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CASE NO.: Appeal (crl.)  997 of 2005

PETITIONER: Ramreddy Rajeshkhanna Reddy & Anr.

RESPONDENT: State of Andhra Pradesh

DATE OF JUDGMENT: 24/03/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T With Criminal Appeal No. 291 of 2006 (Arising out of S.L.P.(Crl.)No.165/2005)

S.B. Sinha,  J.

The Appellant No.1 herein along with one Shaik Abdul Rahman,  accused No.3 were convicted for commission of an offence under Section  302 read with Section 34 of the Indian Penal Code (IPC) and Appellant No.2  herein was convicted under Section 302 IPC.  They were prosecuted for  committing murder of one Mohammad Rafiq Khan on 14.6.1998.  The said  offence was said to have been committed during the period between 10.30  p.m. of 14.6.1998 to 5.00 a.m. on 15.6.1998.  The deceased was a motor  mechanic.  He and the Appellant No.1 herein were friends.  The Appellant  No.2 and two other accused were said to be his followers.  A quarrel  allegedly took place between the deceased on the one side and the  Appellants on the other at about 9 p.m. on the said date near a theatre known  as Durga Talkies in the town of Kothagudem. The quarrel, according to  P.W.8-Routu Narender, who was himself a jeep driver and parked his  vehicle near the afore-mentioned theatre, was on two counts: (1) the jeep of  the Appellant No.1 had not been satisfactorily repaired by the deceased,  although he had taken repair charges in respect thereof; and (2) the deceased  was visiting a woman called Gugloth Dasli, who was said to be his  concubine, upon being questioned in that behalf by the first appellant, the  deceased, allegedly, retorted that he had been paying money to the said Dasli  and, therefore, no one could stop him from visiting her, whereupon he was  allegedly threatened.  The parties exchanged hot words but P.W.8-Routu  Narender and others are said to have intervened.  The deceased thereafter  left for his residence in an auto.  According to the prosecution, at about  10.30 p.m. on the same night, the Appellant No.1 went to the house of the  deceased and called him on the ground that his jeep required some repairs.   P.W.1-Md. Anwar Khan, the elder brother of the deceased was said to be  present.  He came out with him from the residence and allegedly saw the  Appellant No.1 on the road.  He stated that on the body of auto the word  ’Swathi’ was inscribed.  He furthermore, is said to have noticed the other  two Appellants, i.e., Appellant Nos. 2 and 3 standing by its side.  The  deceased and the Appellants herein are said to have walked away.  At about  5.00 a.m. in the next morning, P.W.2-Mohd. Mohamood Khan, another  brother of the deceased returned home from his workshop.  Upon an inquiry  having been made as to whether the deceased had visited the workshop on  the previous night along with the Appellant, he answered in the negative.   The dead body was noticed by P.W.4-A. Venkateswarlu in the morning in  front of his house.  As the deceased was known to P.W.4, he went to P.W.1  and informed thereabout.  They came to the spot whereafter P.W.1 rushed to  the town police station of Kothagudem Town.  He, however, did not enter

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the police station.  He was standing on the road before the police station.   P.W.5-J. Srinivas, at about 6.00 a.m., was passing by the said police station  for shopping, P.W.1 requested him to scribe a report on his behalf describing  the incident.  P.W.5 accordingly scribed a report, which reads as under:

"Yesterday i.e. on 14.6.1998 at about 10.30 Night time  while I was at my residence along with my brother by  name Rafeek Khan.  On Ramreddi Rajesh Khanna came  to my residence and called my brother then my brother  came outside I had also followed him and questioned my  brother as to where you are going for which my brother  told me that Rajesh Khanna wanted to get his Jeep  urgently repair by that time one Auto was standing at a  distance to my house.  On the top of the auto there was a  name "Swathi" written in Telugu, by the side of auto one  Bankur Ravi, Machaboina Ramesh, S.K. Abdul Rahman  @ Nathi Babu were standing; after some time the above  said four persons and my brother left the place in auto  towards coolie line main road.  My brother did’nt return  back on that night.  Today i.e. on 15.06.1998 early in the  morning at about 5.00 a.m. I asked my third brother by  name Mohd. Khan about Rafeek Khan whether he was at  the shed on the night for which he replied that he did’nt  came to shed on the night.  At about 5.30 am one coolie  line native by name Agulla Venkateswarlu came to me  and said that my brother was found dead in front of his  house and said that there was a bleeding injury on the  neck.  Then I along with Venkateswarlu went and found  the dead body of my brother in front of Venkateswarlu’s  house.  Neck of my brother was cutted half.  Causing  death of my brother is that there was some galata taken  place in between my brother ;and with Ramreddy Rajesh  Khana; Bankur Ravi; Manchaboina Ramesh; SK Abdul  Rahman @ Nathi Babu which taken place to Durga  Talkies Centre of previous night and the said incident  took place regarding repair of jeep, bearing the same in  mind on the point of jeep repair taking my brother out  side the house and killed him."

