an offence U/sec 302 I.P.C and deprecated the conduct of doctor and investigation officer.
21) In Digamber Vaishnav and another V. State of
Chhattisgarh 22 the Hon'ble Supreme court considered the provisions
U/sec 394, 302 I.P.C Sec 27 and 118, 45 and 101 of the Evidence Act
Vis-a-Vis last seen theory. In this case the seized silver “patty” is available in the market and the colour of motor cycle is different to that of the seized motor cycle colour. The evidence of child witness under 118 is with inconsistencies and the prosecution has relied upon the evidence of the child witness regarding the last seen theory.
35.I have perused the above decisions and I am of the considered opinion that the principles laid down in the above decisions are not in dispute but, the application of the said decisions to the case at hand has to be appreciated based on the facts.
36.The case at hand based upon circumstantial evidence only. The deceased informed to his wife, father and brothers about his visiting to A1 to find out the person, who was responsible for missing of Rs 50,000/- in the bank in which he worked and there was a telephone 20 1987 CRI.L.J. 1857 21 2018 (2) ALD (Crl.) 372 22 2019 (2) ALD (Crl.) 95 (SC) 11/9/2019 31 SC 195 of 2007 conversation between the deceased and his father which was heard by the wife of the deceased and since the deceased did not return home after he left for A1, she lodged a report with Alipiri police and
Alipiri police also made enquiries, proceeded to the house of
PW15/Penchalamma who worked as attendar/messenger in the bank where the deceased worked. Alipiri police/Pw22/E. Krishna murthy,
A.S.I has proved this fact. It is his evidence that after registering the case in crime no 18/2004 under Man Missing he submitted FIR to the learned III Addl JFCM, Tirupathi and the S.I of police Alipiri has taken up the investigation.
37.The report of PW14/V. Usha and FIR in crime no 18/2004 (Man missing) have not seen the light of the day. My learned predecessor has addressed several letters but, could not get the said documents.
My learned predecessor has also taken steps for cause production of the original report of PW1 in respect of Ex.P18/F.I.R in the present crime number but could not get the same. The Hon’ble Principal
Sessions Judge, Nellore also gave permission for reconstruction and
the copy of the report of PW1 is marked as Ex.P24 after recalling
PW1. The Hon’ble Principal Sessions Judge, Nellore has also permitted to dispose of the case based on the material available on record.
38.In the light of the above circumstances the evidence against A1 to A3 shall be scrutinized. Since the case is based on confession of the accused also which leads to seizure of material objects the law relating to those aspects shall be looked into.
11/9/2019 32 SC 195 of 2007
39.Section 24 of Indian Evidence Act, 1872 deals with
Confession caused by inducement, threat or promise when irrelevant in criminal proceeding.
40.Section 25 of the Indian Evidence Act, 1872 contemplates that confession to the police officer not to be prove, which is specifically mentioned there in that, no confession made to a police officer shall be proved as against a person accused of any offence.
41.Section 26 of the Indian Evidence Act is exception to section 25 of Evidence Act and it is pertaining to confession by accused while in custody of police not to be proved against him. It is specifically mentioned that, no confession made by any person whilst he is in the custody off a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. The Magistrate shall be the powers of Criminal
Procedure Code, but, does not include the head of a village, who is discharging magisterial functions in the Presidency of Fort St.George or elsewhere.
42.Rule 32 of Criminal of Rules of Practice and Circulars, 1990 contemplated the procedure for recording the confession statement of the accused by the Magistrate, which reads as follows:
Confessions:
(1) No confession shall be recorded unless:
(a) the Magistrate has explained to the accused that he is under no obligation at all to answer any question and that he is free to speak or refrain from speaking as he pleases; and
(b) the Magistrate has warned the accused person that it is not intended to make him an approver and that anything said by 11/9/2019 33 SC 195 of 2007 him will be taken down and thereafter be used against him.
(2) Before recording a statement, the Magistrate shall question the accused in order to ascertain the exact circumstances in which his confession is made and the extent to which the police have had relations with the accused before the confession is made.
The Magistrate may usefully put the following questions to the accused:-
(a) When did the police first question you?
(b) How often were you questioned by the Police?
(c) Were you detained anywhere by the Police before you were taken formally into custody, and if so, in what circumstances?
(d) Were you urged by the Police to make a confession?
(e) Have the Statements you are going to make been induced by any ill- treatment? And if so, by whom?
(f) Do you understand that the statement which you are about to make may be used against you at your trial?
These questions and any others which may suggest themselves and the answers to them shall be recorded by the Magistrate before he records the accused’s statement and shall be appended to the
Memorandum prescribed by Section 164 (3) of the Code of Criminal
Procedure. The Magistrate shall add to the Memorandum a statement in his own hand of the grounds on which he believes that the confession is voluntary and shall note the precautions which he took to remove the accused from the influence of the police and the time given to the accused for reflections.
