State of
A.P. Vs. S. Swarnalatha & Ors. [2009] INSC 1387 (4 August 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL
NOS.315-316 OF 2002 State of Andhra Pradesh ... Appellant Versus S. Swarnalatha
& Ors. ... Respondents
S.B.
Sinha, J.
1.
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.
Respondents herein were accused of entering into a conspiracy with
each other to commit murder of one Bal Reddy and his wife Kalavathi.
2 They
were in-laws of the accused No.1. Murder of Bal Reddy and his wife Kalavathi
were committed at about 2.30 pm on 3.12.1997. Allegedly accused No.1 (the
daughter-in-law of the deceased), with a view to cause disappearance of the
evidence also give a false information with an intention to save the offenders
from legal punishment.
Indisputably,
there is no eye-witness 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 PW3 (the driver of a taxi) and PW6
(son-in-law of the deceased).
The First
Information Report was lodged by one G. Damodar Reddy (son of the deceased and
husband of the accused No.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. Tea
was prepared by the accused No. 1. After taking tea, they allegedly brought his
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 3 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. 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 pm, 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.
3.
On the basis of said statements, a first information report was
recorded. Allegedly on or about 4.1.1998, the accused No.1 made a confession before
G. Sukender (PW6) when he allegedly had gone to the house of the deceased in
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, the
accused No.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 can be killed.
4.
In terms of the said conspiracy, as information was sent to the
accused No.2 by the accused No.1.
PW6 was
also told that accused No.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 pm 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 Pusthalatadu to accused No.2 on being asked.
During the course of the incident, they tied her also with a saree.
4. PW6
thereafter took accused No.1 to CCS, Hyderabad and handed her over to the
Inspector of Police (PW14). She was interrogated whereupon she led the police
to a village commonly known as Arutla. Her confessional statement was recorded
in the presence of PW6, PW8 and PW10. She had offered to show two houses of
Accused No.2 and others; pursuant whereto the houses of Accused Nos.2 to 6 were
raided. They were arrested and were interrogated. Allegedly pursuant to their
disclosure, seizures of some stolen goods were affected.
5 A test
identification parade was conducted in respect of the accused Nos.2 to 4.
5.
Javeed Hussain (PW3) is a taxi driver. The taxi belonged to one
M/s 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 pm 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 the accused No.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.
6.
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:
6
"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 PW3.
4) PW3,
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
the Ring Road, Dilsukhnagar.
7) Extra
judicial confession made by A-1 before PW6 and PW6 produced a-1 before PW14.
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 identified by PW3 in the test identification parade.
12) A-4
alleged to have pledged M.O.14 with the State Bank of Hyderabad.
13) The
conduct of A-1 immediately after the incident."
7.
Circumstance No.1 is admitted. As regards circumstance No.2,
however, there is no evidence that accused No.1 was present in her house at the
relevant time. Circumstances Nos.3 to 6 are said to have been proved by PW3.
One
Rajasekhar Reddy, as noticed heretobefore, engaged the taxi from Jaya Durga
Bhawani Travels. The Investigating Officer did not examine him. He also did not
visit the office of the said travel agent.
In his
statement under Section 161 of the Code of Criminal Procedure PW3 had stated
that three persons had gone to Durga Bhawani 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 Nos.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.
PW3 in
his statement under Section 164 mentioned the names of Accused Nos.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.
8 PW3 was
not taken by the investigating officer to the house in question. He, therefore,
did not identify the house where the offence has taken place.
8.
The purported test identification parade, wherein PW3 is alleged
to have participated insofar as the accused Nos. 2 to 4, 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.
9.
So far as the extra judicial confessions purported to have been
made by the accused are concerned, we may notice that accused No.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 PW6 has admitted in no
uncertain terms that the family of the deceased was not in cordial terms with
him. PW6 admitted that prior to the making of confession to him, accused No.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 the accused Nos. 1 to PW6 becomes
doubtful. Extra-judicial confession as is well known is a weak piece of
evidence, although in given 9 situations reliance thereupon can be placed. [See
State of U.P. v. M.K. Anthony (1985) SCC 505 and State of Rajasthan v. Kashi
Ram [(2006) 12 SCC 254]
10.
Furthermore, PW6 allegedly took A1 to the police station. The
remand report shows that the accused No.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 No.1 before PW6.
According to the Investigating Officer, accused No.1 is said to have made confession
before her husband. Name of PW6 did not occur in the case diary.
Alleged
confessional statements made by Accused Nos.2 to 6 were treated as
circumstances No.5, 8, 9, 10 and 12. PW3 admits that Accused Nos. 2 to 6 were
brought to Durga Bhavani Travels on 14.12.1997. Why they were arrested on 4-5,
January, 1998 has not been explained.
11.
We may also place on record that the learned Trial Judge has
acquitted the respondents from the charge of Section 392 of the Indian Penal
Code.
12.
Some gold ornaments are said to have been pledged with the State
Bank of Hyderabad by Accused No.4. It has been brought on record that in 10 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 No.4 was said to have been introduced by one Dasarath whose
account number was not mentioned in any document of the Bank.
Accused
No.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.
13.
It stands accepted that the statements of PW3 and PW6 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. PW6 was admittedly not present
at that time. The statements of PW3 and PW6 were recorded under Section 164 of
the Code of Criminal Procedure much before their recording of their statements
under section 161 thereof.
In Ganesh
Bhavan Patel & Anr. v. State of Maharashtra [(1978) 4 SCC 371], this Court
held :
"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
"F.I.R." was registered) and further delay in recording the
statements of Welji, Pramila and Kuvarbai. This circumstance, looming large in
the background, 11 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."
14.
The prosecution furthermore did not assign any motive for commission
of the offence. According to PW1, the accused No.1 wanted to live separately to
which the deceased did not agree. However, in his deposition before the Court,
PW6 stated that she had been subjected to harassment by the deceased.
15.
The trial Court itself has acquitted all the accused from the
charges under Section 120B, 392 and 201 of the Indian 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 PW3 and PW6.
We are of
the opinion that the said findings are not correct.
We have
found hereinbefore that PW3 and PW6 are not trustworthy, and, thus, the
impugned judgment cannot be interfered with.
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 12 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.
In State
of Punjab vs. Sohan Singh [(2009) 8 SCALE 260], this Court held:
"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 and
others, [ 2009 (4) SCALE 343 ] }."
16.
The appeals are, therefore, dismissed.
.............................J. [S.B. Sinha]
.............................J. [R.M. Lodha]
New Delhi;
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