Judgment:
R. Kantha Rao, J.
1. The appellant (Kondidena Venkata Naga Durga Prasad @ Prasad) who is the sole accused before the VIII Additional Sessions Judge (Fast Track Court), Vijayawada is the appellant herein. He was tried for the charges under Sections 302, 451 and 380 of IPC and was convicted by the learned Additional Sessions Judge for all the charges.
2. In respect of conviction for the offence under Section 302 of IPC, the, appellant was sentenced to undergo imprisonment for life. In respect of conviction for the offences under Sections 451 and 380 of IPC, he was further sentenced to undergo rigorous imprisonment for a period of two years and also to pay fine of Rs. 5,000/- under each count. All the sentences were directed to run concurrently.
3. Challenging the said order of conviction and sentence, the appellant preferred this appeal.
4. The prosecution case in a nutshell is as follows:
On the intervening night of 10/11.06.2002 at about 1.30 a.m. LW-3 Gurkha (Dhan Bahadur) informed PW-1 (Rakesh Kumar Jain), a resident of Shivalayam street, Vijayawada city, that he noticed pawn broker shop of the deceased without locks, the doors were kept partly opened and there was no response when he knocked the doors. On that PW-1 went to the shop along with LW-3, found the lock of the main door missing, he entered into the shop and found that there was no electricity, thereafter he, with the help of torchlight available with LW-3 found Anil Kumar Jain hereinafter called 'the deceased' who is no other than his cousin lying in a pool of blood with multiple injuries. He found the racks of iron safe lying pell-mell on the floor and thereby came to know that some unknown offenders committed murder of the deceased and had stolen away the gold and silver articles. Incorporating the aforesaid facts, he lodged a report with PW-21, the Dy. S.I. of Police I-Town Police Station, Vijayawada city and also stating therein that the details of the gold and silver articles will be furnished after the return of the father of the deceased from Rajasthan.
5. On the strength of the said report, PW-21 registered a case in Crime No. 586 of 2002 of Vijayawada I Town Crime police station and PW-25, the Inspector of Police, CCS-I Vijayawada city took up investigation. Soon after knowing about F.I.R. issued in this case, he visited the scene of offence, seized the day books, a cell phone, a fifty rupee note and ten rupee note which were stained with blood from the scene of offence, found the dead body of the deceased lying in a pool of blood, held inquest over the dead body of the deceased, and then dispatched the same for post mortem examination.
6. During the course of investigation, on credible information, PW-21, the Dy.S.I. of Police arrested the appellant on 13.06.2002 at 12:30 hours near his house at Undavalli centre in the presence of PWs.17 and 18 and interrogated him. The appellant apart from admitting about the commission of the offence made a disclosure statement to the effect that if they follow him, he would hand over the stolen articles and also the axe. Accordingly, he led them to his tenanted premises of which PW-7 (Guntur Sambasivarao) is the owner situate at Patamatalanka. He at about 3.00 p.m. produced the stolen properties and a zip bag containing the articles. The said articles M.O.1 and the axe, M.O.3 were recovered under a cover of mahazar by PW-21 in the presence of PWs.17 and 18. The entire articles of stolen property is weighing 4.247 kgs. gold and 493 grams of silver worth Rs. 21,40,000/-. PW-21 also seized a gold chain which is also one of the stolen articles and also M.O.2, the Maruthi car of the appellant bearing No. AP-16-AD-2737 under the cover of a mahazar in the presence of the same mediators.
7. Subsequently, during the course of further investigation, PW-25, Inspector of Police, CCS-I, Vijayawada city on a requisition got the test identification parade of the appellant conducted by PW-22, the Magistrate on 27.07.2002. He also got conducted the proceedings through PWs.17 and 18 regarding the identification of the stolen property wherein PW-2 (Nainmal Jain), the father of the deceased identified the stolen articles (M.O.1) as belonging to them. After completing investigation, PW-25 filed charge sheet.
