When the circumstances, proving the guilt of the accused are so cogent, pointing unerringly to the guilt of the accused, brushing aside all those circumstances, on the mere ground of inadequacy of motive, would not be in the interest of justice. We are left without any demur, in finding the accused guilty of the charged offence and consequently, do not feel the necessity of any interference with the impugned judgment.
THE HONBLE SRI JUSTICE SURESH KUMAR KAIT AND THE HONBLE SMT JUSTICE T. RAJANI
CRIMINAL APPEAL No.824 of 2011
04.04.2018
Ajjada Balakrishna.... APPELLANT
The State of AP, Rep. by its Public Prosecutor, High Court of AP at Hyderabad.... RESPONDENT
Counsel for Appellant:SMT C. VASUNDHARA REDDY
Counsel for Respondent :PUBLIC PROSECUTOR
<GIST :
>HEAD NOTE:
? Cases referred:
1.(2014) 4 SCC 715
2.(2012) 10 SCC 464
3.(2017) 11 SCC 222
4.2018 (1) ALT (CRL.) 304 (DB) (AP)
THE HONBLE SRI JUSTICE SURESH KUMAR KAIT
AND
THE HONBLE SMT JUSTICE T. RAJANI
CRIMINAL APPEAL No.824 of 2011
JUDGMENT: (per the Honble Smt Justice T. Rajani)
The judgment of the I Additional Sessions Judge, Srikakulam in
SC.No.92 of 2010 dated 03.01.2011 is brought to question by way of
this appeal. The I Additional Sessions Judge found the accused guilty
for the offence under Section 302 of the Indian Penal code and
convicted him for the same and sentenced him to undergo life
imprisonment and also to pay fine of Rs.3,000/- in default of payment
of fine, to undergo simple imprisonment for a period of three months
and also found the accused guilty for the offence under Section 364
IPC and convicted him for the same and sentenced him to undergo
simple imprisonment for a period of ten years and also to pay fine of
Rs.3,000/- in default of payment of fine, to undergo simple
imprisonment for a period of three months.
2. The triviality of the gain, that led the accused to commit the
murder of two children, shocks our conscience. The accused is no
other than the junior paternal uncle of the two children, who were
murdered.
3. The facts of the case, briefly, as reflected in the charge sheet,
are as follows:
On the morning of 14.02.2010, the accused took the two
deceased children on his TVS XL Moped and roamed in the village for
some time. Later, he took them to Pedduru village, stopped his motor
cycle, took the children to nearby stone, made D2, who is one of the
children to sit on a boulder and took D1, who is the other child, to a
nearby field and strangulated him to death with a rope, which he used
to use to tie to his cloth bundles to his moped; later he pressed D2 to
a boulder and strangulated the boy with the same rope. The parents of
the children having not found the children for long, searched for them
in and around the Dosari village and then gave a report to the police.
The accused made an extra-judicial confession before the Village
Revenue Officer of Aguru and later on, recoveries were made at his
instance.
4. After concluding the investigation by recording the statements
of the witnesses, among whom, those who saw the accused and the
deceased together lastly were also present; the charge sheet was laid
for the offence punishable under Sections 364 and 302 of the Indian
Penal Code. The Judicial Magistrate of First Class, Palakonda,
after taking cognizance of the case committed the case to the Sessions
Division, Srikakulam. The Sessions Judge, in turn, made over the case
to the I Additional Sessions Judge, Srikakulam for trial and disposal as
per law. The learned Judge, after framing the charges for the offence
under Sections 302 and 264 IPC, conducted trial of the case, during
which P.Ws.1 to 17 were examined and Exs.P1 to P26 and M.Os.1 to 5
marked. None were examined on behalf of accused. The accused was
questioned on the incriminating circumstances appearing in the
prosecution evidence, which he denied and stated that he did not
commit any offence and that he was falsely implicated in the case and
that one Ajjada Ramana is behind his false implication.
5. After hearing the arguments of both sides and considering the
evidence, the I Additional Sessions Judge, Srikakulam passed the
impugned judgment.
6. Aggrieved by the said judgment, this appeal is preferred on the
following grounds:
The Court below ought to have seen that there is no direct
evidence to prove the guilt of the accused and the prosecution failed to
prove the motive of the accused to commit the alleged offence.
