GOLAKONDA VENKATESWARA RAOversusSTATE OF ANDHRA PRADESH

A                    GOLAKONDA VENKATESWARA RAO
                                   v.
                        STATE OF ANDHRA PRADESH

                                AUGUST l, 2003.

B                 [DORAISWAMY RAJU AND H.K. SEMA, JJ.]


         Evidence Act, 1872:

           Section 3-Conviction on the basis of circumstantial evidence-
C   Justification of-Held: Conviction can be based on circtJmstantial evidence
    when prosecution establishes circumstantial evidence beyond all reasonable
    doubts-Such circumstances should be consistent and must point to t~e guilt
    of the accused-Jn the instant case, all circumstantial evidence established
    thus conviction of accused upheld-Penal Code, 1860-Section 302.

D          Sections 27 and 3-Voluntary disclosure statement-Recovery of
    articles-Evidentiary value of-Held: When articles recovered in pursuance
    to information given is confirmed by discovery of articles of deceased, such
    information and statement cannot be false-Further investigating officer not
    sealing material recovered is inconsequential and also the non-production of
E   two articles before the court when othf!rS have been proved beyond reasonable
    doubt.

          According to the prosecution, appellant-accused committed rape of
    a minor girl and threw her into the well thereby killing her. It is alleged
    that the appellant buried the torn clothes of the deceased. Two months
F   after the incident PW-1-foster father of the deceased came to know
    through PW-5-a village woman that two months prior to the date of
    missing she noticed the appellant talking with the deceased. On being asked
    by the village elders the appellant confessed that he committed rape of
    the victim, killed her and threw her into the well. PW-1 then lodged FIR.
    Sessions Judge found the circumstantial evidence established against the
G   appellant-accused and convicted him under Section 302 IPC; he however,
    acquitted him of the charges under Section 376 and 201 IPC. High Court
    upheld the order. Hence the present appeal.

          Appellant contended that the prosecution has not established the
    circumstances appearing against the appellant beyond all reasonable
H                                        96
                                 G.V. RAO v. STATE OF A.P                        97
       doubts; that the identity of the deceased was not established as the            A
       Assistant Director who issu~d Superimposition Report was not examined;
       that last seen of the deceased with the appellant by PW-5 has not been
       established by convincing evidence having regard to the discrepancie~
       appearing in the testimony of. PW-5 and the FIR; that the disclosure
       statement and recovery of the articles is doubtful and no reliance can be
       placed on it; that the materials recovered were not sealed by the police;       B
       and that the hairpin and bangles recovered were not produced before the
....   Court.

            Dismissing the appeal, the Court

             HELD: I. It is well settled principle of law that in cases where the      C
       evidence is purely circumstantial in nature, the facts and circumstances
       from- which the conclusion of guilt is sought to be drawn must be fully
       established beyond any reasonable doubt and such circumstances must be
       consistent and unerringly point to the guilt of the accused and the chain
       of circumstances must be established by the prosecution. [101-D]                D
              2.1. In the facts and circumstances of the case, the prosecution had
       established the circumstantial evidence beyond all reasonable doubt, thus
       the conviction of the appellant-accused is upheld. (101-E)

              2.2. The Assistant Director who issued the Superimposition report
       certified that the skull could have belonged to the person in the               E
       photograph. Court would not be oblivious of the fact that the identity of
       the deceased was got tested by superimposition of the skeletal remains of
       the deceased conducted with reference to the photograph of the deceased.
       Police official deposed that he had sent the photograph of the deceased
       for superimposition test by the Laboratory. Doctor who conducted the            p
       post-mortem examination of skeletal remains gave the age of the deceased
       between 15-16 years. This is corroborated by PW-9, the Professor &
       Scientist working in the laboratory. The opinion of the forensic expert also
       makes it clear that the skull belonged to a human-being of female sex aged
       15 or 16 years. Thus, the identity of the deceased is well established beyond
       all reasonable doubts and non-examination of the Assistant Director would       G
       not itself throw away the otherwise reliable and trustworthy evidence.
                                                                (101-F-H; 102-A-B)