The said Abdul Rahman was said to have been arrested from the  house of Appellant No.2 on 1.7.1998.  P.W.5-J. Srinivas, however, states  that when he was scribing the First Information Report (FIR), the Appellants  were already in the lockup.  The FIR was said to have been despatched  immediately.  Post-mortem examination on the dead body of the deceased  started from 11.00 a.m. and was completed at about 1.30 p.m.  In the post- mortem report it was opined that rigor mortis was confined to upper and  lower limbs and presumably on the basis thereof the death was found to have  taken place between 1200 to 1500 hours.

Before the learned Sessions Judge several witnesses were examined to  prove the prosecution case.  

P.W.9-Dronapalli Chiranjeevi was said to be an eye witness.  His  statement before the police was recorded three days after the incident.  The  trial court in its judgment held him to be a reliable witness and passed a  judgment of conviction, inter alia, relying on his evidence holding:

"PW9 is also found to be a natural witness and he is  returning to his house after attending Annadanam  Karyakram on 14.6.1998 which had taken place at Seven  Hills Hotal Area, Kothagudem.  This is deposed that  himself and one M.A. Isas Assha (DW18) were returning  with a torch light as there was no electricity.  It is also  deposed that it was a rainy night and there was drizziling.   The natural sequence of the events deposed by PW9

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cannot be over looked for the reason that he is a planted  witness.  When he is returning from Annadana  Karyakram in Coolie Line, hearing cries in the street is a  natural event.  On hearing cry there is every possibility of  focusing the light towards that side, which is in the  natural fashion.  PW9 focused a torch light and identified  the deceased Mohd. Rafiq Khan and three others.  In all  together he deposed four persons were present.  He also  specifically deposed that A-2 used a knife and cut the  throat of the deceased and the overt acts of A1, A2 and  A4 were stated before the court."

The High Court, however, did not agree with the said views of the  learned Sessions Judge opining:

"At the outset, we must make it clear that we are not  inclined to believe the evidence of PW9, the alleged eye- witnesses to the occurrence who was examined by the  police two days after the registration of the crime though  he was present at the scene of the offence at the time of  the inquest, he never choose to inform the police about  the fact that he had witnessed the murder."

Having gone through the testimony of the said P.W.9, we are also of  the opinion that the High Court was right in discarding his statement.  The  High Court, however, upheld the judgment of conviction and sentence  passed by the learned Sessions Judge holding that the Appellants quarrelled  with the deceased and thus, motive is proved which was witnessed by  P.W.8.   

According to P.W.8, the Appellants came to the house of the deceased  in an auto driven by P.W.6-Boosa Samba.  They were allegedly seen  together by the first informant P.W.1-Md. Anwar Khan, the brother of the  deceased, as also P.W.3-Rehmana Begum, wife of the deceased. In view of  the opinion of P.W.13-Dr. P. Venkateshwarlu, the death took place 12 to 15  hours prior to the conduct of the post-mortem examination.   The time of the  death of the deceased, thus relates back from 10.30 p.m. to 1.30 p.m. on  14.6.1998.   

Mr. R.P. Gupta, the learned Senior Counsel appearing on behalf of the  Appellants took us through the depositions of the prosecution witnesses and  submitted that having regard to the discrepancies in the statements of the  witnesses, it cannot be said that guilt of the accused has been proved beyond  all reasonable doubts.  The learned counsel has drawn our attention to  Modi’s Medical Jurisprudence and Toxicology, 22nd Edition page 235 for  the proposition that it is difficult to determine exact time of the death and as  no reason has been assigned by the autopsy surgeon as to on what basis he  had formed his opinion as regards the time of death, the same was not  reliable.  The learned counsel urged that although as stated in the First  Information Report the auto in which the Appellants are said to have come  to the residence of the deceased, bore the inscription "Swathi", it was found  that the same contained the inscription "Suverna".

