CASE NO.: Appeal (crl.) 838 of 2002 PETITIONER: Golakonda Venkateswara Rao RESPONDENT: Vs. State of Andhra Pradesh DATE OF JUDGMENT: 01/08/2003 BENCH: DORAISWAMY RAJU & H.K.SEMA. JUDGMENT:
J U D G M E N T
SEMA,J.
The appellant was put to trial for an offence punishable under
Sections 376, 302 and 201 IPC before Sessions Judge, Krishna Division at
Machilipatnam in Sessions Case No 110 of 1998. After the trial, the learned
Sessions Judge found the appellant not guilty under Sections 376 and 201
IPC and he was accordingly acquitted of the charges under the aforesaid
Sections. The learned Sessions Judge, however, found the appellant guilty
under Section 302 IPC and sentenced him to undergo imprisonment for life
and also to pay a fine of Rs.100/- and in default to undergo simple
imprisonment for one month. The conviction and the sentence recorded by
the learned Sessions Judge were confirmed by the High Court by the
impugned judgment under challenge.
Briefly stated the facts leading to the filing of the present
appeal are that the appellant, a resident of Sultanagaram and a neighbour of
the deceased – Devanaboyina Lakshmi, stated to be a minor girl aged 15-16
years accosted the deceased about two months prior to the incident on
14.7.1996. It is stated that the deceased went to graze goats at water canal
bund. The appellant noticed the deceased going towards the water canal
bund, followed her, and began to talk with her with an evil eye. This fact is
stated to have been witnessed by PW-5 Sala Ankamma. It is also stated that
having found no one present around the area, the appellant caught the
deceased, dragged her to a nearby unused shed, gagged her mouth and
committed rape on her against her will. It is also alleged that all the
resistance put up by the victim girl went in vain and the accused over-
powered the girl. It is further disclosed, in the process of struggle the upper
and inner langa of the deceased were torn. When the appellant left the
deceased alone and was about to part from the place of occurrence, the
deceased allegedly was said to have told the appellant that she would bring
the matter to the notice of villagers and police. Being frightened by this
disclosure, it is alleged, the appellant chased her, caught her and threw her
into the well situated in the northeastern corner of the dibba. The appellant
also kept a stone in the well so as to prevent the body from floating and also
put some caveltry creepers (Guprapu Dekka) with an intention to hide the
offence. It is also alleged that the appellant had buried the torn clothes of
the deceased. Since the deceased did not return by the evening, her kith and
kin started searching for her without any result. Finally, PW-1 (author of
FIR and foster father of the deceased), to whom the deceased was given in
adoption by PW-2, came to know through PW-5 Sala Ankamma that two
months prior to the date of missing i.e. 14.7.1996 she noticed the appellant
talking with the deceased. Upon this information being given, PW-1
approached the village elders, one of whom, Rajarao was examined as PW-
4. On being asked by the village elders the appellant allegedly confessed the
guilt of committing rape on the deceased and throwing her into the well. It
is only after this information, PW-1 lodged the FIR (Exhibit P-1). In course
of investigation the prosecution examined as many as 12 PWs and marked
Exhibits P-1 to P-29 and M.Os. 1-8. None of the DWs were examined on
behalf of the appellant. He, however, pointed out three contradictions in the
evidence of PW-5 marked Exhibits D-6 to D-8. After the conclusion of the
trial, the learned Sessions Judge found the appellant guilty as noticed above.
Undisputedly, there is no eyewitness to the occurrence and conviction
of the appellant is solely based on the circumstantial evidence.
The learned Sessions Judge, and in our view correctly, has formulated
the following circumstantial evidence appearing against the appellant on
appreciation of evidence:
(i) “The identity of the deceased was established;
(ii) The deceased was last seen in the company of the accused;
(iii) The accused made an extra judicial confession before P.W.4 and
another village elder to the effect that he committed rape on the
victim, killed her and threw her in the well;
(iv) Recovery of the articles and skeletal remains of the deceased pursuant
to the disclosures of the information furnished by the accused himself;
and
(v) The accused failed to adduce any evidence to the contra to prove the
so-called oblique motive of P.Ws. 4 and 6 to implicate him in a false
case nor state anything mitigating in his Sec.313 Cr.P.C. a false
wholesale denial.”