             2.3. PW-5 was examined after a long gap of four years. It is not
       expected from a rustic village woman to have remembered the incident
       that had taken place after a lapse of four years with mathematical              H
    98                       SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A precision. It is but quite natural that human memories are apt to blur with
    the passage of time. This witness subsequently had admitted that she does
    not remember the day on which the .appellant and the deceased were
    talking to each other but she however reaffirmed that they were talking
    to each other sitting at the place. The fact .remains that PW-5 last saw the
B   deceased and the appellant together and this fact has not been demolished
    and remains unimpeached. Thus the discrepancy in the FIR and in the
    statement of PW-5 between 3 months and 2 months and also 11.00 A.M.
    and 3 P.M is not of a substantial character which would throw the
    prosecution story, as unbelievable. [102-G-H, F; 103-AJ

       2.4. PW-3-foster mother of the deceased has stated that when the
c deceased  left the house for the last time she was wearing clothes-jacket
    and langa. It is a matter of common knowledge that women have an
    inherent sense of identifying the wearing apparels of their daughters who
    are attached to the mother, particularly commonly attire worn by them
    in the house. Therefore, wearing apparels of the deceased dug out from
D   the place at the disclosure of the appellant and identified by PW-3 are
    the wearing apparels of the deceased at the time she left the house and
    subsequently missing. [104-F-G)

         Jackaran Singh v. State of Punjab, AIR [19651SC2345, distinguished.

          2.5. The recovery of articles is pursuant to the voluntary disclosure
E
    statement offered by the .appellant. The fact that the recovery is in
    consequence of the information given is fortified and confirmed by the
    discovery of wearing apparel and skeletal remains of the deceased which
    leads to believe that information and the statement cannot be false.
                                                                        [105-EJ
F
         S.C. Bahri v. State of Bihar, AIR [1994) SC 2420
           2.6. The pieces of langa were found after being dug out and
    unearthed at the disclosure of the appellant. Jacket, hair, cement. pole
    piece, skeletal remains were not found lying on the surface of the ground
G   but they were found inside the well, which is 6-112 deep of water, with the
    help of swimmers. It is not found from the place where public can have
    free access. Therefore, there is no reasonable. apprehension with the
    material exhibits being planted to rope in the appellant with the crime.
                                                                (105-H; 106-AJ

H         2.7. Investigating Officer has not stated in his statement that he has
                       G.V. RAO v. STATE OF A.P [SEMA, J.]                    99
not fixed a seal on the material so seized. This question was also not put           A
to him in the cross-examination. The village administrative officer has
stated that the police took away all the articles seized along with them
one hour after completing Ext.P-3 where there is a mention about the
pieces of langa being packed there itself and affixing the chits with the
signatures of the mediators on that packet. [106-C]
                                                                                     B
      2.8. Non-production of hairpins and bangles before the Court during
the course of trial would not by itself disclose tampering of evidence wifh
regard to the recovery of hairpins and bangles inasmuch as the articles
recovered have been proved beyond all reasonable doubts. Thus, the non-
production become inconsequential and no prejudice also seems to have                C
been caused to the appellant. [106-E]

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 838
of 2002.

     From the Judgment and Order dated 29.6.2001 of the Andhra Prade~h               D
High Court in Crl. A. No. 1141 of 2000.

      Mahendra Anand Chander Shekhar Ashri for the Appellant.

      G. Prabhakar and Ms. T. Anamika for the Respondent.

      The Judgment of the Court was delivered by
                                                                                     E

       SEMA, J. The appellant was put to trial for an offence pur. ;shable
·under Sections 376, 302 and 201 IPC before Sessions Judge, Krishna Division
 at Machilipatnam in Sessions Case No I 10 of I 998. After the trial, the learned
 Sessions Judge found the appellant not guilty under Sections 376 and 201            F
 IPC and he was accordingly acquitted of the charges under the aforesaid
 Sections. The learned Sessions Judge, however, found the appellant guilty
 under Section 302 IPC and sentenced him to undergo imprisonment for li{e
 and also to pay a fine of Rs. I 00 and in default to undergo simple imprisonment
 for one month. The conviction and the sentence recorded by the learned
 Sessions Judge were confirmed by the High Court by the impugned judgmertt           G
 under challenge.