It was submitted that the judgments of conviction and sentence passed  by the learned Sessions Judge and the High Court cannot be sustained as:

(i)     P.W.1 having not met P.W.8 before lodging the FIR, there was  no way he could learn about the purported quarrel between the Appellants  and the deceased near the said Durga Talkies; (ii)    Recovery of the knife purported to be on the basis of the  confession made by the Appellant No.2 could not have led to conviction of  the other Appellants; and (iii)   A part of the motive, i.e., dispute as regard a woman having  been disbelieved even by the trial court, as she, despite having been cited as  a witness in the charge sheet, was not examined, the link in the chain to

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point to the guilt of the Appellants cannot be said to have been established.   

The learned counsel appearing on behalf of the State, on the other  hand, supported the impugned judgements stating that in the instant case, the  prosecution evidence must be held to have been proved as:

(i)     The quarrel was witnessed by P.W.8;  (ii)    Thereafter the Appellants went to the house of the deceased, as  stated by P.W.6;  (iii)   The deceased was last seen in the company of the Appellants as  was testified by P.W.1 and P.W.3; (iv)    Recovery of knife from the accused No.2; and (v)     The approximate time during which, in view of the post- mortem report, the offence was committed.   

Indisputably, there is no eyewitness to the occurrence. Although the  deceased is said to be known to the Appellant No.1 and they were on good  terms, but on what basis the Appellant Nos. 2 and 3 were said to be his  associates is not known.  In the FIR another accused, Appellant No.4 was  also named.  He, however, has been acquitted as none of the witnesses  named in their deposition or identified in the court.  14.6.1998 was a dark  rainy night.  The quarrel was alleged to have taken place in a hotel.  It was,  however, stated that the same took place on a road near Lakshmi theatre.

P.W.2, the brother of the deceased states that the deceased had come  to the mechanic shed at 8 p.m. and left after one hour, i.e., at about 9 p.m.   He allegedly told him about the quarrel with the Appellants near Durga  Talkies.  P.W.8 in his deposition, however, stated that the incident took  place at 9.30 p.m.  He, along with Bandaru Satvam Pendya Venkateshwarlu,  intervened in the matter.  He came to know about the death of deceased  Rafiq Khan at about 8 a.m. on the next day.  He knew even the names of the  Appellants.  He could also come to know how the deceased was done to  death.  Although he claimed that he could identify the Appellants, no test  identification parade was held.  He, however, did not volunteer to get his  statement recorded on 14th.  He was examined by the police on 16.6.1998.   P.W.6, in whose auto the Appellants were stated to have gone to the house  of the deceased, in his evidence said that the Appellants boarded his auto at  9 p.m.  They went to a wine shop and took drinks.  The auto stopped there  for about 20 minutes.  He knew the Appellant No.2.  Apparently, he did not  know the names of other Appellants.  He stated that only one of the persons  got down from his auto and went into a lane, whereas others remained in the  auto.  After the deceased came, the other two persons also got down from  the auto and thereafter all of them walked towards Coolie line.  According to  him, Appellant No.1 refused to pay the fare.  No test identification parade  was also held for him.  He identified the Appellant No.1 as the person who  got down from the auto only in the court.  He was examined on 27.9.2001,  i.e., after a period of three years three months.  He did not disclose as to how  he remembered accused Nos.1 and 4.  According to him, the words written  in his auto was "Suverna" and not "Swathi", as disclosed in the First  Information Report.  The identity of the auto by the first informant, thus,  became doubtful.  He allegedly informed the fact of non-payment of fare by  the Appellant No.2 to one Bala Krishana at about 10.30 in the night, i.e.,  after the Appellants left the house of the deceased.  The said Bala Krishana  had not been examined. In his cross-examination, he stated that he had no  acquaintance with Appellant No.2.  Identification of Appellant No.2 is, thus,  rendered doubtful.  He admitted that P.W.1 accompanied with him to the  Court.  He allegedly came to know about the death of the deceased at 7.30  a.m. next day.      According to P.W.1, the Appellant No.1 called the deceased at 10.30  p.m.  He did not say that he had talks with P.W.6.  When he went to the  police station, the Sub-Inspector of Police was present.  He did not make any  complaint to him.  According to the P.W.14-S.M. Surender Nath, the  Investigating Officer, P.W.1 came to the police station at about 5.50 a.m.   P.W.1 accepted that he used to repair all the jeeps of deferent departments,

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including the police department.  One S.I. of Kothagudem II town was also  related to him.  Why, therefore, he did not go into the premises of the police  station to lodge the First Information Report and waited for someone to  scribe the same on the road makes his story doubtful.