(3) If the Magistrate has any doubt whether the accused is going to speak voluntarily, he may, if he thinks fit, remand him to a sub-jail,
before recording the statement; and ordinarily the accused shall be
withdrawn from the custody of the police for 24 hours before his statement is recorded. When it is not possible or expedient to allow so long a time as 24 hours, the Magistrate shall allow the accused at 11/9/2019 34 SC 195 of 2007 least a few hours for reflection.
(4) The statement of the accused shall not be recorded, nor shall the warning prescribed in paragraph (1) of this Rule be given nor shall the question prescribed in paragraph (2) of this Rule be asked in the presence of a co-accused or of the police officers who have arrested him or produced him before the Magistrate or who have investigated the case.
43.In the instant case, the police officer (Pw29) has not taken any steps which are required under Rule 32 of Criminal Rules of Practice and the accused A1 to A3 were not produced before the Magistrate to record the confessional statement of the accused A1 to A3. The confession statements of the accused A1 to A3 before police (PW29) and PW21/Mandal revenue inspector and PW24/Panchayat secretary can not be taken into consideration as PW29 the inspector of police has not followed the procedure for recording the confession statement of the accused.
44.The prosecution is relying upon the confession statement of the accused and based on the confession statement of the accused the investigation officer has discovered the material objects at the instance of A1 to A3. The said recoveries/seizures at the instance of accused are relevant U/sec 27 of Evidence Act.
45.It is the contention of the learned advocate for the accused that the inspector of police has not obtained the signatures of the accused on the alleged confession statements, which led the police party for recovery of the articles belonging to the accused , and as such the contention of the prosecution can not be accepted.
46.The learned advocate for the A2 and A3 has relied upon the 11/9/2019 35 SC 195 of 2007 decision in Sahib Singh V. State of Punjab 23 where in the Hon'ble
Supreme court considered Sec 25 of Arms Act with reference to the provisions Terrorist and Disruptive Activities (Prevention) Act. It is pertinent to note that in this decision the Hon'ble Supreme Court observed at Para 7 that “ Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground “ that no independent and respectable witness was examined to prove the search but if it is found-as in the present case-that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recover, it would affect the weight of evidence of the police officer, though not its admissibility.”
In the instant case the prosecution has secured the independent witnesses and examined them and hey are public servants.
47. In another case in Tahir Vs. State of Delhi 24whereunder the
Hon’ble Supreme Court observed that:-
“Where the evidence of police officials, after careful 23 1997 CRI.L.J.2978 (SC) 24 AIR 1996 SC 3079 11/9/2019 36 SC 195 of 2007 scrutiny,inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the credit
worthiness of the prosecution case.”
48. In another case in State Govt. of NCT of Delhi Vs. Sunil and another 25 whereunder the Hon’ble Supreme Court considered provisions under Section 27 of the Evidence Act and under Section 161 of the Code of Criminal Procedure and observed that:- “There is no requirement either under Section 27 of the
Evidence Act or under Section 161 of the Code of
Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under
Chapter VII of the Code. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching
Endeavour envisaged in Chapter VII of the Code.
Moreover, it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.” 25 2001 Crl.L.J.504 11/9/2019 37 SC 195 of 2007
49.As per the evidence of PW29/Inspector of police torn pant and drawer of the deceased and torn money purse with currency notes were produced by A1 by removing the sand in Swarnamukhi river. It is further evidence of PW29/Inspector of police that A2 removed the sand and picked up quartz maga watch and wig and where as A3 removed sand and produced spectacle. Since wig,watch were already noticed by the village servants the question of discovering a fact
U/sec 27 of Evidence Act at the instance of accused does not arise and as such any amount of doubt can be entertained regarding the alleged seizure of the material objects, more particularly
Mo-7/watch,Mo-8/wig,Mo-9/spectacle which are allegedly the seized at the instance of A2 and A3.
50.There is no discrepancy regarding the drawer/Mo-2 and the currency notes in torn money purse i.e., Mo-3 to Mo-6 ( currency notes) which are seized at the instance of A1 in the presence of mediators.
51. The learned advocates for the accused A1 to A3 have contended that the investigating officer has not taken any steps for conducting test identification of the properties of the deceased through the wife of the deceased and as such the seizure of Mo2- drawer and Mo3 to Mo6 currency notes can not be taken into consideration to connect the offences with A1.
52.It is a matter on record that the investigation officer, PW29 has taken steps as per the contents in charge sheet mentioned in the judgment in para No 2(n).
53.I have perused the entire material evidence on record and 11/9/2019 38 SC 195 of 2007 documents. I have noticed that the identification parade of the properties document dated 21.02.2004 is very much available in the record duly signed by PW21/Mandal revenue inspector and PW24/ secretary. As per the contents in the said unmarked document dated 21.2.2004 at 4.00 pm, the belongings of the deceased i) pant ii) cut drawer iii) black wig iv) wrist watch v) yellow cotton shirt vi) torn cut bunion vii) torn purse viii) black waist thread of two rows ix) Jandhyam x) identity card were identified by the wife of the deceased ( Usha) in the office of Velugu project of Vakadu mandal complex. Hence, it can be said that the investigation officer has got conducted identification parade of the properties through the wife of the deceased.
