State of Andhra Pradesh vs Kokatam Indiramma @ Indiravathi

Sri M. Seetharama Murti, J.—The appeal by the State and the revision by A.Venkataiah (PW6), the younger brother of the deceased, Venkatamma, are directed against the judgment dated 18.07.2008 of the learned I Additional Sessions Judge holding Full Additional Charge of the Post of the learned III Additional Sessions Judge, Rajampet, Kadapa District, passed in S.C.No.378 of 2005. By the said judgment, the learned Additional Sessions Judge found the sole accused not guilty of the offences punishable under Sections 302, 307 and 326 IPC and acquitted her.

We have heard the submissions of the learned Public Prosecutor appearing for the State of Andhra Pradesh, of Sri M.Jayaram Reddy, learned counsel for the revision petitioner, and of Sri Balaji Medamalli, learned counsel for the sole accused. We have perused the material on record.

Having regard to the material available on record, the learned Judge of the trial Court framed the following charges against the sole accused, Kokatam Indiramma @ Indiravathi:

"Firstly:- That you the accused on the intervening night of 12/13th February, 2005 around 1 a.m in the house of Nagi Venkatamma situated in Lebaka Mangamambapuram village @ Nadigadda Agraharam village of Nandalur mandal, did commit murder by intentionally causing the death of Nagi Venkatamma by hacking her with bill-hook, and that you thereby committed the offence of ''murder'' punishable under section 302 IPC and within my cognizance.

Secondly:- that you the accused, on the same day, time, place and during the course of same transaction referred to in charge No.1 did an act, to wit hacking Chitteti Sunitha with bill hook with such intention and under such circumstances that if by that act you had caused the death of Chitteti Sunitha, you would have been guilty of murder; and that you thereby committed the offence of ''attempt to murder'' punishable under section 307 I.P.C., and within my cognizance.

Thirdly:- That you the accused on the same day, time, place and during the course of same transaction referred to in Charge No.1, had voluntarily caused grievous hurt to Chitteti Sunitha by means of a bill hook which is an instrument for hacking, and that you thereby committed the offence punishable under Section 326 I.P.C., and within my cognizance."

The evidence on record, which needs detailed examination, in brief, is as follows:

Ch. Suneetha, PW1, is the daughter of Subbamma and Chennaiah. She is a resident of Lebaka of Nandalur Mandal and she lives by coolie work. Her parents are residing in a Mango garden of one Kodur Subbaiah, which is situated near Agraharam. The deceased, Venkatamma, is the sister of her maternal grandmother. The deceased was a resident of Agraharam @ Mangamambapuram. PW1 is staying with her parents during day times and with the deceased during night times as the deceased was living alone in her house at Agraharam. The accused, Indiramma, is a resident of the same village as that of the deceased. Sandrapalli Subbamma, PW2, a resident of Nadigada Agraharam, and PW3, A.Venkata Subbamma, a resident of Thokurupeta village, are related to each other. PW3 used to go to the village of PW2 and return back to her place. On the night of the incident of murder of the deceased, PW1, PW2, another lady (PW3-A.V Subbamma) and the accused slept in the house of the deceased. On the night of the incident of murder, the deceased was unwell. Therefore, PW1 went to the house of the deceased to sleep in her house. The deceased was in the habit of performing ''poojas'' (prayer rituals). On the night of the murder of the deceased, ''pooja'' was performed in the house of the deceased for her well being. After the performance of pooja, PW2 and PW3 slept in the pooja room (prayer room) of the house of the deceased. The deceased, PW1 and Indiramma slept on two cots in the hall of the said house of the deceased. There was a tube-light glowing in the hall. There was also a small tube-light glowing in the pooja room. There are also illuminated decoration bulbs in the pooja room. After midnight, PW1, PW2 and PW3 woke up on hearing the cries of the deceased. PW1 saw the accused hacking the deceased five or six times with a ''Machu kathi'' (bill hook) and intervened. When PW1 obstructed the accused, she hacked her (PW1) on her left cheek, across the mouth. Some teeth of PW1 from the left upper jaw were lost. PWs 2 and 3 who also woke up, on hearing the cries, witnessed the incident through the holes of the doors of the pooja room. After receiving the said injury, PW1 ran into the pooja room and closed the door. The accused came to the pooja room and patted on the door with Machu Kathi. Then, PWs 1 to 3 raised cries. On that the accused left the scene by covering the bill hook with a bed sheet. On hearing the cries, the villagers gathered. PW1 informed them about the incident; and, some of them passed on a message to PW6, A.Venkataiah, a resident of Rajampet, who is the brother of the deceased. On his son, Seshadri, receiving telephonic message from one Subbarayudu and on coming to know of the incident from his said son, PW6 engaged a jeep and came over to Mangamambapuram and saw PW1 with the injury on her left cheek. He came to know of the details of the incident from her. He took her and the deceased, who was struggling for life by then, on the same jeep to the Government Hospital, Rajampet. PW4, the Civil Assistant Surgeon of the said hospital, declared that the deceased was brought dead. He gave first aid to PW1 at 4 AM on 13.02.2005 and referred her to SVRR Hospital, Tirupati. He issued Exhibit P8, wound certificate of PW1. The Medico legal intimation sent by the said hospital was received by PW9, the ASI of Police, on 13.02.2005, at 06.45 AM. PW9 recorded the statement of PW1 at the said hospital between 7 and 8 AM, on 13.02.2005. He informed about the case to his Circle Inspector, PW10, and sent PW1 to SVRR Hospital, Tirupati, along with a police constable, PC 1392, and posted another police constable as guard at the mortuary, where the dead body of the deceased was lying. He returned to the police station and registered the crime on the basis of Exhibit P1, the statement of PW1 which was recorded by him. He issued Exhibit P11, FIR. On receiving a phone call at about 9 AM from PW9, PW10 collected the copy of the FIR from the Nandalur police station and took up investigation at 10.00 AM on the same day. He examined PW2 and other witnesses. He held inquest over the dead body of the deceased at the mortuary of the Government Hospital in the presence of PW6, the brother of the deceased, and panch witnesses including PW7, Avula Narayana, and LW4, A. Seshadri, and got prepared Exhibit P4, inquest report. Inquestdars opined that the deceased died due to fatal injuries sustained on vital parts of her body. He seized the saree, MO2, and blood stained blouse of the deceased, MO3. He prepared Exhibit P12, the rough sketch of scene of offence, and Exhibit P7, scene of offence observation report. Thereafter, PW 10 sent the dead body through the police constable, PC1910, to the Government Hospital, Rajampet, for post mortem examination. PW5, Civil Assistant Surgeon of the said Hospital, conducted autopsy on the dead body of the deceased and issued Exhibit P3, Post Mortem Examination Certificate, opining that the cause of death is ''cardiac respiratory failure due to intracranial haemorrhage due to multiple sharp wounds over the skull''. On 15.02.2005 at 10.00 AM, PW10 received information that due to illhealth, the accused was admitted in Government Hospital, Rajampet. He along with PW9 and staff went to the hospital and identified the accused and later submitted an application to a learned Magistrate and obtained orders for police surveillance at the said hospital and posted police constables including a woman constable at the said hospital. On receiving further information from the hospital at 8.00 AM on 22.03.2005 that the accused was being discharged, PW10 along with PW9 and his staff reached the hospital and arrested the accused under the cover of Exhibit P10, panchanama, on her discharge from the Government Hospital, Rajampet. The arrest of the accused was affected in the presence of mediators including PW8, Sandrapalli Ramanaiah. On her arrest, the accused made a disclosure statement and led him, his staff and the mediators to the bushes at Nadigadda Agraharam and picked up a blood stained saree, MO1, blood stained blanket, MO5, and blood stained Machu kathi, MO4, from the bushes; the said objects were seized by PW10 under the cover of Exhibit P6, confessional/disclosure-cum-recovery panchanama. He sent the seized property through Court along with letter of advice, Exhibit P13, and covering letter, Exhibit P14, to the Regional Forensic Science Laboratory, Kurnool. On receipt of FSL report, Exhibit P15, and Post Mortem Examination Certificate, Exhibit P3, his successor laid the charge sheet.