It ought to have seen that the motive is important when the case is
based on circumstantial evidence. The Court below erred in coming to
the conclusion that the appellants so-called extra-judicial confession
recorded by P.W.15 is true and failed to notice that if any statement is
made at the instance of the police, the said statements are not
according to law. The Court below failed to notice that the case was
foisted at the instance of Ajjada Ramana, who is a politician in the
locality. The Court below failed to notice that no name was mentioned,
suspecting the alleged offence, either in the complaint or in the report
given by P.W.5. The Court below failed to notice that when the
prosecution is based on circumstantial evidence, four tests have to be
satisfied, which are (1) the circumstances from which conclusion of
guilt is to be drawn have been fully established (2) All the facts so
established are consistent only with the hypothesis of the guilt of the
accused and did not exclude any hypothesis except the one sought to
be proved (3) Circumstances on which reliance are placed are
conclusive in nature. (4) The chain of events is such that there is no
scope for any reasonable ground for a conclusion consistent with the
innocence of the accused. The Court below ought to have considered
that the seizure of M.Os.1 to 4 is not in accordance with the
procedure. The Court below ignored the contradictions in the evidence.
7 Heard Ms. C. Vasundhara Reddy, counsel for the appellant and
the learned Public Prosecutor appearing for the respondent.
8. The counsel for the appellant submits that the case is based on
the evidence of the witnesses, who last saw the accused and the
deceased together, which is a very weak piece of evidence, more so,
when the witnesses are belated witnesses. She contends that the fact
of the missing of the deceased children came to light on the very next
day of their missing and if they had really seen the accused and the
deceased together, they would have informed about the same to
P.W.1, who is the father of the deceased children and suspicion would
have been entertained against the accused immediately.
9. The Public Prosecutor, on the other hand, contends that the
extra-judicial confession made by the accused before P.W.15 would
brush aside all the contentions raised by the appellant's counsel,
as absolutely there is no reason to disbelieve the said confession.
He also submits that the fact that the rope was recovered at the
instance of the accused would get strongly linked to the circumstance
of last seen and would from a strong chain of circumstances, pointing
to the guilt of the accused alone. The failure of the accused to explain
as to what happened to the children, who were seen along with him,
would also add strength to the above circumstances. He contends that
there is absolutely no reason to interfere with the impugned judgment,
as it has well considered the facts of the case in the background of
law.
10. Based on the arguments of the counsel and the material on
record, we frame the following points for determination:
1. Whether the evidence of the witnesses, who have
seen the deceased and the accused together, prior
to the missing of the deceased, is credible and
reliable.
2. Whether the extra-judicial confession made by the
accused before P.W.15 inspires confidence.
3. Whether the judgment of the Court below needs
any interference.
4. To what result.
POINT No.1:
11. The fact that the accused is closely related to P.W.1 has to be
borne in mind while appreciating the evidence of the concerned
witnesses and also the reason for their not reporting about the same
to P.W.1. The accused is no other than the co-son-in-law of P.W.1,
the children were seen with the accused, going on his Moped with all
faith in him that he developed by virtue of being their uncle. Nothing
strange would be perceived by the people to see them together and
certainly, first doubt would not go against the accused. Seeing the
accused and the deceased together might have been considered as a
usual affair, by the witnesses concerned and that might be the reason
for which they did not report the same to P.W.1 or anyone. It requires
an amount of courage for the witnesses to inform about the same to
P.W.1 or his family members, as the same would sound like they are
suspecting the accused, who is also their family member. Since the
relation between the accused and the family of P.W.1 being normal,
the witnesses might not have ventured to put forth any opinion
carrying their suspension. Hence, the lapse on the part of the
witnesses in not informing the about their seeing the accused and the
deceased together, to P.W.1 and his family members gets explained by
the above reasoning.
12. There is certainly some delay in recording the statements of the
witnesses. The accused was apprehended on 25.02.2010 when he was
taken to the police by P.W.15, to whom he went for making
confession. But the statements of the witnesses were recorded on
27.02.2010 as can be gathered from the evidence of P.W.16,
who stated that he was examined by the police on 27.02.2010.
It appears that until the extra-judicial confession was made by the
accused, no suspicion was entertained by any of the family members
of the deceased.
13. The triviality of the gain can be gathered from the evidence of
P.W.4, who is the father-in-law of P.W.1 and the accused. The motive
was spoken to by P.W.4, by stating that the accused used to quarrel
with him for the properties; he has given one acre of wet land and one
acre of dry land and a house, to the accused, at the time of marriage
and did not give any dowry. The accused is his nephew, being his
sisters son. He could not give any reason for the accused killing the
children, as he had already given the properties and did not suspect
that the accused would kill the children.
