THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K.JAISWAL Crl.R.C.No.1263 of 2008 AND BATCH 03-o2-2014 The State of A.P. represented by the Public Prosecutor....appellant. Shaik Ghouse Mohiuddin...Respondent.

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K.JAISWAL                    

Crl.R.C.No.1263 of 2008 AND BATCH  

03-o2-2014

The State of A.P. represented by the Public Prosecutor....appellant.

Shaik Ghouse Mohiuddin...Respondent.

Counsel for appellant:  Public Prosecutor

Counsel for Respondent : Sri Narasimha Rao

<GIST:

>HEAD NOTE:  

?Cases referred
Air 1966 SC 821

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        

AND

THE HON'BLE SRI JUSTICE M.S.K.JAISWAL      

Crl.R.C.No.1263 of 2008 & Crl. A.No.562  of 2009

COMMON JUDGMENT: (Per the Hon'ble Sri Justice L.Narasimha Reddy)    


 This appeal by the State and revision by the complainant are filed assailing
the judgment, dated 30.06.2008, rendered by the Court of II Additional
Metropolitan Sessions Judge, Hyderabad, in S.C.No.484 of 2007.  The sole accused
therein was acquitted by the trail Court.

The case of the prosecution was that the deceased, a boy of 11 years, by name,
Somstallone, lost his parents in an accident, some time in October, 2002, and
ever since then, he is residing with the complainant - PW.1 and her other family
members.  PW.1, who claims to be the mother of Samson - the father of the
deceased boy, is said to have employed the accused as driver, on 08.01.2003.  On
the fateful day i.e. on 13.01.2003, the deceased was said to be playing with
kites on the terrace of the third floor, and at 11.30 A.M., the accused has
taken the boy out, and that the same was seen by a maidservant - PW.4, and a
care taker-cum-driver of auto, LW.6.  PW.1 is said to have gone out for a bank
transaction and around noon, she received a phone call from her son - PW.3, that
Somstallone was missing and she returned home by 2.30 P.M.  After arrival of
PW.1, a phone call is said to have been received by PW.3, from a stranger
stating that he has kidnapped Somstallone and if a ransom of Rs.5,00,000/- is
paid, by 5.00 P.M., at Hussainsagar, the boy would be returned, else, his dead
body would float in the Hussainsagar itself.  Soon thereafter, PW.1 filed a
complaint - Ex.P.1, before P.S.Panjagutta.

During the course of investigation, the police is said to have arrested the
accused on 14.01.2003, and on the basis of the information given by him, they
have located the dead body nearby a water tank at Kukatpally.   The
Investigating Officer (IO) - PW.3,  caused the inquest and sent the body for
post-mortem to PW.9, and has taken up further investigation.  The prosecution
has also stated that IO found human hair in the fist of the deceased and the
same was compared with the hair samples taken from the accused.  In the Forensic
Report, marked as Ex.P.14, PW.11, is said to have opined that all the samples of
the hair examined by him are similar in nature.  Another fact pleaded by the
prosecution was that a metal button was found near the dead body of the deceased
and when compared with the buttons on the shirt of the accused, it was found to
be similar.  With these and other related facts, the IO filed a charge-sheet and
the trial Court accordingly framed charges against the accused.

On behalf of the prosecution, PWs.1 to 15 were examined and Exs.P.1 to P.15 were
filed.  On behalf of the defence, suggestions were made to PWs.1, 3 and 4 with
reference to their respective statements recorded under Section 161 Cr.P.C., and
they were marked as Ex.D.1 to 3.  The shirt of the accused was taken as M.O.1, a
button as M.O.2 and CDs., covering the scene of offence, were marked as M.O.3.
The trial Court acquitted the accused, since the prosecution failed to prove its
case.
Learned Public Prosecutor for the State and Sri Pradyumna Kumar Reddy, learned
counsel representing the complainant - PW.1, who filed the revision with the
leave of the Court, submit that the trial Court omitted to take into account the
important features of evidence, though circumstantial in nature.  They submit
that the fact that the accused has taken the deceased with him was spoken to by
PW.4 and since she is not an interested witness, her evidence is trustworthy.
They further submit that a strong circumstance in the case was the presence of
the hair in the fist of the deceased and when the same was compared with the
samples, collected from the head of the accused, they were found to be of
similar nature, and thereby, a fool proof case is made out to link the incident
with the accused.  They also submit that the button (M.O.2), which was present
nearby the dead body, was found to be from the shirt of the accused.  Reliance
is also placed upon the judgment of the Supreme Court in KANBI KARSAN JADAV V.    
STATE OF GUJARAT1.    