As per the case of the prosecution, PWs 1 to 3 are eye witnesses to the incident of murder of the deceased. However, PW3, turned hostile and did not support the case of the prosecution. Though she was cross-examined by the learned Additional Public Prosecutor, no important points supporting the case of prosecution were gained. Therefore, prosecution case rests upon the ocular testimonies of PWs 1 and 2 and the recovery of MOs 1, 4 and 5 pursuant to the disclosure confessional statement said to have been made by the accused on her arrest after her discharge from the Government Hospital.

Sri M. Jayaram Reddy, learned counsel, and the learned Public Prosecutor placed strong reliance on the evidence adduced by the prosecution and contended that the prosecution proved its case beyond any reasonable doubt and that the Court below erroneously acquitted the accused by giving undue importance to minor discrepancies, omissions and contradictions in the evidence and trivial and immaterial lapses in the investigation.

Per contra, Sri Balaji Medamalli, learned counsel for the accused, contended that there are material omissions and contradictions in the evidence and that there are grave lapses in investigation and that the evidence regarding arrest of the accused and recovery of material objects at her instance and pursuant to her alleged disclosure statement is totally false and concocted and that the defence established certain important and crucial circumstances, which are sufficient to seriously doubt the veracity of the prosecution case. He would also submit that the trial Court appreciated the facts correctly and the evidence in proper perspective and rightly acquitted the accused and that in any view of the matter, the judgment of the trial Court is to be sustained by extending to the accused a reasonable benefit of doubt and that as per settled law, the finding of acquittal need not be interfered with by this Court unless there are compelling circumstances and that in the case on hand, there are no such circumstances and that even otherwise, when two views are possible on appreciation of the evidence, the view favourable to the accused must be preferred and that the appeal of the State and the revision filed by PW6 are devoid of merit and are liable to be dismissed.

In the light of the contentions, the facts and the evidentiary backdrop, the ocular testimonies of PWs 1 and 2 and the prosecution evidence regarding recovery of material objects pursuant to the confessional/disclosure statement said to have been made by the accused require careful scrutiny and evaluation more particularly in the light of the fact that the learned Additional Sessions Judge did not accept the case of the prosecution and acquitted the accused.

Exhibit P1 is the first statement of PW1 recorded by PW9 at the Government Hospital, Rajampet. In the said report, which set the criminal law into motion, she stated to the following effect:

''The deceased, who is her grandmother, asked her to come to her house on 12.02.2005 night as she was alone and, therefore, she went to the house of the deceased. She, the accused, PWs 2 and 3 slept in the house of the deceased on that night. At about 1 AM, she heard cries and woke up. She saw the accused hacking the deceased with a bill hook. When she raised cries, the accused hacked her on her left cheek and she received a bleeding injury. She ran out of the house and shouted loudly. People of the village came. Seeing them, the accused ran out of the house with the bill hook. Her grandmother, the deceased, sustained bleeding injuries. Her senior paternal uncle, Venkataiah, PW6, and other villagers took her and the deceased to the Government Hospital, Rajampet. The accused murdered her grandmother for reasons not known to her.'' When her evidence is examined in juxtaposition with the contents of her first statement and the other evidence on record, including that of the Investigating Officer, the following vital aspects emerge:

In her first statement, Exhibit P1, she stated that after the incident of attack on the deceased and on her by the accused, she ran out of the house and raised cries and on that the villagers gathered and on seeing them, the accused ran out of the house with the bill hook. But in her deposition, she stated that after such attack by the accused, she ran into the pooja room and closed the doors. She also stated in her deposition that the accused came to the pooja room and patted on the door of the pooja room and then they raised cries. These are vital discrepancies in view of the fact that in her earliest statement, Exhibit P1, she stated that after the attack, she ran out of the house and raised cries.