54.The wife of the deceased (PW14) has categorically stated in her evidence that she has identified the dead body of her husband on 7.2.2004. The attention of PW14 has not been drawn by the learned
additional public prosecutor regarding the belongings of the deceased
and how she has identified the dead body of her husband. Similarly, the learned additional public prosecutor has not drawn the attention of the mediators( Pws 21 and 24) regarding the test identification parade proceedings held by them.
55.The learned Additional Public Prosecutor has not drawn the attention of the witnesses pertaining to F.S.L, R.F.S.L reports, seizure of writings of the deceased scene of observation report cum seizure report by PW23/Mandal revenue officer.
56.The learned Advocate for A1 has filed written arguments and copy was furnished to the Addl.P.P on 31.8.2018 and the learned 11/9/2019 39 SC 195 of 2007 advocate for A2 and A3 had filed written arguments and copy was furnished to the Addl.P.P on 4.9.2018 i.e., nearly one year back and pointed out regarding the non marking of FSL, RFSL, mahazar dated 9.2.2004 of 8.00 am, regarding the seizure of writing of the deceased, identification parade of property dated 21.2.2004 at 4.00 pm, scene of observation report dated 7.2.2009 at 9.00 am by MRO/PW23. The learned additional public prosecutor having recorded the copies of the said written arguments, she did not take any steps for marking of the documents and there is a explanation regarding them in her arguments.
57.The laches on the part of the learned additional public prosecutor, who conducted the prosecution on behalf of the State can not be taken advantage by the accused as the defence of the accused A1 to A3 is totally denial without reasonable explanation for any of the incriminating circumstances against the accused A1 to A3.
Hence, I am of the considered opinion that the contention of the learned advocates for the accused A1 to A3 is not tenable under law.
58.The Hon’ble Supreme court has considered various practical difficulties in respect of the investigation, collecting evidence, proving the facts through the witnesses and other aspects in the decision of
West Bengal Vs Mir Mohammad Omar & others
(htts://indiaKanoon.org/doc/575647) and deprecated the
practice of making comments on the investigating officers in
severe language and observed that:
“ Castigation of investigation unfortunately seems to be a regular practice when the trial courts acquit accused in criminal cases. In our perception it is almost impossible to come across a single case wherein the investigation
was conducted completely flawless or absolutely
11/9/2019 40 SC 195 of 2007 foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavory criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in
mind the time constraints of the police officers in
the present system, the ill-equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every case. Before an investigating officer is imputed with castigating remarks the courts should not overlook the fact that usually such an officer is not heard in respect of such remarks made against them. In our view the court need make such deprecatory remarks only when it is absolutely necessary in a particular case, and that too by keeping
in mind the broad realities indicated above”.
59.Coming to the case at hand the above evidence on record goes to show that the prosecution could able to prove the death of the deceased/V.Viswanatham by cogent and convincing evidence through the prosecution witnesses i.e., PW2/Parusuramaiah, PW3/D.
Narasaiah, PW4/G. Maraiah, PW5/Ch. Kotaiah, PW6/V. Venkataratham, who are village servants( Talaries) and PW11/S. Somasekhar, relative of the deceased, PW12/V. Ramamohan brother of the deceased,
PW14/V. Usha wife of the deceased, PW23/R. Bharathi, in charge mandal revenue officer of Vakadu and other official witnesses including the medical officer PW27/Dr. S. Ramanaiah. The identity of 11/9/2019 41 SC 195 of 2007 the deceased has also been established by the prosecution by oral and documentary evidence. The evidence of PW14/V. Usha, wife of the deceased is clinchingly establishing this fact.
60.As per the evidence of PW27/Dr.S. Ramanaiah the deceased died of asphyxia due to smothering and Ex.P17 postmortem certificate is proving this fact. The circumstances appearing at the scene of offence coupled with the oral testimonies of village servants and in charge tahsildar go to show that the death of the deceased is not natural. It is also not the case of suicide, but, it is a case of homicide, amounting to murder.
61.The case is based upon the circumstantial evidence. To connect the death of the deceased to the accused, the following are the circumstances against the accused.
62.PW15/P. Penchalamma is mother-in-law of A3 and A2 is father of
A3. She worked in the bank as a sweeper and she came to know the death of the deceased. It is her specific evidence that she does not know how the deceased died.
63.PW16/U. Sreelakshmi wife of A3 and daughter in law of A2 has stated on oath that PW15 is her mother and at about 10 years back she came to know the death of the deceased and as A2 and A3 were kept in the police station she came from Chennai to see them.
