Tandra Ravi Vs. the State of A.P. Rep., by Public Prosecutor High Court of A.P. - Court Judgment

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criminal - legality of sentences - sections 201, 302 376 and 511 of indian penal code, 1860, sections 25 and 26 of indian evidence act and sections 164 and 174 of criminal procedure code, 1973 - appeal filed against conviction passed by sessions judge - conviction passed only on circumstantial evidences and no eyewitness was there - first information report lodged on rumour - evidence was not recorded in manner prescribed by section 164 of code - prosecution failed to prove guilt of accused beyond doubt - held, conviction liable to be set aside. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - however, in the cross examination it was elicited from this witness that he recorded the statements of the witnesses as well as the accused before the arrival of police. the prosecution thus miserably failed to establish the guilt against the accused.t.ch. surya rao. j.1. the appellant stands convicted for the offences punishable under sections 302, 376 read with 511 and 201 of the indian penal code by the learned sessions judge, warangal, by his judgment dated 29-4-1999 in sessions case no. 319/96, and sentenced to suffer imprisonment for life; r.1. for 5 years, and r.1. for 3 years respectively while directing all the sentences to run concurrently.2. the gravarmen of the charge against the appellant was that on 13-9-1995 at 2.00 p.m. in the outskirts of kondai village, he caught hold of the deceased safia begum, dragged her and made a attempt to molest her and that when she refused and tried to raise hue and cry, he pressed her neck with his hands intentionally or knowingly which resulted in the death of the deceased and he caused certain evidence of the said offence disappear by dragging the body of the deceased to nearby bushes, thereby he committed the offences punishable under sections 302, 376 read with 511 and 201 of the indian penal code.3. at the time of trial, the prosecution examined nine witnesses. the case of the prosecution, as unfolded by the testimony of the witnesses, in brief, may be stated thus. the accused and p.ws.1 to 4 are residents of kondal village. the deceased was the daughter of p.w.1 and was aged about 18 years. on 13.9.1995 at about 2.00 p.m., the deceased went to the village canal side in order to answer the calls of nature. as she did not return, p.w.1, after having waited for an hour or two, went in search of the deceased. he found p.w.2 and another finishing in the canal. when p.w.1 enquired them about the deceased, p.w.2 informed p.w.1 that the deceased went towards the village canal to ease out. p.w.1, therefore, proceeded in the same direction. near the canal, p.w.1 also found the accused waiting as he laid the net so as to catch birds. when p.w.1 asked the accused about the deceased, he replied that he had not seen the deceased.4. p.w.1 returned to the village and searched for the deceased. some others also went in search of the deceased ultimately they found the dead body of the deceased in the bushes adjacent to the land of the accused. thereupon, they have brought the body of the deceased, and thinking that the deceased must have died due to snake bite, kept the dead body of he deceased in the house of p.w.1 for that night and on the next day morning, they got the dead body buried.5. there has been a rumor in the village that the accused killed the deceased. p.w.1 having heard it from the villagers went to the police station and lodged ex.p1 report with p.w.8. the s.i. of police who registered the case as crime no. 47/95 under section 174 of the code of criminal procedure and issued ex.p16-f.i.r.6. on 13-9-1995 on the date of incident, p.w.2 and somaraju noticed the accused coming from the side of the fields of mazeed khan towards which the deceased had earlier gone. the accused enquired p.w.2 about the catching of the fish. after that enquiry, the accused went towards his house.7. on 14-9-1995 there was a rumour in the village about the death of the deceased. p.w.3, who is the elder of the village, along with other elders of the village, started enquiring into the matter. they summoned the accused and when questioned in the village panchayat, the accused admitted about the offences.8. on 17.9.1995 on a requisition given by p.w.8, the s.i. of police, p.w.7 the mandal revenue officer came to kondal village, got the dead body exhumed and held inquest over the dead body of the deceased. during the course of the inquest, he examined the witnesses and recorded their statements. he also questioned the accused about the offence when, it is said, that the accused made a confession about the offence. p.w.7 recorded the statement of the accused in ex.p13. after the inquest, ex.p2 inquest report was drafted there. at the same time, photos of the dead body were got taken by p.w.59. p.w.9, the inspector of police visited the village at about 10.30 a.m., on 17.9.1995 and took up investigation of the case. on a requisition given by p.w.6 the assistant civil surgeon, eturunagaram came and conducted autopsy over the dead body of the deceased at the grave itself. during the course of the pot-mortem examination, p.w.6 noticed a contusion in front the neck measuring about 14 x 6 cms. p.w.6 preserved viscera and other parts and sent for examination by the forensic science laboratory. after receiving the report, p.w.6 gave final opinion besides ex.p8, post-mortem report. according the doctor p.w.6, the deceased would appear to