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PETITIONER: MANGAMMA AVVA ALIAS NESE YESODAMMA & OTHERS

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT21/03/1995

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. REDDY, K. JAYACHANDRA (J)

CITATION:  1995 SCC  Supl.  (2) 434 JT 1995 (3)   447  1995 SCALE  (2)600

ACT:

HEADNOTE:

JUDGMENT: PUNCHHI, J.: 1.   This  appeal  by special leave is directed  against  an affirming  judgment  and order of a Division  Bench  of  the Andhra  Pradesh  High Court dated June 23,  1983  passed  in Criminal Appeal No.992 of 1982. 2.The three accused appellants are inter-related.  A-1   and A-2  are  sisters,  while A-3 is the husband  of  a  younger sister  of  the former two.  A-1  and  A-2  were  originally residents  of Village Thuggili.  Thereat A-1  was  known  as Nese Yashodamma, the name given to her by her parents.   She became  a Digambara Sanyasni and assumed the  name  Mangamma Avva  and  on  assumption of that  order  started  remaining naked.   It  was believed in certain quarters that  she  had thereby  come to possess some miraculous powers.   While  so she  became controversial and had to move over to  establish an  Asharam  within the revenue limits  of  another  Village known  as Hulabeedu.  Her sister A-2, Savitramma became  her resident  companion.  At a distance of about 200 yards  from the  Asharam  was a temple on a hillock  which  somehow  got linked  with  the  Asharam.   A-3  named  Pullanna,  was  an occasional  visitor to the Asharam.  The Asharam used to  be visited  by devotees regularly but special Puja and  Bhajans were undertaken on every Tuesday and Friday, when the number of visit- 450 ing  devotees  would swell.  The visiting devotees  used  to make offerings in the form of cash or gold ornaments to  the Sanyasini. 3.The deceased, Ramakoti Reddy, a young bachelor, then  aged about  28 years had been a devotee for over five  years  and was more than ordinarily involved in the upkeep and  running of the Asharam.  Descriptively he was suggested to be a tall and  hefty man of 5 feet 10 inches height.  As part  of  the ritual  on  every  Tuesday and Friday he  would  be  in  the Ashram,  having come from his village  Yellarathi  (distance

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about  10 miles) and would carry A-1 on his  shoulders  from the Asharam to the hilltop temple, covering about 200 to 250 yards in distance.  After performing the Puja at the temple, he  would  likewise carry A-1 back on his shoulders  to  the Asharam. As    a  part of his involvement, he took stock  of the  offerings  received  in  the form  of  cash  and  gold. Sometimes hc would convert the cash into gold and  sometimes pawned gold to get cash in order to meet the expenses of the Asharam,  which included serving free food to the  devotees. Thus  being involved in the activities of the  Asharam,  the deceased  often used to stay during nights thereat.   It  is alleged  that  the deceased had developed  a  close  illicit relationship  with A-2, as he would normally sleep with  her in  one of the rooms in the Asharam.  He had otherwise  been known to be moving in the company of A2 to various places in connection with the affairs of the Asharam.  It was also al- leged that sometimes A-1 too would join the deceased in that separate  room giving rise to the suspicion of  her  illicit intimacy  with the deceased.  Both A-1 and A-2, as it  turns out to be, were unmarried. 4.   The  motive  for the crime was suggested to  be  sexual jealousy.  The prosecution alleges that the deceased was re- jecting  suggestions of his father and brother  in  settling down in marriage, because he was under the influence of  A-1 and A-2.  It was suggested that he was more in servitude  of A-1 and A-2, in as much as, he was instrumental in arranging and  helping  perform the marriage of one of  their  sisters with  A-3.   It  appears  that the  family  members  of  the deceased  were  ultimately able to prevail upon him,  and  a couple of months earlier to the date of the occurrence,  his marriage  was settled with the sister of P.W.3  whose  other sister was settled to be married with the younger brother of the  deceased.   Both  the marriages were  scheduled  to  bc performed  on  May 15, 1981.  On these developments,  it  is alleged, jealousy and frustration got aroused in the  hearts of  A-1 and A-2 bccause the deceased had given them a  tacit understanding that hc would keep A-2 as his mate, and  would not marry another women.  It was feared by A-1  and A-2  and that  his marriage was expected to dwindle his  interest  in these  accused persons (A-1 and A-2) and in the  affairs  of the  Asharam, in the running of which he had a  major  hand. Besides  they had become concerned about the jewels  of  the Asharam which hc had pawned to others, the identity of  whom was  not known to the accused, let apart the detail  of  the ornaments  and  the terms of those deals.   They  were  thus concerned for the return of those jewels and the  accounting of the financial affairs of the Asharam before the  deceased entered into marriage.  It was further alleged that deceased since  the day of his engagement was avoiding to  visit  the Asharam and, whenever he did, it was with a waned interest. 451 5.   The deceased met his death on the night intervening May 11-12, 1981.  His deadbody was found lying on the  following morning  about  200 yards away from the Asharam.  It  was  a Tuesday  and the visiting devotees saw it.  The news of  the death  of the deceased spread and it is in this manner  that P.W.7  the brother of the deceased came to hear of  it.   He and his father and several other people of the village  came to  the Asharam on a bullock cart reaching there at 3.00  pm on 12-581, having covered a distance of about 10 miles  from their village.  PW.7 observed. as was observed by others,  a ligature  mark  around the neck of the deceased.   Ile  also found  that the testicles of the deceased had been  squeezed and they bore a bleeding injury.  There was feacal matter on the  dhoti  of the deceased.  A bed sheet, a red  towel  and

