THE HONOURABLE SRI JUSTICE C.V. NAGARJUNA REDDY AND THE HONOURABLE SRI JUSTICE M.S.K. JAISWALS Criminal Appeal No.1518 of 2010 31-03-2017 Pidathala Satyam Babu Appellant The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court, HyderabadRespondent
Counsel for the Appellant: Mr. V. Pattabhi, for Ms. Vasudha Nagraj Counsel for the Respondent :Public Prosecutor (AP) <GIST :
>HEAD NOTE : ?CITATIONS : 1. AIR 1973 SC 55 2. (2002) 8 SCC 45 3. (2006) 10 SCC 681 4. (1984) 4 SCC 116 5. (1973) 2 SCC 793 6. (2008) 3 SCC 100 7. (2016) 1 SCC 550 8. 1994 Supp (1) SCC 173 9. (2014) 4 SCC 747 10. (2003) 7 SCC 56 11. (1976) 4 SCC 233 12. (2014) 5 SCC 154 13. (2014) 5 SCC 108 THE HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY AND THE HONBLE SRI JUSTICE M.S.K. JAISWAL CRIMINAL APPEAL NO.1518 OF 2010 DATED:31-03-2017 THE COURT MADE THE FOLLOWING:
JUDGMENT: (per the Honble Sri Justice C.V. Nagarjuna Reddy) Throughout history, it has been inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph. – Haile Selassie
2. Gruesome murder of an innocent teenaged girl of seventeen years, by name Ayesha Meera, known almost to every household in the erstwhile State of Andhra Pradesh, for wrong reasons though, was the subject matter of Sessions Case No.34 of 2009 on the file of the Sessions Judge, Mahila Court, Vijayawada, Krishna District.
3. The appellant herein was prosecuted on the charges of both rape and murder. The plea of the parents of the deceased (P.Ws.1 and 13) put forth with conviction that the appellant is an innocent boy implicated by the Police in order to save real culprits, notwithstanding, the appellant was made to stand trial, convicted for the aforementioned offences, and sentenced to suffer life imprisonment and to pay fine of Rs.1,000/- and in default of payment of fine, to suffer simple imprisonment for six months for the offence under Section 302 IPC, and also to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,000/-, and in default of payment of fine, to suffer simple imprisonment for six months for the offence under Section 376 IPC. The sentences were directed to run concurrently.
THE CASE OF THE PROSECUTION 4 The prosecution case briefly runs as under: (i) Basing on the information that one Ayesha Meera (hereinafter
referred to as the deceased), who was a student of 1st year B. Pharmacy of Nimra College of Ibrahimpatnam and who was staying in Sri Durga Ladies Hostel, West Imbrahimpatnam, was murdered and raped on 27.12.2007 at about 2.00 a.m., given by P.W.7, husband of P.W.6 the warden, running the hostel, P.W.27 the Assistant Sub-Inspector of Police, Ibrahimpatnam, directed P.W.26 – Police Constable to guard the scene of offence, informed the incident to his superior police officials and rushed to the scene of offence. P.W.7 also informed the incident to the parents of the deceased (P.Ws.1 and 13 – mother and father of the deceased respectively) over phone. P.Ws.1 and 13, and P.W.12, a colleague of P.W.13, working and residing in Tenali, reached the scene of offence from Tenali at about 8.45 a.m. P.W.30 Inspector of Police obtained a report from P.Ws.1 and 12 and on his direction P.W.29 Sub- Inspector of Police registered the same as First Information Report (FIR) in Crime No.477 of 2007 under Section 302 of Indian Penal Code (IPC) and submitted copies of express FIR to all the officers concerned.
(ii) P.W.30 Inspector of Police took up the investigation of the case, inspected the scene of offence with the assistance of clues team in the presence of the mediators P.Ws.18 and 19 and got drafted an observation report. He prepared rough sketch of the scene of offence and also got prepared a sketch of the entire building. He has seized (i) a letter addressed to the hostelers in Telugu on the reverse of a photo copy of non-judicial stamp paper signed by P.W.13, wherein on the typed material, the words Chirutha, Cheran Teja, 143 and love symbols were found written by the appellant; (ii) one blood stained cloth piece having light brown colour dots collected from the bed of the deceased;
(iii) one blood stained pillow cover containing pink, brown and violet colours; (iv) one blood stained yellow and orange colour bed sheet;
(v) blood stained earth lifted near the cot in the hall; (vi) bloodstained earth in verandah; (vii) bloodstained earth near bathroom door (viii) bloodstained earth near left leg of the deceased; (ix) bloodstained earth near right side of head of the deceased; (x) pieces of hair near bathroom;
(xi) bloodstained towel near head of the deceased; (xii) Fabclip green colour pencil; (xiii) Link Icon dot gel orange colour ball pen; (xiv) Speed Hiway company lemon yellow blue colour ball pen; (xv) bloodstained green and white towel tied to the leg of the deceased; (xvi) tracing paper used for lifting the letter from breast of the deceased; (xvii) sky-blue colour night pant and white colour panty with pink flowers left in the verandah of 5th block; and (xviii) samples of control earth for the items (v) to (ix) from the scene offence, in the presence of P.Ws.18 and 19 – mediators under the cover of observation report. Photographs and videographs of the scene of offence were taken with digital camera in which partial footprint of the appellant was found near the left hand of the deceased. On the instructions of P.W.30, P.W.8, who is a dog handler, tracked the movements of the assailant in the locality and the dog Ranjith moved at the scene of offence and went towards Ibrahimpatnam Ring Centre.
(iii) On 27.12.2007 at 12.00 noon, P.W.30 held inquest over the body of the deceased in the presence of the mediators P.Ws.18 and 19 and two others. During the inquest, he examined P.Ws.1, 2, 4, 7, 13 and another and recorded their statements under Section 161 CrPC. The inquest panchayatdars have opined that the deceased was murdered and raped by striking on her head with a blunt and heavy object. P.W.30 sent the dead body of the deceased to the Government General Hospital, Vijayawada for post-mortem examination and on the same day, he examined P.Ws.3, 5, 6, 8, 12, and others and recorded their statements under Section 161 CrPC.
(iv) P.W.21 Dr. G. Siva Rami Reddy and one Dr. P. Chandrasekhar Rao Medical Officers, Forensic Medicine, Government General Hospital, Vijayawada, who conducted autopsy over the body of the deceased, preserved the viscera, vaginal swabs and smears and pubic hair for chemical analysis and reserved their opinion pending receipt of the chemical analysis. P.W.30 forwarded the material objects collected from the scene of offence and preserved by the Medical Officers to the A.P. Forensic Science Laboratory (FSL), Hyderabad, for chemical analysis through P.W.32 – Assistant Commissioner of Police (ACP), West Zone, Vijayawada city. As per the instructions of the Commissioner of Police, Vijayawada City, P.W.32 took up further investigation of the case after verifying the investigation done by P.W.30. On 31.01.2008 the report of the Chemical Examiners was received and based on the said report, the Medical Officers opined that there is recent sexual intercourse and that the cause of death is due to head injury. On 04.02.2008, based on the opinion of the Medical Officers, P.W.32 filed a Memo in the Court adding Section 376 IPC.
(v) During the course of the investigation P.W.32 got conducted polygraph and DNA tests on several suspects, their handwritings and footprint impressions were compared with the samples collected from the scene of offence and he suspected complicity of one dossier criminal of Patamata Police Station, namely, Guruvindar Singh Anand @ Laddu, of Gurunanak Colony, Patamata, Vijayawada, as he had similar crime history in the past. As the DNA profile and handwritings obtained from the said Guruvindar Singh Anand did not match with the DNA sample and handwritings of the offender, P.W.32 continued his further investigation and on 12.11.2008 P.W.34 filed a Memo in the Court requesting to delete the name of the said Guruvindar Singh, as an accused.
(vi) On transfer of P.W.32 on 13.08.2008, P.W.33, the ACP, Central Zone, took up further investigation. He came to know through radio message that on 17.08.2008 at 01.00 hrs., the appellant was arrested by P.W.31 the Sub-Divisional Police Officer, Nandigama, near Polytechnic college located on the bypass road, Nandigama, in Crime No.241 of 2008 under Sections 450, 457 and 380 IPC of Nandigama Police Station in the presence of LWs.29 and 30 mediators Ayyadevara Naga Narasimham and Pamula Venkata Rama Narasimha Rao and that during the interrogation he voluntarily confessed to have committed the murder and rape of the deceased on the intervening night of 26/27.12.2007 at Sri Durga Ladies Hostel, and he was produced by P.W.31 in the Court of the Judicial Magistrate of First Class, who sent him to the judicial custody.
(vii) It is the specific case of the prosecution that the accused is a resident of Annasagaram Village, hamlet of Nandigama, Krishna District, that he is a mason by profession, but he used to work as cleaner on lorries now and then, that he studied 7th Class in MGH High School, Nandigama and discontinued his studies, that he became addicted to vices like alcohol, gutka and debauchery, that in the year 2006 he married the daughter of his maternal uncle and lived with her for a short period, that due to marital discord they were separated later and that due to his sexual urge he committed many sexual assaults on women within the limits of Nandigama Police Station. It is further alleged that he was also involved in a theft case on 24.01.2008, vide Crime No.25 of 2008 of Nandigama Police Station, registered under Sections 457 and 380 IPC and on admission, he was convicted and sentenced to simple imprisonment for six months and was released on 25.07.2008, that immediately after his release, he again committed two more offences at Government Polytechnic womens hostel, Nandigama vide Crime No.224 of 2008 under Section 458 of IPC, on 28.07.2008, and Crime No.241 of 2008 under Sections 450, 457 and 380 IPC, on 09.08.2008 within the jurisdiction of Nandigama Police Station.
(viii) On 18.8.2008, P.W.33 obtained Prisoner Transit Warrant against the appellant from the Court and on his production in the Court, he was taken to Police custody on 29.08.2008, and was thoroughly interrogated in the presence of P.Ws.19 and 20 at Central Detective and Interrogative Cell (CDIC), Vijayawada. During the course of interrogation, the appellant voluntarily confessed to have murdered and raped the deceased. In pursuance of such confession made in the custody, he led P.W.33 and the mediators – P.Ws.19 and 20 to the house of P.W.10 and stated that he killed the deceased with a chutney pounder, and he showed the place to P.W.33 and the mediators and took it out from the bushes in front yard of the house of P.W.10. The chutney pounder was recovered at his instance and the proceedings at Vijayawada and Ibrahimpatnam were reduced to writing under two different mediators reports. P.W.33 examined P.Ws.9 to 11 and another, and recorded their statements under Section 161CrPC.
(ix) On 30.08.2008, under the orders of the Court, the appellant was produced at FSL, Hyderabad, and P.W.22 Joint Director, FSL, obtained the sample handwritings of the appellant in the presence of P.W.20 and another mediators under the cover of a mediators report. Samples were collected for DNA Test and also for footprint comparison in the presence of the said mediators and the appellant was produced before the Court on 02.09.2008. On 10.09.2008, the DNA test result, the handwriting experts opinion and the footprint experts opinion were received from the FSL Hyderabad. P.W.24 – DNA Fingerprint Expert opined that the Autosomol STR analysis conclusively proved that the DNA sample of the appellant biologically matched with the DNA profile of specimens collected from the person of the deceased and hence he is associated with the offence. P.W.23 the Scientific Officer, Documents Division, opined that the person who wrote the red writings marked as A-1 to A-10 (handwriting of the appellant) also wrote the red writings marked as Q1 & Q2 (handwriting in the letter left by the appellant at the scene of offence). P.W.25 – the Scientific Officer, Physical Examination Section, FSL, opined that the partial left footprint – Q-1 (traced at the scene of offence) and test left foot prints S-2 (obtained from the appellant) are broadly tallying in (1) alignment of the toe pattern and (2) top line of the pad.
(x) On 29.09.2008, P.W.34, who joined as ACP, West Zone, took over further investigation from P.W.33, filed a memo before the Court with a request to conduct potency test on the appellant. The test was conducted by P.W.21 on the appellant on 25.10.2008 and the former had issued a certificate, Ex.P.26 – sexual potency certificate. P.W.34 gave a questionnaire to P.W.21 and another – Medical Officers, Forensic Medicine, whether the chutney pounder recovered at the instance of the appellant can cause head injury found on the deceased. The Medical Officers opined that the head injury mentioned in the post-mortem report can be caused with the chutney pounder recovered pursuant to the confession of the appellant. P.W.34 forwarded M.O.7, i.e., chutney pounder, to the FSL, Hyderabad, for chemical analysis and he also examined P.Ws.14 to 17, 22, 28, 31 and four others and recorded their statements under Section 161 CrPC.
(xi) That based on the investigation, the prosecution has arrived at the conclusion that on 27.12.2007 at about 2.00 a.m., the appellant intruded into Sri Durga Ladies Hostel with a sexual urge, jumped the compound wall of the building and reached roof top of the bathroom located in the front yard of the building, and that from there, he climbed to the 1st floor of the hostel building and reached the 2nd floor through the stair case, entered into a room located in the 6th block and found the deceased sleeping alone on the cot and the remaining inmates were found sleeping in the adjacent rooms. That with an intention to commit the offences on her and escape from the possible attack by any inmate, he went down and brought a chutney pounder from the neighbouring house of P.W.10, and that with an intention to murder and rape her, he forcibly hit the deceased with the said chutney pounder causing a serious head injury. That later, he lifted her from the cot, brought her to the verandah and dragged her into the bathroom located at the south-eastern corner of the same floor, that he removed her clothes, tied her right leg to the water tap with a towel, bent her left leg and committed rape on her, and that, he came back to her room, pulled out the bag of the deceased and took out two other suitcases and ransacked the articles. That he took Rs.500/-, some change, two pens and a pencil from the bag of the deceased and went back to the bathroom. That on the chest of the deceased, he wrote English letter H in capital and letters Prema Chirutha in Telugu. That he returned and collected the photocopy of a non-judicial stamp paper and pen from the bag of the deceased and wrote a letter on the reverse of the stamp paper addressing the hostel ladies in Telugu requesting them to forgive him for the murder and rape on the deceased. That he also wrote on the other side of the same paper on the typed matter, the words Chirutha, Cheran Teja, 143 and love symbols, that leaving the document there, he left the scene of offence with the chutney pounder, got down in the same way through which he entered into the building, reached the place where he collected the chutney pounder and threw it in the bushes located in the front yard of the house of P.W.10 and that later he went to Ibrahimpatnam Ring Centre and spent a considerable time at Sealand Tea Stall. That P.W.11 and another, by name, Pannem Nagaraju, confirmed the presence of the appellant on the day of murder and rape of the deceased at their tea stall. That the DNA test conducted on the appellant, the opinion of the handwriting expert and the experts opinion on the footprint of the appellant, coupled with the confession of the appellant made to the police in custody leading to the discovery of the fact of assaulting the deceased with the chutney pounder and other circumstantial evidence, conclusively proved that the appellant committed the murder and rape of the deceased.