It remains a mystery as to how P.W.1 could name all the accused  persons in the FIR.  It is also surprising that although he reached the police  station at 5.50 a.m. and P.W.8 came to know about the death of the deceased  at about 8.00 a.m., how he could disclose in the FIR as regard the manner in  which the alleged quarrel between the Appellants and the deceased took  place near Durga Talkies.  Shaik Abdul Rahman, who has since been  acquitted, was not only named, but his alias name was also disclosed in the  FIR.  P.W.1 did not state either in the FIR or in his deposition in the court  that he had been knowing Appellant No.1 and the other Appellants.  

P.W.3 is the wife of the deceased.  She is a pardanasheen lady.  She  had not seen the accused persons.  She was merely informed by P.W.1 that  the Appellants had taken her husband.  P.W.1 did not say so.  Accused No.3  was, however, not named, although, as noticed hereinbefore, he was named  in the FIR.  The accused Shaik Abdul Rahman, now acquitted, has not been  named as one of them, although, in the FIR his name has been disclosed.

       P.W.4 does not throw much light on the prosecution case.  According  to P.W.5, he was going to shop at 6.00 a.m. in the morning.  P.W.1,  according to him, was standing outside the police station.  There was no  reason for him to do so.  As noticed hereinbefore, according to him, even the  Appellants were in lock up of the said police station.  P.W.1 is supposed to  know the officer of the police station but despite the same he did not go  inside to lodge the FIR particularly when he was expected to rush there and  inform the officer in-charge about the dead body lying on the road.

       The evidence of P.W.7 does not throw much light in this regard.   P.W.1 does not state that he had met P.W.8.  His name has not been taken by  him.

       P.W.14, the Investigating Officer states that during his investigation  he examined one Kusapati Sreenivas.  According to him, the Appellants  were in his hotel at 9.00 P.M. on 14.6.1998.  It is also accepted that on that  day there were rains and there was no electricity.  He accepted that  patrolling used to be done in the area and the traffic constables remained  posted from 8.30 p.m. to 10.00 p.m. but no investigation appears to have  been made as to why it did not attract their attention.

       The Appellant No. 2 is said to be a history-sheeter.  His whereabouts  would be known to the police.  Some of the prosecution witnesses are also  history-sheeters.  Why the Appellants have been arrested after a fortnight  has not been explained.  Although three police officers have been examined,  none of them stated as to why the Appellants could not be arrested prior to  the said date.  Why for writing the First Information Report, the assistance of  P.W.5 was required to be taken by P.W.1, particularly, when one of their  relatives was a sub-inspector of Police in the said police station is left to  imagination.  Although First Information Report is said to have been  dispatched to the court at 0645 hours, nothing has been brought on record to  show as to when it reached the court.  The court being situated in the same  town, it is difficult to understand why it was sent at 0645 hours in the  morning.   

In this case, the time of actual offence having regard to the different  statements made by different witnesses may assume some importance as one  of the grounds whereupon the High Court has based its judgment of  conviction is the time of death of the deceased on the basis of the opinion  rendered by Dr. P. Venkateshvarlu (P.W.13).

       In Modi’s Medical Jurisprudence, 22nd edition, as regard duration of  rigor mortis, it is stated:

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"Average Minimum Maximum

Hours Minutes Hours Minutes Hours Minutes Duration  of rigor  mortis

19 12 3 0 40 0"

       It was, therefore, extremely difficult to purport the exact time of death  of the deceased, more so when no sufficient reason was assigned in the post- mortem report.   

