State Of Andhra Pradesh v. S. Swarnalatha And Others

S.B Sinha, J.— The State of Andhra Pradesh is before us aggrieved by and dissatisfied with a judgment and order dated 2-8-2001 whereby and whereunder a judgment of acquittal was recorded upon setting aside a judgment of conviction and sentence dated 19-3-2001 passed by the Metropolitan Sessions Judge, Hyderabad in Sessions Case No. 331 of 1998.

2. The respondents herein were accused of entering into a conspiracy with each other to commit murder of one Bal Reddy and his wife, Kalavathi. They were in-laws of Accused 1. Murder of Bal Reddy and his wife Kalavathi was committed at about 2.30 p.m on 3-12-1997. Allegedly Accused 1 (the daughter-in-law of the deceased), with a view to cause disappearance of the evidence also gave a false information with an intention to save the offenders from legal punishment.

3. Indisputably, there is no eyewitness to the occurrence. The entire prosecution case is based on circumstantial evidence. In proving its case against the respondents, the prosecution mainly relied upon the evidence of PW 3 (the driver of a taxi) and PW 6 (the son-in-law of the deceased).

4. The first information report was lodged by one G. Damodar Reddy (son of the deceased and husband of Accused 1). According to him, on the aforementioned day and time, five persons had come to his house. They sat with his father in the drawing room for about half an hour. Later they wanted to have tea whereupon his father asked his wife to get five cups of tea.

5. Tea was prepared by Accused 1. After taking tea, the accused allegedly brought Reddy's father to the TV room and pressed the mouth of both of his parents. Some of them tied the legs and hands as well as neck of his parents with clothes as a result whereof they died. They asked his wife to hand over to them the keys of the almirah kept in the said room and on receipt thereof they ransacked the same. They thereafter came to his room and with the key offered by his wife, another almirah was opened and ransacked.

6. The accused took away gold pustela thadu and kammalu from his wife. They also took gold pustela thadu from the neck of his mother. While going out, they tied the hands, legs and mouth of his wife also. They had cut the telephone wire and bolted the TV room door and drawing room door from outside. His wife lost her consciousness. At about 5.00 p.m she regained consciousness and untied herself. She called the tenant of a portion of the house, Tulasi by name through the window whereafter the latter informed him about the incident on phone whereupon he rushed back to his house. According to his wife, the culprits were aged between 25 to 32 years.

7. On the basis of the said statements, a first information report was recorded. Allegedly on or about 4-1-1998, Accused 1 made a confession before G. Sukender (PW 6) when he allegedly had gone to the house of the deceased in the absence of Damodar Reddy. She is said to have told him that as she was being harassed by her parents-in-law, she had complained thereabout to her uncle, Accused 2. She also informed that her uncle had asked her as to whether her parents-in-law were to be killed to which proposal she agreed and promised to inform them the date on which they could be killed. In terms of the said conspiracy, (sic) information was sent to Accused 2 by Accused 1.

8. PW 6 was also told that Accused 2 had asked for some money to which she stated that she would give gold ornaments to them. Pursuant thereto five persons came in a car at about 2.30 p.m on 3-12-1997. They were served with tea and with the help of telephone wire, all the accused strangulated Bal Reddy and Kalavathi as also by putting pillow and a blanket over the face. 50 tolas of gold was given to them. She had also given her gold pustela thadu to Accused 2 on being asked. During the course of the incident, they tied her also with a saree.

9. PW 6 thereafter took Accused 1 to CCS, Hyderabad and handed her over to the Inspector of Police (PW 14). She was interrogated whereupon she led the police to a village commonly known as Arutla. Her confessional statement was recorded in the presence of PW 6, PW 8 and PW 10. She had offered to show two houses of Accused 2 and others; pursuant whereto the houses of Accused 2 to 6 were raided. They were arrested and were interrogated. Allegedly pursuant to their disclosure, seizures of some stolen goods were effected. A test identification parade was conducted in respect of Accused 2 to 4.