In the cross-examination, he further clarifies that there are no
big disputes between himself and the accused and the accused only
now and then used to ask him for the properties. He has not given
land to P.W.1 and only demarked the land to P.W.1. They went to
work in his land on the date of the incident. P.W.1 also seems to have
not considered the dispute with the accused, serious. He states that
the accused had one son and on the date of killing the children of
P.W.1, another son was born to him. He states that the accused killed
the sons of P.W.1 under the impression that his father-in-law might
give two acres of land to the sons of P.W.1 by adopting them. He also
speaks about his father-in-law giving one acre each to his daughters.
14. The evidence of P.W.1 also shows that the accused also made
searches for the children, along with them and he was also present at
the time of the funeral of the deceased. Hence, in the above
circumstances, there would not be any reason, for either P.W.1 or
anyone else, to suspect the accused. As already observed, in the
background of the accused moving with P.W.1 even after the death of
the children and P.W.1 and his family members not expressing any
suspicion against the accused, the witnesses, who saw the accused
and the deceased together, might not have felt it proper to report to
them the said fact, which would imply an expression of suspicion.
15. When we understand the reasons for the witnesses not
revealing their seeing the accused and the deceased together, in the
above manner, their evidence would become wholly reliable.
16. P.W.1 speaks about the missing of his children and their
searching for them and about the presence of the accused and their
identifying the same near Pedduru. Ligature mark was found on the
neck of his elder son and the younger sons face was completely
blood-stained and he was on a rock.
17. P.W.2 is a witness, who went to raise cattle through Dhonubai
road of Pedduru village and came across the dead bodies of the two
children and he, in turn, informed to L.W.4, Raju, who also came and
saw the dead bodies and informed the same to L.W.5, who is a teacher
and they took L.W.5 also to the spot, L.W.5, in turn, informed the
same to the police.
18. P.W.3 is also a similar witness. P.W.4, as already discussed,
is the father-in-law of the accused and P.W.1, also participated in the
search made for the children. According to him, Rajam police informed
him about the presence of the bodies near Pedduru village. P.W.5 is
the father of P.W.1. His evidence is not material as he also speaks
about the missing of the children and recovery of their dead bodies.
P.W.6 is one of the witnesses, who saw the accused on 14.02.2010,
at about 4 PM at Mudidam village, a motor cycle was kept by his side
and he was standing. When he talked to the accused, he told them
that he went to Mudadam village and came back and then he left the
place. He further specified the place where the accused was standing
is a tank bund.
19. P.W.7 is a child witness, aged 13 years. He is one of the
witnesses, who saw the deceased and the accused together on TVS XL
Moped, which was being driven by the accused at that time. He saw
them at about 11 AM on 14.02.2010. He was sitting under a Tamarind
tree along with L.W.15 Vandana Vasudevarao. The accused was going
on the road leading to Aguru village. He clearly stated that Naveen
was sitting in front of the accused, while Nitin was sitting behind the
accused.
The cross-examination of P.W.7 would answer the improbability
pointed out by the counsel for the appellant, with regard to his moving
with L.W.15, who is aged 23 years. He stated that he stopped his
education after the death of his father and was doing mechanic work.
It is a usual view in the villages, that children of the age of P.W.7,
who give up education and do some work, would move with people of
all ages.
20. P.W.8 is another witness, who saw the accused and the
deceased together at about the same time as stated by P.W.7.
The accused was seen going on a motor cycle along with two children
towards Aguru road. When he questioned the accused as to where he
was going, he gave an evasive reply that YETULEDULE, later he came
to know that the children were missing.
In the cross-examination, when he was questioned about the
vehicle number, he stated that he did not remember the number,
but he stated that it is a TVS XL Blue colour Moped. He further
explained that cloth business people used to maintain TVS XL Mopeds
and he also does the same business. He saw the accused searching for
the children in the village. He stated that he did not tell the parents of
the deceased that he saw the accused along with the deceased, but he
did not, however, give any reason.
21. P.W.16 is another witness, who saw the accused and the
deceased together. He also saw them at about 11 AM on 14.02.2010.
He stated that the accused replied in the same manner, as he replied
to P.W.8. He also stated that till he was examined by P.W.1, he did not
state to P.W.1 or any other witness that he saw the accused along with
the children.