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certain other things were lying close-by.  They went to  the Asharam  and  questioned A-1 and A-2, as  also  their  maid- servant PW1, about how had the deceased been killed.   While A-1  gave  them  an abusive reply  the  other  two  remained silent.   He did not pursue conversation with them and  went to the bus-stop of the village in order to go to the  police station.   There he learnt from the general gossip that  his deceased brother accompanied by A-3 had alighted from a  bus there  the previous evening and had gone thereafter  to  the Asharam.   He then went to Alur and reported the  matter  at the Police Station by giving a written complaint Ex.P.3. 6.   In Ex.P.3, the first informant P.W.7 gave out that  his brother,  the  deceased, and Pullanna A-3 were  reported  to have alighted from a bus from Adoni at Hulebeedu and that he had  come to know that his brother had been murdered.   Fur- ther than he went there and found his brother lying dead  at a  distance of about 200 yards west of the Asharam and  that there were injuries on his- person such as ligature marks on his  neck and the bleeding of testicles.  After giving  more such  details he mentioned that he had found present in  the Asharam  A-1, A-2 and their maid servant P.W. 1. He did  not mention about the enquiries he made from them as to how  the deceased had been killed, and the reply of A-1.  He did  not raise any suspicion therein about the involvement of A-1 and A-2  in the crime.  He suggested that in his  village  there was bitter party faction between his father’s family and one Basanna Gowd, Ex-village Munsif of the village, and that one Rawoof  Sab  was  supporting the latter.   As  a  matter  of detail,  he mentioned that hostile party men had  been  seen moving  about  together for the last two days and  that  his father  had  warned  the deceased,to  be  careful,  but  the deceased  was  not impressed by the  warning.   Concludingly P.W.7  mentioned : "Therefore, the above  mentioned  persons brought  my  brother through Dhone Pullanna  and  conjointly killed my brother. ...... I request you to take action." 7.   The  police, thus set in motion, arrived at  the  situs where the deadbody was lying, in the evening around 8.00  pm on  12-5-81.  Certain preliminary checks were made  and  the deadbody  was left guarded.  The Inquest was postponed  till the  next morning.  The Inquest suggestedly started at  6.00 am  on 13-5-1981 and closed at 8.00 am on the same day.   It was  during  this  while that PWI,  the  maid  servant  came forward  to  claim  that she was a  direct  witness  to  the offence.  In the relevant column of the Inquest, mention was made  that from the shirt lying close-by a four-page  letter was found in its pocket, which was got 452 written  by A-1 to the deceased.  Significantly this  letter was  not  claimed either t have been written by A-1   or  to have been signed or thumb marked at all by anyone, much less A-1.  It was not disclosed therein as to who was the  scribe of the letter. 8.   At this stage it would be appropriate to take stock  of the  evidence of PWI as given by her at the trial.  She  has been  believed by both the courts below and  the  conviction rests  mainly  on her evidence.  Since she spoke  about  the incident to the police only on 13-5-81, at a belated  stage, and not at the first instance when questioned by PW.7 in the afternoon of 12-581, before his going to the police station, or  on the arrival of the police in the evening that day  it would be appropriate to take into consideration her evidence once again, over and above the consideration it has received by the courts below. 9.   According to her she comes from the     village of  A-1 and A-2.  At the time of the  occurrence she was 25 years of