64. PW11/S.Somasekahr, relative of the deceased, has deposed that in the year 2003 the deceased worked in the Tirumala Bank branch and he was in financial trouble and in the year 2004 cash of
Rs 50,000/- was found missing and deceased repaid the said amount and he was informed by his brother LW2/ V. Ramana Murthy (since 11/9/2019 42 SC 195 of 2007 died) that the attendar, Penchalamma (PW15) suggested to the deceased to approach A1 to know the truth as to who had taken the cash and accordingly the deceased approached A1 and since then the deceased was found missing and on that wife of the deceased lodged the report with the police on 3.2.2004 and two days thereafter police called them to the house of PW15/Penchalamma and they all went to her house and police, brother of the deceased (LW2), wife of deceased and others went inside the house of PW15/Penchalamma and had discussions with A1/Kasturaiah, A2/Polaiah and Polaiah is of
Chennai.
65.PW12/V. Ramamanohar brother of the deceased and LW2 has stated on the similar lines. It is his further evidence that on 3.2.2004 his brother, LW2 informed over phone that the deceased was found missing and he was told by LW2 that deceased got acquittance with
A1, who is a country astrologist and deceased tried to know about the missing of cash.
66.PW14/V. Usha, wife of the deceased has stated on the similar lines of PW11 and PW12 and further deposed that
PW15/Penchalamma worked as a messenger in the same bank where her husband worked and PW15 informed that her junior paternal uncle Kasturaiah (A1) would tell about the missing of cash through process of “Anjana” and advised her husband to go along with A1 and in the month of January the deceased met A1, twice and came late and on third time also i.e., on 29.1.2004 the deceased met
Kasturaiah/A1 but, at about 5.30 pm her husband talked with her father-in-law over phone and again talked with her father-in-law at 11/9/2019 43 SC 195 of 2007 about 7.30pm and stated to her father-in-law, LW13/R.V.
Sivasubramanyam (since died), to inform her to prepare tiffin for him as he would return home, but, did not return home.
67.It is her further evidence that on 3.2.2004 she lodged a report with Alipiri police station and on 4.2.2004 police took her and others to the house of PW15/Penchalamma and she found A1 and identified him by his voice and later police took A1 and A2 to the police station, but, on the next day police set them free.
68.It is her further evidence that on the night of 6.2.2004 or in the morning hours 7.2.2004, the brother of the deceased, LW2 received a phone call from Alipiri police asking them to identify the dead body near Vakadu and accordingly they all went there and identified the dead body.
69.(i) As per the evidence of PW24, Penchala Shyam and PW26/
V. Kotaiah the telephone bills dated 29.1.2004 were given to police by
PW17 which are pertaining to Srinivasa Tele links and as per their evidence, A1 made phone calls to Tirupathi. Though PW17, E. Ravi
Kumar, advocate clerk, has not supported the case of the prosecution, the telephone bills under Ex.P22 have been proved the fact of making call to Tirupathi by A1 on 29.1.2004 and it is corroborating to the evidence of wife of the deceased and her relatives.
(ii)There is a discrepancy regarding the date of seizure of the said telephone bills under Ex.P22. It is the evidence of
PW24/Panchayat Secretary that on 29.2.2004, police took him to
Srinivasa Tele links along with A1 to A3 and PW26/V. Kotaiah and 11/9/2019 44 SC 195 of 2007 asked PW17/E. Ravi kumar about A1 and on that E. Ravi Kumar stated that one month back A1 brought another person and telephoned to Tirupathi and police seized the telephone bills. But, it is the evidence of PW26/V. Kotaiah that on 21.2.2004, inspector of police took him and PW24 to Srinivasa Tele links and police asked a boy in the counter and enquired about A1 and on that the boy stated that A1 made calls to Tirupathi on 29.1.2004 and on that the police seized the said bills. PW29/inspector of police has deposed that on 21.2.2004, he seized Ex.P22 telephone bills dated 29.1.2004 in the presence of PW24 and PW26 and drafted the proceedings to that effect. The learned Additional Public Prosecutor has not specifically marked the said mediator dated 21.2.2004 at 5.00 pm at Srinivasa
Tele Links. In the said report it is specifically mentioned that, the inspector of police/PW29 enquired with PW17/E. Ravi Kumar about the making of call to Tiruapthi 2230318 on 29.1.2004 by anybody and on that PW17 has identified A1 in the presence of PW24 and Pw26. There are signatures of PW24,Pw26 and PW29 with dates as 21.2.2004 in the said report.
(iii)Nothing is elicited in the cross of PW29 by A1 regarding
Ex.P22/telephone bills and the proceedings there on. PW29 has denied the suggestion regarding Ex.P22.