have died due to pressure over the neck of the deceased.10. the accused led p.w.9 and others to the scene of offence and showed the place to the investigating officer whereat, it is said, that p.w.9 recovered m.o. nos. 1 and 2.11. eventually p.w.9, after completing investigation, laid the charge sheet.12. as aforesaid, the prosecution examined as many as nine witnesses and got exs. p1 to p20 and m.os.1 and 2 marked. none was examined on the side of the accused when called upon to enter upon his defence and no documents were got marked.13. considering the evidence, both oral and documentary, adduced on the side of the prosecution and having heard either side, the learned sessions judge found the accused guilty of all the charges levelled against him and in sequel thereto convicted him for the said offences and sentenced him to suffer imprisonment for life for the offence punishable under section 302 of the indian penal code, rigorous imprisonment for five years and rigorous imprisonment for three years on the other two charges under sections 376 read with 511 and 201 of the indian penal code.14. having been aggrieved by the said conviction and sentences passed against him, the appellant filed the present appeal.15. sri c. padmanabha reddy. learned senior counsel appearing for the appellant, contends that the circumstances enumerated in this case by the learned sessions judge, either individually or cumulatively, are not sufficient to some to an irresistible conclusion about the guilt of the accused. learned counsel further contends that the confession said to have been made by the appellant before p.w.3, before the elders and before the mandal revenue officer are not admissible and, at any rate, they are not sufficient to conclude decisively that the accused and the accused alone was responsible for the death of the deceased.16. the case rests only upon circumstantial evidence, since there is no eyewitness account in this case. the circumstances appearing and emanating from the record are that (1) the accused was seen corning from the side to which the deceased had gone one hour earlier thereto, (2) the accused admitted the offence before p.w. 3 when questioned by him, (3) the accused made a confession before the panchayatdars who recorded the panchanama in ex.p4, (4) the accused made a confession before p.w. 7, the mandal revenue, officer who recorded his statement in ex., p13 and (5) recoveries of m.o. nos. 1 and 2 by p.w. 9 at the instance of the accused.17. it is now to be seen how far these circumstances, which are emanating from the record are proved and, if proved, sufficient to constitute the necessary chain pointing out unerringly the guilt to the accused and the accused and the accused alone.18. out of the five circumstances, the first circumstance is no circumstance at all. even if it is held to be proved to the hilt, that carries us nowhere and cannot be considered as a circumstance which is quite incriminating against the accused.19. coming to the second circumstance that the accused said to have admitted the offence before p.w. 3, there is the evidence of p.w.3 who deposed that he came to know at about 12 noon about the involvement of the accused and thereupon convened a panchayat on the same day in which, according to this witness, it is said that the accused admitted the offence. the other elders who were said to have been present at the panchayat have not been examined in this case. p.w.1 is the father of the deceased, who lodged the f.i.r ex.p.1 before the police. according to his evidence, on 14.9.1995 when he heard about the rumour in the village that the accused killed the deceased went to the police station and lodged the f.i.r. this was on 15.9.1995 according to the witness. it is now contended by the learned senior counsel that according to the evidence of p.w. 3, there was a panchayat which was attended to by a number of persons whereat the accused made a clean breast of the offence. it would have been known to p.w.1, the father of the deceased and, therefore, it was legitimate to expect p.w. 1 to have mentioned the same in the report before the police. we see sufficient force in the contention of the learned counsel. the way in which p.w.1 reported the matter to the police shows that there could not have been such a panchayat held as claimed by p.w. 3. there has been no whisper in the entire evidence of p.w.1 about this panchayat. under the circumstances it is difficult to believe the evidence of p.w.3 when he said that in the panchayat, the accused admitted about the offence before all the elders. for the foregoing reasons, the second circumstance is held not proved beyond all reasonable doubt.20. coming to the third circumstance that the accused said to have made again a clean breast of the offence in the presence of panchayatdars who, it is said, recorded the same in ex.p.4 panchanama, recorded on 17.9.1995 at 11.00 hours. it is clear from this document that at that time the c.i. of police and s.i. police of eturunagaram were also present. therefore, this evidence which is said to have been made by the accused before the panchayatdars was obviously in the immediate presence of the investigating officers, namely the s.i. of police and the c.i. of police in this case. that takes away the efficacy of the statement and it is hit under section 26 of the indian evidence act. therefore, ex.p.4 is not admissible per se. under the circumstances, this circumstance is not at all available to the case of the prosecution.21. apropos the fourth circumstance that the accused