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age, and  an  abandoned  wife.  She had been  working  as  a coolly till a year prior thereto when she joined A-1  and A- 2  as their servant and started living in the Asharam.   She has stated about the existence of the temple at the hillock, and the Asharam situated below at level ground.  She has de- scribed  the  activities  of the  Asharam  and  the  special interest  which the deceased had in its affairs, details  of which  have  been given in the  earlier  introductory  para- graphs.  She claims to be positive that the deceased and A-2 had illicit relations because of their sharing the same room to  sleep, which occasionally was visited by A-1 also.   She has  also  talked  about the deceased carrying  A-1  to  the hillock  and  his bringing her back on his  shoulders  in  a naked  condition.  She has spoken to the manner  of  dealing with  the collections and offerings and the purpose  of  his pledging and buying gold.  She sums it up by saying that  if Ramakuti  Reddy  (deceased) was not there, it would  not  be possible  to continue the Asharam.  In a nutshell,  she  de- scribed  the  deceased to have become indispensable  to  the Asharam. 10.Now with regard to the actual occurrence PW.  1 says that on  Friday morning, four days prior to the  occurrence,  she had  gone uphill to the temple where she found A-1  and  A-3 sitting  in  the  temple and A-3 writing  something  to  the dictation  of A-1.  A-2 was close by.  Having  observed  her seeing what.  A-1 and A-3 were doing, A-2 admonished her  to go away from there as she had no business to be around.   On that  day she was certain that the deceased had not come  to the  Asharam.  The devotees who had come had done  the  Puja and  had  been  served food, whereafter they  had  left  the place.  However A- 3 had visited the Asharam that day and by the  evening  he  too had left.   He  returned  on  Saturday accompanied by her brother, the latter having come to invite her for their sister’s marriage scheduled to take place  the following  Friday.  She claims to have sought permission  of A-1 and A-2 to go for the marriage but she was told that she could go for the purpose on the following Thursday.  On  the next  morning  i.e. Sunday both A-3 and the brother  of  PWI went  away.  On Monday evening A-3 came back accompanied  by the deceased.  They were served food.  While taking food PWI heard  some  argument going on between the accused  and  the deceased  about the proposed marriage of the deceased,  when the deceased had lived with A-1 and A-2 for so much time and yet had decided 453 to marry another girl.  All the same, when night set in, all the five inmates of the Asharam being the three accused, the deceased  and PWI lay slept on the open platform,  adjoining the Asharam structure. 11.Now  to the actual occurrence, it was claimed by  PW.   1 that A- 1 was sleeping, on one side of the deceased and next to  him  on  the other side slept A-2 and next  to  A-2  was sleeping  PWI.  At the right angle of the four lying in  row was sleeping A-3.  Approximately at mid-night she got up  by chance  to  pass urine and having done so  returned  to  her place.  While not yet asleep, she noticed A-3 slowly opening the door of the Asharam and then bringing from inside a coir rope  about 11/2 yards in length, about one inch thick.   At that  time the deceased was sleeping on his back  with  face upwards  towards  the sky.  While so, A-3 was said  to  have passed  the  rope underneath the neck of deceased so  as  to catch the end of the passed rope, catching both ends in  his hands.   Co-ordinatingly, it was said, that A-1 sat  on  the chest  of the deceased catching hold both his hands and  A-2 sat  on his legs catching hold of his  testicles,  squeezing