5 Based on the charge sheet, the Court below framed the following charges on 02.07.2009.
That you Pidathala Satyambabu on 27.12.2007 at about 2 a.m. intruded into Sri Durga Ladies Hostel with a sexual urge and found Ayesha Meera sleeping on a cot in a room located in 6th block went out and brought chutney pounder from the house of Abburi Srinivasa Rao (LW 16) and with an intention to commit murder and rape on her intentionally and knowingly forcibly hit her with a chutney pounder and caused serious head injury to cause death of the Ayesha Meera and thereby you committed an offence punishable U/s.302 IPC and within my cognizance.
That on the same date, time and place as mentioned in charge No.1, you caused serious head injury to Ayesha Meera with a chutney pounder lifted her from the cot brought her to the warandah dragged into the bathroom located at South-East corner of the same floor removed her clothes tied her right leg to the water tap with a towel and bent her left leg and committed rape on Ayesha Meera and thereby you committed an offence punishable U/s.376 IPC and within my cognizance.
The appellant pleaded not guilty and claimed to be tried.
6. The prosecution examined P.Ws.1 to 34, got Exs.P.1 to P.51 marked and produced M.Os.1 to 14. Exs.X.1 to X.5 were marked through witnesses. On behalf of the defence, no oral evidence was let in. Exs.D.1 to D.5 relevant portions of Sections 161 CrPC statements of certain prosecution witnesses have been marked. On appreciation of the oral and documentary evidence, the Trial Court has disposed of the Sessions Case, by judgment dt.29.09.2010, in the manner as noted above. SUBMISSIONS
7. Mr. V. Pattabhi, ably assisted by Ms. Vasudha Nagaraj, counsel for the appellant, made the following submissions.
(i) The incident did not happen at the time and in the manner as spoken to by the prosecution.
(ii) The evidence of P.Ws.2, 3, 4, 5, 6 and 7, hostel residents, who are totally interested, is purely self-serving and wholly misleading.
(iii) P.Ws.18, 19 and 20, who are the mediators, are stock witnesses and their evidence shows that they acted under pressure from Police and that their evidence does not link the accused with the commission of the offence.
(iv) The evidence of P.Ws.21, 22, 23, 24 and 25, medical and scientific experts, does not inspire confidence and the entire procedure adopted by them in conducting various tests is in flagrant violation of law and as such their evidence lacks credibility, and that it has come out on record that the FSL, Hyderabad, works under the Director General of Police of the State and as such it has acted under the influence of the Police.
(v) The evidence of P.Ws.9 and 10, the tenant and the owner respectively of the premises from which M.O.7 – chutney pounder was recovered purportedly at the instance of the appellant does not inspire acceptance, that their evidence is too artificial and not worthy of confidence, that the weapon M.O.7, recovered nine months after the incident from a public place, is of common use in every household and easily available in the market and that it is unimaginable to plead that M.O.7 remained in the bushes for nine months only to be picked up and handed over to the Police by the appellant on 29.08.2008.
(vi) The evidence of P.W.11 tea stall owner is too artificial to inspire confidence as he has admittedly seen the accused on TV before he was examined by the Police, and therefore his identification of the appellant is not acceptable in law.
(vii) The evidence of P.W.30, Inspector of Police, who recorded a false scene of offence suppressing the real one under Ex.P.15 contains innumerable flaws in his investigation and he has failed to explain the reason for his not sending Ex.P.15 scene of offence observation report to the Court till it was introduced in the trial for the first time.
(viii) The evidence of P.W.28, Sub-Inspector of Police, Nandigama, and P.W.31, Sub-Divisional Police Officer, Nandigama, speaking to the arrest of the appellant at Nandigama on the intervening night of 16/17.8.2008 and of his alleged confession of all the nine crimes, including killing of the deceased stands discredited by the fact that out of the nine crimes in which the appellant was implicated by them five cases were quashed by this Court.
(ix) The evidence of P.Ws.32, 33 and 34, the then Assistant Commissioners of Police of the area, Vijayawada, who are investigating officers in the case, is totally unreliable and full of self-contradictions.
(x) Ex.P.23 – post-mortem report completely falsifies the case of the prosecution that the deceased died due to injury caused by M.O.7 on her head.
(xi) The injury on the head of the deceased was due to her head being hit against the edge of the wall next to her bed, that when she started bleeding from her nose and mouth, then her neck was throttled and she was suffocated by pressing her face down on pillow and that in the process she bled and died and the same was supported by Ex.P.15 scene of offence observation report.
(xii) Ex.P.16 inquest report clearly speaks of unknown offenders which exactly means that there was more than one offender, who caused death of the deceased. The letters of advice given by the Police to the FSL, namely, Ex.P.41, dt.3.1.2008, Ex.X.3, dt.10.1.2008, and Exs.P.46, 47 and 48, dt.29.8.2008 clearly prove this fact. Even in Ex.P.51 alteration memo, dt.4.2.2008, filed by P.W.32 into the Court seeking alteration of the offence from Section 302 IPC to Section 302 and Section 376 IPC it was stated that some unknown offenders (plural) caused multiple injuries to the left side of the head either by banging the same to wall almirah corner while she was sleeping lying on her back as per the blood stain on the almirah corner, or with a blunt object, and that therefore there was no possibility of the occurrence of the offence in the manner it was pleaded by the prosecution.
(xiii) That the investigating agency has completely changed its line of investigation after the appellant was arrested in August, 2008.
(xiv) That P.Ws.1 and 13, mother and father of the deceased respectively, all through pleaded and protested that the appellant is not the perpetrator of the crime against their daughter, that the Police are shielding the actual guilty persons and that though the name of one Koneru Satish of Vijayawada, who was well acquainted with the hostel owners P.Ws.6 and 7, was given as suspected person, the prosecution failed to investigate from that angle.
(xv) As the incident has created a State-wide sensation, the National Womens Commission, the State Human Rights Commission and the Minorities Commission held enquiries and submitted their respective reports, that none of them were examined and that the prosecution failed to bring those reports on record and examine all those reports deliberately with a view to shield the real culprits. That though the people have conducted protests, marches, rasta rokos, dharnas agitating against the dishonest and diversionary investigation by the Police, the latter remained insensitive to the massive public outcry and instead, chose to and went ahead with the false case against the appellant.
(xvi) The investigating agency with the help of P.Ws.6 and 7 and at the instance of the State deliberately created a false scenario and not subjecting the girls who are admittedly residing in the 5th block of the hostel on that night to Narco Analysis test despite orders of Court, creates any amount of doubt on the case of the prosecution.
(xvii) There is no legal, lawful and acceptable material on record to show that any rape was committed on the person of the deceased as there is nothing on record to show that any DNA profiling was done on the samples supposed to have been sent to FSL, Hyderabad on 4.1.2008 and in the absence of record or proof of such DNA profiling being done, the alleged matching of the appellants blood and semen with that of the alleged DNA profile of the deceased is wholly unacceptable in law.
(xviii) As the case is based on circumstantial evidence, the prosecution failed to bring out the circumstances from which the inference of guilt is to be drawn and fully establish by unimpeachable evidence beyond a shadow of doubt, that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused and that the circumstances taken collectively are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against the accused.
The learned counsel has pointed out the following suspicious circumstances making the case of the prosecution wholly improbable.
(a) No finger prints were found anywhere at the scene of offence or on the body of the deceased, or on the baggage or other items that were removed and thrown around.
(b) No blood marks on the body of the deceased were found other than on limited areas where it is the case of the prosecution that the injured and bleeding body of Ayesha was carried from her bed to the door of the main hall and then dragged with a trail of blood marks on the corridor floor.
(c) No finger prints and blood impressions were found on Ex.P.4/P.6 when the assailant has held it with his hand and written on it on both sides. The prosecution has suppressed the finger prints and the said documents to wipe out all the available evidence at the scene.
(d) When the body was allegedly dragged from the main door to the bathroom and it was heavily bleeding, surprisingly footprints were not detected which proves that there is a deliberate attempt by the prosecution to screen the real culprits and create a false scene.
(e) The prosecution failed to establish how it is possible for any assailant to gain access to the second floor and the reason for his focussing only on the deceased Ayesha.
(f) The alleged confessional statement of the appellant is not admissible in law as the same was made by him in the Police custody.
8. Opposing the above submissions, the learned Public Prosecutor (AP) has solely banked upon the evidence of P.W.21, who conducted the post-mortem on the dead body; P.W.24, the scientific officer who developed DNA profiling of items 1 and 2, swabs and slides, and gave Ex.P.30 matching of the DNA profiles of the deceased and the accused; P.W.23, handwriting expert, who gave Ex.P.29 opinion and also that of P.W.25, who gave Ex.P.32 opinion on footprints, and submitted that this evidence clinchingly establishes the guilt of the appellant beyond all reasonable doubt.
a) The allegation of motive and its artificial nature
9. In a case based on circumstantial evidence, motive plays a vital role. In Shivaji Genu Mohite v. State of Maharashtra , the Supreme Court held that evidence as to motive would go a long way in cases wholly dependent on circumstantial evidence and that such evidence would form one of the essential links in the chain of circumstantial evidence in such a case.
It is the case of the prosecution that the incident has taken place in the early hours of 27.12.2007. As per the evidence of P.W.31, who at the relevant point of time was working as Sub-Divisional Police Officer, Nandigama, the Police found the appellant behind polytechnic hostel in suspicious circumstances on the intervening night of 16/17.8.2008 and he has allegedly confessed commission of all the offences by him in Nandigama area, including the alleged offence of the murder and rape of the deceased in the instant case. It is not in dispute that the appellant is the native of Annasagaram, hamlet of Nandigama, while the hostel in which the offence has taken place is in Ibrahimpatnam. It is not the case of the prosecution that the appellant had any previous acquaintance with the deceased or the hostel in which she was staying.
10. As per Ex.P.17, the alleged confessional statement, the appellant has strong sexual urge as his wife has discarded him, that he has fear of contacting AIDS and having to spend money if he goes to sex workers; that a day after the Christmas festival, the previous year at about 8.30 p.m., he boarded a lorry and reached Ibrahimpatnam centre and watched second show cinema in Swarna cinema hall; that after watching the cinema, with an intention to go to his house, he went to bus stop and when he was waiting for a bus or lorry he has seen one lady in the lighting of the verandah on the second floor of the left side building of the hostel, that he has got sexual urge on seeing her, that he jumped the compound wall of the said building, reached to the top of bath room, from there he entered the first floor and from there he went to the second floor, that he has pushed the door on the right side of the steps but it was not opened, that he has seen from the window and found ladies sleeping, that the door situated on the left side of steps was opened, that he entered the hall and found many cots in the bed light and that on one of the cots one lady was sleeping facing the wall. That her head was placed towards window and legs towards door, that nobody was found on the remaining cots, that he has seen two ladies sleeping in the kitchen and on seeing the lady sleeping in the hall, he has got sexual desire and thinking that if he does sexual act at that place the lady may cry and the remaining ladies may wake up, he thought of fulfilling his sexual desire after beating her, that he has searched for a weapon but he could not find anything there and in search of some weapon he got down the steps but he could not find anything there, that he went to the compound of the adjacent building and found a chutney pounder, that he took the said chutney pounder, went to the second floor, and reached the cot of the deceased where she was sleeping as earlier, and that he bet her with the chutney pounder on the left side of her head and after making a sound kui she kept quiet.
11. Contrary to the above version, it is written on the reverse of Ex.P.4, marked as Ex.P.6, that he went into the hostel not to kill the deceased but to say ILU and that after he entered the room the deceased refused to say ILU in spite of begging her many times and that therefore in anger he has given a strong blow on her head. Thus, there is a serious contradiction between Exs.P.6 and P.17. The contents of Ex.P.6 suggest that the appellant had previous acquaintance with the deceased while, if we go by Ex.P.17 he went into the hostel to satisfy his lust and he has accidentally chosen the deceased who was found sleeping alone in a hall while the other girls were sleeping in kitchen, next to the place where the deceased was sleeping. The prosecution, far from giving up Ex.P.6, placed heavy reliance on it.
12. In our opinion, the motive suggested by the prosecution is not only self-contradictory, but also highly improbable suffering from inherent weakness. On a close scrutiny of this part of the prosecution case, we find the motive theory set up by the prosecution not only self- contradictory, but also too artificial to be accepted.
b) Circumstantial evidence and the legal position
13. In a case based on circumstantial evidence, the prosecution must establish every link in the chain of circumstances. The Court must be circumspect in appreciating and evaluating the evidence. In Bodhraj v. State of J&K the Supreme Court held as under:
It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan : (1977) 2 SCC 99, Eradu v. State of Hyderabad: AIR 1956 SC 316, Earabhadrappa v. State of Karnataka : (1983) 2 SCC 330, State of U.P. v.Sukhbasi : (1985) Suppl. SCC 79, Balwinder Singh v. State of Punjab: (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P.: 1989 Suppl. (1) SCC 560) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab : AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. : (1996) 10 SCC 193, wherein it has been observed thus: (SCC pp. 206-07, para 21) In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
14. In Trimukh Maroti Kirkan v. State of Maharashtra the Supreme Court held as follows:
In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.
15. In Sharad Birdhichand Sarda v. State of Maharashtra the Supreme Court laid down certain conditions to be fulfilled for convicting the accused in a case based on circumstantial evidence. The relevant portion of the judgment reads under:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made: (SCC p. 807, para 19) Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
The Supreme Court termed the above five principles as constituting the panchsheel of the proof of a case based on circumstantial evidence. These principles have been profitably quoted by the Apex Court in K.T. Palanisamy v. State of Tamil Nadu . In a recent judgment in Nizam v. State of Rajasthan the Supreme Court reiterated these principles.
16. In Lakhjit Singh v. State of Punjab the Supreme Court held that in a case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypotheses and should be consistent with only the guilt of the accused. The Supreme Court in Ashok Debbarma v. State of Tripura observed that an accused has a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Dealing with the theory of reasonable doubt and residual doubt, the Supreme Court has referred to and relied upon the following passage in Krishnan v. State .
doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
Keeping in mind the above mentioned jurisprudential principles, we shall consider whether the prosecution succeeded in proving the guilt of the appellant beyond reasonable doubt.
c) Burden of proof
17. Ei incumbit probatio qui dicit, non qui negat – The burden of proof is on he who asserts and not on he who denies. Article 11 of Universal Declaration of Human Rights, 1948, says everyone, charged with a penal offence, has the right to be presumed innocent until proved guilty according to law, in a public trial, at which, he has had all the guarantees necessary for his defence.
There are three cardinal principles of criminal jurisprudence. Those are (i) the prosecution to prove its case beyond reasonable doubt; (ii) the accused must be presumed to be innocent; and (iii) the onus of the prosecution never shifts. The law is well settled that the prosecution must prove the guilt of the accused beyond reasonable doubt (see Rabindra Kumar Dey v. State of Orissa ).