       Briefly stated the facts leading to the filing of the present appeal are
that the appellant, a resident of Sultanagaram and a neighbour of the deceased
- Devanaboyina Lakshmi, stated to be a minor girl aged 15-16 years accosted
the deceased about two months prior to the incident on 14. 7. I 996. It is statetl   H
    100                        SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A that the deceased went to graze goats at water canal bund. The appellant
    noticed the deceased going towards the water canal bund, followed her, and
    began to talk with her with an evil eye. This fact is stated to have been
    witnessed by PW-5 Sala Ankamma. It is also stated that having found no one
    present around the area, the appellant caught the deceased, dragged her to a
    nearby unused shed, gagged her mouth and committed rape on her against
B   her will. It is also alleged that all the resistance put up by the victim girl went
    in vain and the accused over-powered the girl. It is further disclosed, 'in the
    process of struggle the upper and inner langa of the deceased were tom.
    When the appellant left the deceased alone and was about to part from the
    place of occurrence, the deceased allegedly was said to have told the appellant
C   that she would bring the matter to the notice of villagers and police. Being
    frightened by this disclosure, it is alleged, the appellant chased her, caught
    her and threw her into the well situated in the northeastern comer of the
    dibba. The appellant also kept a stone in the well so as to prevent the body
    from floating and also put some caveltry creepers (Guprapu Dekka) with an
    intention to hide the offence. It is also alleged that the appellant had buried
D   the tom clothes of the deceased. Since the deceased did not return by the
    evening, her kith and kin started searching for her without any result. Finally,
    PW-I (author of FIR and foster father of the deceased), to,whom the deceased
    was given in adoption by PW-2, came to know through PW-5 Sala Ankamma
    that two months prior to the date of missing i.e. 14.7.1996 sJle noticed the
E   appellant talking with the deceased. Upon this information being given, PW-
    1 approached the village elders, one of whom, Rajarao was examined as PW-
    4. On being asked by the village elders the appellant allegedly confessed the
    guilt of committing rape on the deceased and throwing her into the well. It
    is only after this information, PW-1 lodged the FIR (Exhibit P-1). In course
    of investigation the prosecution examined as many as 12 PWs and marked
F   Exhibits P-1 to P-29 and M.Os. 1-8. None of the DWs were examined on
    behalf of the appellant. He, however, pointed out three contradictions in the
    evidence of PW-5 marked Exhibits D-6 to D-8. After the conclusion of the
    trial, the learned Sessions Judge found the appellant guilty as noticed above.

G         Undisputedly, there is no eyewitness to the occurrence and conviction
    of the appellant is solely based on the circumstantial evidence.

          The learned SessiOns Judge, and in our view correctly, has formulated
    the following circumstantial evidence appearing against the appellant on
    appreciation of evidence:
H           (i)   "The identity of the deceased was established; (ii) The deceased
                      G.V. RAO v. STATE OF A.P [SEMA, J.]                   101

            was last seen in the company of the accused; (iii) The accused          A
            made an extra judicial confession before P.W.4 and another village
            elder to the effect that he committed rape on the victim, killed
            her and threw her in the well;
       (iv) Recovery of the articles and skeletal remains of the deceased
            pursuant to the disclosures of the information furnished by the         B
            accused himself; and
       (v) The accused failed to adduce any evidence to the contra to prove
           the so-called oblique motive of P.Ws. 4 and 6 to implicate him
           in a false case nor state anything mitigating in his Sec.313 Cr.P.C.
           a false wholesale denial."                                               C
      The learned Sessions Judge having regard to and after considering the
evidence on record and exhibits found circumstances nos. 1, 2 and 4 well
established against the appellant.