made a confession before the mandal revenue officer, p.w.7, who is the executive magistrate, in ex.p13 confessional statement, this circumstances is got to the examined with reference to the attending circumstances. p.w.7, who received the requisition from the investigating officer on 17.9.1995, visited the village so as to conduct inquest over the dead body of the deceased. in the chief examination, he categorically deposed that he along with the village administrative officer proceeded to the village by which time the villagers and the accused were present and later police also came to the village. he further stated that he made enquiries from the villagers about the incident who gave the statements recorded by him in exs.p.11 and p12. he further deposed that he enquired the accused about the offence and the accused is said to have confessed about the offence which was recorded by him in ex.p.13. down below in the chief examination, the witness further stated that the police also questioned the accused and recorded his statement in ex.p4. however, in the cross examination it was elicited from this witness that he recorded the statements of the witnesses as well as the accused before the arrival of police. he stated that the police came to the village at 10.30 a.m. thus, a confusion seems to have been created by this answer in the cross examination elicited from the witness. ex.p20 is the requisition given to this witness by the s.i. of police. this requisition was given on 17.9.1995. obviously, after having received the requisition from the police, he visited the village for the purpose of getting the body exhumed and to conduct inquest thereon. the witness had also given the office timings. therefore, it is legitimate to conclude that he must have reached the village after 10-30 a.m., after having received ex.p.20 during office hours. from this documentary evidence, we are of the clear opinion that the police were present at the time when the proceedings were conducted by the mandal revenue officer as deposed by him in the chief examination certainly it could not have been at 8.00 a.m., as stated by him in the cross examination, as he could not have been there by that time.22. now, in view of this evidence coming forth from p.w.7, who is the executive magistrate, what is the importance that can be attached to ex.p.13 statement, said to have been recorded by this witness from the accused, has to be examined. ex.p.13, from the foregoing discussion, has been recorded by p.w.7 in the immediate presence of the police. section 26 of the indian evidence act ordains that no confession made by an accused while in custody of a police officer, unless it is made in the immediate presence of a magistrate, shall be proved against him. on a plain reading, section 26 of the indian evidence act does not inhibit ex.p.13 statement recorded by p.w.7 from the accused. p.w.7 is admittedly the executive magistrate, upon whom judicial powers have been conferred. however, the apex court in zwinglee ariel vs . state of m. p. : air1954sc15 held that the statement made by an accused in the immediate presence of a magistrate halted by the police, when it was not recorded in the manner laid down by section 164 of the code of criminal procedure is not admissible. pare 13 of the judgment is apposite here to be considered and may profitably be extracted hereunder thus:' the two magistrates, however, did not refer to any such conduct. the conduct being thus out of the way, it is clear that the appellant's statements in reply are not admissible at all under s.8, evidence act. if these alleged statements are to be regarded as confessions then they will be hit by s.25, evidence act for they were made to pande, the police officer, who was there. if they are sought to be brought in under section 26 as confessions made in the immediate presence of the magistrate, then also they will not be admissible in evidence in that they were not recorded by the magistrates in the manner prescribed by s.164, criminal p.c.'23. the judgment of the apex court stood the test of time since there has been no other judgment after that, which says that the statement said to have been made by an accused to a magistrate which has not been recorded in accordance with the procedure laid down under section 164 of the code of criminal procedure in inadmissible under section 26 of the indian evidence act. in view of the authoritative pronouncement of the apex court, ex.p.13 statement is not admissible in evidence. therefore, even this circumstance is not available to the cases of the prosecution.24. as regards the recovery of m.o. nos. 1 and 2 the circumstance lost its significance since that place was visited by several villagers prior to the said recovery said to have been made by the investigating officer including p.w.1, the father of the deceased. therefore, this is no circumstance at all in our considered view. 25. from the foregoing discussion, we are of the clear view that the circumstances which are emanating from the record are not at all sufficient to draw the necessary inference which is consistent with the guilt of the accused and the cumulative effect of all these circumstances cannot, in our view, unerringly point out the guilt to the accused and the accused alone. the prosecution thus miserably failed to establish the guilt against the accused.26. in the result, the appeal is allowed. the conviction and sentence passed against the appellant are hereby set aside. he shall be set at liberty forthwith, if he is not concerned in any other case.