22. The above witnesses have categorically stated that they saw the
accused taking the children on his TVS XL Moped. There was nothing
that was elicited from the cross-examination of the witnesses,
which would make their evidence incredible. The recovery of motor
cycle was made from the accused. The registration certificate is
marked as Ex.P26, which shows that the vehicle, which is TVS XL HD,
stands in the name of the accused. Hence, the said exhibit would
support the evidence of the above witnesses, that the accused took
the children on TVS XL Moped. The colour of the motor cycles also
stands to be blue, as stated by P.W.8. Hence, we opine that the
evidence of P.Ws.4, 7, 8 and 16 is trustworthy and can very well be
relied upon.
The point is answered accordingly.
POINT Nos.2 & 3:
23. The extra-judicial confession that the accused made before
P.W.15 does not suffer from any doubt. The contention of the counsel
for the appellant that the accused had no reason to confide in P.W.15
to make the confession, as he is the VRO of Aguru village, which is not
the village of the accused, gets marginalized by the evidence of
P.W.15 himself wherein he states that Dosari village is also included in
his jurisdiction and that Aguru panchayat and Dosari panchayat are
one cluster, for which he is the VRO. He also stated that the accused is
a resident of Dosari village, hence, P.W.15, being a Government
servant, might have been chosen by the accused, as a proper person
to confide in and to make the extra-judicial confession.
24. The confession made before P.W.15 also become reliable due to
the fact that it was drafted by P.W.15, in the absence of police and the
signature of the accused was also obtained on the same. The VRO
asked him to surrender before the police and therefore, he came to
the police station. The evidence of P.W.17, who is the Investigating
Officer, corroborates with the evidence of P.W.15, to the extent of
P.W.15 taking the accused to the police station. Thereafter,
the confession of the accused was recorded by P.W.17 in the presence
of two other witnesses and recoveries were made. The accused took
them and showed M.Os.1 to 3, which are clothes and M.O.4, which is a
rope, used for committing the offence. He later took them to his house
from where TVS Moped was recovered.
25. The recoveries made, at the instance of the accused, do not
suffer from any doubt. The failure of the accused to explain as to what
happened to the deceased after they were taken by him, would also
form one of the strong links in the chain of circumstances.
Hence, the decision relied upon the counsel for the appellant in
KANHAIYA LAL v. STATE OF RAJASTHAN does not help the
appellant, as we do not base our judgment simply on the last seen
theory but also on the other circumstances, which lend support to the
judgment. The Supreme Court also observed the same, by stating that
there must be something more than evidence of last seen together for
establishing the connection between the accused and the crime.
Though the Supreme Court held that mere non-explanation of the
accused being last seen together with the deceased person by itself
cannot lead to proof of guilt against him, the Supreme Court did not
exclude the said fact from the arena of consideration, which can be
understood from the observation made by it, that it by itself cannot
lead to proof of guilt. What follows is, that it can lead to proof of guilt,
if it is supported by other circumstances and evidence.
26. The Public Prosecutor, on the other hand, relies on a decision of
the Supreme Court in MUNISH MUBAR v. STATE OF HARYANA
wherein it was held that it is obligatory on the part of the accused,
while being examined under Section 313 Cr.P.C to furnish some
explanation with respect to the incriminating circumstances associated
with him and the Court must take note of such explanation even in
case of circumstantial evidence, so as to decide whether chain of
circumstances is complete. Hence, it has to be understood that the
facts and circumstances of the case are relevant to appreciate the
silence of the accused.
27. The Public Prosecutor, on the aspect of delay in recording the
statement of the witnesses, relies on a decision of the Supreme Court
in ANJAN DASGUPTA v. STATE OF WEST BENGAL wherein, it was
held that statements of witnesses cannot be discarded merely on the
ground of delay, more so, when no explanation was sought from the
Investigating Officer regarding delay. In this case also, it can be seen
that no explanation was sought for from the Investigating Officer with
regard to the said delay.
28. On the aspect of motive, the counsel for the appellant relies on
the decision of this Court in PANCHIKATLA SREENIVASULU v.
STATE OF AP wherein it was held that in a case of circumstantial
evidence, motive plays predominant role.
Motive, in this case is well proved. Whether it is sufficient
enough to drive the accused to commit such a heinous offence or not,
is a question, the answer for which is lodged in the mind of the
accused. When the circumstances, proving the guilt of the accused are
so cogent, pointing unerringly to the guilt of the accused, brushing
aside all those circumstances, on the mere ground of inadequacy of
motive, would not be in the interest of justice. We are left without any
demur, in finding the accused guilty of the charged offence and
consequently, do not feel the necessity of any interference with the
impugned judgment.
POINT No.4:
In the result, the criminal appeal is dismissed upholding the
conviction and sentence passed by the I Additional Sessions Judge,
Srikakulam in SC.No.92 of 2010 dated 03.01.2011. As a sequel,
the miscellaneous applications, if any pending, shall stand closed.