8. In the course of trial before the learned Sessions Judge, the prosecution in order to establish the guilt of the appellant, examined PWs.1 to 25, marked Exs.P-1 to P-25 and M.Os.1 to 9. M.O.1 consists of 53 gold and silver articles. The appellant did not propose to examine any defence witnesses and a portion in 161 Cr.P.C. statement of PW-3 (Vishal Kumar Jain) was marked as Ex.D-1 on his behalf. On a consideration of the entire material before him, the learned Additional Sessions Judge convicted the appellant for the offences under Sections 302, 451 and 380 of IPC and sentenced him to punishment as mentioned above.
9. There being no eyewitnesses to the occurrence, the entire case of the prosecution rested on circumstantial evidence. The learned trial Court arrived at the conclusion that the circumstances proved by the prosecution are enough to hold that the prosecution proved the guilt of the appellant beyond reasonable doubt and accordingly convicted him.
10. The point arises for determination in this appeal is whether the order of conviction and sentence passed by the learned trial Court can be sustained.
11. We have heard Sri O. Kailasnath Reddy, the learned Counsel appearing for the appellant and the learned Public Prosecutor for the State.
12. The learned Counsel appearing for the appellant would submit that the circumstances namely, the recovery of the alleged stolen property from the possession of the appellant, that at about 9.30 p.m. on 10.06.2002 while the deceased was playing billiards in the shop of PW-5 (Pothina Ramarao), the deceased received a phone call to his cell phone and left that place by saying 'Prasad I am coming' having not been proved by the prosecution by convincing evidence and even if they are said to be proved, they are not enough to draw the presumption of guilt of the appellant and therefore, the appellant is entitled for the benefit of doubt. In the alternative, the learned Counsel would submit that even if the alleged recovery of stolen property from the appellant is believed, he can be convicted for the offence under Section 411 of IPC, but, he cannot be convicted for the remaining offences including the offence under Section 302 of IPC.
13. On the other hand, the learned Public Prosecutor appearing for the State would submit that the important circumstances relied upon by the prosecution have been proved by convincing and credible evidence and therefore, the conviction and sentence passed by the trial Court against the appellant needs no interference in this appeal.
14. The incident was informed by LW-3 to PW-1 at 1.30 a.m. on 11.06.2002, Whereas PW-1 lodged Ex.P-1 report at 7.20 a.m. with the police no 11.06.2002. Thus, there is a delay of 5 hours and 50 minutes in lodging the F.I.R. It has been contended by the learned Counsel appearing for the appellant that the said delay is fatal to the case of the prosecution and on account of delay, there is every possibility for the prosecution in roping the appellant falsely in the present case and as such, the veracity of the prosecution version has to be doubted.
15. We absolutely see ho force in the contention. The reason being the report was only lodged to the effect that some unknown culprits committed murder of the deceased and committed robbery of the stolen property from the shop of the deceased. Absolutely, no other details were mentioned in the report lodged by PW-1. The name of the appellant is not mentioned in the said report. Therefore, there is no possibility for introducing any false or concocted version on account of the delay. The details of the stolen property were also disclosed by PW-2 only after his arrival from Rajasthan on receiving information about the unfortunate incident. It is also borne out from the evidence that the brother of the deceased was bed ridden due to the fracture of leg and the women folk in the community of the deceased will not come out from the houses during night time to lodge the report. In the absence of any prejudice caused to the appellant, or any circumstances showing that the delay contributed to introduce a false version or mentioning the name of the appellant or any eyewitness, the delay by itself cannot be said to be fatal.
16. It has been further contended by the learned Counsel appearing for the appellant that LW-3 who informed PW-1 about his noticing the doors opened partly and the absence of lock was not examined by the prosecution, he being a material witness, on account of his non-examination an adverse inference can be drawn against the prosecution version.
17. It is not possible to accept the contention of the learned Counsel appearing for the appellant, because LW-3 is not eyewitness. He only conveyed the information to PW-1 about his noticing the doors without lock and partly opened and he is not an eyewitness to the occurrence. His examination could have been only the repetition of the same facts which have been spoken by PW-1 and there-fore no adverse inference can be drawn against' the prosecution version when LW-3 being omitted by the prosecution from examining before the trial Court.