The learned Sessions Judge having regard to and after considering the
evidence on record and exhibits found circumstances nos. 1, 2 and 4 well
established against the appellant.
By now it is well settled principle of law that in cases where the
evidence is purely circumstantial in nature, the facts and circumstances from
which the conclusion of guilt is sought to be drawn must be fully established
beyond any reasonable doubt and such circumstances must be consistent and
unerringly point to the guilt of the accused and the chain of circumstances
must be established by the prosecution.
Mr. Mahendra Anand, learned senior counsel, vehemently submits
that the prosecution has not established the aforesaid circumstances
appearing against the appellant beyond all reasonable doubts. It is his
contention that the identity of the deceased was not established beyond all
reasonable doubts inasmuch as the Assistant Director (F.S.L), who issued
Exhibit P-29, was not examined. Undisputedly, Exhibit P-29
Superimposition Report was sent to the Regional Forensic Science
Laboratory, Vijayawada. The Assistant Director, who issued Exhibit P-29
certified that the skull in item 1(one) could have belonged to the person in
the photograph in item No.2(two). Court would not be oblivious of the fact
that the identity of the deceased was got tested by superimposition of the
skeletal remains of the deceased conducted with reference to the photograph
of the deceased. PW-12 deposed that he had sent the photograph of the
deceased for superimposition test by the Forensic Science Laboratory,
Hyderabad. PW-7 Dr.S.Rama Brahmam, conducted the post-mortem
examination of skeletal remains (Exhibit P-7). In the said report he gave the
age of the deceased between 15 – 16 years based on his medical knowledge.
PW-9 Dr.P.Vijaya Kumar, a professor and scientist, working in the forensic
laboratory examined the skeletal remains in the court and stated that they
showed the feminine characteristics and the age of the person concerned
would be around 15 to 16 years. This apart, Exhibit P-9 is the opinion of the
forensic expert which also makes it abundantly clear that the skull belonged
to a human-being of female sex aged 15 or 16 years. In the facts and
circumstances stated above, we have no doubt in our mind, that the identity
of the deceased is well established beyond all reasonable doubts and non-
examination of Assistant Director who issued Exhibit P-29 would itself
throw away the otherwise reliable and trustworthy evidence of PWs 7, 9 and
12. We have no reason to take a view different from the view taken by two
courts concurrently.
The next contention of Mr. Anand, learned senior counsel, is that last
seen of the deceased with the appellant by PW-5 has not been established by
convincing evidence having regard to the discrepancies appearing in the
testimony of PW-5. It is the contention of the learned counsel for the
appellant that in the FIR lodged by PW-1 (Exhibit P-1) it is stated that two
months prior of her death she was missing and this information was given to
them by PW-5 Sala Ankamma that about 11.00 A.M. she saw the deceased
talking with the appellant at Puranamvari Cheruvu whereas PW-5 Sala
Ankamma when examined before the Court has stated as under:-
“The deceased died about 3 years ago. The deceased was
found missing 3 months prior to her death. At that time
at about 3-00 P.M., I had been to canal bank for
collecting firewood. There I found the accused and the
deceased talking with each other. I told the fact of seeing
the accused and the deceased talking with each other two
months ago to the parents of the deceased.”
Learned Counsel contended that there is discrepancy in Exhibit P-1
and in the statement of PW-5 between 3 months and 2 months and also
11.00 A.M. and 3 P.M. Apart, the discrepancy as pointed out is not of a
substantial character which would throw out the prosecution story, as
unbelievable. The fact remains that the incident said to have occurred on
14.7.1996 and PW-5 was examined on 23.5.2000 after a long gap of four
years be taken note of. It is not expected from a rustic village woman to
have remembered the incident that had taken place after a lapse of four years
with mathematical precision. It is but quite natural that human memories are
apt to blur with the passage of time. This witness subsequently had admitted
that she does not remember the day on which the appellant and the deceased
were talking to each other but she however reaffirmed that they were talking
to each other sitting at the place. The fact remains that PW-5 last saw the
deceased and the appellant together and this fact has not been demolished
and remains unimpeached. The appellant, as already noticed, brought to the
notice of the Court three contradictions in the evidence of PW-5 marked as
Exhibits D-6 to D-8. Exhibit D-6 is with regard to contradiction in the
evidence of PW-5 that PW-5 saw the deceased last being in the company of
the accused three months ago whereas in Exhibit P-1, PW-1 has stated that
the deceased was found missing only two months prior to the discovery of
death. Exhibits D-7 and D-8 relate to the contradictions in the statement of
PW-5 which suggest that her mother, herself and her sister happened to be at
the place of incident whereas in her cross-examination she stated that she
alone had seen the deceased and the accused together at that point of time.