Our constitutionally-based criminal justice system places a high value on protecting the innocent. Among its central tenets is the idea that it is better to let a guilty person go free than to convict someone without evidence beyond a reasonable doubt Robert Lesile Shapiro
d) FIR and the events unfolded immediately after the murder
18. To briefly recapitulate, it is the case of the prosecution that the crime has taken place at around 2 a.m. on 27-12-2007 in Sri Durga Ladies Hostel, Ibrahimpatnam, run by PW-6 and PW-7. It is the further case of the prosecution that PW-7 was the first informant about the crime at around 6.40 a.m. to PW-27, the Assistant Sub-Inspector of Police, Ibrahimpatnam Police Station. That PW-27 directed PW-26, a Police Constable, to go and guard the scene of offence and informed PW-29, PW-30 and PW-32, the Sub-Inspector of Police, Inspector of Police, Ibrahimpatnam and the Assistant Commissioner of Police, Vijayawada City, respectively, who also went to the scene of offence. That PW-7 also informed PW-1 and PW-13, the parents of the deceased, about the incident over phone and they reached the scene of offence along with PW-12 from Tenali at about 8.00 a.m.
19. In his evidence, PW-7 deposed that at about 5.30 a.m. on 27-12- 2007, PW-2, PW-3 and one Radhika (not examined) came to the portion in which himself and his wife-PW-6 were living and were talking to the latter, whereupon he woke up and enquired; that they have stated that they have not found the deceased on her bed and that they have found blood marks on her cot with her belongings spread over in front of the main door. PW-7 further deposed that immediately himself and PW-6 and the aforementioned students went to the second floor along with charging light where they have noticed the belongings of the deceased spread over in front of the main door, that on seeing the blood stains leading to the 5th Block, they found the dead body without clothes in the bathroom of the said block in a pool of blood with the right leg tied to the tap; that they have seen the dead body of the deceased by standing in front of the bathroom and returned, that when they enquired with the students of the 6th block they have stated that they have seen the blood stains only at about 5.30 a.m. and informed them immediately. He further deposed that he has telephoned K. Srinivasa Rao, the house owner, PW-13, one Saluddin, a friend of the witness, and also one Cherukuri Madhava Rao, a co-employee.
20. In her evidence, PW-1, the mother of the deceased deposed that at about 6 a.m. on 27-12-2007, her husband-PW-13 received a phone call from the husband of PW-6 the hostel warden, informing him that the deceased was in a serious condition and disconnected the phone; and that when the witness called PW-7 immediately thereafter, the latter has instructed them to come to the hostel immediately; that on their reaching the hostel, they rushed to the second floor, that Kavitha, a co-hosteler (not examined), informed them that the deceased was taken to hospital at 5 a.m; that the witness found two cell phones and blood stains on the blanket of the bed of the deceased near pillow; that she also noticed the floor of the hall was cleaned well; and that there was a shelf near the bed where she found blood stains on the border of window and thumb impressions of blood on the wall. PW-1 further deposed that when she asked Kavitha, PW-4, PW-2 and PW-5 the co-hostelers, and others regarding her daughter, they did not reply anything. She has further stated that she has seen the body of her daughter at 3.30 p.m. on the same day when the police have shown it to them. Though it was suggested to PW-1 by the prosecution who cross-examined her that immediately on reaching the hostel, herself and her husband have seen the dead body, the same was denied. She has categorically deposed that initially the police suspected the cook of the hostel-Siva Anjaneyulu, the maternal uncle of the deceased, Laddu and also Upendra Singh and that finally Satyam Babu, the appellant/accused, has been implicated, without conducting the Narco Analysis Test on the seven suspects despite the direction issued by the High Court.
21. PW-13, the father of the deceased deposed that though they reached the hostel at 8 a.m., in spite of repeated requests, the police did not show her daughters dead body to them till 3.30 p.m.
22. Before proceeding further, we would like to test the veracity of the statements of PW-1 and PW-13 that they were permitted to see the dead body of their daughter only at 3.30 p.m. Ex.P-16 inquest report, is shown to have been prepared by one Krishna Prasad, at about 12 Noon on 27-12-2007. In Column No.1(b) thereof, pertaining to Blood relatives and witnesses, against sub-columns (1) and (2), the names of PW-13 and PW-1 were mentioned, but they have not signed Ex.P-16 as witnesses. However, significantly, PW-1 stated that the inquest panchanama was conducted from 4.30 p.m. to 7.30 p.m. after the dead body of their daughter was handed over to them. She has also stated that the inquest panchanama was prepared by one Krishna Prasad, a friend of her husband to the dictation of the police even in the absence of the dead body. PW-2, a co-hosteler, spoke about the presence of PW-1 and PW-13 at the time of preparation of the inquest panchanama while PW-3, another co-hosteler, is silent on this aspect. However, PW-19, the Village Revenue Officer, who is one of the witnesses to Ex.P-16 – inquest panchanama, deposed that the inquest panchanama was commenced at 12 Noon near the bathroom; that at that time PW-18 and one Krishna Prasad were also present and that the Police have also examined the witnesses, the parents of the deceased, the co-students of the hostel, the warden of the hostel and her husband. PW-19 further deposed that Krishna Prasad drafted Ex.P-16 – inquest panchanama. When Ex.P-16 was shown to him, PW-19 identified his signature and also that of PW-18 and Krishna Prasad. PW-18, a Senior Assistant in the office of the Mandal Revenue Officer, stated that drafting of Ex.P-15- scene of offence observation report was completed by 11.30 a.m. PW-18 and PW-19 did not refer to the presence of the parents of the deceased.
23. If we carefully analyse the evidence of PW-19, it could be deciphered therefrom that he did not specifically state that Ex.P-16 was drafted in the presence of the parents of the deceased. After he has stated that at the time of inquest panchanama, himself, PW-18 and Krishna Prasad were also present, he has further deposed that the police have examined the witnesses, the parents of the deceased and the co- hostlers. PW-19 was not categoric whether the examination of the parents of the deceased by the police was at the time of preparation of the inquest report or subsequent thereto.
24. The best person to speak about the preparation of Ex.P-16 – inquest report and the presence or otherwise of the parents of the deceased at that time, is its scribe, Krishna Prasad. However, for the reasons best known to the Police, he was not examined. In the face of the categorical assertion by PW-1 and PW-13 that they were not permitted to see the dead body of their daughter till 3.30 p.m. and that Ex.P-16 – inquest report was prepared after the dead body of their daughter was handed over to them in the evening, any amount of suspicion arises on the version of the prosecution that Ex.P-16 was in fact prepared in the presence of PW-1 and PW-13 at the time as pleaded by the prosecution. Further, in the charge-sheet, it is alleged that in all 18 items were seized from the scene of offence under Ex.P-15 in the presence of PW-18 and PW-19 only and there is no reference to the presence of PW-1 and PW-13, the parents of the deceased, at the time of its preparation. The preparation of Ex.P-15 in the absence of PW-1 and PW-13 strengthens the plea of these witnesses that they were not even permitted to see the dead body of their daughter on their arrival. Hence, there is any amount of doubt on the case of the prosecution that Ex.P-16- inquest report was prepared at the time as claimed by it and in the presence of the parents of the deceased. This aspect, in our opinion, assumes huge significance while examining every other aspect, because, it is the version of the defence as well as P.W.1 that investigation of the case was not held on proper lines due to political interference and that the offence has not taken place in the manner as pleaded by the prosecution.
25. At the hearing, Mr. V. Pattabhi, learned Counsel for the appellant/accused, has pleaded that before the parents of the deceased were permitted to see the dead body, the police have reconstructed the scene of offence in order to shield the real culprits. In support of his submission, he has pointed out that while Ex.P-16 – inquest report was sent to the Court without delay, Ex.P-15 – scene of offence observation report, never reached the Court till it was produced during the trial.
Let us now consider whether the offence has taken place in the manner as pleaded by the prosecution.
e) Whether the appellant could have gained access to the second floor of the four-storied building?
26. Ex.P.15 – scene of offence observation report made a detailed description of the building. The four-storied building is facing northern direction and the main gate of the building is situated towards eastern direction. Ration depot of Abburi Usha Rani and building of Shaik Bademia are situated to the north of the building and adjacent to it there are houses of Komati Koteswara Rao and Kesavarapu Srinu. On the southern side, a veterinary hospital is situated and towards south-east side, the building of one Abburi Srinivasa Rao is located. In the ground floor of the building one Koneru Chittabbai and Boddu Haniraju are residing as tenants. On the first floor on one side, the owners of the hostel (P.Ws.6 and 7) and on the other side, one Chalasani Nagamani are residing as tenants. The remaining portions of the entire building was in the name of Sri Durga Ladies Hostel, run by P.W.6. On the south-east direction, a lavatory and bath room of eight feet height is located on the ground floor. The parapet wall of the first floor is at a height of 14 feet and 5 inches from the ground floor and 6 feet and 5 inches from the top of the bathroom. The deceased was accommodated in the 6th block of the second floor. Towards west of the 5th block, there exists a verandah between 5th and 6th blocks of a length of 6 feet and 6 inches facing east and steps are situated on the southern side from ground to the upper floors towards north-west side of the 6th block, and towards south-east of the 5th block, there is a way leading to bathrooms. At the entrance of the 6th block, there was a coin phone box fixed to the wall. Adjacent to it, there is a three-doors window and there is one BSNL extension phone box.
27. P.W.6 in her evidence deposed that there were fifty-five students in her hostel consisting of two portions on the second floor and a single portion on the third floor with a room above it and a water tank by the side of it. P.W.2 a co-hosteler in her cross-examination deposed that the distance between the room of the deceased and the bedroom in which she and others were staying was about seven or eight feet, that the entire corridor in ground floor, i.e., open space between two buildings (blocks) was guarded by grill with a door on it and that all the blocks are secured from outsiders entering the building and the entire block.
28. P.W.3, another hosteler, while corroborating the evidence of P.W.2 regarding locking of the grill on the ground floor, deposed that the grill in the ground floor covering the two buildings (blocks) near the staircase was always in locked condition, that even when the hostelers return from the college, they will ring the calling bell upon which the hostel warden will handover the key from the first floor and after gaining entry, they will lock it again and handover the key to her before entering their respective blocks. She has further deposed that even if their parents come to the hostelers, they have to go to the ground floor to meet them and only mothers of the inmates are allowed to the rooms and their fathers have to stay in the ground floor. In this admitted situation, the theory propounded by the prosecution of the appellant gaining entry to the second floor needs to be examined. In this regard, the charge sheet inter alia reads as under:
The investigation revealed that on 27.12.2007 at about 2.00 a.m. the accused Pidathala Satyam Babu intruded into Sri Durga Ladies Hostel with a sexual urge, jumped the compound wall of building and reached roof top of the bathroom located in the front yard of the building. From there, he climbed to the 1st floor of the hostel building and reached the 2nd floor through the stair case. He entered into a room located in 6th block and found Ayesha Meera sleeping alone on the cot and the remaining inmates were found sleeping in the adjacent rooms. With an intention to commit the offences on her and escape from the possible attack of any inmate, he went down and brought a chutney pounder from the neighbouring house of LW 16. With an intention to murder and rape her, he forcibly hit the deceased Ayesha Meera with the said chutney pounder causing a serious head injury. Later he lifted her from the cot, brought her to the varandah and dragged her into the bathroom located at the south- eastern corner of the same floor. He removed her clothes, tied her right leg to the water tap with a towel and bent her left leg and committed rape on her. Then, he came back to her room, pulled out the bag of the deceased and took out two other suitcases and ransacked the articles. He took Rs.500/- and some change from the bag of the deceased. He also took two pens and a pencil and went back to the bathroom. On the chest of the deceased, he wrote English letter H in capital and letters Prema Chirutha in Telugu. He returned and collected a Xerox copy of a non-judicial stamp paper and pen from the bag of the deceased and wrote a letter on the reverse of the stamp paper addressing the hostel ladies in Telugu requesting them to forgive him for the Murder and Rape of the deceased. He also wrote on the other side of the same paper on the typed matter the words Chirutha, Cheran Teja, 143 and love symbols. Leaving the document there, he left the scene of offence with the chutney pounder, got down in the same way as to how he entered into the building, reached the place where he collected the chutney pounder and threw it in the bushes located in the front yard of the house of LW 16. After that, he went to Ibrahimpatnam ring center and spent considerable time at Sealand tea stall. LWs.17 & 18 confirmed the presence of the accused on the day of murder and rape of Ayesha Meera at their tea stall.
29. As evident from the above, the prosecution alleged that the appellant has gained entry into the premises of the hostel with a sexual urge by jumping the compound wall of the building, reaching the roof top of the bathroom and reaching the top of the parapet wall of the first floor by jumping from the top of the bathroom to a height of six feet and five inches. The distance (gap) between the main building and the toilet on the ground floor is eight feet as per Ex.P.15 scene of offence observation report. Therefore, for a person to reach the first floor, he must not only reach the top of the toilet, but also latch on to the top of the parapet wall of the first floor of the main building by flying across to a height of six feet and five inches covering the horizontal distance of eight feet between the toilet and the main building. The appellant has allegedly performed this feat not once, but twice and the second time with a chutney pounder in his hand!
30. It is the version of the prosecution that initially the appellant went to the deceased with empty hands by jumping to the top of the toilet and also reaching the first floor by making another jump and after going near the deceased and deciding to attack the deceased, he has gone down the building in search of a weapon, entered the neighbouring house, picked up Ex.M.O.7 – chutney pounder and repeated his jumps while holding the chutney pounder. After accomplishing this task, he allegedly jumped down the building carrying the chutney pounder with him and threw it at the same place from where he has picked it up. Examining from the stand point of an ordinary prudent man, it is impossible for one to believe that a person like the appellant, who, as per Ex.P.26 sexual offence report, was 165 cms. (5 feet 5 inches) tall and 50 Kgs of weight, had the capacity to perform the aforementioned feat. It requires not less than a supermans effort to perform such a feat and it is highly unlikely that an ordinary person like the appellant could accomplish such a task.
f) The incredulous prosecution version regarding the manner of occurrence
31. The incident allegedly took place around 2.00 a.m. on the intervening night of 26/27.12.2007. The news was first broken to Ibrahimpatnam Police Station through P.W.7 – husband of P.W.6, the hostel warden. Quite interestingly P.W.7 has not given written report. There is a serious dispute about the time at which the report was given. While it is the version of P.W.1 that she has not given any report to the Police, it is the case of the prosecution that at the request of P.W.1, P.W.12, a colleague of her husband, had drafted the report. In her cross- examination, P.W.1 stated that she came to know that P.W.12 had drafted the FIR on 12.12.2008, when two constables came to the school for enquiring her regarding her address and other particulars. While denying the suggestion that Ex.P.8 was drafted at about 9.00 a.m, P.W.12 in her evidence stated that she has written the report on the instructions of the Police at 3.30 p.m., and that by the time she drafted the complaint, the signatures of the parents of the deceased were not there. The fact, however, remains that Ex.P.8 – FIR was sent to the Jurisdictional Magistrate at 8.00 p.m.