18. One of the important contentions urged by the learned Counsel appearing for the appellant is that the evidence of PW-5 which is to the effect that after receiving a phone call to his cell phone at 9.30 p.m. on the date of the incident, the deceased left the billiards table saying 'Prasad' I am coming', cannot be considered to be a circumstance against the appellant on the mere ground that incidentally the name of the appellant is also Prasad. We cannot accede to the submission made by the learned Counsel because PW-5 is the person who had last seen the deceased while he was playing billiards in the shop of PW-5. Thereafter, LW-3 and PW-1 saw the dead body of the deceased at 1.30 a.m. Unless there was some intervening cause, the evidence of PW-5 as to the cause of the death of the deceased assumes greater importance in this case. Nothing was elicited in the cross-examination of PW-5 indicating that he is an interested witness not was there any enmity between him and the appellant. Further only basing on the evidence of PW-5 the police could be able to trace out the appellant. Therefore, PW-5 is a crucial witness and his evidence furnishes vital link to the circumstances brought on record by the prosecution.
19. PW-9 (M. Sambasivarao) is a blacksmith. According to the prosecution, the appellant approached him to get an axe repaired by paying an amount of Rs. 20/. Whereas, PW-11 (P. Prasada Rao) is the person who nickeled the said axe after it's repair at the instance of the appellant charging an amount of Rs. 100/, but both the witnesses did not support the prosecution version.
20. Similarly PW-7, according to the prosecution is the person who let out his house in Patamatalanka to the appellant from which the appellant carried out the mission. But, PW-7 did not support the prosecution version and stated that he never leased out his house to the appellant. However, this witness stated that he identified the appellant since the police showed him the photographs of the appellant prior to conducting test identification parade. In the chief examination, PW-7 stated that he has a house at Padamatalanka. He also stated before the trial Court that no articles were seized from his house, but admitted his signature Ex.P-6 in mediators' report under which the M.O.1 were recovered. , Curiously this witness in the cross-examination by the Additional Public Prosecutor before the trial Court stated that he did not identify the appellant during the test identification parade. Here, it is pertinent to note that he did not state in the cross-examination that he could identify the appellant only because the police showed the photographs of the appellant to him prior to the test identification parade. The evidence of PWs.17 and 18 the mediators as well as PW-21 clearly indicates that the M.O.1 i.e. gold and silver articles were recovered from the house of PW-7 basing on the disclosure statement of the appellant. From this what all can be understood is that PW-7 did not give correct account of the facts within his knowledge and apparently he gave incorrect version with a view to help the appellant, for the reasons best known to him. From the evidence on record established by the prosecution regarding the aspects that PW-7 identified the appellant during the test identification parade and also signed in Ex.P-6 mediators' report an inference can safely be drawn to the effect that in fact, he let out the house to the appellant and the stolen property was recovered from the said house in his presence. This is so because of the settled legal position that the Court need not discard the entire evidence of the witness who turned hostile and from the version of the said witness, the Court can always draw inferences and the prosecution as well as the defence can rely on the evidence of hostile witness to the extent, the evidence of the said witness support their respective versions.
21. Similarly PW-8, according to the prosecution was the receptionist in Saravana lodge situated opposite to the old bus stand, Vijayawada city and the appellant stayed in the lodge at relevant time which fact is known to PW-8. But, PW-8 did not support the prosecution version and he stated that he does not know anything about the case. This witness also identified the appellant during the test identification parade conducted by the Magistrate, but he states in the cross-examination that basing on the photographs showed by the police to him before conducting the test identification parade, he could identify the appellant in the test identification parade. It has to be kept in mind that PW-8 also did not state in his chief examination that he identified the appellant in the course of the test identification parade conducted by the Magistrate. From his evidence, his version appears to be that being afraid of the police, he identified the appellant in the test identification parade. If that is so, he could have stated the said fact before the Magistrate who conducted the test identification parade, but he did not state so. Therefore, it is not possible to hold that actually PW-8 never identified the appellant in the test identification parade, but gave the incorrect version during the trial before the learned Additional Sessions Judge. Further according to the prosecution, the appellant signed in the register of the lodge as Sridhar. The said handwriting and signatures were sent along with the admitted handwritings and the signatures of the appellant to the Director, Forensic Science Laboratory, Hyderabad. PW-24 (C. Suresh), the handwriting expert who is also the Assistant Director, F.S.L, Hyderabad stated in his deposition before the learned Additional Sessions Judge that the admitted and disputed handwritings and signatures sent to him are of the same person. Therefore, the evidence of PW-24 lends assurance to the prosecution version that the appellant occupied a room in the Saranam lodge furnishing a wrong identity.