(iv)In the cross examination, PW24 has deposed that the report consists of one or two pages and the said report was drafted between 5.00 and 6.00 pm. PW24 has denied the suggestion by A1 in respect of the tele links. Hence, it can be said that the evidence of
PW24 has got probative value in the eye of law. Since Ex.P22 11/9/2019 45 SC 195 of 2007 telephone bills and its proceedings are written, the date mentioned on the mahazar report shall be taken into consideration. The evidence
before the court shall be taken into consideration, after judiciary
scrutiny and the evidence before the court can not be a memory test to the witnesses. The discrepancy regarding the date deposed by
PW24 shall be treated as 21.2.2004 as he put his signature on the proceedings with date as 21.2.2004. The attention of PW24 has not drawn by the Additional Public Prosecutor in the re-examination, despite the discrepancy regarding the date and the date mentioned on the mahazar proceedings. In my considered opinion the date stated by PW24 is not a material point in view of the documentary evidence and documentary evidence would prevail over oral evidence.
70. The name of the A1 and other is mentioned in the inquest report at column No XI. The inquest was conducted by Pw23/MRO. It is mentioned in Ex.P16/inquest report in the last of column VII that wrist watch and wig are not found near the dead body, though they were mentioned in the FIR.
71. (i) As per Ex.P24 report contents, the dead body was with pant up to leg and at a distance of 25 feet, black hair and wrist watch and at some distance chapples are there. PW1/N. Kistamma, Vakadu village surpanch, who allegedly reported to the police has denied the contents in Ex.P24, but, admitted her signature (Ex.P23). PW23, in charge MRO, had conducted inquest over the dead body and found that ‘wig’ and wrist watch are not there as mentioned in FIR/She also noticed that the dead body has no pant and under wear. Hence, the 11/9/2019 46 SC 195 of 2007 evidence of PW23, MRO shall be taken into consideration and the discrepancy in the statement of PW2 shall be treated as not true.
(ii) It is pertinent to note that PW2/Ch.Parusuram did not depose about the black hair and wrist watch in his evidence. He was recalled on 12.3.2018 and in the further cross examination he has deposed that he has stated before police that he found the dead body with pant and there was a long wig pair of chappals and wrist watch at a distance of 25 feet.
(iii)In the cross examination of PW29, inspector of police, it is suggested to him that he did not examine the witnesses and recorded their statements, including PW2. PW29 was examined on 22.2.2018.
He was not recalled after recalling of PW2 to confront the omission/contradiction regarding the evidence of PW2 as required under section 145 of Evidence Act.
(iv) Section 161 Cr.,P.C statement of PW2, regarding the relevant portion is not marked through him as required under Section 145 of Indian Evidence Act. I have perused Sec 161 Cr.P.C statement of PW2. In his statement before police it is mentioned as “ Sevamuku
Unna Pant ledu. Sevamu Daggara Undina Wig, Watch Kanapadaledu”.
In his evidence dated 7.12.2017 there is no mentioned about pant, wig and watch.
(v)Pws 3 to 6, talaries ( village servants) did not state on oath
before the court about pant and wig. The alleged author ( PW1) of
report in Ex.P24 has denied the contents therein it. Hence, the evidence of PW23/MRO has got probative value in the eye of law.
72.PW28/S.I of police has posted the guard at the body of the 11/9/2019 47 SC 195 of 2007 deceased, but the prosecution could not examine him (LW38. PC 1237) since he died.
73.The case is not based on dog squad and no report was prepared.
Since, the dog did not give any clue, it is not a material point as contended by A1.
74. In this case two cases were registered. One was at Aliripi Police station and another at Vakadu Police station; they are under Man
Missing and Under section 174 Cr.P.C respectively. Regarding the
Vakadu police station, the police took action, but, with regard to Alipiri police station, no such investigation despite the said report was given by the wife of deceased. The laches on the part Alipiri police station can not be attributed to PW14, wife of deceased. Brothers of the deceased have searched for the deceased. Hence, the delay in giving report to police by PW14 and subsequent investigation by Vakadu
Police station and ultimately leading to express FIR/Ex.P19 can not be doubted.
75.Regarding motive, the prosecution has attributed two versions.
One version is illegal contact between the deceased and PW15, who is relative of A2 and A3. In view of the said illegal intimacy, A2 and
A3 along with A1 have committed murder as the deceased has not discontinued his illegal contact with PW15. Prosecution witnesses have not proved this allegation by legal evidence.
76.Regarding second motive, there is a missing of cash of Rs 50,000/- in the cash counter of the deceased and on that PW15 had advised him to approach A1 to detect the culprit by the process of “
Anjanam” regarding the missing of said money and as such the 11/9/2019 48 SC 195 of 2007 deceased had approached A1. But, A1 did not find out the said culprits by ‘Anjanam”. In view of the relations among A1 to A3 and
PW15 and the conduct of the deceased with PW15, A1 to A3 have committed the offences. Hence, it can not be said that there is no motive for the offences.
77. Recording Ex.P12, marked portion in the mediator report, it is the contention of A1 that it is pertaining to A3. Ex.P12, is with regard to mediator report dated 20.2.2004 at 6.30 am. I have perused the report which consists of 20 pages. Excluding the confession statement of A1 to A3 the other contents there in, shall be marked through the respective witnesses. As per the evidence of
PW29/investigation officer he throughly interrogated them separately, in the presence of PW21 and PW24 ( mediators) and A1 to A3 led the police party and mediators to Swarnamuki river and A1 has removed the sand and picked up torn pant and drawer and in the torn pant a torn purse with currency notes were found.