32. Be that as it may, it was opined in Ex.P.16 inquest report that during the previous night some unknown assailant entered the room, beat the deceased on her head with stout weapon or beat her head against the wall causing injury on the back of the head of the deceased, blood oozed from her nostrils and mouth and the assailant then gagged her mouth and dragged her to bathroom where her right leg was tied to the tap and from the absence of the clothes on the body, it appears, the assailant might have raped her and in that process he might have killed her. The inquestdars, on reading the contents of the letter found near the scene of offence and basing on the letters H, Prema Chirutha written on the chest of the deceased with ball pen, surmised that some unknown person might have loved the deceased deeply and he might have come to the deceased during night and forced her to love him and in that process he might have raped and killed her or for any other reason which did not come into light.
33. Let us first examine the probability of a person committing the offence as alleged by the prosecution. As could be seen from Ex.P.15 scene of offence observation report, the scene of offence was described as cot of the deceased situated in the hall of the 6th block in the 2nd floor. As per Ex.P.34, rough sketch of scene of offence, a verandah of a width of 6.6 feet is situated adjacent to the hall of 6th block towards east (in Ex.P.15 wrongly mentioned as the corridor is situated on the west). Towards east of the 6th block near the main door, brown colour suit case was lying open on both corners and clothes were in pelmel condition. Adjacent to it, a rexin suitcase of yellow and red colour in locked condition was lying. On one side of the bag, the jip packet was torn and clothes from it were found in pelmel condition. Clothes, papers and stay free packets are thrown in pelmel condition at the threshold of the door. The distance from the bathroom on the north west of the 6th block and verandah is 2 feet 8 inches. It was recorded in Ex.P.15 that below the window adjacent to the cot on which the deceased was sleeping, there was one wall-almirah with two parallel racks in which the deceased has kept her articles. On the edge of the first rack, there was blood stain of 2.00 cms., in size. In between the two racks, there is a cement plank placed parallel to the head place of the cot. There were blood stains on the floor on western side of the cot of the deceased. There were blood stains towards eastern door way of the 6th block, indicating that the body was brought from the cot (upto the door) and was dragged from there to the verandah towards 5th block on the eastern side and from there towards north east side and from there, the body was further dragged to the southern side upto the bath room, which is used by the hostel ladies.
34. As per the charge sheet, the deceased with a view to satiate his sexual urge, and with an intention to murder and rape her, forcefully hit the deceased with chutney pounder causing a serious head injury and later he lifted her from the cot, brought her to the verandah and dragged her into the bathroom located at the south-eastern corner of the same floor. He then removed the clothes of the deceased, tied her right leg to the water tap with a towel, bent her left leg and committed rape on her. In the preceding paragraphs, we have discussed how improbable it is for a normal human being to reach the second floor and that too with a chutney pounder in his hand, especially when P.W.5 was allegedly standing in the corridor talking over phone to her fianc. P.W.6 in her evidence stated that there were 55 students in her hostel on the date of the incident and while the deceased was sleeping in the hall adjoining the kitchen situated within a distance of two feet as deposed by P.W.2 wherein P.W.4 and one Kavitha were sleeping, and five persons including P.Ws.2 and 5 were sleeping in the room adjoining the kitchen, which is at a distance of 9.8 feet from the bed of the deceased. In the opposite bedroom, which is also adjoining the hall, P.W.3, Radhika, Deepthi and Susmitha were sleeping. Thus, in all eleven ladies were sleeping within a distance ranging from 2 to 15 feet from the cot on which the deceased was sleeping.
35. The prosecution wants us to believe that the appellant has not only gained access to the second floor, but also sneaked into the hall, hit the deceased with chutney pounder, single handedly lifted her upto the main door of the 6th block and dragged her for a distance of about 60 feet. It is also important to note that 5th block also contains a hall and two bed rooms which were allotted to and occupied by several hostel students. The appellant has dragged the deceased on the verandah running from East to West in front of one bed room and hall of 5th block, for some distance, and then from North to South for some more distance. That all the while till he has accomplished this task and left the building not even a single inmate has noticed the offender committing a series of the alleged acts. Even in a surprise attack, the victim would raise alarm if she is attacked. The deceased has allegedly made only a feeble sound kue and nothing else. It is impossible for anyone to believe that the appellant has gone about his violent acts of murder and alleged rape in a silent and serene manner without attracting anyones attention even if it has taken place during dead of the night.
g) Non-bolting of the hall door
36. There is yet another doubtful circumstance namely, non-bolting of the door opening into the hall where the deceased was sleeping. P.Ws.2, 3 and 5 while deposing that they used to bolt their bedroom from inside, however, deposed that they did not use to bolt the door of the hall to avoid causing disturbance to the inmates sleeping in the hall for going to the bathroom situated outside the 6th block. They have further deposed that though there was a toilet with western commode inside the 6th block, the same was being used only for taking bath to avoid foul smell. P.W.2, who was sleeping in one of the bedrooms adjacent to the hall, admitted that they have bolted the door from inside. She has further admitted that it is true the entry to other bed rooms, kitchen and hall was also restrained. In fact the entire building was secured from entry of outsiders as it was locked. A question posed to P.W.3 and the answer given by her in this regard are relevant, which are reproduced below. Question: As you are bolting the doors of bed room from inside all the inmates can also bolt the common main door from inside without disturbing the inmates?
Answer: Witness answered that inmates of hostel belonging to different branches like B.Ed., B. Pharmacy, MBA, B. Tech., etc., they have exams at different point of times and moreover even when we entered in hostel in 2005 from then onwards it was practice not to close the main door from inside as such we were continuing the same till that day.
37. The witness further added that it is true for safety purpose it is better to bolt the door from inside. But as it may disturb the inmates of hall, we were not bolting it from inside. When the inmates used to bolt the bedroom doors from inside, one does not find any reason or logic to keep the hall door which presents direct access from the corridor unbolted, especially when all the inmates are women. The reason put forth by P.Ws.2, 3 and 5, namely, that in order to use the outside bathroom the inmates used to keep the hall door unbolted does not sound convincing for, admittedly there was a western commode inside the 6th block and it is not uncommon to use the western commodes at least for urinals and the possibility of foul smell emanating by such use may not arise. Therefore, it is not possible to believe the version of P.W.2 that in order to use the outside bathroom the door was kept open at the cost of the safety of the ladies sleeping in the hall. Therefore, the theory of the prosecution that the hall door was kept unbolted paving the way for the offender to straight away enter the hall without the aid and assistance of the insiders is difficult to accept.
h) The alleged outrageous conduct of the appellant:
38. The prosecution story of violent and outrageous acts of the appellant did not stop with the killing and raping the deceased, not knowing whether she was fully dead or not, but it was extended to an extreme extent. He has allegedly brought two suitcases belonging to the deceased to the eastern side corridor from the hall near the scene of offence, threw the clothes and papers from the suit cases pelmel, picked up lemon yellow, orange and red colour ball point pens, green colour black writing pencil, and also Ex.P.4 (the description of which is varied between Ex.P.15 and P.16, which will be adverted to later) and wrote on the reverse of it, marked as Ex.P.6. He has allegedly written the letters H Prema Chirutha and made marks on the right thigh and chest of the dead body with red and blue colour ball point ink.
39. As per Ex.P.17, the alleged confessional statement of the appellant, he had sex with the deceased twice, once after the body was dragged, right leg tied on one side to the tap of the bathroom and the left leg was folded. Thereafter, he has taken one suitcase situated in the kitchen and another suitcase from the hall and removed clothes from them, took a pen from the bag, and chutney pounder along with him, went to the deceased and wrote H Prema Chirutha on her chest, and then he once again had sex with the deceased. It is at that time that the appellant allegedly noticed that the deceased was not breathing and he then thought that she died. Thereafter, the appellant went to the hall where the cot was situated, took one paper from her bag and wrote a letter on the said paper. Apart from writing the words Chirutha Cheran Teja 143, he has drawn love symbol and left the letter there, went to the bathroom, took the chutney pounder, went to the neighbouring compound from where it was brought and threw it in the bushes situated in the compound. All these acts bordering on extreme depravity sound highly incredulous. Unless a human being shed of all the elements of human character and turns into a virtual beast, it is impossible for anyone to conduct himself in the manner as alleged by the prosecution.
40. It bears repetition to note that it is not the specific case of the prosecution that the appellant had prior acquaintance with the deceased and made any proposals to her to love him or have relationship with him in the past. On the contrary, the charge sheet only alleged that the appellant entered Sri Durga Ladies Hostel building to satiate his lust and chanced upon the deceased. If that were the only purpose of the appellant, it was highly incredulous that he commits all the aforementioned acts after allegedly committing murder and rape. In the absence of past acquaintance with the deceased, the appellant was not expected to pick up pens and pencil, leisurely write letters on the chest of the deceased apart from addressing a letter to the hostelmates about the purpose of his entering the hostel building, his killing and raping the deceased and apologizing for what he has done. All such alleged acts could have taken substantial time for the appellant. It defies natural human conduct for a stranger to do such acts, once he satisfied his sexual urge. At least when he noticed that the deceased stopped breathing, and suspected that she died, the appellant would have hurried himself to leave the hostel building as early as possible due to fear of being noticed or caught, especially when a number of persons (55 persons as per the testimony of P.W.6) were present around him within close proximity, if not within the handshaking distance.
(i) Absence of bloodstains on the body of the deceased and the appellant, absence of fingerprints on the body of the deceased and footprints around the scene of offence
41. To recapitulate, as per Ex.P.15 scene of offence observation report, the deceased was lifted from the cot and brought to the verandah from where he has dragged her upto the bathroom to a distance of 60 feet. If the appellant has committed all those acts, his clothes would have been drenched with blood oozing from the body of the deceased due to head injury, as the bloodstains and drag marks noticed in the hall, verandah and bathroom would indicate. Similarly, the body of the deceased would have been full of blood. But, Ex.P.16 inquest report indicates that there is a pool of blood near the head and blood was oozing from both the nostrils and both ears. Huge swelling was found behind the head. No blood was noticed on any part of the body.
42. P.W.11, tea stall owner at Ibrahimpatnam, deposed that at around 5.30 a.m. on 27.12.2007, a stranger (who was later identified as the appellant) came to his shop and was in the shop till 11.00 a.m. watching TV. He further deposed that he was moving in the tea stall and also in its surroundings purchasing tea and cigarettes. He has further deposed that usually the persons coming to his shop will stay for 5 or 10 minutes, but the appellant was near his shop approximately for 5 hours. With blood all over the clothes of the appellant, he would not have put up a normal appearance without bloodstains on his clothes. He allegedly went to the tea stall of P.W.11 and stayed there for as long as about 5 hours without being suspected by the said witness. The prosecution failed to explain as to whether the appellant has washed his clothes and removed the bloodstains before entering the tea stall. Considering the short time gap between the alleged event and the appellant going to the tea stall, it would not have been possible for him to wash his clothes and make them appear dry and normal without bloodstains being noticed by P.W.11. This part of the prosecution story appears to us to be farfetched.
43. Coming to the fingerprints and footprints, if the appellant has committed the acts attributed to him, there would have been innumerable fingerprints all over body of the deceased, suit cases, pens, pencil and Ex.P.6, besides footprints in the hall, corridor, verandah and bathroom. Surprisingly, P.W.30, who commenced the investigation, deposed that he has observed the scene of offence minutely with the help of clues-team and searched for fingerprints, but they have not traced anything. He has also deposed in his cross-examination that the Clues Team could not find any footprints. He has admitted that a person has to enter into bathroom for placing the body, tying one leg to the tap and folding the other leg, and in such event there is a chance of the bathroom having footprints. However, he has stated that he has not seen the footprints with his naked eye, but subsequently the Clues Team found a partial footprint after scrutinizing the videograph carefully, which was taken for the entire scene of offence. It was suggested to P.W.30 that the Police have found the footprints in the corridor and also in the bathroom, but erased the same, which was denied by the witness.
44. While it is the case of the prosecution that the appellant has solely handled the deceased from the stage of his attacking her with the chutney pounder till he raped her twice, by lifting and dragging the body for a length of about 60 feet, tying her one leg to the tap, it is impossible to believe that no fingerprints were found on the body of the deceased. Similarly, when the appellant has allegedly written on Ex.P.4, a non- judicial stamp paper, it is bound to have fingerprints. It is impossible for the appellant to erase all those prints. Further, there are bound to be a number of footprints when the appellant was handling the deceased right from the hall where the attack has taken place upto the bathroom. The prosecution has not even attempted to explain the reasons for the absence of fingerprints and footprints, except an isolated footprint allegedly noticed and developed from the videograph of the scene of offence. These serious lacunae in the case of the prosecution stare at its face.
45. As regards the alleged tallying of the footprint found at the scene of offence, the prosecution has produced Ex.P.32, FSL report for the footprint, and examined P.W.25, the Scientific Officer who issued Ex.P.32
-report. In Ex.P.32 the following observations are made and opinion is given.
The partial left footprint Q1 is faint. However, top line of the pad and toe pattern are visible. The partial left footprint Q1 could not be enlarged to natural size as it was recorded without scale.
Based on the above examinations and observations, I am of the opinion that the partial left footprint Q1 and the test left footprints S2 are broadly tallying in:
(i) alignment of the toe pattern, (ii) top line of the pad.
P.W.25 deposed that on 30.08.2008 he has taken footprint impressions of the appellant as per the directions of the Chief Metropolitan Magistrate, Vijayawada, in the presence of P.W.20 Village Revenue Officer, Ibrahhimpatnam and P.W.22 the Joint Director of the FSL. He has further stated that he has examined the questioned partial left footprint marked as Q.1 and compared with the Test left footprint marked as S.2 physically under magnification and found the alignment of the toe pattern and top line of the pad in S.2 broadly tallying with Q.1. In his cross- examination, P.W.25 deposed that he has not prepared mediatornama at the time of taking footprints. He has however stated that he took signatures on the footprints taken by him. He has admitted that in Ex.X.4 opinion dt.17.3.2008 issued by him in the case of Guruvindar Singh Anand (Laddu) he has stated that partial footprint of the said person appears to be similar with that of Q.1. He has admitted that in Ex.P.32 he has stated that the partial footprint is faint. He has also admitted that the A.P.F.S.L., headed by the Director, Scientist, is under the administrative control of the Police Department.
46. P.W.20, the Village Revenue Officer, deposed that himself, one Mr. Sydulu and P.W.22 witnessed the taking of Ex.P.21 half footprint and Ex.P.22 full footprint of the appellant, by the APFSL. He has deposed that mediatornama was prepared at the time of taking footprints and it took three hours (from 1.00 p.m. to 4.00 p.m.) for taking handwritings of the appellant and that no mediatornama was prepared at the time of collection of blood samples. He denied the suggestion that he never went to Hyderabad and the mediatornamas were signed by him in Police Station as he is in the habit of signing as per the instructions of the Police. In his cross-examination P.W.22 has deposed that mediatornama was prepared for collecting handwritings to which P.Ws.20, L.W.32 and himself were mediators and that another Scientific Officer also signed on the mediators report. He admitted that they have prepared the mediatornama only for the purpose of collecting handwritings and have not mentioned collection of footprints and DNA samples in the said mediatornama. He further admitted that they have not prepared separate mediatornama either at the time of collection of footprints or at the time of collection of blood and hair from the appellant. He has further deposed that one Mr. D. Venkateswarlu collected the footprints samples and one Mr. Venkanna collected samples for DNA test and that there is no written proof to show that the footprint samples and the DNA samples were collected in his presence.