22. It is also the contention of the learned Counsel appearing for the appellant that PW-14 (V. Ramesh) who is said to be the scribe of two mediators reports Exs.P-11 and P-12 and also Ex.P-13, the proceedings relating to the identification of property did not support the prosecution version by stating that the mediators did not sign in the said documents in his presence and therefore, the evidence of the mediators regarding the recovery of M.O.1 i.e. gold and silver articles in the presence of PWs. 17 and 18 mediators cannot be accepted.
23. We have perused the depositions of PWs.2, 14, 17 and 18. Curiously PW-14 admitted in his chief examination that he drafted Exs.P-11 to P-13 and what he all stated was that the mediators did not sign in his presence. .He did not offer any explanation as to why he scribed all the mediators' reports and the circumstances under which the signatures of the mediators were not obtained by the investigating officer in the said documents in his presence. Whereas, PWs.17 and 18 the mediators deposed before the trial Court about their accompanying PW-21, the Sub-Inspector of Police to Undavalli to the house of the appellant, the appellant who was coming out of the house being perturbed on seeing the police and thereafter the I.O. recovering the stolen property as well as the M.O.3, axe in pursuance of the disclosure statement made by the appellant. They also spoke about the fact of PW-14 drafting Exs.P-11 and P-12 mediators' reports. This apart, there is evidence of PW-21 regarding the recovery of the above mentioned material objects in the same lines as that of PWs.17 and 18. Nothing was brought on record by the defence indicating that these three witnesses have any sort of animosity against the appellant for falsely involving him in a grave charge of this nature. From the evidence of these witnesses, it can also safely be presumed that PW-14 having been present and attested Exs.P-11 and P-12 at the time of recovery might have been won over by the appellant and gave evidence to the effect, that though he scribed Exs.P-11 and P-12, PWs.17 and 18 did not attest the said documents before {urn. Thus, the prosecution proved the recovery of stolen property as well as the axe, M.O.3 which is said to be the weapon of offence basing on the confession made by the appellant.
24. PW-20, the Civil Assistant Surgeon in Forensic Department, Government General Hospital, Vijayawada at relevant time, conducted post mortem examination on the body of the deceased and issued Ex.P-17 post mortem certificate.
His findings as per his testimony before the Court and incorporated in Ex.P-17 post mortem report, are as follows:
The injuries found on the body of the deceased:
i) Wedge shaped stab injury vertically placed on the right forehead measuring about 4 cm x 2 cm x bone deep.
ii) Wedge shaped stab injury on the upper forehead just lateral to the mid-line measuring 1.5 cm x 1 cm x bone deep. Transversely placed.
iii) Wedge shaped injury on left frontal region oblique in direction measuring 3 cm x 1 cm x bone deep.
iv) Contused abrasion on right ear pinna measuring 2 cm x 1 cm x skin deep.
v) Cut injury upper part of the neck measuring 2 cm x 1/2 cm x skin deep.
vi) Cut injury on the upper part of the left side of neck 8 cm x 2 cm x 3 cm muscle vessels cut of that region.
vii) Cut injury 6 cm x 1.5 cm x 3 cm just above the left clavicle. Muscles vessels cut.
viii) Cut injury the upper part of the left side of chest left below clavicle 10 cm x 2 cm x bone deep.
ix) Cut injury the upper part of the left side of chest left below the clavicle No. 8.
x) Cut injury over left below abdomen measuring 6 cm x 1 cm x skin deep.
xi) Cut injury over right shoulder 6 cm x 3 cm x 4 cm
xii) Cut injury over right shoulder 5 cm x 3 cm x muscle deep.
xiii) Cut injury over left upper part from left side of zygoma cut through the ear pinna measuring 7 cm x 1.5 cm x cartilage.
xiv) Avalsion injury over the left fronto parietal region 7 cm x 5 cm x bone deep.