We have gone through the contents of Exhibits D-6 to D-8 which have been
placed on record and we are in full agreement with the concurrent finding of
two courts that the contents of Exhibits D-6 to D-8 do not relate to PW-5
having seen the deceased and the appellant together. Therefore, Exhibits D-
6 to D-8 do not in any way detract from the truth of the assertion of PW-5
that she alone had seen. The trial court has not placed reliance on the extra
judicial confession while convicting the appellant. This question, therefore,
do not detain us any longer.
The next important circumstance, which weighed with the trial
court to base the conviction, is the recovery of MOs 1-8 at the disclosure
statement furnished by the accused. The recovery of MOs is preceded by
the disclosure statement made by the appellant (Exhibit P-2) which is in his
mother tongue (Telgu). The disclosure statement given by the appellant is
carved out from the mediator’s report. The translated version of admissible
portion quoted by the learned Trial Judge reads as follows:-
“If you come with me, the day how Lakshmi was raped
at the bank of Puranam Lake and how Lakshmi was
forcibly thrown in the well and killed and at that place in
what clothes she was and which Lange (Paiticot) she
wear and Lange’s pieces were digged and close down in
the earth and that place I can show as he said…”
(It is stated in the court that translation is not happily drafted)
Section 27 of the Indian Evidence Act provides that only so much of
the information as distinctly relates to the fact thereby discovered is
admissible. In the instant case the recovery (Exhibit P-2) was made on the
basis of the disclosure statement furnished by the appellant. The disclosure
statement (Exhibit P-2) is proved by the mediator examined as PW-6 who is
the village Administrative Officer and also the Inspector of Police examined
as PW-12. PW-6 has stated that on the basis of disclosure statement
(Exhibit P-2) the accused led the party to a place called “Purnamvari Dibba”
where they found a dilapidated tin roofed shed and a well. From inside the
well hair, hairpins, bangles were recovered and the police seized those
articles under the cover of Ext.P-3. M.O.3 is the hair, MO.4 is the cement
pole piece MO.5 is the bones. Then the accused led the party to a spot
behind the tin roofed shed. The accused then dug out and unearthed the
piece of langa. M.O.6 is the piece of blue langa and M.O.7 is the pieces of
green langa. MO.8 is the pieces of mithai coloured langa.
PW-12 arrested the appellant and questioned him. He stated that on
being interrogated in the presence of PW-6 the appellant offered to show the
place of occurrence and also where the dead body was thrown. He also
offered to show the clothes of the deceased. Pursuant to the disclosure, he
took the party to the well and disclosed that the body had been thrown into
the well where there was a water level of 6-1/2 feet and with the help of
swimmers the body was recovered from the well marked as M.O.3 and
M.O.5 i.e. hair and skeletal remains respectively. They also recovered white
plastic bangles and M.O.1 Jacket. They also recovered cement pole piece
(survey stone) M.O.4. The said stone stated to have been kept to prevent the
body from floating. He further stated that the accused then led them to a
place towards western side of nearby shed and dug out a spot from where
pieces of langa were retrieved marked as MO2, MO-6 and MO-8.
PW-3, who is no other than the foster mother of the deceased has
stated that when the deceased left the house for the last time she was
wearing clothes MO.1 and MO.2. It is a matter of common knowledge that
women have an inherent sense of identifying the wearing apparels of their
daughters who are attached to the mother, particularly commonly attire worn
by them in the house. We have no doubt in our mind, therefore, that
wearing apparels of the deceased dug out from the place at the disclosure of
the appellant and identified by PW-3 are the wearing apparels of the
deceased at the time she left the house and subsequently missing.