47. On an analysis of the evidence as discussed above, we find a contradiction in the depositions of P.Ws.25 and 22 on one side and P.W.20 on the other side with respect to drafting of mediatornama. As noted above, while P.Ws.25 and 22 have deposed that no separate mediatornama was prepared for collecting footprints, P.W.20 has deposed that mediatornama was prepared at the time of taking footprints. Even if we believe the version of P.Ws.22 and 25 that no mediatornama was prepared, we do not find any reason for their failure to prepare such mediatornama when they have prepared mediatornama for collecting handwritings. Even Exs.P.21 and P.22 – footprints were not taken in the presence of any independent mediator. P.W.20 is the Village Revenue Officer of Ibrahimpatnam and P.W.22 is the Joint Director of FSL. While the absence of mediatornama for taking footprints creates any amount of doubt on the case of the prosecution, even the opinion of P.W.25 is not definite and unequivocal to draw a conclusive opinion that the questioned footprint belongs to the appellant. As per the observations of P.W.25 in Ex.P.32 report, the footprint itself was faint. It is therefore wholly unsafe to compare such a faint footprint with the footprint of any person. Even if we take the opinion of P.W.25 on its face value, it is to the effect that the questioned footprint and the admitted footprint of the appellant are broadly tallying in respect of alignment of toe pattern and top line of the pad. Interestingly, in Ex.X.4 opinion given by P.W.25 with respect to footprint of Guruvindar Singh (Laddu) he has opined that the footprint of the said person was similar to Q.1 footprint. P.W.25 stated that there is a difference between the opinion appears to be similar and broadly tallying, but he did not explain which opinion has higher evidentiary value. The very fact that a faint or hazy footprint retrieved from videograph alone was found at the scene of offence, though tens of footprints were expected to be available, itself casts a serious doubt on the entire prosecution case. Based on a faint half footprint and uncertain opinion to the effect that the footprints are broadly tallying, it is wholly unsafe to conclude that Q.1 footprint is that of the appellant, more so when the appellants footprint (S.2) was not taken in the presence of independent witnesses under a mediatornama. Further, when Ex.X.4 opinion on Guruvindar Singh reveals that his footprint is similar to Q.1, one cannot understand why he was let off.
j) Exs.P.4 and P.6 Credibility of the prosecution version
48. Ex.P.4 is a typed affidavit signed by P.W.13, father of the deceased regarding his annual income for the purpose of procuring income certificate from the competent authority. This was allegedly used by the appellant after taking out the same from the suitcase of the deceased for writing on both sides. On the top of the first page below the Non-judicial printed stamp, the words Chirutha and Cheran Teja in Telugu are found. Below those words, on the left side of the word AFFIDAVIT, figure 143 is written and below the said figure heart and arrow (love symbol) are drawn. On the reverse side of the stamp paper, about fifteen lines were written in Telugu, which portion is marked as Ex.P.6. Its English translation as available on the record reads as under: Dear Hostel ladies, I came here since I loved the girl mentioned in the paper. You all definitely read it. It came to hostel today not to kill her. I came to say I L U.
When I came to the room, I requested her to say I L U but she refused. I requested her so many times saying please, please. For which also she refused. Then I grew wild and beat her on the head and killed her. Having sexual lust, I was not like ordinary man at that time. I raped her. Please forgive me for the mistake committed by me.
Yours One Young Man Though a reference to this document was made in the charge sheet, the prosecution does not swear by its contents while charging the accused for the murder and rape. The contents of paragraph – 19 of the charge sheet reveal that the version allegedly spoken to by the appellant in his confessional statement has been adopted. As per this version, it was only his lust which has driven the appellant to commit the offence. If we examine the case of the prosecution from this perspective, it is impossible to believe that the appellant would have written Ex.P.4 or P.6 contents. If any credibility is given to these contents, they suggest that the motive for the appellant to commit the offence was not his sexual urge, but refusal of the deceased to reciprocate the appellants gesture in conveying his love to her. The contents of Exs.P.4 and P.6 are incompatible with the specific case of the prosecution as per the charge sheet that it was by sheer accident and not by design that he stumbled upon the deceased.
49. A stranger like the appellant to the deceased is not expected to express his love and resort to the extreme act of causing fatal injury to the latter for the only reason that she has not reciprocated his expression of love. It is the specific case of the defence that Exs.P.4 and P.6 are planted in order to falsely implicate the appellant. As per the case of the prosecution, Ex.P.15 – scene of offence observation report was prepared and concluded at 11.30 a.m. while preparation of Ex.P.16 inquest report was commenced at about 12.00 noon. Interestingly, Ex.P.16 was sent to the Court of the Jurisdictional Magistrate on the same night, but Ex.P.15 was not sent to the Court and the same was kept with P.W.30. The relevant portion of his deposition reads as under:
Though I have got prepared the scene of offence observation panchanama, I have not sent it to the court on that day. I kept it with me for the purpose of investigation. I do not know who sent it to the court. Witness stated that we sent the inquest report immediately. I prepared rough sketch but I have not sent it to the court.
50. One is at a loss to understand as to why P.W.30 has not taken out a copy of Ex.P.15 for the purpose of investigation and sent the original to the Court along with Ex.P.16, inquest report. If he felt the necessity of retaining Ex.P.15 with himself for investigation, it defies logic as to why he did not retain the inquest report also, which is an equally important document for investigation. It is of relevance to note in this context that in Ex.P.16 inquest report, Ex.P.4 was described as letter. Its contents were not referred even in brief in this document. However, in Ex.P.15, Ex.P.4 was described as a Xerox copy of affidavit typed on N.J. stamp paper (of) worth Rs.10/- and signed by the father of Ayesha Meera… The prosecution failed to explain this vital discrepancy in the description of Ex.P.4 between Ex.P.15 and Ex.P.16. With regard to the nature of the document, we find serious contradictions in the evidence of P.W.2. In one paragraph, she has deposed as under:
At about 9-00 a.m., other police, CLUES TEAM and DOG SQUAD team also came there. They have also traced a letter, but it was not shown to us. The inquest on dead body was conducted at 12-00. At that time myself, Deepthi, Navya, parents of Ayesha Meera, Sivaramakrishna, warden and her husband were present.
(emphasis supplied) When the Public Prosecutor put the question to the witness immediately after the above extracted passage, whether she has stated anything to the Police at the time of inquest, she answered as follows:
When I asked the police regarding letter, they have shown me the letter addressed by an unknown person. It was written on Rs.10/- non-judicial paper. In that a heart symbol was marked and it was also written as Prema Chirutha. On the reverse side of said paper, i.e., on plain paper, it was written that a person came to hostel and proposed I LOVE YOU to Ayesha Meera, but she has not accepted, as such he raped and killed her. (emphasis supplied)
51. When P.W.2 was confronted with her statement under Section 161 CrPC given to the Police, she has admitted that she has stated that the culprit has written one letter to the hostel ladies. The defence has got the contradiction marked as Ex.D.1, which reads as under:
Came to know that a letter was seized by the side of belongings and clothes which were placed hither and thither. Came to know that some letter was written. In that letter it was mentioned as murderer write a letter to the ladies of hostel.
P.W.3 also described Ex.P.4 as a letter, and not an affidavit. In her voluntary statement made with the permission of the Court, P.W.1 has stated that on 24.01.2008 at about 5.00 p.m., P.W.33, C.I.D. Ramesh Babu, C.I.D. Raghu and others came to their house and after examining the former for some time they asked to handover the suitcase and the toilet box, along with some other documents, like affidavit and clothes of her daughter, and she has accordingly handed over the same. In her cross-examination, she denied the suggestion that the above named persons have not met her and taken the aforementioned articles from her custody. The failure of the Police to send Ex.P.15 to the Court along with Ex.P.16 – inquest report or at least within a reasonable time thereafter, coupled with the various suspicious circumstances pointed out hereinbefore, would certainly lend credibility to the version of the defence that Exs.P.4 and P.6 were brought into existence at a much later date and evidently after the appellant was apprehended to falsely implicate him.
k) The alleged conduct of the appellant at the scene of offence
52. As the prosecution case goes, at the left hand of the dead body, lemon yellow colour ball point pen and green colour black writing pencil and also orange and red colour ball point pens were found. On the chest of the deceased, the letters H Prema Chirutha with blue colour ball point ink were found. It was alleged in Ex.P.15 scene of offence observation report that after observing the scene of offence minutely, a Xerox copy of affidavit typed on N.J. stamp paper of worth Rs.10/- and signed by the father of Ayesha Meera viz., Iqbal Basha which contained the writings on the reverse side already extracted hereinbefore:
53. Interestingly, as per the case of the prosecution, the scene of offence comprises different parts of the building. To start with, the hall in which the deceased was sleeping and where she was first allegedly attacked, the entire verandah adjacent to the hall, balcony through which the deceased was allegedly dragged and the bathroom. Significantly, the exact place at which Ex.P.4 was found is not mentioned in Ex.P.15. It is the specific case of the prosecution that after raping the deceased the appellant came back to her room, pulled out the bag of the deceased, took out two other suitcases and ransacked the articles, took Rs.500/- and odd from the bag, two pens and a pencil, went back to the bathroom, wrote on the chest of the deceased H letter in English and the words Prema Chirutha in Telugu, returned and collected a pen from the bag of the deceased and wrote Ex.P.6 contents on the reverse of Ex.P.4, besides writing the words Chirutha, Cheran Teja 143 and love symbols on the other side of the paper.
54. The whole story looks highly incredulous. Whatever may have been the motive for the appellant whether lust, as per the charge sheet, or love as per Ex.P.17 – confessional statement, in the circumstances in which the appellant allegedly committed the offence, it defies human conduct to do all such things as alleged by the prosecution. As noted hereinbefore, the scene of offence is surrounded by hostel inmates with a certain possibility of even a small noise catching the attention of one or the other inmates. In such surroundings, the very attack on the deceased without drawing the attention of the inmates is something wholly impossible. Even if the appellant had resorted to such daredevilry and was lucky enough to escape, it is not possible to believe that any person with whatever state of mind would ransack the baggage of the deceased, leisurely write on her body and address a letter without being panicky after committing the ghastly acts of the alleged murder and rape. Even if the appellant was a psycho, (he was not declared as such by any Doctor), and resorted to such extraordinary acts, it would have taken considerable time for him to do all those things, and he would not have been able to indulge in writings on the body and on Ex.P.4, apart from drawing symbols without using light. It is impossible to think that somebody would indulge in such acts unless he does it with deliberate intention of being caught. This apart, his alleged acts of attacking the deceased in the first place, dragging her for a distance of 60 feet and raping her twice would not have been accomplished in absolute silence. Most of the hostelers might have been in deep sleep, but, if we examine the flipside of it, in the dead of the night at around 2.30 a.m., pin drop silence would be prevailing and even a smallest noise is likely to disturb the sleep of at least a few inmates out of about fifty five persons, if not all of them. In this atmosphere, it is impossible for any person with the best of care and caution to do all these alleged acts without being noticed and caught by the inmates. But the prosecution attributed such incredible acts to the appellant and the Court below has believed the same. We are, however, unable to endorse this extravagant version of the prosecution.
l) The alleged tallying of handwriting of the appellant with the contents of Ex.P.15
55. In her evidence P.W.1 deposed that on the date of the incident it is P.W.30, the Inspector of Police, who handed over to her all the belongings of the deceased, including the papers and that on 24.01.2008, the Police came to her house, and took away the photo copy of the affidavit from her. This testimony of P.W.1 was supported by P.W.30 during his chief- examination wherein he has deposed that We have handed over the suit case, dresses and papers of Ayesha Meera to her parents. Entire scene of offence was got photographed and videographed at that time by us. In his evidence, P.W.23 deposed that on 16.1.2008 Q.1 and Q.2 questioned documents, Exs.P.4 and P.6 were received for examination of writings of several suspects other than the appellant. In the face of the admission of P.W.30 that all the belongings of the deceased, including papers, were handed over to P.W.1 on 27.12.2007 and the failure of the prosecution to plead and prove that they were taken them back earlier than 24.01.2008, there was no possibility of the Police sending Ex.P.4 to A.P. FSL on 16.1.2008. Further, P.W.23 deposed that after comparing sample writings of fifty suspects prior to 30.08.2008, they have kept Q.1 and Q.2 with them as they were informed that some more samples will be sent for comparison. However, in Ex.P.46 letter of advice, dt.29.08.2008, prepared and sent by P.W.33 to the Director, FSL, it is inter alia written as under:
It is requested to take sample writings from the above accused in the presence of the mediators and compare with the questioned documents which is (sic: are) herewith forwarded and issue opinion at the earliest for further investigation (emphasis supplied)
56. If the FSL has received and retained Q.1 and Q.2 handwritings with itself, as spoken to by P.W.23, it is not known how P.W.33 could have sent the said documents which continued to be in the custody of the FSL along with the letter of advice on 29.08.2008. This serious contradiction casts a dark cloud on the prosecution theory regarding the seizure of Ex.P.4 containing Ex.P.6 writings from the scene of offence on 27.12.2007. If Ex.P.4, containing Q.1 and Q.2, was received on 16.01.2008 as deposed by P.W.33, and if the FSL has compared the fifty sample handwritings before Ex.P.46 letter of advice was received, the prosecution should have produced the opinion of P.W.23 regarding all those sample handwritings. When questioned, P.W.23 has stated that he did not bring the case file pertaining to the other sample handwritings. The prosecution has not produced any letter of advice for obtaining the opinion on the fifty alleged sample handwritings. From the failure of the prosecution to produce such letter of advice and the opinions on the sample handwritings of the fifty suspects, it is reasonable to presume that no such exercise was done till the photocopy of the Ex.P.4 affidavit was taken back from the custody of P.Ws.1 and 13 on 24.01.2008.
57. As per the version of P.W.1, a photocopy of Ex.P.4 along with clothes of the deceased were taken from P.Ws.1 and 13 on 24.01.2008. The appellant was taken into custody on 29.08.2008 and on 29.08.2008 itself Q.1 and Q2 were sent to the Director, FSL, Hyderabad. As noted hereinbefore, Ex.P.15, which referred to Exs.P.4 and P.6, was not sent to the Court along with Ex.P.16 – inquest report. These telltale features fully support the version of the defence and also P.Ws.1 and 13 that the writings on Ex.P.4 were brought into existence after the appellant was taken into custody. Added to this, the Police have not taken the permission of the Court to send the admitted and questioned writings for the opinion of the FSL. P.W.23 admitted that he has not received any Court orders in this regard.
m) M.O.7, the chutney pounder, the probability or otherwise of its user in causing injury to the deceased and also its alleged recovery
58. While it is the case of the prosecution that the appellant has caused head injury by hitting the deceased with M.O.7 chutney pounder, in column 11 of Ex.P.23 post-mortem report mentioned the following injuries.