      By now it is well settled principle of law that in cases where the evidence   D
is purely circumstantial in nature, the facts and circumstances from which the
conclusion of guilt is sought to be drawn must be fully established beyond
any reasonable doubt and such circumstances must be consistent and unerringly
point to the guilt of the accused and the chain of circumstances must be
established by the prosecution.
                                                                                    E
      Mr. Mahendra Anand, learned senior counsel, vehemently submits that
the prosecution has not established the aforesaid circumstances appearing
against the appellant beyond all reasonable doubts. It is his contention that
the identity of the deceased was not established beyond all reasonable doubts
inasmuch as the Assistant Director (F.S.L), who issued Exhibit P-29, was not
examined. Undisputedly, Exhibit P-29 Superimposition Report was sent to F
the Regional Forensic Science Laboratory, Vijayawada. The Assistant Director,
who issued Exhibit P-29 certified that the skull in item l(one) could have
belonged to the person 'n the photograph in item No.2(two). Court would not
be oblivious of the fact that the identity of the deceased was got tested by
superimposition of the skeletal remains of the deceased conducted with G
reference to the photograph of the deceased. PW-12 deposed that he had sent
the photograph of the deceased for superimposition test by the Forensic Science
Laboratory, Hyderabad. PW-7 Dr.S.Rama Brahmam, conducted the post-
mortem examination of skeletal remains (Exhibit P-7). In the said report he
gave the age of the deceased between 15 - 16 years based on his medical
knowledge. PW-9 Dr. P. Vijaya Kumar, a professor and scientist, working in H
    102                       SUPREME COURT REPORTS (2003) SUPP. 2 S.C.R.

A the forensic laboratory examined the skeletal remains in the court and stated
    that they showed the feminine characteristics and the· age of the person
    concerned would be around 15 to 16 years~ This apart, Exhibit P-9 is the
    opinion of the forensic expert which also makes it abundantly clear that the
    skull belonged to a human"being of female sex aged 15 or 16 years. In the
    facts and circumstances stated above, we have no doubt in our mind, that the
B   identity of the deceased is well established beyond all reasonable doubts and
    non-examination of Assistant Director who issued Exhibit P-29 would itself
    throw away the otherwise reliable and trustworthy evidence of PWs 7, 9 and
    12. We have no reason to take a view"different from the view taken by two
    courts concurrently.
c         The next contention of Mr. Anand, learned senior counsel, is that last
    seen of the deceased with the appellant by PW-5 has not been established by
    convincing evidence having regard to the discrepanci~s appearing in the
    testimony of PW-5. It is the contention of the learned eounsel for the appellant
    that in the FIR lodged by PW-I (Exhibit P-1) it is ~tated that two months
D   prior of her death she was missing and this infomiation was given to them
    by PW-5 Sala.Ankamma that about 11.00 A.M. she saw the deceased talking
    with the appellant at Puranamvari Cheruvu whereas PW~5 ·Sala Ankamma
    when examined before the Court has stated as under:~

            "The deceased died about 3 years ago. The deceased was found
E           missing 3 months prior to her death. At that time at about 3-00 P.M.,
            I had been to canal bank for co1lecting firewood. There I found the
            accused and the deceased talking with each other. I told the. fact of
            seeing the accused and the deceased talkirig with each other two
            months ago to the parents of the deceased."
F          Learned Counsel contended that there is discrepancy in Exhibit P-1 and
    in the statement of PW-5 between 3 months and 2 moriths and also 11.00
    A.M. and 3P.M. Apart, the discrepancy as pointed out is not of a substantial
    character which would-throw out the prosecuti_on story, as unbelievable. The
    fact remains that the incident said to have occurred on 14. 7.l 996 and PW-
G   5 was examined on 23.52000 after a long gap offour years be taken n.ote
    of. It is not expected frorn a rustic village woman to have remembered the
    incident that had taken place. after a lapse of four years with mathematical
    precision. It is but quite natural that human rne.mories are apt to blur with the
    passage of time. This· witness subsequently had admitted that she does not
    remember the day on which the appellant and .the deceased were talking to
H   each other but she however reaffirmed that they were talking to each other
                       G.V. RAO v. STATE OFA.P[SEMA,J.]                       103
sitting at the place. The fact remains that PW-5 last saw the deceased and the A
appellant together and this fact has not been demolished and remains
unimpeached. The appellant, as already noticed, brought to the notice of the
Court three contradictions in the evidence of PW-5 marked as Exhibits D-6
to D-8. Exhibit D-6 is with regard to contradiction in the evidence of PW-
5 that PW-5 saw the deceased last being in the company of the accused three
months ago whereas in Exhibit P-1, PW-1 has stated that the deceased was B
found missing only two months prior to the discovery of death. Exhibits D-
7 and D-8 relate to the contradictions in the statement of PW-5 which sugg~st
that her mother, herself and her sister happened to be at the place of incident
whereas in her cross-examination she stated that she alone had seen the
deceased and the accused together at thatpoint of time. We have gone through C
the contents of Exhibits D-6 to D-8 which have been placed on record and
we are in full agreement with the concurrent finding of two courts that the
contents of Exhibits D-6 to D-8 do not relate to PW-5 having seen the
deceased and the appellant together. Therefore, Exhibits D-6 to D-8 do not
in any way detract from the truth of the assertion of PW-5 that she alone had
seen. The trial court has not placed reliance on the extra judicial confession D
while convicting the appellant. This question, therefore, do not detain us any
longer.