78.PW24/V. Penchalashyam, PW21/V. Penchalayya have signed in the said mediator report ( confession report). PW21 has stated in his evidence that the accused have stated to them that they would show the articles, if they are taken to Swarnamukhi river and then they all went to Swarnamukhi river with police and A1 dug out and brought a drawyer and a pant of the deceased. In view of the evidence of PW21 it can not be said that Ex.P12, portion in mediator report on 20.2.2004 is only pertaining to A3, since the similar averments are there in the said report pertaining to the confession of A1 and A2 .
But, the learned Addition Public Prosecutor has not taken care to 11/9/2019 49 SC 195 of 2007 mark the said portions i.e., “ Nenu Oka Chota Poodchi petitinanu.
Police varu Natho Vachina Yedala Chupinchagala vadanu”.
79.The non marking of the above portion in the said mediator report is not a material discrepancy. Ex.P13 is marked through
PW21/Penchalayya initially which contain signatures of himself and
PW24/Penchalashyam apart from investigation officer. Under Ex.P13
Mos.1 to 6 were seized at the instance of A1. The currency note numbers are also mentioned under Ex.P13. Hence, Ex.P13 has got probative value in the eye of law since the same were identified by wife of deceased on 21.2.2004 at 4.00 pm.
80.There is a discrepancy regarding the date said to have been stated by PW14/wife of deceased, before Vakadu police. In her cross examination she has deposed that she has stated before police that on 2.2.2004 Alipiri police informed to her that one dead body was buried in the Swarnamukhi river. I have perused Sec 161 Cr.P.C statement of PW14. She has stated before police regarding the date
as 7.2.2004,but, not 2.2.2004 as suggested to her in her cross
examination. The said date was not confronted to PW29/Investigation officer as required U/sec 145 of Indian Evidence Act.
81.In Appabhal and Another v. State of Gujarat 26 the Hon'ble
Supreme Court in paragraph 13 observed that:
“ The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of
the prosecution case may be discarded. The
discrepancies which are due to normal errors of
perception or observation should not be given 26 (1998 Suppl.SCC 241), 11/9/2019 50 SC 195 of 2007 importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by
excluding the exaggerated version given by any
witness. When a doubt arises in respect of certain facts alleged by such facts, the proper course is to ignore that fact only unless it goes into the root of the matter so as
to demolish the entire prosecution story. The
witnesses now a days go on adding embellishments to their version perhaps for the fear of their testimony
being rejected by the court. The courts, however,
should not disbelieve the evidence of such witnesses
altogether if they are otherwise trustworthy.
In the light of the above observation of the Hon'ble Supreme
Court, I am of the considered opinion that the discrepancies in respect of the case of the prosecution can not be doubted. The discrepancies are analyzed and answered against the defence of the accused.
CONCLUSION:
82.The case on hand is not based on last seen theory. Prior to the death of the deceased, cash of the Rs 50,000/- was found missing in the cash counter of the deceased. PW15/Penchalamma advised the deceased to approach A1 to know the person, who was responsible for missing of such cash and on that the deceased approached A1 for several times to know the culprit through process of “Anjanam” and informed the said facts to his wife/Pw14. As the deceased did not return home, after making enquiries and search, she lodged a report with Alipiri police. Based on the said report, Alipiri police registered 11/9/2019 51 SC 195 of 2007 the case as a “ Man Missing “ and during investigation, they went to the house of PW15/Penchalamma along with wife of deceased and others and identified A1 in the house of Penchalamma and Alipiri police took A1 and others to the police station, but, police set them free. Based on the report of PW1/V.Kistamma, Vakadu police registered a case U/sec 174 Cr.P.C( death cause not known) and investigated into. Subsequently, Alipiri police took the wife of deceased and others to Swarnamukhi river at the instance of Vakadu police and Vakadu police have shown the dead body of deceased. In the presence of Tahsildar, wife of deceased had identified the dead body and stated that name of A1 during inquest report. Vakadu police have arrested A1 to A3 and seized the material objects at the instance of A1 to A3. The said material objects belonging to the deceased and the same were identified by wife of deceased in the presence of mediators. Police have seized telephone bills at the instance of A1 and in the presence of mediators, PW17/E.Ravi kumar had identified A1 and stated that A1 made phone calls to Tirupathi and same was corroborated by the evidence of wife of deceased.
Since wife of deceased has no enmity with A1, her evidence alone is sufficient to construe that deceased met A1, but, there after the deceased did not return home. The chain of circumstances are against A1. There is no reasonable explanation from A1 in his Sec 313 Cr.P.C examination.