__________________
SURESH KUMAR KAIT, J
__________
T. RAJANI, J
April 4s, 2018
CRIMINAL APPEAL No.824 of 2011
04.04.2018
Ajjada Balakrishna.... APPELLANT
The State of AP, Rep. by its Public Prosecutor, High Court of AP at Hyderabad.... RESPONDENT
Counsel for Appellant:SMT C. VASUNDHARA REDDY
Counsel for Respondent :PUBLIC PROSECUTOR
<GIST :
>HEAD NOTE:
? Cases referred:
1.(2014) 4 SCC 715
2.(2012) 10 SCC 464
3.(2017) 11 SCC 222
4.2018 (1) ALT (CRL.) 304 (DB) (AP)
THE HONBLE SRI JUSTICE SURESH KUMAR KAIT
AND
THE HONBLE SMT JUSTICE T. RAJANI
CRIMINAL APPEAL No.824 of 2011
JUDGMENT: (per the Honble Smt Justice T. Rajani)
The judgment of the I Additional Sessions Judge, Srikakulam in
SC.No.92 of 2010 dated 03.01.2011 is brought to question by way of
this appeal. The I Additional Sessions Judge found the accused guilty
for the offence under Section 302 of the Indian Penal code and
convicted him for the same and sentenced him to undergo life
imprisonment and also to pay fine of Rs.3,000/- in default of payment
of fine, to undergo simple imprisonment for a period of three months
and also found the accused guilty for the offence under Section 364
IPC and convicted him for the same and sentenced him to undergo
simple imprisonment for a period of ten years and also to pay fine of
Rs.3,000/- in default of payment of fine, to undergo simple
imprisonment for a period of three months.
2. The triviality of the gain, that led the accused to commit the
murder of two children, shocks our conscience. The accused is no
other than the junior paternal uncle of the two children, who were
murdered.
3. The facts of the case, briefly, as reflected in the charge sheet,
are as follows:
On the morning of 14.02.2010, the accused took the two
deceased children on his TVS XL Moped and roamed in the village for
some time. Later, he took them to Pedduru village, stopped his motor
cycle, took the children to nearby stone, made D2, who is one of the
children to sit on a boulder and took D1, who is the other child, to a
nearby field and strangulated him to death with a rope, which he used
to use to tie to his cloth bundles to his moped; later he pressed D2 to
a boulder and strangulated the boy with the same rope. The parents of
the children having not found the children for long, searched for them
in and around the Dosari village and then gave a report to the police.
The accused made an extra-judicial confession before the Village
Revenue Officer of Aguru and later on, recoveries were made at his
instance.
4. After concluding the investigation by recording the statements
of the witnesses, among whom, those who saw the accused and the
deceased together lastly were also present; the charge sheet was laid
for the offence punishable under Sections 364 and 302 of the Indian
Penal Code. The Judicial Magistrate of First Class, Palakonda,
after taking cognizance of the case committed the case to the Sessions
Division, Srikakulam. The Sessions Judge, in turn, made over the case
to the I Additional Sessions Judge, Srikakulam for trial and disposal as
per law. The learned Judge, after framing the charges for the offence
under Sections 302 and 264 IPC, conducted trial of the case, during
which P.Ws.1 to 17 were examined and Exs.P1 to P26 and M.Os.1 to 5
marked. None were examined on behalf of accused. The accused was
questioned on the incriminating circumstances appearing in the
prosecution evidence, which he denied and stated that he did not
commit any offence and that he was falsely implicated in the case and
that one Ajjada Ramana is behind his false implication.
5. After hearing the arguments of both sides and considering the
evidence, the I Additional Sessions Judge, Srikakulam passed the
impugned judgment.
6. Aggrieved by the said judgment, this appeal is preferred on the
following grounds:
The Court below ought to have seen that there is no direct
evidence to prove the guilt of the accused and the prosecution failed to
prove the motive of the accused to commit the alleged offence.