PW1 also deposed that on that day at 9.30 PM, she, Venkatamma (deceased) and accused slept in the hall of the house by spreading two cots side by side and that the accused and the deceased slept on one cot and that she slept on the other cot and the remaining two ladies (PWs 2 and 3) slept in pooja room. Whereas PW2 stated in her cross examination that after Pooja was performed they all watched News on TV and went to bed and it may be at 7.30 or 8.00 PM. PW10, the investigating officer stated in his cross examination that his investigation did not reveal that the accused and the deceased slept on one cot and that PW1 slept on another cot.

PW1''s deposition that the accused left the scene of offence covering the bill hook with bed sheet/blanket is also an improvement from her earlier statement as she stated in her first statement under Exhibit P1 to the police that the accused ran out of the house with the billhook but did not make a mention at that time that the accused covered the billhook with a blanket brought by her.

Further, PW2 stated that after the accused went away with Matchu Kathi and a cloth, they opened the doors of the pooja room and came out and that she went away to her house. She did not state in her previous statement to the police that the accused went away with bill hook and a cloth. Therefore, the versions of PWs 1 and 2 that the accused left either with a blanket or a cloth are material omissions in their previous statements and are improvements in their evidence. PW2''s version that the accused went away with the bill hook is also an improvement in her evidence.

PW2 stated in her cross-examination that there was a pool of blood in the pooja room after PW 1 came to the pooja room and that the cots were lying on the left side of the entrance of the hall and that the accused hacked the deceased while she was on the cot and that in the entire hall and on the cots there were blood stains. However, in the rough sketch, Exhibit P12, PW10 did not note any such marks of pool of blood in the pooja room. He did not also show in the said sketch, the two cots in the hall of the house. Most importantly, he specifically stated in his cross-examination that he did not find any blood pool or blood marks at any place except the North-West corner of the hall and that he did not find any cots or bed sheets in the house of the deceased. These serious discrepancies of poignant importance in the evidence cast an indelible shadow of doubt on the veracity of the case of the prosecution. The contents of the rough sketch, Exhibit P12, coupled with the evidence of PW10, the investigating officer, that he did not find any blood pool or blood marks at any place except the North-West corner of the hall and that he did not find any cots or bed sheets in the house of the deceased lays bare that the version of PWs 1 and 2 that there were two cots in the hall and that the deceased and accused slept on one cot and PW1 slept on the other cot on that night of the incident is false. When the cots were not at all there in the hall as per the version of the Investigating Officer, as rightly contended, the whole version of the prosecution case becomes a subject of a serious doubt. If really, there were cots in the hall of the house and the cot and the bed sheet on the cot were stained with blood, one would expect the Investigating Officer to seize the same. No such seizures were made and indeed, the Investigating Officer affirms in his evidence that there were no cots at all in the hall and that there is no blood pool in the pooja room. Therefore, whether PW2 was in the pooja room on that night is doubtful. Further, the first statement of PW1 under Exhibit P1 that after the attack by the accused, she ran out of the house contradicts her evidence that she ran into the pooja room and closed the doors; further the testimony of PW10 in regard to absence of pool of blood in the pooja room not only does not support her version that she ran into pooja room and closed the doors but also casts a shadow of doubt on the truthful nature of her testimony. In view of the standard of evidence on record, it is also doubtful as to whether PW1 sustained the injury stated in Exhibit P8 in the alleged incident of murder. Simply because the medical evidence shows that PW1 sustained an injury more or less at the same time of the alleged incident, in the absence of reliable evidence, there cannot be an inference that she sustained the said injury in the alleged subject incident. It is also to be noted that the defence sought to suggest to PW1 that there was a galata among Golla Vekatesu, her father, the deceased, A. Venkataiah, Avula Narayana and two other Narayanas, S. Subbamma, Subbarayudu and other witness and that she received injuries in that galata and that the deceased also died with injuries received in that galata (rioting), and to knock away the Mango garden of the accused, this case is foisted against her. Therefore, the line of defence suggests that there was a galata (rioting) elsewhere.