xv) Incised wound measuring 2 cm x 1/4 cm x left side of bridge of nose.
xvi) Cut injury right parieto temporal region oblique in direction measuring 18 cm x, 1 cm x bone deep.
xvii) An irregular lacerated injury over right peritoneal region.
xviii) Avalsion injury on the middle of the top of the head measuring 5 cm x 1 cm x bone deep.
xix) Cut injury over left dorsum of the hand measuring 5 cm x 1.5 cm x muscle deep.
xx) Cut injury over base of the little finger 3 cm x 1 cm x muscle deep.
xxi) Cut injury over right index measuring 6 cm x- 1 cm. x bone deep.
xxii) An irregular injury over flexor aspect of wrist joint 3 cm x 1.5 cm.
xxiii) Cut injury above left knee joint measuring 7 cm x 3 cm x muscle deep.
xxiv) Cut injury transverse in direction left knee joint 6 cm x 3 cm.
xxv) Cut injury vertical in direction 13 cm x 2 cm, back of the left lower limb.
xxvi) Cut injury transversely 6 cm x 3 cm x 1, back of the left lower limb.
xxvii) Cut injury transversely placed lateral, back of the left lower limb.
The above injuries are ante-mortem in nature.
Cause of death, according to the autopsy surgeon is shock due to multiple injuries. In the cross examination, it was elicited from the autopsy surgeon that in his opinion the deceased might have been killed with two weapons only. The said opinion was not given by the doctor in his examination in chief, but he answered positively to the defence in the cross examination. Most of the injuries are cut injuries and we are of the view that the injuries found on the body of the deceased can be caused by M.O.3 axe and the evidence of PW-20, the doctor who conducted post mortem examination being only an opinion evidence, need not be adhered to. Furthermore, even if it is accepted for arguments sake, that the prosecution is not able to prove that M.O.3 axe was used in commission of the offence by the appellant, the appellant cannot be given benefit of doubt on that score alone. Therefore, the contention urged by the learned Counsel that in view of the above opinion expressed by the autopsy surgeon, the prosecution case has to be doubted, cannot at all be accepted.
25. As far as the identification of stolen articles is concerned, PW-2 stated in his evidence that on receiving information about the incident on 11.06.2002, he returned from Rajasthan to Vijayawada on 12.06.2002, subsequently the police informed him about the recovery of the stolen Articles 1 to 53 and thereafter, he identified the said articles (M.O.1) in the course of the identification proceedings. Ex.P-3 is the list of the stolen articles submitted by him to the police and thereafter he compared the articles recovered with the articles mentioned in the list and found them to be correct. PW-17 testified the fact of PW-2 identifying the stolen articles in the course of the identification proceedings conducted by him at the instance of the police and. the identification proceedings were drafted by PW-14 wherein he, PW-18 and PW-2 attested which is Ex.P-13. Same is the evidence of PW-18 on this aspect. Therefore, from the evidence of PW-2, PWs. 17 and 18 the prosecution established that the properties were stolen from the shop of PW-2 and the deceased are the same, which were recovered by the Sub-Inspector of Police in pursuance of the disclosure statement made by the appellant.
26. The crucial question that arises for consideration before us is, basing on the proof of recovery of stolen property in pursuance of the disclosure statement made by the appellant whether it can be conclusively held that he is the author of the offences punishable under Sections 380, 451 and 302 of IPC, as was found by the learned trial Court. It is the contention of the learned Counsel appearing for the appellant that in the event of this Court believing the factum of recovery of stolen articles basing on the confession made by the appellant, a conviction can only be recorded against him under Section 411 of IPC but he cannot be held liable for the remaining offences above mentioned.
