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CASE NO.: Appeal (crl.)  838 of 2002

PETITIONER: Golakonda Venkateswara Rao                                       

RESPONDENT: Vs. State of Andhra Pradesh                                          

DATE OF JUDGMENT: 01/08/2003

BENCH: DORAISWAMY RAJU & H.K.SEMA.

JUDGMENT:

J U D G M E N T

SEMA,J.

       The appellant was put to trial for an offence punishable under  Sections 376, 302 and 201 IPC before Sessions Judge, Krishna Division at  Machilipatnam in Sessions Case No 110 of 1998.  After the trial, the learned  Sessions Judge found the appellant not guilty under Sections 376 and 201  IPC and he was accordingly acquitted of the charges under the aforesaid  Sections.  The learned Sessions Judge, however, found the appellant guilty  under Section 302 IPC and sentenced him to undergo imprisonment for life  and also to pay a fine of Rs.100/- and in default to undergo simple  imprisonment for one month.  The conviction and the sentence recorded by  the learned Sessions Judge were confirmed by the High Court by the  impugned judgment under challenge.                     Briefly stated the facts leading to the filing of the present  appeal are that the appellant, a resident of Sultanagaram and a neighbour of  the deceased â\200\223 Devanaboyina  Lakshmi, stated to be a minor girl aged 15-16  years accosted the deceased about  two months prior to the incident on  14.7.1996. It is stated that the deceased went to graze goats at water canal  bund.  The appellant noticed the deceased going towards the water canal  bund, followed her, and began to talk with her with an evil eye.   This fact is  stated to have been witnessed by PW-5 Sala Ankamma.  It is also stated that  having found no one present around the area, the appellant caught the  deceased, dragged her to a nearby unused shed, gagged her mouth and  committed rape on her against her will.  It is also alleged that all the  resistance put up by the victim girl went in vain and the accused over- powered the girl.  It is further disclosed, in the process of struggle the upper  and inner langa of the deceased were torn.  When the appellant left the  deceased alone and was about to part from the place of occurrence, the  deceased allegedly was said to have told the appellant that she would bring  the matter to the notice of villagers and police.  Being frightened by this  disclosure, it is alleged, the appellant chased her, caught her and threw her  into the well situated in the northeastern corner of the dibba.  The appellant  also kept a stone in the well so as to prevent the body from floating and also  put some caveltry creepers (Guprapu Dekka) with an intention to hide the  offence.  It is also alleged that the appellant had buried the torn clothes of  the deceased.  Since the deceased did not return by the evening, her kith and  kin started searching for her without any result.    Finally, PW-1 (author of  FIR and foster father of the deceased), to whom the deceased was given in  adoption by PW-2, came to know through PW-5 Sala Ankamma that two  months prior to the date of missing i.e. 14.7.1996 she noticed the appellant  talking with the deceased. Upon this information being given, PW-1  approached the village elders, one of whom, Rajarao was examined as PW- 4.  On being asked by the village elders the appellant allegedly confessed the  guilt of committing rape on the deceased and throwing her into the well.  It  is only after this information, PW-1 lodged the FIR (Exhibit P-1).  In course

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of investigation the prosecution examined as many as 12 PWs and marked  Exhibits P-1 to P-29 and M.Os. 1-8.  None of the DWs were examined on  behalf of the appellant.  He, however, pointed out three contradictions in the  evidence of PW-5 marked Exhibits D-6 to D-8.  After the conclusion of the  trial, the learned Sessions Judge found the appellant guilty as noticed above.                    Undisputedly, there is no eyewitness to the occurrence and conviction  of the appellant is solely based on the circumstantial evidence.          The learned Sessions Judge, and in our view correctly, has formulated  the following circumstantial evidence appearing against the appellant on  appreciation of evidence: (i)     "The identity of the deceased was established; (ii)    The deceased was last seen in the company of the accused; (iii)   The accused made an extra judicial confession before P.W.4 and  another village elder to the effect that he committed rape on the  victim, killed her and threw her in the well;

(iv)    Recovery of the articles and skeletal remains of the deceased pursuant  to the disclosures of the information furnished by the accused himself;  and  

(v)     The accused failed to adduce any evidence to the contra to prove the  so-called oblique motive of P.Ws. 4 and 6 to implicate him in a false  case nor state anything mitigating in his Sec.313 Cr.P.C. a false  wholesale denial."  