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them;  A-3  tightening  the  rope around  the  neck  of  the deceased.   After some struggle the deceased met his  death. Thereafter a white-stoned gold ring was removed by A-2  from the  finger  of  the deceased.  A-2  also  removed  all  the contents  of pocket of the shirt of the deceased  which  was lying close by, taking the contents inside the Ashram  room. Thereafter  it is alleged that one hand of the deceased  was caught by A-1 and the other by A-2, while both the legs were caught hold of by A-3.  Jointly they lifted and carried  the deadbody,  occasionally  keeping  it on  the  ground,  to  a distance  of about 200 yards from the Asharam  building  and left it on the cart track.  There A-3 removed the rope  from the neck of the deceased and threw it on a nearby tree.  A-1 then applied turmeric and vermilion to both the hands of the deceased.  Having thereafter wiped her hands with the  towel she threw it there.  In the process, it is alleged that some of  the red bangles worn by A- 1 got broken and some  pieces got  scattered.  A-2 then went to the Asharam  building  and brought  the  shirt, chappals and cigarette  packet  of  the deceased,  keeping them near the deadbody.  A rug  was  also brought to cover the deadbody.  On return it was found  that some  feacal  matter  of the deceased  had  dropped  on  the platform,  PWI was asked by A- 1 and A-2 to clean  it.   She did so and washed the platform.  Thereafter PW.  1 claims to have  asked  all the accused as to why they had  killed  the deceased.  She in reply was asked to keep her mouth shut and warned  that  if it comes to the notice of the  police,  she will  be taken away by it.  After the deed was  accomplished and  while it was still dark, A-3 is said to have  left  the place  and went away.  The following day being Tuesday,  the expected Puja was not performed because of the death of  the deceased  as  his  deadbody  lay  within  the  view  of  the visitors.  On the arrival of the police on Tuesday night PW. 1  was not questioned.  On her part she did not volunteer  a statement.   Only  on Wednesday morning when she  was  taken near  the deadbody of the deceased, she claims to have  told the police all what she had seen and done. 12.  A-1  and  A-2  were  arrested  on  13-5-1981.  A-3  was arrested on July 1, 1981, about    seven  weeks later.   The Police  Officer arresting him showed to him the letter  said to have been got written from A-3, 454 asking  him  as to who had got written that letter.   It  is claimed  by  the  Investigation  that  A-3  admitted  having written that letter at the dictation of A- 1. The Police had asked  A-3  to  give another writing in order  to  have  his handwriting  compared  with the suggested  dictated  letter. Nothing  useful  turned ultimately on  that  second  writing because  A-3  at  the  trial  admitted  having  written  the questioned  letter but claimed that the police had  got  the same  written  under threat.  It would be worthy  of  recall that in the Inquest report nowhere was it mentioned that A-3 had  written  the  letter at the dictation  of  A-1  to  the deceased.   The  statement of PWI in the Inquest  Report  is also deficient of this detail. 13.  The  High Court describes the questioned letter  Ex.P.5 as  a  very long and rambling one, which is  more  like  the outpouring, agitated and confused mind of a "God-woman" like A-1.   The High Court has substantially translated the  said unsigned  letter in its judgment conveying to the  deceased, in a broad manner, three messages: (i)  to come, disclose and account his money dealings    and pledges of gold ornaments     to A-1  before his marriage; (ii) with  the sent money as to be added with some  more  he should redeem the ornaments and bring them to A- 1; and

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(iii)     that for the sake of his prior association in  the Asharam, he should come and receive the blessings of A-1 and collect  his  marriage  gift and possibly  Rs.  10,000/-  as presentation. 14.  This  letter the prosecution claims was to  allure  the deceased to the Asharam and it is for this purpose that the deceased  in  the  company  of  A-3  had  been  going  about redeeming the ornaments from various people within a day  or two before his death (who have been examined as  prosecution witnesses) in order to return the ornaments to A-1, and that those  ornaments  were suggestedly returned to  A-1  by  the deceased prior to his death. 15.  What  has  been  claimed by the prosecution  to  be  an allurement to the deceased to be visiting the Asharam, three days prior to his scheduled marriage, in order to  discharge his obligations towards the Asharam, cannot conclusively  be said to be clandestine in character.  The deceased may  have with  the best of his motive been led to clear account  with the Asharam and in particular with A-1.  It was not  unnatu- ral for A-1 to have trusted the deceased when he was looking after  and managing the whole affairs of the Asharam.   When his assistance and participation was withdrawn, the  Asharam affairs must have become disarrayed.  The letter Ex.P.5 does not appear to us to be conclusive on the subject, because in the first place it is not signed or thumb marked by A-1,  in the second place the Inquest report does not disclose in any manner  that  die writing was of A-3, even  though  PWI  had claimed at the trial A-3 to be its scribe, and in the  third place the strange conduct of the Police Officer arresting A- 3  to be carrying this letter till arrest on 1-7-198 1.  The plea  of  the defence that this letter was written  at  some stage  of  the investigation under threat to A-3,  or  as  a substitute to the one mentioned in the Inquest report, might well be true and in any case suggesting considerable  doubt. This  aspect of the prosecution case, seeking  to  establish sexual jealousy as the prime motivating factor, in 455 writing  that  letter  and  alluring  the  deceased  to  the Asharam, does not inspire confidence. 16.We  come back to the statement of PW 1 to test the  total case of the prosecution.  Having gone through her  statement in the light of the arguments advanced by teamed counsel and having pondered over the matter, we are of the view that  it would be unsafe to maintain the conviction of the appellants on the bare testimony of PWI.  It is noteworthy that she was a  grown  up  young  woman of 25  years  of  age,  seemingly vigilant  and alert. tier statement reveals that except  for her serving the household as maid servant no extra  pressure stood  put on her, from which it could be gathered that  she was  enslaved and could be frightened to submission to  keep her mouth shut.  Her alert eyes and cars had seen and  heard A-1 dictating a letter to A-3 and yet we do not find mention of  this  detail in the statement attributed to her  in  the Inquest   report  She  claims  that  after  the  crime   was committed,  and  before  the deadbody  was  removed  from  a platform close to the Asharam, the contents of the pocket of the shirt of the deceased lying close-by were emptied by A2, and yet we find the investigation claiming that a  four-page letter was found in the pocket of the shirt of the deceased, which  was  brought from the Asharam to be placed  near  the deadbody of the deceased.  It is ununderstandable as to  why such an incriminating document, more so when the contents of the pocket of the shirt had been removed by A-2 in the pres- ence  of A- 1 and A-3, was allowed to remain or put back  in the  pocket by A-2. seems to us that introduction of  the  1