83.Admittedly, police did not obtain the signatures of A1 in any of the reports/documents. There is no such requirements as per law as the search and seizure were not happened under the chapter VII of 11/9/2019 52 SC 195 of 2007 the code of criminal procedure, as held by the Hon’ble Supreme Court in State Government of NCT of Delhi Vs Sunil and Others27 mentioned supra. If really, police wants to implicate A1, they would have obtained the signatures on A1 on the mediators reports, confession statements and seizure reports. The investigation was done on fair lines and in accordance with law.
84.The laches on the part of the learned Additional Public
Prosecutor can not be taken advantage by A1 as the evidence of wife of deceased is sufficient to hold that her husband has gone to A1, but, her husband did not return home. The belongings of her husband which were seized by police at the instance of A1 were duly identified by wife of deceased. Hence, I am of the considered opinion that the prosecution could able to prove its case beyond the reasonable doubts by cogent and convincing evidence and as such A1 is not entitled for benefit of doubt. Hence, issue No 1 and 3 are partly decided in favour of the prosecution and against A1. However, A2 and A3 are entitled for benefit of doubt as wife of A1 has no grievance against them and there is no legal evidence against them. There is no material legal evidence against A1 regarding criminal conspiracy with
A2 and A3. Hence issue No 2 is decided against the prosecution.
85. In the result, the accused/A1, Kaduru Kasturaiah is found guilty of the offences punishable u/s.302 and 201 of IPC and is convicted under Section 235(2) of Cr.P.C.
However, the accused/A1 is found not guilty of the offence punishable u/s.120-B of I.P.C and is acquitted under section 235 (1) of
Cr.P.C. The accused/A2 and A3 arefound not guilty of the offences 27 (2001 Crl.J.504) 11/9/2019 53 SC 195 of 2007 punishable u/ss.302,120-B and 201 of IPCand are acquitted under section 235 (1) of Cr.P.C. The bail bonds of the accused/A2 & A3 and their sureties bonds shall stand cancelled after expiry of six months from the date of this Judgment as contemplated u/s 437-
A Cr.P.C.
Typed to my dictation by the Stenographer, transcribed by her and corrected and
pronounced by me in the Open Court, on this the 11th day of September, 2019.
Sd/-B. Satyanarayana
VIII Additional District & Sessions
Judge-cum-Special Judge for trial of
offences against Women, Nellore. (FAC) VII Addl. Disrict & Sessions Judge, Gudur.
86. The accused/A1 is examined and heard U/s.235 (2) of Cr.P.C and questioned about the quantum of sentence that has to be imposed against him, the accused/A1 has stated that he is a married person and his wife is a paralytic patient and she is in the hospital. He has further stated that he has got two male children and one female child.
He has further stated that he has got Ac.1-00 of land previously, but, he sold away the same and now, he is doing coolie work.
87. Heard both sides.
88.In view of the facts and circumstances of the case, I am of the considered opinion that the accused is not entitled for the benefit of
Probation of Offenders Act or u/s.360 of Cr.P.C.
89. In view of circumstances, it can be said that there are no reasons to award sentence of death as it is not a rarest rare case and it is not a fit case to punish the accused with death. However, the accused is deserved for imprisonment for Life. In view of the judgment of the
Hon’ble Supreme Court in Swamy Shraddananda v. State of
11/9/2019 54 SC 195 of 2007
Karnataka 28 the accused/A1 is deserved for rigorous imprisonment till the end of his life.
90. Hence, (1) the accused/A1 is sentenced to suffer Rigorous
Imprisonment till the end of his life and also sentenced to pay a fine of Rs.5000/- (Rupees Five Thousand only) in default to pay fine to suffer simple imprisonment for a period of one year for the offence punishable u/s.302 of I.P.C; (2) The accused/A1 is further sentenced to suffer rigorous imprisonment for Seven (7) years and further sentenced to pay a fine of Rs.5000/- (Rupees Five Thousand only) in default to pay fine to suffer simple imprisonment for a period of one year for the offence punishable u/s.201 of I.P.C.
91. Both the sentences shall run concurrently as contemplated u/s.31 of Cr.P.C.
92. Mos.1 , 2 and 8, which are non-valuable properties shall be destroyed after expiry of appeal time. The valuable properties ie.,
MO3 cash of Rs.100/-, MO4 cash of Rs.20/-, MO5 cash of Rs.10/-,
MO6, cash of Rs.5/- and MO7, quarz meya watch shall be returned to PW14/V. Usha after expiry of appeal time.
93. Inviewofthefactsandcircumstances,
I am of the considered opinion that it is a fit case to invoke Section 357A Cr.P.C for victim compensation scheme for recommending the award of compensation to the wife of the deceased/PW14, as contemplated U/Sec.357(A) (3) Cr.P.C.
28 (AIR 2008 SC 3041) 11/9/2019 55 SC 195 of 2007
94.The Office is directed to address a letter to the District
Legal Services Authority as required Under Section 357A(2) Cr.P.C.
95.The accused/A1 is informed that he has got right to prefer an appeal before the Appellate Court and copy of Judgment furnished to him.