Be that as it may. As already noted, PW3 turned hostile to the case of the prosecution. PW2 stated that she and PW3 slept in the pooja room and that they both witnessed the incident of attack through the holes of the doors of the pooja room. She also stated that there is a glowing tube light in the hall where the deceased, PW1 and the accused slept and that there was a small glowing tube light and illuminated decorative lights in the pooja room. PW2 however did not state so in her previous statement to the police and therefore, it is a material omission and the above said version in her evidence is an improvement. Further, PW1 did not corroborate the said versions of PW2. This improvement in regard to presence of light is obviously made as it is not possible to witness the attack allegedly made in the night at 01.00 AM in the absence of any light. PW10, the Investigating Officer deposed that he did not find a blood pool or blood marks at any place in the hall, except North-West corner. Further, when Exhibit P12, sketch, is carefully perused, it reflects that the scene of offence was at North-West corner of the hall and that the door of the prayer hall which opens into the hall was in the middle of the Eastern Wall of the prayer room. Therefore, it is also doubtful whether the persons in the pooja room behind the closed doors would be able to see the happenings in the North-West corner of the hall through the holes of the doors, if any. Therefore, on a consideration of the topographical details of the hall, the pooja room and other rooms as mentioned in the sketch, the version of PW2 that she saw the attack on the deceased and PW1 through the holes of the door also becomes highly doubtful.

Thus, the evidence on record when carefully analysed does not lend support to the case of the prosecution in view of the serious material discrepancies and omissions in the evidence and lack of credit worthiness. On an overall consideration of the versions of PWs 1 and 2 in juxtaposition with the evidence of PW10 and the entire evidence brought on record and the other circumstances of the case, it is manifest that the said two witneses are not reliable and truthful witnesses. Therefore, the contention of the learned Public Prosecutor that PW1 is an injured witness and therefore, her evidence cannot be discarded has no acceptable merit. When the very version of the prosecution witnesses that two cots were spread in the hall and that on the night of the incident the deceased and the accused slept on one cot and PW1 slept on the other cot is itself highly doubtful in the light of the evidence of the Investigating Officer that he did not find any cots or blood stained bed sheet in the hall of the house, the question of believing the further version of the witnesses that the accused attacked the deceased at midnight while she was on the cot does not arise for consideration. The absence of cots in the hall of the house is a sufficiently strong circumstance to doubt the veracity of the prosecution case, as the said circumstance strikes at the root of the case of the prosecution.

Before adverting to the prosecution case with regard to the recovery or discovery of material objects it is profitable to call in aid the following decisions, which succinctly lay down the legal position.

In Pulukuri Kotayya v. King Emperor, AIR 1947 PC 67, the scope and ambit of Section 27 of the Indian Evidence Act were illuminatingly stated long ago by the Judicial Committee of the Privy Council. It runs as under:-

''....it is fallacious to treat the "fact discovered" within the Section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.''

In Mustkeem Alias Sirajudden v. State of Rajasthan, (2011) 3 SCC (Cri) 473 with reference to Section 27 of the Indian Evidence Act, the Supreme Court observed as under:-

''With regard to Section 27 of the Act, what is important is discovery of the materials object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the materials object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.''