11) INJURIES: Ante-mortem external or internal injuries:
1) Contused lacerations 2 cm x 2 cm present upper lip left side corresponding left centre lateral incisors inner side.
2) Laceration 1 cm x 1 cm present lower lip left side corresponding lower two incisors.
3) Sub-scalpular contusion 6 cm x 5 cm present on left temporo parietal area of fissure fracture present base middle cranial fossa. Extending from left side to right side transversely placed. Fissure fracture vertically placed extending from the middle cranial fossa to occipital bone on right side measuring about 8 cm in length. Diffused sub-arachnoid haemorrhage present.
59. Mr. V. Pattabhi, learned counsel for the appellant, was emphatic in his submission that the prosecution failed to explain the two injuries on the left side of upper lip and lower lip of the deceased with corresponding incision inside. He further argued that the death of the deceased occurred in a manner totally different from that pleaded by the prosecution, i.e., when the deceased was pushed against the wall, her head hit the wall leading to breaking of the base of her skull causing bleeding from her nose and mouth, and that fearing that she may shout, the assailant smothered her and throttled her throat, probably by pressing her face down against the pillow and she must have died of asphyxia. He relied upon the post-mortem report showing that there is sub-conjunctival petechial haemorrhage on both eyes, indicative of throttling the throat or asphyxia and also presence of rigor mortis all over the body and post- mortem ant bites present here and there indicative of the body being left lying for a long time so as to attract the ants to feed on the body. The learned counsel placed heavy reliance on Ex.P.15 scene of offence observation report wherein the presence of a blood mark of 2 x 2 cms on the cement wall almirah next to the bed of the deceased, was noted. That Ex.P.38 photographs clearly show the pillow drenched in a pool of blood and the medical report shows the injuries on the left side of her skull and left lips. These submissions of the learned counsel are further bolstered by Exs.P.46, 47 and 48 letters of advice, the findings at the scene and the tentative conclusions drawn by the investigating officer. As these were replicated in all these documents, it would suffice if relevant portion of Ex.P.46 letter of advice is reproduced herein below.
As per the findings at the scene and over the dead body it is suspected that the culprits done the victim to death either by smothering or by hitting her head to wall corner edge and later dragged her dead body into the bathroom and might have cohabitated.
60. Though we find that Ex.P.21 was not subject matter of detailed cross-examination of the prosecution witnesses such as the Doctor and the investigating officers, we cannot ignore the plea of the learned counsel for the appellant that the investigating agency has failed to take the investigation to its logical end regarding the blood marks on the corner of the built-in wall almirah, the possibility of death due to throttling and presence of a large amount of blood on the pillow and bed portion. Such investigation was very much required for the reason that when the deceased was hit against the wall with left side of the head hitting the wall, there is a possibility of a contusion being caused on the left temporo parietal region and in the process there was also a possibility of injuries being caused on the left side of both upper and lower lips, as submitted by the learned counsel. Further, the possibility of the injuries to both the left side upper and lower lips with corresponding internal injuries being caused when the face of the deceased was pressed down against the pillow and throttled and suffocated cannot be ruled out. Had the deceased been hit on the head with M.O.7, there may not be any possibility of existence of blood marks on the built-in almirah portion of the wall and similarly it will be highly improbable for the deceased to receive injuries on upper and lower lips. Therefore, as suspected in Exs.46 to 48, the probability of the assailant hitting the head of the deceased against wall and throttling her against the pillow leading to profuse bleeding through nose cannot be ruled out.
61. The prosecution case that the appellant attacked the deceased with chutney pounder gets further weakened in the manner the appellant allegedly used the same. As the story goes, he climbed up the 2nd floor of the building empty handed, got down the building, entered the neighbouring house, picked up M.O.7 – chutney pounder, again climbed up two floors carrying it with him, attacked the deceased with the chutney pounder, dropped it there, dragged the deceased upto bathroom, committed rape twice, went back to the place where he attacked the deceased, picked up and carried the chutney pounder to the ground floor and threw the same in the neighbouring compound from where he has picked it up. This theory appears too weird to be given any credence to. The chance of the appellant finding the chutney pounder in the middle of the night in the neighbouring premises itself is very remote. Further, the appellant carrying M.O.7 of the size of 63 cms. length and 16.5 cms. circumference (see Ex.P.18 report), climbing the building by jumping to the 1st floor along with the chutney pounder, also seems impossible. Even if he could do so, his carefully carrying the chutney pounder while climbing down the building and putting it at the same place from where he has picked it up also defies any logic. Assuming that the appellant has done it to cause disappearance of evidence, it passes ones comprehension as to why he has left many things, such as, colour pens, pencil, Ex.P.4 paper, allegedly used by him at the scene of offence. This part of the case of the prosecution also looks wholly untrustworthy.
62. Coming to the alleged recovery of M.O.7, Ex.P.18 is the mediators report. It is stated therein that on 29.08.2008 at about 6.15 p.m., P.W.33 took P.Ws.19 and 20 the mediators to the report, to Sri Durga Ladies Hostel building and the building adjacent thereto on being led by the appellant. That the appellant has shown the mediators the place and stated that he reached the slab of the bathroom and latrines situated in the southeastern side of the hostel building, that from there he reached the 1st floor after crossing the parapet wall and from there he went to the 2nd floor and showed the place where he committed the offence. That later he has shown the place where he has left the chutney pounder in the house belonging to P.W.10. That there was open place in front of the house on north-west direction situated to the north of the hostel. That the building is having compound wall around it and in front of the house there is open place and adjacent to the compound wall there were bushes and the remaining places were covered mostly with stones. That the appellant went into the bushes and retrieved the chutney pounder from the middle of the bushes and confessed that he has beaten the deceased with it. As per the version of P.W.33, the length of the chutney pounder is 63 cms., with 16.5 cms circumference near head, 16 cms circumference at the middle and 14.5 cms circumference at the tail portion, and its weight is 1.15 Kgs., and that having been exposed to summer heat and rains, it has become old. P.W.33 has seized the same under Ex.P.18.
63. P.W.19 one of the mediators, at the relevant point of time, was the Village Revenue Office of Ibrahimpatnam. He has deposed that on 29.08.2008 on being called by the Police of Suryaraopet Police Station, he and P.W.20 another Village Revenue Officer went to the Police Station at about 4.10 p.m., where they have seen the appellant in the Police Station and the latter has admitted the offence committed by him. That he along with P.W.20, P.W.33 and the appellant went to West Ibrahimpatnam, that the appellant took them to the hostel, shown the places, and explained how he entered the hostel and the places where he committed the offence and that from the premises of P.W.10 the appellant has brought the chutney pounder from the bushes in their presence. He has denied the suggestion that he never went to the place of the alleged seizure of M.O.7, that nothing was seized in his presence and that Ex.P.18 was not drafted at the place where it was allegedly drafted. He has however admitted that the objects like M.O.7 are available in markets and also in houses. P.W.20, who has deposed on similar lines as that of P.W.19, also denied the suggestion that the mediatornama was drafted in the Police Station and that being in the Revenue Department, he is in the habit of signing as per the instructions of the Police.
64. P.W.9, the tenant of the house owned by P.W.10 which is adjacent to the hostel, deposed that on 29.08.2008 at about 6.00 p.m. the Police, including the Assistant Commissioner of Police, and the appellant came to his house, that the appellant went into the bushes situated within the premises and brought an old chutney pounder, and that when the Police asked him whether the chutney pounder belongs to him, he has answered in the negative and further stated that he came to the house as a tenant only in the month of March, 2008. He has further deposed that the appellant has stated that he has beaten the girl on the head with the chutney pounder and has thrown the same and has gone away. The witness has identified the chutney pounder during his evidence. For unexplained reasons, the defence has not cross-examined this witness. P.W.10, the owner of the house located adjacent to the hostel from where M.O.7 was allegedly seized, deposed that on 29.08.2008 at about 7.00 p.m., one Constable of Ibrahimpatnam Police Station came to his house, asked him to come to his own house (where P.W.10 earlier resided) and meet P.W.33, where P.W.33, four other Police, P.Ws.19 and 20, appellant and also his tenant – P.W.9 were there. That P.W.33 has shown the appellant to him and informed that he was the person who killed and raped the deceased, that they have recovered the chutney pounder at the instance of the appellant from the bushes in the compound of the house and that they have shown the chutney pounder and asked him whether it belongs to him. That he has informed the Police that the chutney pounder belongs to him, that previously they have used the chutney pounder and that as they were not using it they have not noticed where it was lying. The witness identified M.O.7. He has denied the suggestion that his son Abburi Ganesh along with his two other friends Mani Raju and Ravi Dhiraj were suspected to have committed the offence. He has however admitted that during the course of investigation the Police examined the men aged from 16 to 40 years and that as they went on Dharna and approached the Press Club, Vijayawada, they were spared. He has also admitted that the Police obtained handwriting and blood samples of his son and sent the same to FSL and that the Police also sent his son to Polygraph test. He has however denied the suggestion that as the Police were frequently interrogating his son, he has shifted the house. He has also denied the suggestion that he was deposing falsely.
65. P.Ws.9 and 10 are independent witnesses. They are the best persons to witness the seizure. For reasons best known to the Police, they do not figure as mediators. From the admission of P.W.10 that his son was under Police scanner, apart from the fact that his blood samples were taken for FSL examination and was also subjected to Polygraph test, it is reasonable to presume that this witness was under pressure to save his son and therefore he has every reason to oblige the Police to depose in support of the case of the prosecution.
66. From the evidence of P.W.10 it could be seen that when the Police along with the appellant visited the house of P.W.10 on 29.8.2008 he was not living in that house. He was summoned by P.W.33 through a Police Constable. By the time he has arrived at his own house, the Police allegedly recovered M.O.7, retrieved from the bushes by the appellant. As per the evidence of P.W.10, M.O.7 was not in use as on 27.12.2007. Ordinarily, a male member of the family is not expected to have familiarity with the kitchen tools used by the womenfolk. If at all the proper person to identify M.O.7 is the wife of P.W.10 or in her absence any other female member of his family. While the possibility of the appellant finding M.O.7 during the middle of the night on 27.12.2007 appears improbable, it is equally improbable that M.O.7 continued to lie at the same place for more than eight months. It needs to be noted in this context that on the requisition by the Ibrahimpatnam Police, P.W.8 dog handler was deputed along with the dog Ranjit to the scene of offence at about 9.00 a.m., on 27.12.2007. He has deposed that he took the dog nearer to the dead body, it smelt the bloodstains and clothes of the deceased, then the dog went outside the bathroom and climbed the parapet wall by the side of the bathroom and barked, and as such he took the dog towards that side through the staircase, that the dog went there and smelt, and then proceeded towards N.H.9 and stopped at Ring Centre of Ibrahimpatnam. That he has tried once again by taking the dog to the scene of offence and after it smelt the bloodstains and clothes, it proceeded towards staircase, and then to N.H.9 and stopped at Ring Centre. If the appellant has got down with M.O.7, entered the neighbouring premises and dropped M.O.7 there, there would have been every possibility of the dog leading P.W.8 towards that direction. The evidence of P.W.8 reveals that the dog has not proceeded towards that direction. These facts, coupled with the admission of P.W.10 that M.O.7 could be procured from the market, and no independent witness figured as mediator to Ex.P.18, throw any amount of doubt on the version of the prosecution that M.O.7 was seized at the instance of the appellant and the deceased was attacked with the said object. On a holistic examination, the case of the prosecution regarding recovery of M.O.7 does not seem convincing.
n) DNA test and its result
67. The most crucial link in the chain of circumstances is the alleged matching of the blood samples of the appellant with that of DNA profiling on the vaginal swabs and smears collected from the body of the deceased. The prosecution case in this regard is sought to be supported by P.W.21 – the Doctor, who conducted autopsy, P.W.24 DNA finger print expert, Ex.P.30 – DNA report sent by P.W.24, and Ex.P.25, chemical analysis report dt.17.01.2008. In his evidence, P.W.21 deposed that vaginal swabs, vaginal smears and pubic hair of the deceased show human semen and spermatozoa, which indicates recent sexual intercourse. In his examination, the witness admitted that there is a difference in the process of preserving of material objects for sending them to chemical analysis and for DNA examination. He has further deposed that they will not preserve vaginal swabs, but send them immediately as it is in steriled process. He has admitted that he does not remember how he has sealed the vaginal swabs and smears and how he has sent them. He has admitted that in case of sexual offence the preservation of vaginal swabs and seminal stains have much relevance and that if they are not preserved properly they will become unfit for analysis after lapse of sometime. He also stated that he does not remember whether he has preserved the pubic hair in a plastic container or glass container. He has deposed that the Inspector of Police, Ibrahimpatnam, gave him requisition in writing on 27.12.2007 for preserving vaginal swabs and seminal stains and that in the said instructions they have clearly instructed to examine the body of the deceased to find out whether rape was committed and preserve the necessary items in connection therewith.
68. He has further deposed that he has sent the M.Os. preserved by him to the FSL through Ex.P.41, letter dt.4.1.2008, addressed by the Assistant Commissioner of Police, West Zone, Vijayawada City. He has denied the suggestion that he has not sent the M.Os seized by him to the FSL till the appellant was arrested. He has admitted that he does not have any record to show that he has handed over the vaginal swabs and seminal stains collected from the deceased to the Police Constable, but, however, added that the proceedings in which he has sent them to the Police were referred in the dispatch register of their department. He has further admitted that there is no document on record to show that he has handed over the vaginal swabs and seminal stains to the Police Constable and that in Ex.P.41 letter dt.4.1.2008 it was only mentioned that the crime was registered under Section 302 of IPC only, but not under Section 376 IPC. He has further deposed that he has received Ex.P.25 chemical analysis report on 2.2.2008 through a Police Constable and that there is no mention therein that the DNA Test was conducted and that they have also not enclosed DNA profile regarding the MOs collected from the person of the deceased. He has further admitted that he has not received any document from the FSL to show that DNA test was conducted for the MOs submitted by him on or before 2.2.2008 or that he has received the DNA profile on or before the said date.
69. P.W.24, who analyzed the blood and hair as item Nos.56 and 57 respectively of the appellant, and sent Ex.P.30 report stated in his cross- examination that he has received letter dt.10.01.2008 for conducting DNA profile of the vaginal swabs, smears, and pubic hair of the deceased. That the Serology Section received vaginal swabs, smears and pubic hair on 9.1.2008 as per Ex.X.3 letter of advice, dt.10.1.2008. The witness again corrected the date of letter of advice as 3.1.2008. That he did not know whether the MOs were in transit between 3.1.2008 and 9.1.2008, and that he has received the MOs on 11.1.2008 from the Serology department. He has further deposed that he has conducted the DNA profiling over item Nos.9 and 10 and that he generated the DNA profile on 13.2.2008. He has denied the suggestion that the vaginal swabs and smears were sent away to Police along with chemical analysis report on 17.1.2008 and that as on the date of deposition the said samples (leftover traces) are available in their department. The following are the crucial admissions of the witness.