Typed to my dictation by the Stenographer, transcribed by her and corrected and pronounced by me in the Open Court, on this the 11th day of September, 2019.
Sd/-B. Satyanarayana
VIII Additional District & Sessions
Judge-cum-Special Judge for trial of
offences against Women, Nellore. (FAC) VII Addl. Disrict & Sessions Judge, Gudur.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution:
PW1: Vallem Kistamma, Surpanch
PW2: Ch. Parasuramaiah, Talari
PW3: D. Narasaiah, Talari
PW4: G. Maraiah, Talari
PW5: Ch. Kotaiah, Talari
PW6: V. Venkatarathnam, Talari
PW7: Sk. Subhani
PW8: K. Venkatesu
PW9: G. Kotaiah
PW10: R. Venkateswarlu
PW11: S. Somasekhar
PW12: V. Rama manohar
PW13: Y. Venaktaramana
PW14: V. Usha, wife of deceased
PW15: P. Penchalamma
PW16: U. Srilakshmi
PW17: E. Ravi Kumar
PW18: Y. Ramanaiah
PW19: R. Venkataramanaiah 11/9/2019 56 SC 195 of 2007
PW20: K. Kistaiah
PW21: B. Penchalaiah , Mandal Revenue Inspector, Vakadu.
PW22: E. Krishna Murthy, A.S.I, Alipiri police station
PW23: R. Bharati, In charge M.R.O.
PW24: V. Penchalashyam, Penchayat secretary, Vakadu
PW25: T. Venkatapathi, Branch Manager, Tirumala
PW26: V. Kotaiah, Panchayat sectetary
PW27: Dr. S. Ramanaiah, Medical officer
PW28: K.V. Ramanaiah, S.I of police
PW29: A. Bala Reddy, Inspector of police
PW30: A.V.M. Radhakrishnaiah, Head constable, Vakadu
For Defence:
Nil.
DOCUMENTS MARKED
For Prosecution:
Ex.P1: 161 Cr.P.C statement
Ex.P2: 161 Cr.P.C statement
Ex.P3: 161 Cr.P.C statement
Ex.P4: 161 Cr.P.C statement
Ex.P5: 161 Cr.P.C staement
Ex.P6: 161 Cr.P.C staement
Ex.P7: 161 Cr.P.C staement
Ex.P8: 161 Cr.P.C staement
Ex.P9: 161 Cr.P.C staement
Ex.P10:161 Cr.P.C staement
Ex.P11: 161 Cr.P.C statement
Ex.P12: Portion in mediator report
Ex.P13: mediator report
Ex.P14: mediator report
Ex.P15: mediator report
Ex.P16: inquest report
Ex.P17: PM certificate
Ex.P18: FIR
Ex.P19: Express FIR
Ex.P20: rough sketch 11/9/2019 57 SC 195 of 2007
Ex.P21: seized copy of letters marks as Q1,Q2 by A.P.F.S.L.
Ex.P22: Telephone bills with seizure report
Ex.P23: Signature of PW1 on the report dated 6.2.2014
Ex.P24: Copy of report dated 6.2.2014
Unmarked documents:
1. F.S.L report dated 26.5.2014
2. R.F.S.L report, Guntur dated 16.4.2004 .
3. Mahazarnama dated 9.2.2004 at 8.00 am regarding seizure of writings of the deceased.
4. Identification parade of property dated 21.2.2004 at 4.00 pm conducted by PW21 and Pw24.
5. Scene of observation report dated 7.2.2004 at 9.00 am by PW23/MRO .
6. Mediators report dated 20.2.2004 at 6.30 pm ( excluding confession statements of A1 to A3).
For Defence: NIL
MATERIAL OBJECTS MARKED
MO1: Torn pant
MO2: drawer
MO3: Rs 100/- rupee note
MO4: Rs 20/- rupee note
MO5: Rs 10/- rupee note
MO6: Rs 5/- rupee note
MO7: quarz meya watch
MO8: wig
Sd/- B. Satyanarayana
VIII Additional District & Sessions
Judge-cum-Special Judge for trial of
offences against Women, Nellore. (FAC) VII Addl. Disrict & Sessions Judge, Gudur.
Copy submitted to: -
1.The Hon’ble Registrar (Judicial), High Court of Andhra Pradesh, Nelapadu, Amaravathi, Guntur District.
2.The Hon’ble Principal Sessions Judge, Nellore.
11/9/2019 58 SC 195 of 2007
Copies to: -
1. The Judicial Magistrate of I Class, Kota, SPSR Nellore District.
2. The Additional Public Prosecutor, Gudur.
3. The accused/A1.
4.District Service Legal Authority, Nellore.
5.The Jail Authorities.
//True copy//
VIII Additional District & Sessions
Judge-cum-Special Judge for trial of
offences against Women, Nellore.
(FAC) VII Addl. Disrict & Sessions Judge,
Gudur.