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and  it’s recovery and it’s authorship, connect it with  the visit  of  the deceased the Asharam, was a  thoughtless  and clumsy  attempt on the part of the investigation  to  supply the motive for the crime.  We reject this piece of evidence. 17.  What  surprises  us  most  is the  silence  of  PWI  in narrating  this incident to others at the earliest  possible time.   To begin with she had the opportunity of  disclosing about the incident, if not for anything else, but to  unload herself to the devotees who had come on that Tuesday to  the Asharam  and had seen one of the most ardent of  them  lying murdered.  That apart when questioned by PW-7 she could have unloaded  her  information  before he left  for  the  Police Station or to have, accompanied him.  Significantly, in  the first information report, Ex.P.3 the presence of PW-1 in the Asharam,  finds mention.  She had the opportunity  to  speak out  then.  Thirdly when the Police arrived in the  evening, she could have volunteered her statement to the Police  much before  the  Inquest,  even  if  it  was  postponed  to  the following   morning.   That  by  itself  is   a   suspicious circumstance as to why Inquest stood postponed, specially in the  background  of  what was  stated  in  Ex.P.3.  Positive suspicion and assertion of the murder having taken place  on account  of factionalism was mentioned in Ex.P.3,  not  even remotely  suggesting  the  inmates  of  the  Asharam  to  be responsible for it.  PW.  1 making a statement the following day,  at the time of Inquest, shows  that by that  time  the investigation  had  been  successful in framing  her  to  be witness  of  the crime; the hours of the  night  intervening being sufficient for the purpose.  Further the version given by   her appears to be highly improbable and artificial. According to the prosecution because of a deep-rooted sexual jealousy A-1 hatched a plan in a cold- 456 blooded manner to kill the deceased and with the help of A-2 and A-3 executed it in a diabolical manner by  strangulating the  deceased.  P.W. 1 was after all a maid servant  and  in such  a situation it is highly unthinkable that A-1  to  A-3 would have allowed her to sleep near the scene of occurrence almost next to them and thus enable her to witness the same. On the other hand, they could have easily sent her away when she  asked  their  permission  to  go  to  her  village   in connection  with her sister’s marriage.  The fact  that  she came  forward  with this artificial version  about  the  oc- currence at a belated stage itself shows that she was  fixed up as a witness later during the investigation.  Thus in our view,  it is unsafe to rest conviction of the appellants  on such  a witness as PWI, and on such a piece of  evidence  as letter  Ex.P.5.  The  other evidence  of  the  investigation relating to A-3 and the deceased being seen moving  together and effecting redemptions of pawned ornaments, leaving apart the  contents and their merit, becomes insignificant in  the view we have taken on the eye witness account.  The  accused persons are thus entitled to acquittal. 18.For the foregoing reasons peal succeeds, the judgment and order  of  the  High Court affirming that of  the  Court  of Session is set aside and the appellants are acquitted of the charge.  They are on bail.  They need not surrender to their bail bonds. 457