The learned Sessions Judge having regard to and after considering the  evidence on record and exhibits found circumstances nos. 1, 2 and 4 well  established against the appellant.                By now it is well settled principle of law that in cases where the  evidence is purely circumstantial in nature, the facts and circumstances from  which the conclusion of guilt is sought to be drawn must be fully established  beyond any reasonable doubt and such circumstances must be consistent and  unerringly point to the guilt of the accused and the chain of circumstances  must be established by the prosecution.          Mr. Mahendra Anand, learned senior counsel, vehemently submits  that the prosecution has not established the aforesaid circumstances  appearing against the appellant beyond all reasonable doubts.  It is his  contention that the identity of the deceased was not established beyond all  reasonable doubts inasmuch as the Assistant Director (F.S.L), who issued  Exhibit P-29, was not examined.  Undisputedly, Exhibit P-29  Superimposition Report was sent to the Regional Forensic Science  Laboratory, Vijayawada.  The Assistant Director, who issued Exhibit P-29  certified that the skull in item 1(one) could have belonged to the person in  the photograph in item No.2(two). Court would not be oblivious of the fact  that the identity of the deceased was got tested by superimposition of the  skeletal remains of the deceased conducted with reference to the photograph  of the deceased.  PW-12 deposed that he had sent the photograph of the  deceased for superimposition test by the Forensic Science Laboratory,  Hyderabad.  PW-7 Dr.S.Rama Brahmam, conducted the post-mortem  examination of skeletal remains (Exhibit P-7).  In the said report he gave the  age of the deceased between 15 â\200\223 16 years based on his medical knowledge.    PW-9 Dr.P.Vijaya Kumar, a professor and scientist, working in the forensic  laboratory examined the skeletal remains in the court and stated that they  showed the feminine characteristics and the age of the person concerned  would be around 15 to 16 years.  This apart, Exhibit P-9 is the opinion of the  forensic expert which also makes it abundantly clear that the skull belonged  to a human-being of female sex aged 15 or 16 years.  In the facts and  circumstances stated above, we have no doubt in our mind, that the identity  of the deceased is well established beyond all reasonable doubts and non- examination of Assistant Director who issued Exhibit P-29 would itself  throw away the otherwise reliable and trustworthy evidence of PWs 7, 9 and  12.  We have no reason to take a view different from the view taken by two  courts concurrently.             The next contention of Mr. Anand, learned senior counsel, is that last  seen of the deceased with the appellant by PW-5 has not been established by