It ought to have seen that the motive is important when the case is
based on circumstantial evidence. The Court below erred in coming to
the conclusion that the appellants so-called extra-judicial confession
recorded by P.W.15 is true and failed to notice that if any statement is
made at the instance of the police, the said statements are not
according to law. The Court below failed to notice that the case was
foisted at the instance of Ajjada Ramana, who is a politician in the
locality. The Court below failed to notice that no name was mentioned,
suspecting the alleged offence, either in the complaint or in the report
given by P.W.5. The Court below failed to notice that when the
prosecution is based on circumstantial evidence, four tests have to be
satisfied, which are (1) the circumstances from which conclusion of
guilt is to be drawn have been fully established (2) All the facts so
established are consistent only with the hypothesis of the guilt of the
accused and did not exclude any hypothesis except the one sought to
be proved (3) Circumstances on which reliance are placed are
conclusive in nature. (4) The chain of events is such that there is no
scope for any reasonable ground for a conclusion consistent with the
innocence of the accused. The Court below ought to have considered
that the seizure of M.Os.1 to 4 is not in accordance with the
procedure. The Court below ignored the contradictions in the evidence.
7 Heard Ms. C. Vasundhara Reddy, counsel for the appellant and
the learned Public Prosecutor appearing for the respondent.
8. The counsel for the appellant submits that the case is based on
the evidence of the witnesses, who last saw the accused and the
deceased together, which is a very weak piece of evidence, more so,
when the witnesses are belated witnesses. She contends that the fact
of the missing of the deceased children came to light on the very next
day of their missing and if they had really seen the accused and the
deceased together, they would have informed about the same to
P.W.1, who is the father of the deceased children and suspicion would
have been entertained against the accused immediately.
9. The Public Prosecutor, on the other hand, contends that the
extra-judicial confession made by the accused before P.W.15 would
brush aside all the contentions raised by the appellant's counsel,
as absolutely there is no reason to disbelieve the said confession.
He also submits that the fact that the rope was recovered at the
instance of the accused would get strongly linked to the circumstance
of last seen and would from a strong chain of circumstances, pointing
to the guilt of the accused alone. The failure of the accused to explain
as to what happened to the children, who were seen along with him,
would also add strength to the above circumstances. He contends that
there is absolutely no reason to interfere with the impugned judgment,
as it has well considered the facts of the case in the background of
law.
10. Based on the arguments of the counsel and the material on
record, we frame the following points for determination:
1. Whether the evidence of the witnesses, who have
seen the deceased and the accused together, prior
to the missing of the deceased, is credible and
reliable.
2. Whether the extra-judicial confession made by the
accused before P.W.15 inspires confidence.
3. Whether the judgment of the Court below needs
any interference.
4. To what result.
POINT No.1:
11. The fact that the accused is closely related to P.W.1 has to be
borne in mind while appreciating the evidence of the concerned
witnesses and also the reason for their not reporting about the same
to P.W.1. The accused is no other than the co-son-in-law of P.W.1,
the children were seen with the accused, going on his Moped with all
faith in him that he developed by virtue of being their uncle. Nothing
strange would be perceived by the people to see them together and
certainly, first doubt would not go against the accused. Seeing the
accused and the deceased together might have been considered as a
usual affair, by the witnesses concerned and that might be the reason
for which they did not report the same to P.W.1 or anyone. It requires
an amount of courage for the witnesses to inform about the same to
P.W.1 or his family members, as the same would sound like they are
suspecting the accused, who is also their family member. Since the
relation between the accused and the family of P.W.1 being normal,
the witnesses might not have ventured to put forth any opinion
carrying their suspension. Hence, the lapse on the part of the
witnesses in not informing the about their seeing the accused and the
deceased together, to P.W.1 and his family members gets explained by
the above reasoning.
12. There is certainly some delay in recording the statements of the
witnesses. The accused was apprehended on 25.02.2010 when he was
taken to the police by P.W.15, to whom he went for making
confession. But the statements of the witnesses were recorded on
27.02.2010 as can be gathered from the evidence of P.W.16,
who stated that he was examined by the police on 27.02.2010.
It appears that until the extra-judicial confession was made by the
accused, no suspicion was entertained by any of the family members
of the deceased.
13. The triviality of the gain can be gathered from the evidence of
P.W.4, who is the father-in-law of P.W.1 and the accused. The motive
was spoken to by P.W.4, by stating that the accused used to quarrel
with him for the properties; he has given one acre of wet land and one
acre of dry land and a house, to the accused, at the time of marriage
and did not give any dowry. The accused is his nephew, being his
sisters son. He could not give any reason for the accused killing the
children, as he had already given the properties and did not suspect
that the accused would kill the children.