Learned counsel for the appellant, contended that the disclosure
statement and recovery of the articles is doubtful and no reliance can be
placed on such disclosure statement and recovery of the MOs. He further
contended that the materials recovered were not sealed by the police.
Hairpin and bangles said to have been recovered were not produced before
the Court and these circumstances will make, all the more. recovery
doubtful. Counsel relied on the decision of this Court rendered in
Jackaran Singh vs State of Punjab (AIR 1995 SC 2345), wherein
in paragraph 8 at page SC 2347, it was pointed out that the disclosure
statement inspires no confidence because none of the two panch witnesses
Yash Pal and Sukhdev Singh have been examined at the Trial and secondly
because the disclosure statement does not bear the signatures or the thumb
impression of the appellant and also the recovery memo does not bear the
signatures or thumb impression of the accused. Every case has to be decided
on its own facts. The facts of that case do not fit in the facts of the case at
hand. In the present case as already noticed PW-6 and PW-12 were
examined to prove the disclosure as well as the recovery pursuant to the
disclosure statement of the appellant. In the instant case, while it is true that
neither the disclosure statement nor the recovery memo bear the signatures
of the accused but the fact remains that pursuant to the disclosure statement
MOs have been recovered from the well and dug out from a place which is
pointed out by the appellant leaves no manner of doubt that the recovery of
MOs has been made on the basis of voluntary disclosure statement. In
Jackaran Singh’s case (supra) the recovery memo Ex.P.9/A relates to
revolver and the cartridges. There the appellant had denied the ownership of
the crime revolver and the prosecution had led no evidence to show that the
crime weapon belonged to the appellant. The observation of this Court was
in that context. In the instant case, as already noticed, the recovery is
pursuant to the disclosure statement offered by the appellant. The fact that
the recovery is in consequence of the information given is fortified and
confirmed by the discovery of wearing apparel and skeletal remains of the
deceased which leads to believe that information and the statement cannot be
false.
The provisions of Section 27 of the Evidence Act are based on the
view that if a fact is actually discovered in consequence of information
given, some guarantee is afforded thereby that the information was true and
consequently the said information can safely be allowed to be given in
evidence because if such an information is further fortified and confirmed by
the discovery of articles or the instrument of crime and which leads to the
belief that the information about the confession made as to the articles of
crime cannot be false. (See S.C.Bahri vs. State of Bihar, (AIR 1994 SC
2420 at page SC 2448). As already noticed M.O.3, M.O.4 and M.O.5 were
retrieved from the well with the help of swimmers, as there was a water level
of 6-1/2 feet. MO.2 MO.6 and MO.8 are the pieces of langa dug out and
unearthed at the disclosure of the appellant. These materials were not found
lying on the surface of the ground but they were found inside the well, which
is 6-1/2 deep of water, with the help of swimmers and were found after
being dug out and unearthed only after the place was pointed out by the
appellant. It is not found from the place where public can have free access.
Therefore, there is no reasonable apprehension with the material exhibits
being planted to rope in the appellant with the crime.
Mr. Anand next contended that the Investigating Officer PW-12
did not have fixed the Lac seal on the particulars so recovered and no
evidentiary value can be attached to the recovery. We are unable to
countenance with the contention of the learned counsel because no where in
the statement of PW-12 he has stated that he has not fixed a seal on the
material so seized. This question was also not put to PW-12 in his cross-
examination. At the same time PW-6 has stated that the police took away all
the articles seized along with them one hour after completing Ext.P-3. In
Ext.P-3 there is a mention about the pieces of langa being packed there itself
and affixing the chits with the signatures of the mediators on that packet.
Lastly, it is contended by Mr. Anand that hair pins and bangles so
recovered at the disclosure statement of the appellant were not produced
before the Court. Non-production of hairpins and bangles before the Court
would not by itself disclose tampering of evidence with regard to the
recovery of MOs inasmuch as MOs 1-8 as noticed above have been proved
beyond all reasonable doubts. Non-production of hairpins and bangles
before the Court during the course of trial in the facts and circumstances as
aforestated become inconsequential. No prejudice also seems to have been
caused to the appellant for non-production of hairpins and bangles.
For the aforestated reasons we do not find any infirmity in the order
under challenge. The appeal, therefore, fails and stands dismissed.