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convincing evidence having regard to the discrepancies appearing in the  testimony of PW-5.  It is the contention of the learned counsel for the  appellant that in the FIR lodged by PW-1 (Exhibit P-1) it is stated that two  months prior of her death she was missing and this information was given to  them by PW-5 Sala Ankamma that about 11.00 A.M. she saw the deceased  talking with the appellant at Puranamvari Cheruvu whereas PW-5 Sala  Ankamma when examined before the Court has stated as under:- "The deceased died about 3 years ago.  The deceased was  found missing 3 months prior to her death.  At that time  at about 3-00 P.M., I had been to canal bank for  collecting firewood.  There I found the accused and the  deceased talking with each other.  I told the fact of seeing  the accused and the deceased talking with each other two  months ago to the parents of the deceased."    Learned Counsel contended that there is discrepancy in Exhibit P-1  and in the statement of PW-5 between 3 months and 2 months and also  11.00 A.M. and 3 P.M.  Apart, the discrepancy as pointed out is not of a  substantial character which would throw out the prosecution story, as  unbelievable. The fact remains that the incident said to have occurred on  14.7.1996 and PW-5 was examined on 23.5.2000 after a long gap of four  years be taken note of.   It is not expected from a rustic village woman to  have remembered the incident that had taken place after a lapse of four years  with mathematical precision.  It is but quite natural that human memories are  apt to blur with the passage of time.  This witness subsequently had admitted  that she does not remember the day on which the appellant and the deceased  were talking to each other but she however reaffirmed that they were talking  to each other sitting at the place.  The fact remains that PW-5 last saw the  deceased and the appellant together and this fact has not been demolished  and remains unimpeached.   The appellant, as already noticed, brought to the  notice of the Court three contradictions in the evidence of PW-5 marked as  Exhibits D-6 to D-8.  Exhibit D-6 is with regard to contradiction in the  evidence of PW-5 that PW-5 saw the deceased last being in the company of  the accused three months ago whereas in Exhibit P-1, PW-1 has stated that  the deceased was found missing only two months prior to the discovery of  death.   Exhibits D-7 and D-8 relate to the contradictions in the statement of  PW-5 which suggest that her mother, herself and her sister happened to be at  the place of incident whereas in her cross-examination she stated that she  alone had seen the deceased and the accused together at that point of time.   We have gone through the contents of Exhibits D-6 to D-8 which have been  placed on record and we are in full agreement with the concurrent finding of  two courts that the contents of Exhibits D-6 to D-8 do not relate to PW-5   having seen the deceased and the appellant together.  Therefore, Exhibits D- 6 to D-8 do not in any way detract from the truth of the assertion of PW-5  that she alone had seen.   The trial court has not placed reliance on the extra  judicial confession while convicting the appellant.  This question, therefore,  do not detain us any longer.                   The next important circumstance, which weighed with the trial  court to base the conviction, is the recovery of MOs 1-8 at the disclosure  statement furnished by the accused.  The recovery of MOs is preceded by  the disclosure statement made by the appellant (Exhibit P-2) which is in his  mother tongue (Telgu).  The disclosure statement given by the appellant is  carved out from the mediator’s report.   The translated version of admissible  portion quoted by the learned Trial Judge reads as follows:- "If you come with me, the day how Lakshmi was raped  at the bank of Puranam Lake and how Lakshmi was  forcibly thrown in the well and killed and at that place in  what clothes she was and which Lange (Paiticot) she  wear and Lange’s pieces were digged and close down in  the earth and that place I can show as he saidâ\200¦"               (It is stated in the court that translation is not happily drafted)

       Section 27 of the Indian Evidence Act provides that only so much of  the information as distinctly relates to the fact thereby discovered is

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admissible.  In the instant case the recovery (Exhibit P-2) was made on the  basis of the disclosure statement furnished by the appellant.  The disclosure  statement (Exhibit P-2) is proved by the mediator examined as PW-6 who is  the village Administrative Officer and also the Inspector of Police examined  as PW-12.  PW-6 has stated that on the basis of disclosure statement  (Exhibit P-2) the accused led the party to a place called "Purnamvari Dibba"  where they found a dilapidated tin roofed shed and a well.  From inside the  well hair, hairpins, bangles were recovered and the police seized those  articles under the cover of Ext.P-3. M.O.3 is the hair, MO.4 is the cement  pole piece MO.5 is the bones.  Then the accused led the party to a spot  behind the tin roofed shed.  The accused then dug out and unearthed the  piece of langa. M.O.6 is the piece of blue langa and M.O.7 is the pieces of  green langa.  MO.8 is the pieces of mithai coloured langa.         PW-12 arrested the appellant and questioned him.  He stated that on  being interrogated in the presence of PW-6 the appellant offered to show the  place of occurrence and also where the dead body was thrown.  He also  offered to show the clothes of the deceased.  Pursuant to the disclosure, he  took the party to the well and disclosed that the body had been thrown into  the well where there was a water level of 6-1/2 feet and with the help of  swimmers the body was recovered from the well marked as M.O.3 and  M.O.5 i.e. hair and skeletal remains respectively.  They also recovered white  plastic bangles and M.O.1 Jacket.  They also recovered cement pole piece  (survey stone) M.O.4.  The said stone stated to have been kept to prevent the  body from floating.  He further stated that the accused then led them to a  place towards western side of nearby shed and dug out a spot from where  pieces of langa were retrieved marked as MO2, MO-6 and MO-8.         PW-3, who is no other than the foster mother of the deceased has  stated that when the deceased left the house for the last time she was  wearing clothes MO.1 and MO.2.  It is a matter of common knowledge that  women have an inherent sense of identifying the wearing apparels of their  daughters who are attached to the mother, particularly commonly attire worn  by them in the house.  We have no doubt in our mind, therefore, that  wearing apparels of the deceased dug out from the place at the disclosure of  the appellant and identified by PW-3 are the wearing apparels of the  deceased at the time she left the house and subsequently missing.          Learned counsel for the appellant, contended that the disclosure  statement and recovery of the articles is doubtful and no reliance can be  placed on such disclosure statement and recovery of the MOs.  He further  contended that the materials recovered were not sealed by the police.   Hairpin and bangles said to have been recovered were not produced before  the Court and these circumstances will make, all the more. recovery  doubtful.  Counsel relied on the decision of this Court rendered in  Jackaran Singh vs     State of Punjab (AIR 1995 SC 2345), wherein   in paragraph 8 at page SC 2347, it was pointed out that the disclosure  statement inspires no confidence because none of the two panch witnesses  Yash Pal and Sukhdev Singh have been examined at the Trial and secondly  because the disclosure statement does not bear the signatures or the thumb  impression of the appellant and also the recovery memo does not bear the  signatures or thumb impression of the accused. Every case has to be decided  on its own facts.   The facts of that case do not fit in the facts of the case at  hand.  In the present case as already noticed PW-6 and PW-12 were  examined to prove the disclosure as well as the recovery pursuant to the  disclosure statement of the appellant.  In the instant case, while it is true that  neither the disclosure statement nor the recovery memo bear the signatures  of the accused but the fact remains that pursuant to the disclosure statement  MOs have been recovered from the well and dug out from a place which is  pointed out by the appellant leaves no manner of doubt that the recovery of  MOs has been made on the basis of voluntary disclosure statement.  In  Jackaran Singh’s case (supra) the recovery memo Ex.P.9/A relates to  revolver and the cartridges.  There the appellant had denied the ownership of  the crime revolver and the prosecution had led no evidence to show that the  crime weapon belonged to the appellant.  The observation of this Court was  in that context. In the instant case, as already noticed, the recovery is  pursuant to the disclosure statement offered by the appellant.  The fact that  the recovery is in consequence of the information given is fortified and

