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PETITIONER:

MANGAMMA AVVA ALIAS NESE YESODAMMA & OTHERS

Vs.

RESPONDENT:

STATE OF ANDHRA PRADESH

DATE OF JUDGMENT21/03/1995

BENCH:

PUNCHHI, M.M.

BENCH:

PUNCHHI, M.M.

REDDY, K. JAYACHANDRA (J)

CITATION:

1995 SCC Supl. (2) 434 JT 1995 (3) 447

1995 SCALE (2)600

ACT:

HEADNOTE:

JUDGMENT:

PUNCHHI, J.:

1. This appeal by special leave is directed against an

affirming judgment and order of a Division Bench of the

Andhra Pradesh High Court dated June 23, 1983 passed in

Criminal Appeal No.992 of 1982.

2.The three accused appellants are inter-related. A-1 and

A-2 are sisters, while A-3 is the husband of a younger

sister of the former two. A-1 and A-2 were originally

residents of Village Thuggili. Thereat A-1 was known as

Nese Yashodamma, the name given to her by her parents. She

became a Digambara Sanyasni and assumed the name Mangamma

Avva and on assumption of that order started remaining

naked. It was believed in certain quarters that she had

thereby come to possess some miraculous powers. While so

she became controversial and had to move over to establish

an Asharam within the revenue limits of another Village

known as Hulabeedu. Her sister A-2, Savitramma became her

resident companion. At a distance of about 200 yards from

the Asharam was a temple on a hillock which somehow got

linked with the Asharam. A-3 named Pullanna, was an

occasional visitor to the Asharam. The Asharam used to be

visited by devotees regularly but special Puja and Bhajans

were undertaken on every Tuesday and Friday, when the number

of visit-

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ing devotees would swell. The visiting devotees used to

make offerings in the form of cash or gold ornaments to the

Sanyasini.

3.The deceased, Ramakoti Reddy, a young bachelor, then aged

about 28 years had been a devotee for over five years and

was more than ordinarily involved in the upkeep and running

of the Asharam. Descriptively he was suggested to be a tall

and hefty man of 5 feet 10 inches height. As part of the

ritual on every Tuesday and Friday he would be in the

Ashram, having come from his village Yellarathi (distance

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about 10 miles) and would carry A-1 on his shoulders from

the Asharam to the hilltop temple, covering about 200 to 250

yards in distance. After performing the Puja at the temple,

he would likewise carry A-1 back on his shoulders to the

Asharam. As a part of his involvement, he took stock of

the offerings received in the form of cash and gold.

Sometimes hc would convert the cash into gold and sometimes

pawned gold to get cash in order to meet the expenses of the

Asharam, which included serving free food to the devotees.

Thus being involved in the activities of the Asharam, the

deceased often used to stay during nights thereat. It is

alleged that the deceased had developed a close illicit

relationship with A-2, as he would normally sleep with her

in one of the rooms in the Asharam. He had otherwise been

known to be moving in the company of A2 to various places in

connection with the affairs of the Asharam. It was also al-

leged that sometimes A-1 too would join the deceased in that

separate room giving rise to the suspicion of her illicit

intimacy with the deceased. Both A-1 and A-2, as it turns

out to be, were unmarried.

4. The motive for the crime was suggested to be sexual

jealousy. The prosecution alleges that the deceased was re-

jecting suggestions of his father and brother in settling

down in marriage, because he was under the influence of A-1

and A-2. It was suggested that he was more in servitude of

A-1 and A-2, in as much as, he was instrumental in arranging

and helping perform the marriage of one of their sisters

with A-3. It appears that the family members of the

deceased were ultimately able to prevail upon him, and a

couple of months earlier to the date of the occurrence, his

marriage was settled with the sister of P.W.3 whose other

sister was settled to be married with the younger brother of

the deceased. Both the marriages were scheduled to bc

performed on May 15, 1981. On these developments, it is

alleged, jealousy and frustration got aroused in the hearts

of A-1 and A-2 bccause the deceased had given them a tacit

understanding that hc would keep A-2 as his mate, and would

not marry another women. It was feared by A-1 and A-2 and

that his marriage was expected to dwindle his interest in

these accused persons (A-1 and A-2) and in the affairs of

the Asharam, in the running of which he had a major hand.