      The next important circumstance, which· weighed with the trial court to
base the conviction, is the recovery of MOs 1-8 at the disclosure statement.          E
furnished by the accused. The recovery of MOs is preceded by the disclosure
statement made by the appellant (Exhibit P-2) which is in his mother tongue
(Telgu). The disclosure statement given by the appellant is carved out from
the mediator's report. The translated version of admissible portion quoted by
the learned Trial Judge reads as follows:-
                                                                                      F
        "If you come with me, the day how Lakshmi was raped at the bank
        of Puranam Lake and how Lakshmi was forcibly thrown in the well
        and killed and at that place in what clothes she was and which Lange
        (Paiticcit) she wear and Lange's pieces were digged and close down
        in the earth and that place I can show as he said ... "
                                                                                      G
        (It is stated in the court that translation is not happily drafted)

      Section 27 of the Indian Evidence Act provides that only so much of
the information as distinctly relates to the fact thereby discovered is admissible.
In the instant case the recovery (Exhibit P-2) was made on the basis of the
disclosure statement furnished by the appellant. The disclosure statement             H
    104                       SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A   (Exhibit P-2) is proved by the mediator examined as PW-6 who is the village
    Administrative Officer and also the Inspector of Police examined as PW-12.
    PW-6 has stated that on the basis of disclosure statement (Exhibit P-2) the
    accused led the party to a place called "Pumamvari Dibba" where they founq
    a dilapidated tin roofed shed and a well. From inside the well hair, hairpins,
B   bangles were recovered and the police seized those articles under the cover
    of Ext.P-3. M.0.3 is the hair, M0.4 is the cement pole piece M0.5 is the
    bones. Then the accused led the party to a spot behind the tin roofed shed.
    The accused then dug out and unearthed the piece of langa. M.0.6 is the
    piece of blue langa and M.0.7 is the pieces of green langa. M0.8 is the
    pieces of mithai coloured langa.
c          PW-12 arrested the appellant and questioned him. He stated that on
    being interrogated in the presence of PW~6 the appellant offered to show the
    place of occurrence and also where the dead body was thrown. He also
    offered to show the clothes of the deceased. Pursuant to the disclosure, he ·
    took the pl:\rty to the well and disclosed that the body had been thrown into
D   the well where there was a water level of 6- l/2 feet and with the help of
    swimmers the body was recovered from the well marked as M.0.3 and M.0.5
    i.e. hair and skeletal remains respectively. They also recovered white plastic
    bangles and M.0.1 Jacket. They also recovered cement pole piece (survey
    stone) M.0.4. The said stone stated to have been kept to prevent the body
E   from floating. He further stated that the accused then led them to a place
    towards western side of nearby shed and dug out a spot from where pieces
    of langa were retrieved marked as M02, M0-6 and M0-8.

           PW-3, who is no other than the foster mother of the deceased has stated
    that when the deceased left the house for the last time she was wearing
F   clothes MO. I and M0.2. It is a matter of common knowledge that women
    have an inherent sense of identifying the wearing apparels of their daughters
    who are attached to the mother, particularly commonly attire worn by them
    in the house. We have no doubt in our mind, therefore, that wearing apparels
    of the deceased dug out from the place at the disclosure of the appellant and
    identified by PW-3 are the wearing apparels of the deceased at the time she
G   left the house and subsequently missing.

