AKELLA SUBRAHMANYAM Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This appeal under S. 2 (a) of the Supreme court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 is directed against the judgment and order dated 16/01/1975 of the High court of judicature, Andhra Pradesh at Hyderabad whereby the judgment and order dated 27/06/1973 of the Sessions Judge, East Godavari Division at rajah-mundry acquitting the appellant of the offences under S. 392 read with S. 34 and S. 302 read with S. 34 of the Indian Penal Code was set aside and he was convicted for the aforesaid offences and sentenced to seven years' rigorous imprisonment on the first count and life imprisonment on the second count.

(2.) The case as put forth by the prosecution was : Akella Subbamma, a middle-aged childless widow of Akella Ramamurthy, was living all by herself in her house in village Valluru, five kilometres away from Police Station, mandapeta, in East Godavari District. Twelve years before his death which occurred sometime in 1966-67, Akella Ramamurthy took the appellant, his brother's son, in adoption. Despite his adoption, the appellant continued living with his natural parents at Rajahmundry where he was studying but paid occasional visits to Valluru to see Akella Subbamma, his adoptive mother. Lured by his adoptive mother's material possessions which consisted of 20 acres of wet land worth about twenty-five thousand rupees, gold bangles and silverware and actuated by the base desire of hastening the process of devolution and enriching himself expeditiously, the appellant hatched an ignoble plan with Pakala Prasadarao alias Prasad his bosom friend and co-accused, for robbing the deceased of her valuables and doing away with her. In furtherance of their common intention, the appellant and prasad left Rajahmundry by bus at 4.30 p. m. on 23/09/1972 for the house of Akella Subbamma in Valluru where they reached the same evening at about 6.30 p. m. With a view to prepare food for the appellant and his friend, Prasad, Akella Subbamma went to the house of a neighbour named chinthalapudi Subbamma (Public Witness 4) to fetch some burning charcoal. She also asked Public Witness 4 for curds. As Public Witness 4 did not have curds at her house, she went to Janakiratnam (Public Witness 5) , purchased curds from her and delivered the sanic to akella Subbamma at her house where she saw both the appellant and Prasad present. At the time of delivery of curds, she also saw Akella Subbamma wearing the gold bangles as usual. At about 7.30 p. m on the same evening when Matyala Ramarao (Public Witness 1) who lived opposite to the house of Akella subbamma was sitting in his house talking to his farm servant, Chalumuri bachibabu (Public Witness 2) , he heard a groanina; sound emanating from the house of akella Subbamma whereupon he asked Public Witness 2 to. go into the lane adjoiningthe east of Akella Subbamma's house which led to her backyard and find out what the matter was. Public Witness 2 went to the lane as beckoned by Public Witness 1 and came back after a short while and reported to Public Witness 1 that the groaning sound was coming from the window of Akella Subbamma's house opening into the eastern lane. Thereafter both Public Witness 1 and Public Witness 2 went into the lane and cried out enquiring as to who was in Akella Subbamma's house. At this, the appellant came out of the house through the door opening into the aforesaid lane. On seeing the appellant emerging out of his adoptive mother's house, pw I questioned him about the groaning sound whereupon the appellant replied that he and his friend were rollicking which produced the groaning sound. Public Witness 1 then asked the appellant to call his friend. Upon this, the appellant called out his friend addressing him as 'prasad' but the latter replied from inside that he was having his food. Upon Public Witness l's asking the appellant where Akella Subbamma was, the latter told him that she had gone to the lavatory. Thereafter the appellant went inside the house and closed the door. Public Witness 1 also returned to his house but as he had some sort of premonition, he instructed Public Witness 2 to remain in the lane till the return of akolla Subbamma. Public Witness 2 waited in the lathi for 10 or 15 minutes but seeing no sign of Akella Subbamma's return, he came back and reported the matter to Public Witness 1. As Public Witness I's suspicion deepened, he went along with Public Witness 2 to the house of Ghembrolu Parasurama Sastry (Public Witness 3) , another neighbour, and all three of them proceeded to the main entrance of the house of Akella Sub- bamma but finding it bolted from inside and nobody responding to their tapping, they went to the backyard door which they found ajar. Going inside the house which was plunged in darkness, they made a search for akella Subbamma in all the rooms of the house which were bolted from outside and ultimately found her with the help of torchlight lying dead on her back in the kitchen with some abrasions on her neck and a coir rope (MO 4) lying by her side. By the side of the door opening into the backyard they found a screen handbag; (MO 1) containing a silver plate (M02) and silver vessel (MO 3). Public Witness 1 thereupon deputed Public Witness 2 to go and inform the village munsif named Rimmalapudi Suryanarayan Ramarao (Public Witness 9). After a short while, Public Witness 9 came to Akella Subbamma's house and recorded the statement (Ex. P 1) Public Witness 1 and sent the same with his note (Ex. P 4) to the Police station, Mandapeta. On receipt of Ex. P I, the Head Gonstab e of the police station named Syed Ahmed (Public Witness 16) forthwith registered the same as Crime no. 68 of 1972 under S. 302 of the Indian Penal Code and proceeded to valluru. Next morning, P. Sriharirao, Circle Inspector (Public Witness 18) also reache-I the scene of the occurrence and held inquest over the dead body of Akella subbamma, seized the green handbag (MO 1) containing the silver plate (MO 2) and