We can also generate DNA profile from the left-overs of items 9 and 10 available in our department. I have not sent the copy of DNA profile generated by me on 13.2.2008. I preserved it in the system for comparing the DNA profiling of the suspects. I have compared the samples of 8 suspects with that of DNA profile generated by me on 13.2.2008; as it was not matched I have not sent the Report. I cannot say the date of generating DNA profile for 8 suspects as I have only brought the record pertaining to Satyam Babu.
It was suggested to the witness that he has not taken the blood and hair samples of the appellant, but he has taken the DNA profile from leftovers of items 9 and 10 and matched with the DNA profile of the deceased, which was denied by him.
70. An analysis of the above referred testimony reveals that P.W.21 did not remember whether the vaginal swabs and smears collected from the body of the deceased were properly sealed and under which proceeding and to whom among the Police they were sent. P.W.24, however, sought to explain this lacuna and according to him the M.Os were received as per Ex.X.3 – letter of advice. There is a serious dispute regarding the date of this exhibit. The date under the signature of the Inspector of Police is mentioned as 10.01.2008. P.W.24, at one place of his cross-examination stated that Ex.X.3 is dated 10.1.2008, while the Serology Section has received the same on 09.1.2008. However, in his very next statement, he has corrected himself by stating that the letter of advice was dt.03.1.2008. In the face of Ex.X.3, letter of advice, dt.10.1.2008, this statement appears to be wrong. Therefore, there was no possibility of P.W.24 receiving the same one day prior to the said date, i.e., on 09.1.2008.
71. Be that as it may, the most crucial aspect is whether P.W.24 has done the DNA profiling on item Nos.9 and 10, i.e., the alleged vaginal swabs and smears of the deceased on 13.02.2008, as deposed by him. On his own admission, P.W.24 has not sent the DNA profiling allegedly generated by him on 13.02.2008 to the Police. Thus, it is evident that till the blood and pubic hair samples of the appellant were sent to him, the existence of the DNA profiling of the deceased was not in the know of anyone, including the Police, and the Court. In the absence of the standard DNA profile of the deceased made known to anyone, it was not difficult for the FSL to manipulate the DNA report by comparing the DNA profile of the deceased, with her leftovers of items 9 and 10 and available with the FSL as suggested by the defence. The FSL as well as the investigating agency have not maintained transparency right from the stage of collecting the samples from the body of the deceased and in properly preserving and sending them till the alleged DNA profiling was done. Thus, the whole procedure adopted by the investigation agency was susceptible to manipulation in preparing DNA profile to falsely implicate anyone as they wish. When the DNA profiling was allegedly generated on 13.2.2008, the same, along with the left overs of items 9 and 10 should have been sent by P.W.24 to the investigating agency which in turn should have produced the same before the Court for being preserved. This would have ruled out any possibility of manipulation of DNA report as suspected to have been done to falsely implicate the appellant. In the absence of such procedure being followed, it is not difficult for the Police and the FSL, a Government agency, under the control of the Police Department, to manipulate the DNA results to suit their purposes and to falsely implicate the appellant. Thus, in our opinion, the procedure followed by the investigation agency and the FSL casts a serious cloud of suspicion on the credibility of Ex.P.30, the DNA report.
o) Probability or otherwise of rape
72. The charge sheet alleged that the appellant has brought the chutney pounder from the neighbouring house of P.W.10 with an intention to murder and rape the deceased, that after causing a serious head injury with the chutney pounder, he lifted the deceased from the cot, brought her to verandah, dragged her into the bathroom, removed her clothes, tied her right leg to water tap with a towel, bent her left leg and committed rape on her. As per Ex.P.17, the alleged confessional report, the appellant has raped the deceased twice. In Ex.P.23 post-mortem report, P.W.21, with reference to genital organs observed that vagina admitting two fingers; external of cervix is transverse empty and normal; old tears present in hymen. It was stated against column 9 in Ex.P.23 that there are no struggle marks over the body and private parts of the deceased. The manner in which the appellant has attacked the deceased, as alleged by the prosecution, would suggest that by the time the deceased was allegedly raped, she must have been either dead or near dead. In Ex.P.17, the appellant allegedly stated that after raping the deceased for the second time, he has observed that the deceased was not moving and as he did not feel her breath when he put his hand on the nose of the deceased, he thought that the deceased died. Thus, the appellant must have literally raped the deceased almost after he killed her.
73. Mr. Pattabhi argued that in a case of dead or unconscious person, it is not possible to penetrate vagina or have intercourse without causing injury to the private parts. He has placed reliance on the following passage from Shaws Text Book of Gynaecology.
Bartholins gland is a compound racemose gland and its acini are lined by low columnar epithelium. The epithelium of the duct is cubical near the acini, but becomes transitional and finally squamous near the mouth of the duct. The function of the gland is to secrete lubricating mucous during coitus.
(emphasis added) The learned counsel submitted that Bartholins gland secretes lubricating mucous, if a female is in a conscious state, aroused and permissive to the intercourse. As the deceased was unconscious/dead, the possibility of Bartholins gland secreting lubricating mucous would not have arisen. Therefore, even if the appellant had forced intercourse, that would not have been possible without causing injury to private parts of the deceased.
74. The learned counsel has also relied upon the following portion of the same text book.
Lacerations of the vagina caused by coitus are occasionally seen. Violent coitus or rape in young girls, forceful penetration in postmenopausal women having atrophy of the vagina, or in the presence of such malformations as an imperforate vaginal septum, extensive and serious injuries are known to occur.
(emphasis added) Following the medical literature, as noted above, the absence of any struggle marks over the body or injuries to the private parts leads us to hold that there was no possibility of committing of rape on the deceased even once, leave alone twice, without causing injuries to her private parts. This, coupled with the highly suspicious DNA test, completely negates the prosecution theory of rape. Dehors the rape, motive for the appellant to attack the deceased is non-existent. These circumstances would clearly suggest that the theory of rape is evidently floated by the investigating agency to divert the attention of the Court from the real culprits and hide the truth.
p) The earliest version of the Police
75. In Ex.P.8, P.W.1, the mother of the deceased, reported that on receiving the phone call from the owners of Sri Durga Ladies Hostel at 6.15 a.m., on being informed that her daughter was in serious condition, she and her husband went to the hostel, found blood stains on her daughters bed and also blood marks and stains denoting that her daughter was dragged from outside the room into the bathroom situated in a lane beyond two rooms from her daughters room, that the right leg of her daughter was tied to the water tap with a towel, that the night pant worn by her was removed and thrown in between the room and bathroom, that her daughter died in a pool of blood in the bathroom in nude condition and that on enquiry the owner and the hostel mates did not give proper reply.
76. Ex.P.16 inquest report is the earliest document which contains opinion regarding the incident and the probable offender(s). Column IX thereof reads as under:
As per the position of the dead body and as per the injuries on the head, it appears that the reason for the death of the deceased Sayyed Ayesha Meera in this case might be that some unknown assailants on 26.12.07 during night time might have beat her on the head with a stout stick while the deceased was sleeping in her room on the cot and due to that there was swelling behind the head and also due to oozing of blood from nostrils and ears.
(emphasis is added by us) In column XV thereof it is inter alia stated as under: that during night time some unknown assailant entered into the room and beat on her head with stout weapon or beat her head with the wall and due to that having received injury on the back of head, blood oozed from her nostrils and mouth and then gagged her mouth and dragged her to the bath-room and tied her right leg to the tap in the bath room and on seeing the condition of no clothes on the body, the assailant might have raped her and in that process, the assailant might have killed her or basing on the contents of the letter found near the scene of offence and basing on the letters H Prema Chirutha written on the chest of the deceased with ball pen, some unknown person might have loved the deceased deeply and he might have come to the deceased during night and forced her to love him and in that process, he might have raped and killed her or for any other reason which did not come into light, she was murdered and that panchayatdars unanimously opined that on 26.12.07 during night time i.e., in between 11.00 p.m. and 5.00 a.m. some unknown assailant murdered Ayesha Meera.
However, Ex.P.41, the letter of advice addressed to the FSL while forwarding material objects to the chemical examiner, reflects a different opinion on the number of offenders and the manner of attack. In column 4 thereof it is inter alia stated as under:
As per the findings at the scene and over the dead body, it is suspected that the culprits done the victim to death either by smothering or by hitting her head to wall corner edge and later dragged her dead body into the bathroom and might have cohabitated. All enquiries are on progress to unravel the mystery behind the death of deceased and to establish the identity of accused. Thus, the case is under investigation.
77. While Ex.P.4, the document allegedly found near the scene of offence, was described as letter, in Ex.P.16, interestingly, in Ex.P.15 – scene of offence observation report which reached the Court nearly eleven months later i.e., on 14.11.2008, the document allegedly recovered from the scene of offence was described as a photo copy of the Non-Judicial Stamp paper worth Rs.10/- containing typed Affidavit and signed by the father of the deceased, with certain writings on the reverse of the same the contents of which were referred to in paragraph 48.
78. It is thus evident from the above documents, that in the earliest opinion, the Police suspected a sole offender, but on a further investigation they suspected the involvement of more than one offender in the commission of offence and that the death must have occurred either by smothering or by hitting the head of the deceased to a wall corner edge. As per the evidence of P.W.32, who was the ACP, West, Law & Order, during the investigation more than 120 persons were suspected, and he subjected them to different types of tests like polygraphy, handwritings, footprints etc. That he has prepared the letter of advice for forwarding blood samples of eight suspected persons to FSL, Hyderabad, which was marked as Ex.X.3 and also sent several persons for comparison of foot prints and also hand writing for subjecting them to polygraph test and also DNA test. He has also deposed that during the investigation he has suspected one Guruvindar Singh @ Laddu and sent him to FSL through Court, as he was in judicial custody, and he was also subjected to polygraph test and his handwritings, footprints and DNA profiles were compared with that of the samples available in FSL. He has also sent 55 persons for DNA examination without obtaining permission of the Court, unlike in the case of Guruvindar Singh, for whom such permission was obtained. It was suggested to him in the cross-examination that the mother of the deceased specifically gave particulars of the persons involved in the crime, but the Police have failed to investigate the case on those lines and diverted the same. It was also suggested to him that the actual culprits are influential and hence the witness has chosen the wrong path of investigation knowingly, which suggestion was, of course, denied by the witness. He has, however, admitted that the Police have initially suspected P.W.6, the hostel warden, and P.W.7, her husband. He has, however, denied that in spite of their initial suspicion they have not investigated into that aspect. He has also admitted that he has suspected inmates of the hostel as they might have known what exactly happened on that day. He has also deposed that he was certain that Guruvindar Singh was involved in the offence and he also opposed the bail application of the said Guruvindar Singh as there was prima facie evidence against him.
q) Dramatic change in the course of investigation and letting the suspects off the hook:
79. P.W.30, the then Inspector of Police, Ibrahimpatnam, deposed that as per the instructions of the ACP, West (P.W.32), he has got collected blood samples of eight suspects through doctors and their names are Ravi Maniraj, Abburi Ganesh, Ravi Dhiraj, Nellajarla Kishore, Mohammed Khaja, Jalaga Pavankumar, Inampudi Venkata Siva Ramakrishna and Peetha Siva Anjaneyulu (cook) and that on the same day he has sent the blood samples through P.W.32 to FSL for DNA examination. In his cross- examination he has stated that he has sent the blood samples of the aforesaid eight suspects on the instructions of P.W.32 to the FSL. He has admitted that P.W.32 might have suspected the said eight persons before instructing him to send their blood samples. In his evidence P.W.32 also deposed that on his instructions P.W.30 prepared a letter of advice for forwarding the blood samples of the eight suspects and the same were forwarded to the FSL under Ex.X.3 – letter. He has also deposed that during his investigation and interrogation, he has sent several persons for comparison of footprints and also handwritings, and for subjecting them to polygraph test and also DNA test, that he has requested the FSL to compare their footprints and handwritings with that of the footprints and handwriting seized at the scene of offence and requested them to compare their DNA profiles with that of the DNA samples preserved by them, but they have not tallied. In his cross-examination he has admitted that on verification of previous records of criminals, the Police have suspected around 120 persons and they were subjected to different types of tests like polygraph, handwriting, footprints etc., He has further admitted that he has sent 55 persons for DNA examination and 39 persons for polygraph tests, but their samples have not tallied. He has further stated that he has not brought the records pertaining thereto. To a question whether he can show the reports received by him regarding non-tallying of the samples, the witness has shown one examination report which, on scrutiny by the court, was found not relating to samples not tallied, but related to photo of imprints and pair of shoes/boots. The witness has further admitted that he has not obtained the permission of the court for subjecting 55 persons to various tests, as he is competent to send them as an ACP. He has however admitted that for sending the reports of Guruvindar Singh for FSL examinations, he has obtained permission of the Court, as the said person was in judicial custody. The witness admitted that he has not proceeded against inmates of the hostel for Narco analysis test. He has however denied the suggestion that the reason for the same was to save the real culprits. The witness sought to explain that while he was in the process of sending the inmates of the hostel for Narco analysis test, he was transferred on 13.8.2008. The witness also admitted that he has suspected the hostel warden and her husband, but they were not subjected to Narco analysis test.
80. P.W.2, a working woman of 22 years of age and one of the hostelmates of the deceased, admitted in her cross-examination that the Police suspected herself and some other hostelers, subjected them to the Lie Detector Test and matched their footprints and she has denied the suggestion that she and other hostelers have opposed for Narco analysis test. She deposed that they informed the lower court that they are ready to submit for test if there are no side affects to the same. P.W.3, another hostel-mate of the deceased, deposed that against the order of the trial Court directing to conduct Narco analysis test on her and others, she has approached the High Court by challenging the said order but the High Court also confirmed the order of the trial Court. She has further deposed that she and others have agreed for Narco analysis test and denied the suggestion that political leaders and police threatened them and that therefore they have suppressed the true facts known to them and were deposing falsely due to pressure exerted by the powerful political leaders and Police.