In Pattipati Venkaiah v. State of Andhra Pradesh [(1985) 4 SCC  80], this Court held:

"10. Another circumstance stressed by Mr Garg  was that according to the medical evidence the  deceased must have died by about 5.30 a.m. on  July 2, 1975 and no reasonable explanation has  been given by the prosecution as to why the dead  body was taken to the hospital at about 10.55 a.m.  after about five hours when the hospital was quite  near. Here, the learned counsel as also the trial  court have committed a serious error in the  appreciation of evidence. A perusal of the evidence  of the doctor does not conclusively show that the  deceased must have died at about 5-6 a.m. Medical  science is not yet so perfect as to determine the  exact time of death nor can the same be  determined in a computerised or mathematical  fashion so as to be accurate to the last second."                  (Emphasis supplied)

       In Ram Udgar Singh v. State of Bihar [(2004) 10 SCC 443], this  Court held:   "10. Evidence of PWs 1, 2, 3 and 5 clearly  establishes the definite role played by the accused- appellant. So far as the plea relating to the time of  death on the basis of medical evidence is  concerned, emphasis is laid on the fact that rigor  mortis could not have set in, in the dead body  within two hours. The High Court has referred to  several treatises on medical jurisprudence to  conclude that the time which is usually three to  four hours may vary according to climatic  conditions. We find no infirmity in the conclusion.  The courts were justified in holding that the  appellant was the assailant, and accordingly

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convicted him. No exception could be taken to the  well-merited reasoning squarely found supported  by overwhelming, relevant, convincing and  concrete evidence placed on record by the  prosecution in this case."

 [See also State of Punjab v. Daljit Singh & Anr. (2004) 10 SCC 141.]

       In the Post-Mortem Report, apart from stating that rigor mortis were  confined to both upper and lower limbs, no other reason has been disclosed.           Even the recovery of knife was said to have been made only from the  Appellant No. 2.                    It is now well-settled that with a view to base a conviction on  circumstantial evidence, the prosecution must establish all the pieces of  incriminating circumstances by reliable and clinching evidence and the  circumstances so proved must form such a chain of events as would permit  no conclusion other than one of guilt of the accused.  The circumstances  cannot be on any other hypothesis.  It is also well-settled that suspicion,  however, grave may be, cannot be a substitute for a proof and the courts  shall take utmost precaution in finding an accused guilty only on the basis of  the circumstantial evidence. [See Anil Kumar Singh v. State of Bihar  (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P. (2005) 7  SCC 603]

       The last-seen theory, furthermore, comes into play where the time gap  between the point of time when the accused and the deceased were last seen  alive and the deceased is found dead is so small that possibility of any  person other than the accused being the author of the crime becomes  impossible.  Even in such a case courts should look for some corroboration.

       In State of U.P. v. Satish [(2005) 3 SCC 114], this Court observed:

"22. The last-seen theory comes into play where  the time-gap between the point of time when the  accused and the deceased were last seen alive and  when the deceased is found dead is so small that  possibility of any person other than the accused  being the author of the crime becomes impossible.  It would be difficult in some cases to positively  establish that the deceased was last seen with the  accused when there is a long gap and possibility of  other persons coming in between exists. In the  absence of any other positive evidence to conclude  that the accused and the deceased were last seen  together, it would be hazardous to come to a  conclusion of guilt in those cases. In this case there  is positive evidence that the deceased and the  accused were seen together by witnesses PWs 3  and 5, in addition to the evidence of PW 2."

       [See also Bodh Raj @ Bodha & Ors. Vs. State of Jammu &  Kashmir AIR 2002 SC 3164.]

It is, furthermore, well-known that motive by itself is not sufficient to  prove the guilt.  [See State of M.P. through CBI & Ors. v. Paltan Mallah  & Ors. (2005) 3 SCC 169, para 9.]

       Furthermore, the solitary witness, to prove the alleged motive,  namely, P.W.8 was examined by the police after two days.  No reliance,  thus, can be placed on his evidence.

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       It may be true that the Appellant No. 2 was a history-sheeter.  It may  further be true that P.W.1 instituted a case against the Appellant No. 1 for  threatening him when he was on bail.  It may also be, that P.W.7 did not  identify the Appellants as he was found shaking.  If the Appellants are guilty  of other offences, they can be proceeded against appropriately and in  accordance with law.  We hope the authorities would do so.   

But, keeping in view of the peculiar facts and circumstances of this  case, we are of the opinion that the prosecution cannot be said to have  established the guilt of the Appellants herein beyond all shadow of doubt.  The prosecution story has a large number of loopholes and, thus, we have no  other option but to hold that the Appellants are entitled to the benefit of  doubt.  The impugned judgment is, therefore, set aside and the appeals are  allowed.  The Appellants are directed to be set at liberty unless wanted in  connection with other case.