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confirmed by the discovery of wearing apparel and skeletal remains of the  deceased which leads to believe that information and the statement cannot be  false.          The provisions of Section 27 of the Evidence Act are based on the  view that if a fact is actually discovered in consequence of information  given, some guarantee is afforded thereby that the information was true and  consequently the said information can safely be allowed to be given in  evidence because if such an information is further fortified and confirmed by  the discovery of articles or the instrument of crime and which leads to the  belief that the information about the confession made as to the articles of  crime cannot be false. (See S.C.Bahri     vs.   State of Bihar, (AIR 1994 SC  2420 at page  SC 2448).  As already noticed M.O.3, M.O.4 and M.O.5 were  retrieved from the well with the help of swimmers, as there was a water level  of 6-1/2 feet.  MO.2 MO.6 and MO.8 are the pieces of langa dug out and  unearthed at the disclosure of the appellant.  These materials were not found  lying on the surface of the ground but they were found inside the well, which  is 6-1/2 deep of water, with the help of swimmers and were found after  being dug out and unearthed only after the place was pointed out by the  appellant. It is not found from the place where public can have free access.   Therefore, there is no reasonable apprehension with the material exhibits  being planted to rope in the appellant with the crime.                                    Mr. Anand next contended that the Investigating Officer PW-12  did not have fixed the Lac seal on the particulars so recovered and no  evidentiary value can be attached to the recovery.  We are unable to  countenance with the contention of the learned counsel because no where in  the statement of PW-12 he has stated that he has not fixed a seal on the  material so seized.  This question was also not put to PW-12 in his cross- examination.  At the same time PW-6 has stated that the police took away all  the articles seized along with them one hour after completing Ext.P-3.  In  Ext.P-3 there is a mention about the pieces of langa being packed there itself  and affixing the chits with the signatures of the mediators on that packet.            Lastly, it is contended by Mr. Anand that hair pins and bangles so  recovered at the disclosure statement of the appellant were not produced  before the Court.  Non-production of hairpins and bangles before the Court  would not by itself disclose tampering of evidence with regard to the  recovery of MOs inasmuch as MOs 1-8 as noticed above have been proved  beyond all reasonable doubts.  Non-production of hairpins and bangles  before the Court during the course of trial in the facts and circumstances as  aforestated become inconsequential.  No prejudice also seems to have been  caused to the appellant for non-production of hairpins and bangles.  

       For the aforestated reasons we do not find any infirmity in the order  under challenge.  The appeal, therefore, fails and stands dismissed.