81. The above discussed evidence clearly reveals that the investigation agencies have not taken the investigation to its logical end regarding various suspects. They have suspected the cook, P.W.6, the hostel warden, P.W.7, her husband, and eight persons, who are named by P.W.30 and from whom samples were taken, sent 55 persons for DNA examination and 39 persons for polygraph and Narco analysis tests. P.W.32 clearly bungled in his cross-examination by trying to establish that those samples did not tally and ended up showing an irrelevant report as if the same relates to non-tallying of samples of the suspects. The Police also could not justify letting off Guruvindhar Singh @ Laddu, though P.W.32 categorically admitted that he was certain that the said suspect was involved in the case and there is prima facie evidence against him. Equally fatal was the failure of the investigation agency to subject P.Ws.2 and 3 and other hostelers and also P.Ws.6 and 7 to Narco analysis test in spite of the order granted by the trial Court, which was confirmed by this Court. The only excuse offered by P.W.32 for his failure in this regard was that when he was about to make arrangements to send them for Narco analysis test, he was transferred. P.W.33, the successor investigation officer took over the charge on 13.08.2008. Interestingly, the investigation agency, which was proceeding on one direction till apprehension of the appellant, has taken an abrupt U turn from then onwards as the whole concentration was focused on the appellant based on his alleged confessional statement. No explanation was forthcoming from the prosecution as to why the appellant was shifted to Central Jail, Rajahmundry, when he was left with only nine days sentence period. P.W.33 in his evidence did not state that with the apprehension of the appellant they found further investigation of other suspects unnecessary.
82. P.W.1, with the permission of the Court, stated in her evidence that the investigation was not carried out on proper lines. That National Womens Commission, the State Human Rights Commission and the Minorities Commission, made their own enquiries and submitted their reports. She has categorically stated that the cook Siva Anjaneyulu comes to hostel at 4.00 a.m., that one key was with him and one was with the warden, and that the National Womens Commission visited the scene of offence and advised to refer the inmates of the hostel for Narco analysis test. That the footprints of Guruvindar Singh @ Laddu got matched with that found at the scene of offence, that the then Additional Director General of Police, Mr. A.K. Khan, announced that a person between 30 and 40 years might have committed the offence and the offence might have been committed by one person, that another person, by name, Upendra Singh, was also suspected to have been involved in the commission of offence and that on the mother of the latter approaching the Human Rights Commission, he was excluded from the case. That the Narco analysis test was supposed to be conducted on P.Ws.2, 4 and Kavitha the hostel mates of the deceased, P.Ws.6 and 7 the hostel warden and her husband, and Siva Anjaneyulu cook of the hostel, besides Guruvindar Singh @ Laddu and that close on the heels of the directions issued by the High Court for conducting Narco analysis test to the aforementioned seven persons, the appellant was brought into the scene on 09.08.2008. She has also alleged that the inquest panchanama was conducted after handing over of the body to them from 4.30 to 7.30 p.m. (on 27.12.2007). Her evidence also reveals that there were huge agitations by the public for apprehending the real culprits and having regard to the sensation the murder has created, National Womens Commission, State Human Rights Commission and Minorities Commission have also made their own enquiries and prepared reports making certain recommendations, but, for the reasons best known to the prosecution, those reports were not made part of the record. The claim of P.W.32 that the samples obtained from the suspects did not tally with the DNA, footprints and fingerprints etc., not only remained unsubstantiated but was thoroughly exposed when he sought to refer to a report which was totally unrelated to such tests.
83. The callous and casual approach of the investigation agency in conducting proper investigation and instead trying to prove an easy way out by picking the appellant, describing him as a hardcore criminal involved in many criminal cases on various charges, including murder, shocks the judicial conscience of this Court. Had the investigation been taken to its logical end, qua the eight suspects, there is no reason for the prosecution not to place the FSL reports and other experts opinions on record. Admittedly, no such evidence has been produced before the Court. In the absence of such evidence, it is reasonable to presume that the investigation agency has abandoned the further investigation qua all the earlier suspects and concentrated only on the appellant. After all, the scientific evidence such as DNA Test, fingerprints and footprint experts opinions do not constitute conclusive evidence and assuming that the samples of the appellant got tallied, that by itself does not offer any excuse for the investigation agency to abandon the line of investigation undertaken by them on various suspects and eliminate them from the investigation.
r) P.W.1s testimony regarding biased investigation
84. This is perhaps a rare case where P.W.1, who is no other than the victims own mother, deposed in defence of the accused and indicted the Police for the alleged faulty and biased investigation. In her evidence she has stated that the Police suspected Siva Anjayaneyulu (cook) and also the maternal uncle of the deceased, that they have also suspected Guruvindar Singh (Laddu) and Upendra Singh, before pitching on the appellant. She was very candid in saying that the investigation was not conducted on proper lines, that the Minority Commission, National Womens Commission, Mr. Asaduddin Owaisi, M.P., and Mr. Bala Sowri, M.P., Tenali, also visited the hostel, that top Police Officials, including I.G., Commissioner of Police, and P.W.32 have interrogated her distant relative and brought pressure on him to admit his involvement, but as he refused to do so, he was finally handed over to their family. She further stated that the Police kept a watch on her family and tried their best to find out whether the deceased had any boy friend. She has further deposed that she has met the Vice-President, the Chairperson of the National Womens Commission, and DGP, Yadav, and when they returned to hotel, they received a threatening call that they will kill their second daughter also as they killed the deceased and that in connection therewith, they have also met the Additional Director General of Police and the Commissioner of Police, Surendra Babu.
85. That in March, 2008, the Chairperson of the National Womens Commission, visited the scene of offence and suggested to send the inmates of the hostel for Narco analysis test. That meanwhile, the DGP, Mr. A.K. Khan, and others announced that Guruvindar Singh @ Laddu was involved in the murder because his footprints are traced at the scene of offence and that a person between 30 and 40 years must have committed the offence. That the Police have also suspected one Upendra Singh. That the said Upendra Singh approached the Human Rights Commission and thereupon he was excluded from the case. That on 25.5.2008 the D.G.P., Yadav, announced in New Delhi that Laddu was the actual culprit in the case, that the matter was discussed in the Assembly, that the Police have collected hair samples of her brothers son, aged 12 years and nephew of her husband, aged 18 years, and that the Police have also tapped their telephone and restrained their movements. While deposing that there was no proper investigation in the case, she requested for reinvestigation for tracing out the real culprits. P.W.1 was not subjected to cross-examination on all the above mentioned aspects. As narrated earlier, the Police have suspected scores of people in the area, particularly the cook, the hostel warden P.W.6 and her husband P.W.7, and eight persons, who are named by P.W.30, sent 55 persons for DNA examination and 39 persons for polygraph and Narco analysis tests, but they did not take the investigation to its logical end.
86. The learned counsel for the appellant submitted that there was public furore when the appellant was illegally taken into custody. It was further argued that the appellant hails from a poor dalit family, that he has lost his father and was poverty-stricken, that he studied upto 7th class and was doing masonry works, that he was the sole bread winner of the family and that he was already suffering from a deadly nervous disease. He has further argued that a group of armed police descended on the appellants village and took him into their custody from his house on 9.8.2008 in between 1.00 to 2.00 a.m., that on 12.8.2008 the villagers and other peoples organizations have conducted rastarokos and dharnas protesting against the Police for picking up the appellant, that on 13.8.2008 the villagers staged an agitation in front of the DSP Office, that on 14.8.2008 relay fasts were conducted by dalit organizations and other public organizations, that the appellant was kept in unlawful custody by the Police for four days before he was shown as arrested on 16.8.2008 and that the Police produced the appellant before the Court on 17.8.2008 showing his arrest as on the midnight of 16.8.2008. He has further argued that the appellant was earlier involved in a cell phone theft case and that as he was not in a position to defend his case by engaging a lawyer, he was convicted for six months imprisonment from 25.1.2008 to 23.7.2008. That there was no record to show that the appellant was a psycho or that he acted like that at any earlier point of time, including during his stay in jail, that based on the confession extracted from the appellant on his purported arrest on 16.8.2008, the Police implicated him in eight more cases and that this Court has quashed five of those cases as not maintainable.
87. Though most of the above facts narrated by the learned counsel for the appellant have not come in evidence, the fact that there was public furore against the arrest and detention of the appellant is not disputed by the learned Public Prosecutor. Indeed, the widespread agitations in the area in connection with the murder and the events following thereof have been widely published in the press which this Court can take judicial notice of. The further fact that the appellant was suffering from serious ill-health (Gulliain Barre Syndrome) and he was given treatment in Nizam Institute of Medical Sciences at Hyderabad, is also not in dispute. It is in this background that the stand taken by P.W.1 that the appellant is innocent and was falsely implicated requires consideration.
88. In this context, one needs to make a reference to the voluntary statement of P.W.1. She has stated that on 29.12.2007 she has received a phone call from Vijayawada through which she was informed that the investigation in the case of his daughter was deliberately diverted, that on 26.12.2007, a party was organized in the ground floor of the hostel, and P.W.7, the husband of the hostel warden, K. Satish, K. Suresh, Ganesh, Chinta Pavan Kumar and Rajesh were present, that two of them went to the 2nd floor to meet their girl friends in the same block in which the deceased was staying, that on seeing them the deceased informed them that she will reveal the facts to her parents and vacate the hostel on the next day morning, and that due to that reason, the deceased was done away with. P.W.1 also alleged that the investigation was not carried out on proper lines. That Narco analysis test was supposed to be conducted on Kavitha, P.Ws.2 and 4, the inmates of the hostel, and P.W.6 and 7 (the hostel warden and her husband), Siva Anjaneyulu (cook), and one Guruvinder Singh @ Laddu, that this Court gave directions to conduct Narco analysis test on the above named seven persons and that immediately thereafter the Police have announced that the appellant was involved in the commission of the offence. We are at a loss to understand as to what prevented the investigating agency from conducting Narco analysis test when this Court has confirmed the order of the trial Court paving the way for the same. As noted hereinbefore, the only explanation given by P.W.32 was that when he was taking steps for sending the aforementioned persons for Narco analysis test, he was transferred on 13.08.2008. P.W.33, who took over the investigation from P.W.32, did not explain as to why he did not get the Narco analysis test conducted.
89. Being mother of the victim, it is not expected of P.W.1 to go to the extent of pleading innocence of the accused. The stand of P.W.1 is obviously aimed at her anxiety to bring the real culprits to book by sparing the appellant, perceived as an innocent. The attempt of the Police to project different persons as culprits one after the other indicates not only their vacillating attitude and their abject failure in conducting proper investigation, but also their anxiety to draw a curtain on the case by projecting somebody or the other as the culprit. In this process, they have come out with a theory which no person of ordinary prudence would accept. In other words, the entire case of the prosecution, far form being proved beyond reasonable doubt, raised too many doubts as enumerated above which did not find satisfactory answers.
90. The requirement of proof beyond reasonable doubt being a sine qua non for holding a person guilty of commission of offence, the prosecution has miserably failed to prove the guilt of the appellant beyond reasonable doubt. The lower Court appeared to have swayed away by the prosecution case accepting the medical and scientific evidence on its face value. It has also accepted the tainted version of the investigation agency as the last word. The Court below has failed to notice various loose ends in the case of the prosecution believing the theory of the Police who projected the appellant as a dreaded criminal with past criminal history, being oblivious of the fact that as many as five cases against the appellant were quashed by this Court which fact itself throws suspicion on the bona fides of the Police. The incongruous nature of the prosecution case, the improbable manner in which the appellant allegedly committed the crime and the incredible evidence of the prosecution, fully convince us to conclude that the appellant was falsely implicated in the case by the Police. Though P.W.1 persistently pleaded that in order to save the real culprit belonging to an influential political family, the Police have falsely implicated the appellant, the evidence available on record is insufficient for us to express any opinion on this aspect. While the appellant, who, for no fault on his part, has been prosecuted, persecuted and incarcerated, in the absence of any provision under the Code of Criminal Procedure, within the framework of which we exercise our appellate jurisdiction, we are unable to award monetary compensation for the irreparable damage caused to the appellant and his family members, physically, mentally and emotionally. However, we leave the appellant free (if he is not already drained of his energies) to sue the State for damages for malicious prosecution.
91. We also feel that leaving out the real culprits is no less a miscarriage of justice, than conviction of an innocent. In Basappa v. State of Karnataka the Supreme Court held that conviction of an innocent man results in miscarriage of justice, but letting the guilty scot-free results in failure of justice. We suffer from qualm of conscience for not being able to order reinvestigation due to the absence of a statutory provision while exercising our appellate jurisdiction under Section 374(2) of CrPC. However, we feel that the truth, buried fathom deep under the debris of faulty investigation and distortions, needs to be extricated and real culprits are identified and punished. It is for the public spirited citizen(s) to carry the issue forward by availing appropriate legal remedies in this regard.
92. Before finally concluding, we need to refer to the judgment of the Apex Court in State of Gujarat v. Kishanbhai . Expressing its pain and anguish at the failure of the investigation agency to carry out proper investigation in a case of rape and murder of a small child, the Supreme Court has also examined the flipside, i.e., conviction of an innocent person. With reference to the accused in that case, the Supreme Court observed as under:
He may be truly innocent, or he may have succeeded because of the lapses committed by the investigating/prosecuting teams. If he has escaped, despite being guilty, the investigating and the prosecution agencies must be deemed to have seriously messed it all up. And if the accused was wrongfully prosecuted, his suffering is unfathomable. Here also, the investigating and prosecuting agencies are blameworthy. It is therefore necessary, not to overlook even the hardship suffered by the accused, first during the trial of the case, and then at the appellate stages. . By the time they are acquitted at the appellate stage, they may have undergone long years of custody. When acquitted by this Court, they may have suffered imprisonment of 10 years, or more. When they are acquitted (by the trial or the appellate court), no one returns to them what was wrongfully taken away from them. The system responsible for the administration of justice, is responsible for having deprived them of their lives, equivalent to the period of their detention. It is not untrue, that for all the wrong reasons, innocent persons are subjected to suffer the ignominy of criminal prosecution and to suffer shame and humiliation. Just like it is the bounden duty of a court to serve the cause of justice to the victim, so also, it is the bounden duty of a court to ensure that an innocent person is not subjected to the rigours of criminal prosecution.
93. Having expressed its deep concern for false implication of innocent people and their conviction, the Supreme Court has framed the following guidelines for fixing responsibility on the investigating/prosecuting officials responsible for acquittal.
On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly, we direct, the Home Department of every State Government to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months.
In pursuance of these guidelines, the Government of Andhra Pradesh has issued G.O. Ms. No.20, dt.14.02.2017, constituting an Apex Committee with Home Secretary as Chairman, Law Secretary, Director General of Police and other functionaries as Members, for identification of erring investigation/prosecuting officials/officers for their failure in a prosecution case and for taking departmental action against such officials/officers in accordance with law.
94. There may not be perhaps a better case than the present one for being referred to the Apex Committee for taking action against all the erring investigating/prosecuting officials/officers, for not identifying the real culprits and prosecuting an innocent person and getting him convicted. The State is accordingly directed to refer the matter to the Apex Committee.
95. In the result, the Criminal Appeal is allowed with costs of Rs.1,00,000/- (Rupees one lakh only) payable by the State to the appellant. The conviction and sentence recorded against the appellant/accused are set aside. Consequently, the appellant shall be set at liberty forthwith, if he is not required in any other case or crime and the fine amount, if any, paid by him shall be refunded to him. _________________________ C.V. NAGARJUNA REDDY, J _________________________ M.S.K. JAISWAL, J 31-03-2017