10. Javeed Hussain (PW 3) is a taxi driver. The taxi belonged to one M/s Durga Bhavani Travels, Dilsukhnagar. According to him, five persons had engaged his taxi for going to “Yadagirigutta”. They asked him to go to Balkampet first with a view to pick up one person. He took his taxi to a house situated near a temple. They entered the said house at about 2.15 p.m asking him to wait for them at that place. After about half an hour one of the said five persons came and offered him a cup of tea. He identified him to be Accused 4. After half an hour all of them came out of the house and asked him to drop them at Ring Road, Dilsukhnagar, stating that they decided to drop the idea of going to Yadagirigutta. For hiring the said taxi, a sum of Rs 500 was given to him and as they did not go to their destination, they were entitled to some refund. The taxi was said to have been booked by one Rajasekhar Reddy. He was neither arrested nor examined by the investigating officer.

11. The learned trial Judge held the respondents guilty of commission of the offences wherewith they were charged on the basis of the following purported circumstantial evidence:

“(1) Both the deceased died homicidal death.

(2) The two deceased, A-1 and Damodar Reddy were residing in the same house.

(3) A-2 to A-6 engaged the taxi of PW 3.

(4) PW 3, who took A-2 to A-6, saw the accused entering into the house and he waited for half an hour.

(5) After committing the offence, the gold ornaments from the house were found missing.

(6) A-2 to A-6 engaged the taxi to go to Yadagirigutta but they got down from the taxi at Ring Road, Dilsukhnagar.

(7) Extra-judicial confession made by A-1 before PW 6 and PW 6 produced A-1 before PW 14.

(8) In pursuance of the confessional statement, A-1 took the police and panch witnesses to the houses of A-2 to A-6.

(9) A-2 to A-6 alleged to have discovered the gold ornaments from the possession of A-2 to A-6.

(10) The accused did not claim the gold ornaments.

(11) A-2 to A-4 alleged to have been identified by PW 3 in the test identification parade.

(12) A-4 alleged to have pledged MO 14 with State Bank of Hyderabad.

(13) The conduct of A-1 immediately after the incident.”

Circumstance 1 is admitted. As regards Circumstance 2, however, there is no evidence that Accused 1 was present in her house at the relevant time. Circumstances 3 to 6 are said to have been proved by PW 3.

12. One Rajasekhar Reddy, as noticed heretobefore, engaged the taxi from Jaya Durga Bhavani Travels. The investigating officer did not examine him. He also did not visit the office of the said travel agent.

13. In his statement under Section 161 of the Code of Criminal Procedure PW 3 had stated that three persons had gone to Durga Bhavani Travels to engage a taxi but in his deposition before the court, he stated that all the six persons had met the owner thereof. He although did not know the names of Accused 2 to 6, according to him one Rami Reddy, Prabhakar Reddy and Ayub came to hire the taxi. No attempt was made by the investigating officer also to examine one “Murthy” who is said to be the proprietor of Durga Bhavani Travel Agency. PW 3 in his statement under Section 164 mentioned the names of Accused 2 and 3 only as the persons who had gone to hire the taxi. However, in his deposition before the court, he took the name of all the accused having engaged the taxi. PW 3 was not taken by the investigating officer to the house in question. He, therefore, did not identify the house where the offence had taken place.

14. The purported test identification parade, wherein PW 3 is alleged to have participated insofar as Accused 2 to 4 are concerned, was conducted on 31-1-1998. No explanation has been offered as to why it could not be held earlier as all the accused were in custody.

15. So far as the extra-judicial confessions purported to have been made by the accused are concerned, we may notice that Accused 1 has retracted therefrom. We do not find any reason as to why such extra-judicial confession should be made before the son-in-law of the deceased, particularly when PW 6 has admitted in no uncertain terms that the family of the deceased was not on cordial terms with him.