In the cross-examination, he further clarifies that there are no
big disputes between himself and the accused and the accused only
now and then used to ask him for the properties. He has not given
land to P.W.1 and only demarked the land to P.W.1. They went to
work in his land on the date of the incident. P.W.1 also seems to have
not considered the dispute with the accused, serious. He states that
the accused had one son and on the date of killing the children of
P.W.1, another son was born to him. He states that the accused killed
the sons of P.W.1 under the impression that his father-in-law might
give two acres of land to the sons of P.W.1 by adopting them. He also
speaks about his father-in-law giving one acre each to his daughters.
14. The evidence of P.W.1 also shows that the accused also made
searches for the children, along with them and he was also present at
the time of the funeral of the deceased. Hence, in the above
circumstances, there would not be any reason, for either P.W.1 or
anyone else, to suspect the accused. As already observed, in the
background of the accused moving with P.W.1 even after the death of
the children and P.W.1 and his family members not expressing any
suspicion against the accused, the witnesses, who saw the accused
and the deceased together, might not have felt it proper to report to
them the said fact, which would imply an expression of suspicion.
15. When we understand the reasons for the witnesses not
revealing their seeing the accused and the deceased together, in the
above manner, their evidence would become wholly reliable.
16. P.W.1 speaks about the missing of his children and their
searching for them and about the presence of the accused and their
identifying the same near Pedduru. Ligature mark was found on the
neck of his elder son and the younger sons face was completely
blood-stained and he was on a rock.
17. P.W.2 is a witness, who went to raise cattle through Dhonubai
road of Pedduru village and came across the dead bodies of the two
children and he, in turn, informed to L.W.4, Raju, who also came and
saw the dead bodies and informed the same to L.W.5, who is a teacher
and they took L.W.5 also to the spot, L.W.5, in turn, informed the
same to the police.
18. P.W.3 is also a similar witness. P.W.4, as already discussed,
is the father-in-law of the accused and P.W.1, also participated in the
search made for the children. According to him, Rajam police informed
him about the presence of the bodies near Pedduru village. P.W.5 is
the father of P.W.1. His evidence is not material as he also speaks
about the missing of the children and recovery of their dead bodies.
P.W.6 is one of the witnesses, who saw the accused on 14.02.2010,
at about 4 PM at Mudidam village, a motor cycle was kept by his side
and he was standing. When he talked to the accused, he told them
that he went to Mudadam village and came back and then he left the
place. He further specified the place where the accused was standing
is a tank bund.
19. P.W.7 is a child witness, aged 13 years. He is one of the
witnesses, who saw the deceased and the accused together on TVS XL
Moped, which was being driven by the accused at that time. He saw
them at about 11 AM on 14.02.2010. He was sitting under a Tamarind
tree along with L.W.15 Vandana Vasudevarao. The accused was going
on the road leading to Aguru village. He clearly stated that Naveen
was sitting in front of the accused, while Nitin was sitting behind the
accused.
The cross-examination of P.W.7 would answer the improbability
pointed out by the counsel for the appellant, with regard to his moving
with L.W.15, who is aged 23 years. He stated that he stopped his
education after the death of his father and was doing mechanic work.
It is a usual view in the villages, that children of the age of P.W.7,
who give up education and do some work, would move with people of
all ages.
20. P.W.8 is another witness, who saw the accused and the
deceased together at about the same time as stated by P.W.7.
The accused was seen going on a motor cycle along with two children
towards Aguru road. When he questioned the accused as to where he
was going, he gave an evasive reply that YETULEDULE, later he came
to know that the children were missing.
In the cross-examination, when he was questioned about the
vehicle number, he stated that he did not remember the number,
but he stated that it is a TVS XL Blue colour Moped. He further
explained that cloth business people used to maintain TVS XL Mopeds
and he also does the same business. He saw the accused searching for
the children in the village. He stated that he did not tell the parents of
the deceased that he saw the accused along with the deceased, but he
did not, however, give any reason.
21. P.W.16 is another witness, who saw the accused and the
deceased together. He also saw them at about 11 AM on 14.02.2010.
He stated that the accused replied in the same manner, as he replied
to P.W.8. He also stated that till he was examined by P.W.1, he did not
state to P.W.1 or any other witness that he saw the accused along with
the children.
22. The above witnesses have categorically stated that they saw the
accused taking the children on his TVS XL Moped. There was nothing
that was elicited from the cross-examination of the witnesses,
which would make their evidence incredible. The recovery of motor
cycle was made from the accused. The registration certificate is
marked as Ex.P26, which shows that the vehicle, which is TVS XL HD,
stands in the name of the accused. Hence, the said exhibit would
support the evidence of the above witnesses, that the accused took
the children on TVS XL Moped. The colour of the motor cycles also
stands to be blue, as stated by P.W.8. Hence, we opine that the
evidence of P.Ws.4, 7, 8 and 16 is trustworthy and can very well be
relied upon.