Sri N.Narasimha Rao, learned counsel for the accused, on the other hand, submits
that the prosecution has foisted a false case against the accused.  He submits
that even from the evidence on record, it is clear that there was a scramble for
the properties of the parents of the deceased herein, i.e. Somstallone, and PW.1
has gone to the extent of stating that Samson, father of the deceased boy, is
her son, though, in fact, Samson is the son of the sister of the husband of
PW.1.  He submits that it was elicited from PW.1 in the cross-examination that
by the time the complaint - Ex.P.1, was filed, the accused was very much in the
house of PW.1, and no mention thereof was made, either in Ex.P.1, or in chief-
examination of PW.1.  He further submits that though PW.4, stated in her chief-
examination that the accused, has taken the deceased at about 11.30 A.M., in the
cross-examination, she has pleaded ignorance on every aspect spoken to by her in
the chief-examination.  As regards the forensic aspects, learned counsel submits
that though PW.11 is said to have conducted the test of the samples, he has
clearly admitted that he did not record any finding to the effect that the hair
recovered from the fist of the deceased, and the samples collected and furnished
to him, are from the same human being.  It is also pleaded that there was
nothing to indicate that the button said to have been recovered at the scene of
offence was stained with blood, and in such an event, hardly there exists any
forensic dimensions to that aspect.

It is rather unfortunate that a boy of 11 years, who lost his parents and sister
in an accident, was himself murdered few months thereafter.  Still unfortunate
is the manner in which the relations of his deceased parents were quarrelling
for the property left by the deceased parents of the boy - Somstallone.

The investigation into the case started with the submission of Ex.P.1 by PW.1.
The contents of Ex.P.1 are brief, and it is thought fit, to reproduce the same:

"I Mrs.Brigitte Micheal grand mother of Mr.Samstallone, s/o late Somson who lost
his parents and sister on 27th Ocotber, 2002 and this chld was staying with me
then after with me.  Today, date 13.01.2013 at 11.30 the child was playing kite
on third floor and he never goes out of the gate anywhere.  The new driver one
Md.Gouse just join the duty on 10.01.2013 took the child with him at 11.30 and
then after child is missing we get a call at 2.50 p.m. stating of lI have kidnap
your child (Somstallone) pay 5 lakhs and take your child back at 5.00 p.m. come
at Hussan Sagar.  Please sir I request to take immediately action."

PW.1 did not claim that Samson is her son.  Further, there is no mention about
the accused i.e. Md.Ghouse, being present in the house by the time the complaint
was submitted.  In her deposition as PW.1, she however stated that Samson was
his eldest son.  The relevant portion reads:

"...My eldest son by name Samson who is the father of the deceased, his wife-
Houleen and their daughter-Nancy died in an accident that occurred in the month
of October, 2002.  Since then my grand son Stalin had been staying with me."


Normally, one does not suspect the claim of a woman when she says that she is
the mother of a particular individual.   In the cross-examination also, PW.1
stated as under:

"Samson the father of the deceased is my natural son and the suggestion contra
is false."

PW.2, by name, Michael Christoper, is the son of PW.1.  In the cross-
examination, he stated:

"Samson is my natural brother.  It is true I stated in my statement before the
police that the deceased Sam-Stalin is the grand son of elder sister of my
father.  It is true the father of the deceased Stalin, is the son of my father's
elder sister."

Other contradictions in the statements under Section 161 Cr.P.C. were pointed
out.  Even though the plea of PW.1 that Samson, her eldest son, was demolished
through the cross-examination of PW.2,  PW.3, another son of PW.1, stated in his
chief-examination as under:

"The deceased boy Stalin is the son of my elder brother.  Since the parents of
the deceased boy Stalin, died in a road accident, he used to stay with us in our
house."

This witness was also confronted with the statement recorded under Section 161
Cr.P.C.  However, he denied the statement made by him.  He said:

"...I did not state before police in my statement that Samson, the father of the
deceased boy is the son of the elder sister of my father, as in Ex.D.2.  It is
not true to suggest that the deceased boy is not the son of my elder brother."


It was few months before the incident, that the parents of Somstallone, the
deceased boy herein, died in an accident and a specific question was put in the
cross-examination of PW.1 as to whether any petition was filed by them claiming
compensation.  She replied that no petition claiming compensation for the death
of her son, his wife and their daughter was filed.  However, uniformly, PW.1 and
her two sons, PWs.2 and 3 and another son - LW.2, who was not examined, stated
that it is they, who arranged, the finances for filing an O.P., claiming
compensation for the death of the parents of the deceased herein and that the
claim petition was filed on behalf of Somstallone through a lady, by name
Violet.  This was confronted to PW.1, as Ex.D.1.  However, she denied it.