27. Before arriving at a decision on this aspect, we would like to refer to the following decisions:
i) In Shri Bhegwan v. State of Rajasthan : (2001) 6 SCC 296 : 2001 Cri LJ 2925 the Apex Court dealing with the similar situation held as follows:
The possession of the fruits of the crime, soon after it has been committed affords a strong and reasonable ground for the presumption that the party in whose possession they are found is the real offender, unless he can account for such possession in some way consistent With his innocence. It is founded on the obvious principle that if such possession had been lawfully acquired, that party would be able to give an account of the manner in which it was obtained. His unwillingness or inability to afford any reasonable explanation is regarded as amounting to strong, self-inculpatory evidence. If the party gives a reasonable explanation as to how he obtained it, the courts will be justified in not drawing the presumption of guilt. The force of this rule of presumption depends upon the recency of the possession as related to the crime and that if the interval of time be considerable, the presumption is weakened and more especially if the goods are of such kind as in the ordinary course of such things frequently change hands. It is not possible to fix any precise period in this regard. The Supreme Court has drawn similar presumption of murder and robbery in a series of decisions especially when the accused was found in possession of these incriminating articles and was not in a position to give any reasonable explanation.ii) In Earabhadrappa alias Krishnappa v. State of Karnataka : (1983) 2 SCC 330 : 1983 Cri LJ 846, the Apex Court held as follows:
Even if the seized articles are said to be articles of common use and available everywhere, it cannot be said that those articles cannot be treated to be stolen property. The deceased's family members consisting of her mother-in-law, husband and son, have categorically stated that the seized articles belonged to the deceased. Moreover, the deceased's mother-in-law had not been cross-examined as regards the identification. It is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings, particularly articles of personal use in the family. That apart, the description of the silk Sarees in question shows that they were expensive sarees with distinctive designs. There is no merit in the contention that the testimony of these witnesses as regards identity of the seized articles to be stolen property can nor be relied upon for want of prior test identification. There is no such legal requirement.
In this case murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under Illustration (a) to Section 114 of the Evidence Act is that the appellant committed murder as well as robbery. The proved circumstances raised the inference that the appellant alone and no one else was guilty of the offence of murder and robbery. The false denial by itself is an incriminating circumstance. The nature of presumption under Illustration (a) to Section 114 must depend upon the nature of the evidence adduced.
No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on it's own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles are of the latter kind, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been absconding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property.
28. Thus, under Section 114 illustration (a) of the Evidence Act, if the stolen articles found to be in possession of the appellant relate to the mulder of the deceased a presumption not only to the effect that either he must be the thief of receiver of stolen: property, but also that be is the person who committed the murder of the deceased can be drawn in a given situation. The circumstances required to drawn such a presumption vary from case to case. Therefore, we see no legal force in the contention urged that a presumption of commission of murder could not under any circumstances be drawn against the appellant merely because he found in possession of the stolen property connected with the deceased. In the present case the property was stolen at about 1.00 or 1.30 a.m. on 11.06.2002, they were recovered basing on the confession made by the appellant at 12.30 midnight on 13.06.2002, the trial Court held that the recovery was proved by the prosecution beyond any shadow of doubt.
29. The said finding is affirmed by? this Court in this appeal. The property recovered includes 53 articles of gold and silver and also an axe M.O.3. The entire property is 4.427 kgs. of gold and 493 grams of silver, all worth Rs. 21,41,000/-. As such, a huge property consisting of several items was recovered from the appellant. Admittedly, the appellant did not claim the property. Absolutely there was no explanation from the appellant as to how he came into possession of the said property. Since such a valuable property running into several items of gold and silver articles was recovered from the appellant, the burden heavily lies on him to offer a reasonable explanation as to how and under what circumstances he came into possession of such property. Further, the property consists of articles pledged by several individuals with the deceased and PW-2. Since there is no reasonable or acceptable explanation from the appellant regarding the possession of the property, the only conclusion, which can be arrived at is that the appellant is the person and none else who trespassed into the shop of the deceased, murdered hint and committed theft of M.O.1 gold and silver articles.
30. The circumstances relied upon and proved by the prosecution, in our considered view are not only consistent with the guilt of the appellant and undoubtedly they are also incompatible with the innocence of the appellant. They exclude every reasonable hypothesis Consistent with innocence of the appellant. All the proved circumstances put together unerringly point out that the appellant is the author of the crime and nobody else. The learned trial Court appreciated the evidence on record in a proper perspective and we confirm the findings 6f the learned trial Court relating to the conviction and sentence passed against the appellant.
31. In the result, the conviction and sentence passed by the trial Court against the appellant for the offences under Sections 451, 380 and 302 of IPC are confirmed. The appeal is dismissed.