the silver vessel (MO 3) and the coir rope as well as a pair of chappals which were found lying in the hall of the house. The blood found in the kitchen near the dead body was also seized by the Circle Inspector. After compleling these formalities, the Circle Inspector sent the dead body for postmortem examination to the government Hospital at Ramachandrapurani where Dr. V. Syamala, Lady Assistant Surgeon (Public Witness 14) conducted the postmortem examination and opined thit Akella Subbamma appeared to have died of asphyxia due to strangulation about 20 hours prior to the postmortem examination. It was not before 4-30 p. m. on 25/09/1972 that the circle Inspector succeeded in effecting the arrest of the appellant at Korukonda bus-stand. On being interrogated, the appellant led the police to the fort Gate and showed his co-accused Prasad who was preparing to leave for the railway station. The Circle Inspector arrested and interrogated Prasad who to him to Manda Nageswararao (Public Witness 7) , a dealer in gold at Nalla mandu Sandu staling that he had sold the two gold bangles to him i. e. topw 7 on the previous day for Rs. 125. 00. On being questioned by Public Witness 18, pw 7 produced gold bztngle (MO 6) and four pieces of another broken gold bangle (MO 7) , which were seized by Public Witness 18 in the presence of Vinukonda babji (Public Witness 10) and a teacher. During the course of further investigation, the gold bangles, the silver plate and the silver vessel were identified as belonging to Akella Subbamma and the pair of chappals and green bag as belonging to prasad. On the evening of 26/09/1972, the Magistrate before whom the appellant and Prasad were produced for remand directed that they be kept in the judicial lock-up. On 27/09/1972, Public Witness 18 made an application before R. N. Patro, Principal Munsif Magistrate, Ramachandrapuram, requesting him to record the statement of the appellant and his co-accused, Prasad, under S. 164 of the Code of Criminal Procedure whereupon Public Witness 15 sent a requisition to the Superintendent, Sub-Jail, ramachandrapuram, asking him to produce the accused before him at 1. 00 p. m. on that day. Accordingly the Sub-Jail Superintendent caused the accused to be produced before Public Witness 15 who put them some preliminary questions warning them that they were not bound to make confessional statements and anything that they would state might be used against them, gave them two days' time for reflection and sent them back to the Sub-Jail with the direction that they be produced again before him at 11. 00 a. m. on 29/09/1972 and meanwhile measures be taken to prevent any prisoner or person belonging to the Police Department from having access to them. On the accused being produced before him in accordance with his directions on 29/09/1972, Public Witness 15 again administered the necessary warning to the appellant and his co-accused and after being satisfied that the accused were prepared to make voluntary statements recorded their confessional statements (Exs. P 23 and P 25). In the course of his confessional statement (Ex. P 23) , the appellant besides admitting the material particulars of all the incriminating circumstances appearing against him in depositions of PWs 1, 2, 3 and 4 made further disclosures to the effect that when his aunt (the deceased) was pouring oil in the pan and frying 'vadiyalu' both he and Prasad went into the kitchen; that while proceeding to the kitchen Prasad took a coconut rope lying in the 'vasara'; that on Prasad's giving a signal to him, he caught hold of the hands of the deceased whereupon she cried aloud; that prasad tried to tie the hands of the deceased but did not succeed in doing so as the latter struggled; that while he held the hands of the deceased firmly, prasad removed her bangles and placed the silver plate and the vessel in a bag; that thereafter Prasad removed the electric. bulb of the kitchen and while Prasad was busy doing so, he left the deceased; that oa. hearing the cries raised by his aunt, somebody came calling "subbamma Garu" "sub- bamma Garu"; that Prasad thereupon bolted the door of the kitchen and asked him to go and answer the person; that accordingly he went into the lane and saw three persons including Matyala Ramarao and a farm servant; that on Matyala Ramarao's addressing him as "daffudu Guru" and going near him as desired by Matyala Ramarao, he answered his query about the cries by telling him that he and his relative's son were cutting jokes with each other; that in answer to Matyala Ramarao's further query as to where his aunt was, he told him that she had gone to the latrine; that thereafter matyala Ramarao and another person went away leaving the farm servant in the lane with instructions to remain there till Akella Subbamma's arrival; that by the time he returned he saw Prasad running away; that putting off the bedroom bulb that was burning, he walked away to Dwarapudi Railway station where he met Prasad and that while leaving, he left the backyard door of the deceased's house ajar. After recording the aforesaid confessional. statements, Public Witness 15 remanded the accused back to the Sub-Jail.

(3.) On completion of the investigation, the accused were proceeded against under S. 302 read with S. 34 and S. 392 read with section 34 of the Indian Penal Code in the court of the Additional Judicial first Class Magistrate, Ramachandrapuram, who committed them to the court of Session, East Godavari Division, Rajahmundry to stand their trial for the aforesaid offences. By his judgment and order dated 27/06/1973, the sessions Judge found the appellant and his co-accused not guilty and acquitted them of the aforesaid charges. Aggrieved by the judgment and order of the sessions Judge, the State preferred an appeal under S. 417 of the Code of Criminal Procedure, 1898 before the High court of Judicature, Andhra pradesh which was allowed and both the appellant and his co-accused, Prasad, were convicted and sentenced alike as stated above.