          Learned counsel for the appellant, contended that the disclosure statement
    and recovery of the articles is doubtful and no reliance can be placed on such
    disclosure statement and recovery of the MOs. He further contended that the
H   materials recovered were not sealed by the police. Hairpin and bangles said
                       G.V. RAO v. STATE OF A.P [SEMA, J.]                   105
to have been recovered were not produced before the Court and these A
circumstances will make, all the more recovery doubtful. Counsel relied on
the decision of this Court rendered in Jackaran Singh v. State of Punjab, AIR
(1995) SC 2345, wherein in paragraph 8 at page SC 2347, it was pointed out
that the disclosure statement inspires no confidence because none of the two·
panch witnesses Yash Pal and Sukhdev Singh have been examined at the
Trial and secondly because the disclosure statement doe~ not bear the signatures B
or the thumb impression of the appellant and also the recovery memo does .
not bear the signatures or thumb impression of the accused. Every case has
to be decided on its own facts. The facts of that case do not fit in the facts
of the case at hand. In the present case as already noticed PW-6 and PW-12
were examined to prove the disclosure as well as the recovery pursuant to the C
disclosure statement of the appellant. In the instant case, while it. is true that
neither the disclosure statement nor the recovery memo bear the signatures
of the accused but the fact remains that pursuant to the disclosure statement
MOs have been recovered from the well and dug out from a place which is
pointed out by the appellant leaves no manner of doubt that the recovery of
MOs has been made on the basis of voluntary disclosure statement. In Jackaran D
Singh's case (supra) the recovery memo Ex.P.9/A relates to revolver and the
cartridges. There the appellant had denied the ownership of the crime revolver
and the prosecution had led no evidence to show that the crime weapon
belonged to the appellant. The observation of this Court was in that context.
In the instant case, as already noticed, the recovery is pursuant to the disclosure .E
statement offered by the appellant. The fact that the recovery is in consequence
of the information given is fortified and confirmed by the discovery of wearing
apparel and skeletal remains of the deceased which leads to believe that
information and the statement cannot be false.

      The provisions of Section 27 of the Evidence Act are based on the view        F
that if a fact is actually discovered in consequence of information given,
some guarantee is afforded thereby that the information was true and
consequently the said information can safely be allowed to be giv~n in evidence
because if such an information is further fortified and confirmed by the
discovery of articles or the instrument of crime and which leads to the belief     G
that the information about the confession made as to the articles of crime
cannot be false. (See S.C. Bahri v. State of Bihar, AIR (1994) SC 2420 at
page SC 2448). As already noticed M.0.3, M.0.4 and M.0.5 were retrieved
from the well with the help of swimmers, as there was a water level of
6-112 feet. M0.2 M0.6 and M0.8 are the pieces of langa dug out and unearthed
at the disclosure of the appellant. These materials were not found lying on        H
                                •

    106                       SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A   the surface of the ground but they were found inside the well, which is
    6-1/2 deep of water, with the help of swimmers and were found after being
    dug out and unearthed only after the place was pointed out _by the appellant.
    It is not found from the place where public can have free access. Therefore,
    there is no reasonable apprehension with the material exhibits being planted
B   to rope in the appellant with the crime.

          Mr. Anand next contended that the Investigating Officer PW-12 did not
    have fixed the Lac seal on the particulars so recovered and no evidentiary
    value can be attached to the recovery. We are unable to countenance with the
    contention of the learned counsel because no where in the statement of PW-
C   12 he has stated that he has not fixed a seal on the material so seized. This
    question was also not put to PW-12 in his cross-examination. At the same
    time PW-6 has stated that the police took away all the articles seized along
    with them one hour after completing Ext.P-3. In Ext.P-3 there is a mention
    about the pieces of langa being packed there itself and affixing the chits with
    the signatures of the mediators on that packet.
D
          Lastly, it is contended by Mr. Anand that hair pins and bangles so
    recovered at the disclosure statement of the appellant were not produced
    before the Court. Non-production of hairpins and bangles before the Court
    would not by itself disclose tampering of evidence with regard to the recovery
    ofMOs inasmuch as MOs 1-8 as noticed above have been proved beyond all
E   reasonable doubts. Non-production of hairpins and bangles before the Court
    during the course of trial in the facts and circumstances as aforestated become
    inconsequential. No prejudice also seems to have been caused to the appellant
    for non-production of hairpins and bangles.·

F        For the aforestated reasons we do not find any infirmity in the order
    under challenge. The appeal, therefore, fails and stands dismissed.

    N.J.                                                        Appeal dismissed.