The record also discloses that there was a scramble for custody of deceased boy,
Somstallone, and the house of his parents was occupied by the father and mother
of his deceased mother. Disputes are also said to have been taken to the
religious leaders.  It is by keeping this background in view, that the case
needs to be examined further.

There are no eye-witnesses to the occurrence.  The entire case rests upon the
circumstantial evidence.  One circumstance pleaded by the prosecution is the
theory of last seen.  PW.4, maidservant of PW.1, is said to have seen the
accused, taking the deceased with him at 11.30 A.M., from the terrace of the
building.  Though LW.6, a care taker-cum-auto driver of PW.1, is said to have
seen the accused taking the deceased in front of the gate, he was not examined
as a witness.  PW.4 did not withstand the cross-examination.  The relevant
portion reads:

"The police examined and recorded my statement on the next day of the incident
at the house of PWs.1 to 3.  It is true I did not state before police that while
proceeding to the terrace, I noticed the accused taking away the deceased boy
Stallin.  I did not state before police that while I was drying the clothes on
front side after their wash, noticed the accused along with deceased boy as in
Ex.D.3."

Added to this, the failure to examine LW.6 would certainly render that
circumstantial evidence unreliable.

The next circumstantial evidence is in relation to recoveries at the scene of
offence.  In the inquest report, marked as Ex.P.10, it was mentioned that human
hair was found in the left fist of the dead body.  That was preserved as item
No.8, mentioned in Ex.P.13.  Suspecting that the hair may be that of the
accused, the permission of the Court was obtained and the sample of hair was
drawn from the head of the accused.  That is said to be marked as Item No.5.
The record also discloses that cut hair was also taken as a sample, item No.7.
All the three samples were examined by PW.11.  In the report, marked as Ex.P.13,
it was mentioned "hair in item Nos.5, 7 and 8 are possessing similar
morphological characters."

It is only when the hair found at the scene of occurrence and the sample
recovered from the accused are found from the same origin, and from the same
human being, that an inference can be drawn about the involvement of the
concerned person.  In the cross-examination of PW.11, the following was
elicited:

"Biochemical and immunological examinations include microscopic examination.  It
is not true to suggest that microscopic examination is different.  It is true
Ex.P.13 does not disclose the origin of the hair, examined as items 5, 7 & 8.
It is true plucked hair and cut hair are having different characteristics.  It
is true I did not mention whether Item No.5, is cut or plucked hair.
It is not true to suggest that I did not examine Items 5, 7 & 8 thoroughly and
my report is not clear.  It is true in my report, the length and shaft diameters
of Items 5, 7 & 8 are not mentioned.  Witness adds, it is quite common for us
not to furnish the said particulars.  It is true in Ex.P.13, I did not mention
whether the hair in items 5, 7 & 8 is of human origin and the sex.  The colour
of the hair also is not mentioned.
It is not true to suggest that under morphological characters every human hair
is similar.  It is not true to suggest that Items 5, 7 & 8 do not possess
similar morphological characters."


Once the witness has stated that he did not mention that samples 5, 7 and 8 are
of the same human origin and the sex, the whole endeavour in undertaking the
forensic exercise has become futile.

Though it is stated that a button was recovered at the scene of offence and on
comparison of the same with the one on the shirt - M.O.1 of the accused, it was
found to be similar, there are several factors that persuade us to ignore it.
The first is that neither the button recovered from the scene of offence, nor
the shirt of the accused were found to be stained with blood.  The only
conclusion is that the buttons are of the same brand.  The mere fact that the
button of a particular brand is found at the scene of offence cannot lead to any
conclusion.  The reason is that the buttons are manufactured in thousands, and
if the reasoning suggested by the prosecution is accepted, every person, who
wears a shirt with buttons of that brand, is prone to be suspected of committing
the offence.

In Kanbi Karsan Jadav's case (supra), the Hon'ble Supreme Court found that the
presence of human hair and a button at the scene of offence can be treated as a
piece of circumstantial evidence.  That, however, is a case, where the forensic
analysis revealed that the two samples of hair were found to be of same origin
and the button was tainted with blood. Hence, that precedent would not be of any
help to the prosecution.

Another weakness, which is found in the case of the prosecution, is that though
the accused was said to have been arrested on 14.01.2013 itself, he was not sent
for any medical examination.  The reason is that in the confession he is said to
have stated that he received injuries, when the deceased hit him with wooden
planks and that his hair was plucked by the deceased when he is being
strangulated by the rope.  No effort whatever was made in that direction.

Hence, we do not find any error in the judgment of the trial Court and the
appeal and revision are accordingly dismissed.
____________________  
L.NARASIMHA REDDY, J.    
______________
M.S.K.JAISWAL, J.
Dated:03.02.2014

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