16. PW 6 admitted that prior to the making of confession to him, Accused 1 never talked to him. Why she, instead of her husband, would confide in PW 6, is beyond all comprehension. In the aforementioned situation, the extra-judicial confession purported to have been made by Accused 1 to PW 6 becomes doubtful. Extra-judicial confession as is well known is a weak piece of evidence, although in given situations reliance thereupon can be placed. (See State of U.P v. M.K Anthony (1985) 1 SCC 505 and State of Rajasthan v. Kashi Ram (2006) 12 SCC 254)

17. Furthermore, PW 6 allegedly took A-1 to the police station. The remand report shows that Accused 1 was remanded to judicial custody. When she was taken to police custody is not known. The records of the case also do not disclose that any confession was made by Accused 1 before PW 6. According to the investigating officer, Accused 1 is said to have made confession before her husband. Name of PW 6 did not occur in the case diary.

18. Alleged confessional statements made by Accused 2 to 6 were treated as Circumstances 5, 8, 9, 10 and 12. PW 3 admits that Accused 2 to 6 were brought to Durga Bhavani Travels on 14-12-1997. Why they were arrested on 4-1-1998/5-1-1998 has not been explained.

19. We may also place on record that the learned trial Judge has acquitted the respondents from the charge of Section 392 of the Penal Code.

20. Some gold ornaments are said to have been pledged with State Bank of Hyderabad by Accused 4. It has been brought on record that in the application for grant of loan, he is said to have signed in Telugu although ordinarily he signs in English. His signature was also not found on the loan register. Accused 4 was said to have been introduced by one Dasarath whose account number was not mentioned in any document of the bank. Accused 4 was in police custody from 14-12-1997. It is, therefore, difficult to believe that he had applied for loan on 22-12-1997.

21. It stands accepted that the statements of PW 3 and PW 6 were recorded only on 31-1-1998. The investigating officer did not assign any reason as to why so much delay was caused in recording their statements. A panchnama in regard to the scene of offence was conducted. PW 6 was admittedly not present at that time. The statements of PW 3 and PW 6 were recorded under Section 164 of the Code of Criminal Procedure much before their recording of their statements under Section 161 thereof.

22. In Ganesh Bhavan Patel v. State of Maharashtra (1978) 4 SCC 371 this Court held:

“47. All the infirmities and flaws pointed out by the trial court assumed importance, when considered in the light of the all-pervading circumstance that there was inordinate delay in recording Ravji's statement (on the basis of which the ‘FIR’ was registered) and further delay in recording the statements of Welji, Pramila and Kuvarbai. This circumstance, looming large in the background, inevitably leads to the conclusion, that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady setting, highly redolent of doubt and suspicion.”

23. The prosecution furthermore did not assign any motive for commission of the offence. According to PW 1, Accused 1 wanted to live separately to which the deceased did not agree. However, in his deposition before the court, PW 6 stated that she had been subjected to harassment by the deceased.

24. The trial court itself has acquitted all the accused from the charges under Sections 120-B, 392 and 201 of the Penal Code, but so far as the charge of murder is concerned, it was held that the prosecution case must be held to have been proved by PW 3 and PW 6. We are of the opinion that the said findings are not correct. We have found hereinbefore that PW 3 and PW 6 are not trustworthy, and, thus, the impugned judgment cannot be interfered with.

25. There is another aspect of the matter which also cannot be lost sight of. The High Court has recorded a judgment of acquittal. The judgment of the High Court is a well reasoned one. The view taken by the High Court is a plausible one. It is now well known that if two views are possible, this Court would not interfere with a judgment of acquittal in exercise of its jurisdiction under Article 136 of the Constitution of India.

26. In State of Punjab v. Sohan Singh (2009) 6 SCC 444, (2009) 8 Scale 260 this Court held:

“24. The view taken by the High Court, therefore, in our opinion, was a plausible view. It is now well settled that if two views are possible, this Court, ordinarily, in exercise of its jurisdiction under Article 136 of the Constitution of India, would not interfere with the judgment of the High Court. (See John K. John v. Tom Varghese (2007) 12 SCC 714 and State of Punjab v. Gurnam Kaur (2009) 11 SCC 225, (2009) 4 Scale 343.)”

27. The appeals are, therefore, dismissed.