The point is answered accordingly.
POINT Nos.2 & 3:
23. The extra-judicial confession that the accused made before
P.W.15 does not suffer from any doubt. The contention of the counsel
for the appellant that the accused had no reason to confide in P.W.15
to make the confession, as he is the VRO of Aguru village, which is not
the village of the accused, gets marginalized by the evidence of
P.W.15 himself wherein he states that Dosari village is also included in
his jurisdiction and that Aguru panchayat and Dosari panchayat are
one cluster, for which he is the VRO. He also stated that the accused is
a resident of Dosari village, hence, P.W.15, being a Government
servant, might have been chosen by the accused, as a proper person
to confide in and to make the extra-judicial confession.
24. The confession made before P.W.15 also become reliable due to
the fact that it was drafted by P.W.15, in the absence of police and the
signature of the accused was also obtained on the same. The VRO
asked him to surrender before the police and therefore, he came to
the police station. The evidence of P.W.17, who is the Investigating
Officer, corroborates with the evidence of P.W.15, to the extent of
P.W.15 taking the accused to the police station. Thereafter,
the confession of the accused was recorded by P.W.17 in the presence
of two other witnesses and recoveries were made. The accused took
them and showed M.Os.1 to 3, which are clothes and M.O.4, which is a
rope, used for committing the offence. He later took them to his house
from where TVS Moped was recovered.
25. The recoveries made, at the instance of the accused, do not
suffer from any doubt. The failure of the accused to explain as to what
happened to the deceased after they were taken by him, would also
form one of the strong links in the chain of circumstances.
Hence, the decision relied upon the counsel for the appellant in
KANHAIYA LAL v. STATE OF RAJASTHAN does not help the
appellant, as we do not base our judgment simply on the last seen
theory but also on the other circumstances, which lend support to the
judgment. The Supreme Court also observed the same, by stating that
there must be something more than evidence of last seen together for
establishing the connection between the accused and the crime.
Though the Supreme Court held that mere non-explanation of the
accused being last seen together with the deceased person by itself
cannot lead to proof of guilt against him, the Supreme Court did not
exclude the said fact from the arena of consideration, which can be
understood from the observation made by it, that it by itself cannot
lead to proof of guilt. What follows is, that it can lead to proof of guilt,
if it is supported by other circumstances and evidence.
26. The Public Prosecutor, on the other hand, relies on a decision of
the Supreme Court in MUNISH MUBAR v. STATE OF HARYANA
wherein it was held that it is obligatory on the part of the accused,
while being examined under Section 313 Cr.P.C to furnish some
explanation with respect to the incriminating circumstances associated
with him and the Court must take note of such explanation even in
case of circumstantial evidence, so as to decide whether chain of
circumstances is complete. Hence, it has to be understood that the
facts and circumstances of the case are relevant to appreciate the
silence of the accused.
27. The Public Prosecutor, on the aspect of delay in recording the
statement of the witnesses, relies on a decision of the Supreme Court
in ANJAN DASGUPTA v. STATE OF WEST BENGAL wherein, it was
held that statements of witnesses cannot be discarded merely on the
ground of delay, more so, when no explanation was sought from the
Investigating Officer regarding delay. In this case also, it can be seen
that no explanation was sought for from the Investigating Officer with
regard to the said delay.
28. On the aspect of motive, the counsel for the appellant relies on
the decision of this Court in PANCHIKATLA SREENIVASULU v.
STATE OF AP wherein it was held that in a case of circumstantial
evidence, motive plays predominant role.
Motive, in this case is well proved. Whether it is sufficient
enough to drive the accused to commit such a heinous offence or not,
is a question, the answer for which is lodged in the mind of the
accused. When the circumstances, proving the guilt of the accused are
so cogent, pointing unerringly to the guilt of the accused, brushing
aside all those circumstances, on the mere ground of inadequacy of
motive, would not be in the interest of justice. We are left without any
demur, in finding the accused guilty of the charged offence and
consequently, do not feel the necessity of any interference with the
impugned judgment.
POINT No.4:
In the result, the criminal appeal is dismissed upholding the
conviction and sentence passed by the I Additional Sessions Judge,
Srikakulam in SC.No.92 of 2010 dated 03.01.2011. As a sequel,
the miscellaneous applications, if any pending, shall stand closed.
__________________
SURESH KUMAR KAIT, J
__________
T. RAJANI, J
April 4s, 2018
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