Now it is to be noted that PWs 1 and 2 stated in their evidence before the Court of Session that after the villagers gathered, the accused went away with MO4, bill hook (Matchu kathi) by covering it with blanket or cloth. As already noted; their versions that while going away, the accused covered MO4 with either a blanket or cloth are improved versions. Further, the FSL report, exhibit P15, on a perusal shows that the blood group of the blood on MO 5 blanket could not be determined. The said report discloses that the group of the blood of the blood stains on the sickle (i.e., item no.8 of the said report) is of ''O'' group. However, no evidence with regard to the blood groups of the deceased and accused was adduced.

According to the case of the prosecution, the weapon of offence is a matchu kathi ( = bill hook). It may be apt to note that a bill hook is a tool having a sickle-shaped blade with a sharp inner edge; it is generally used for pruning or lopping branches or other vegetation. It is also pertinent to now note that the metal sickle sent to the Forensic Science Laboratory is of 58 cms., length as per the contents of Exhibit P15, FSL report. However, Exhibit P6, panchanama, on a perusal would show that the total length of the bill hook recovered/seized was 18 � inches. It is also noted therein that the length of blade is 12 inches and that of the handle is 6 � inches. Therefore, the size of the allegedly seized bill hook does not match with the size of the metal sickle that was forwarded by the investigating officer through Court to the expert of the FSL for chemical examination. The mediator, who was said to have been present at the time of the alleged recoveries, having turned hostile, did not support the case of the prosecution. These aspects assume importance in the light of the news item in Eenadu, Kadapa District Edition, dated 17.02.2005, Exhibit D5. The contents of the said exhibit disclose that after seizure of one knife, police discovered another knife in the house of the accused and also seized/recovered it. Though PW10 admitted in his evidence that as per Exhibit D5, police recovered another knife in this crime, he added that it is not correct. On this aspect, his testimony is to the following effect: "As per Ex.D.5 our police recovered another knife in this crime; [the witness adds, it is not correct]. But I have not given separate publication condemning Ex.D.5". Further, according to the prosecution case, PW10 arrested the accused on 22.03.2005 at 09.10 AM after her discharge from Government Hospital, Rajampet, and that the police discovered/recovered the weapon of offence at the behest of the accused pursuant to the disclosure confessional statement allegedly made by her on that day. However, Ex.D5, news item dated 17.02.2005, discloses that even before that date the police discovered/recovered two knives. This material piece of evidence, which gains importance in the light of the variations in the sizes of the weapon that was allegedly recovered and the one that was sent to the FSL, is sufficient to draw an inference that the prosecution version even with regard to arrest of the accused on 22.03.2005 is false. As a sequel to the said finding, it must also be held that the prosecution version regarding the alleged recoveries/discoveries of the material objects viz., MOs 1, 4 and 5 at the behest of the accused and on her alleged disclosure statement is untrustworthy and not reliable since shrouded in suspicion.

On the above analysis, we find that there is no reliable and credit worthy evidence to come to a safe conclusion that the prosecution established beyond reasonable doubt the guilt of the accused for the offences with which she is charged. On the other hand we find that all the circumstances of the case discussed supra cast an indelible shadow of doubt on the case of the prosecution. Consequently, we hold that the learned Additional Sessions Judge was justified in holding that the prosecution failed to establish the complicity of the accused as required under law and in acquitting the accused of the offences with which she was charged.

The law is well settled that ordinarily an order of acquittal would not be lightly interfered with, though the appellate Court has full power to review the evidence upon which the order of acquittal is founded, vide Surinder Singh v. State of U.P., (2003) 10 SCC 26. In the present case, this Court finds that the material contradictions and omissions in the evidence and also the infirmities in the investigation, particularly with regard to the arrest of the accused and alleged discovery of material objects are all sufficient to extend reasonable benefit of doubt to the accused. The acquittal recorded in Sessions Case No.378 of 2005, therefore, does not warrant interference.

As a result, Crl.A.No.1485 of 2010 filed by the State and Criminal Revision Case No.1796 of 2008 are dismissed.