Besides they had become concerned about the jewels of the

Asharam which hc had pawned to others, the identity of whom

was not known to the accused, let apart the detail of the

ornaments and the terms of those deals. They were thus

concerned for the return of those jewels and the accounting

of the financial affairs of the Asharam before the deceased

entered into marriage. It was further alleged that deceased

since the day of his engagement was avoiding to visit the

Asharam and, whenever he did, it was with a waned interest.

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5. The deceased met his death on the night intervening May

11-12, 1981. His deadbody was found lying on the following

morning about 200 yards away from the Asharam. It was a

Tuesday and the visiting devotees saw it. The news of the

death of the deceased spread and it is in this manner that

P.W.7 the brother of the deceased came to hear of it. He

and his father and several other people of the village came

to the Asharam on a bullock cart reaching there at 3.00 pm

on 12-581, having covered a distance of about 10 miles from

their village. PW.7 observed. as was observed by others, a

ligature mark around the neck of the deceased. Ile also

found that the testicles of the deceased had been squeezed

and they bore a bleeding injury. There was feacal matter on

the dhoti of the deceased. A bed sheet, a red towel and

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certain other things were lying close-by. They went to the

Asharam and questioned A-1 and A-2, as also their maid-

servant PW1, about how had the deceased been killed. While

A-1 gave them an abusive reply the other two remained

silent. He did not pursue conversation with them and went

to the bus-stop of the village in order to go to the police

station. There he learnt from the general gossip that his

deceased brother accompanied by A-3 had alighted from a bus

there the previous evening and had gone thereafter to the

Asharam. He then went to Alur and reported the matter at

the Police Station by giving a written complaint Ex.P.3.

6. In Ex.P.3, the first informant P.W.7 gave out that his

brother, the deceased, and Pullanna A-3 were reported to

have alighted from a bus from Adoni at Hulebeedu and that he

had come to know that his brother had been murdered. Fur-

ther than he went there and found his brother lying dead at

a distance of about 200 yards west of the Asharam and that

there were injuries on his- person such as ligature marks on

his neck and the bleeding of testicles. After giving more

such details he mentioned that he had found present in the

Asharam A-1, A-2 and their maid servant P.W. 1. He did not

mention about the enquiries he made from them as to how the

deceased had been killed, and the reply of A-1. He did not

raise any suspicion therein about the involvement of A-1 and

A-2 in the crime. He suggested that in his village there

was bitter party faction between his father's family and one

Basanna Gowd, Ex-village Munsif of the village, and that one

Rawoof Sab was supporting the latter. As a matter of

detail, he mentioned that hostile party men had been seen

moving about together for the last two days and that his

father had warned the deceased,to be careful, but the

deceased was not impressed by the warning. Concludingly

P.W.7 mentioned : "Therefore, the above mentioned persons

brought my brother through Dhone Pullanna and conjointly

killed my brother. ...... I request you to take action."

7. The police, thus set in motion, arrived at the situs

where the deadbody was lying, in the evening around 8.00 pm

on 12-5-81. Certain preliminary checks were made and the

deadbody was left guarded. The Inquest was postponed till

the next morning. The Inquest suggestedly started at 6.00

am on 13-5-1981 and closed at 8.00 am on the same day. It

was during this while that PWI, the maid servant came

forward to claim that she was a direct witness to the

offence. In the relevant column of the Inquest, mention was

made that from the shirt lying close-by a four-page letter

was found in its pocket, which was got

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written by A-1 to the deceased. Significantly this letter

was not claimed either t have been written by A-1 or to

have been signed or thumb marked at all by anyone, much less

A-1. It was not disclosed therein as to who was the scribe

of the letter.

8. At this stage it would be appropriate to take stock of

the evidence of PWI as given by her at the trial. She has

been believed by both the courts below and the conviction

rests mainly on her evidence. Since she spoke about the

incident to the police only on 13-5-81, at a belated stage,

and not at the first instance when questioned by PW.7 in the

afternoon of 12-581, before his going to the police station,

or on the arrival of the police in the evening that day it

would be appropriate to take into consideration her evidence

once again, over and above the consideration it has received

by the courts below.

9. According to her she comes from the village of A-1

and A-2. At the time of the occurrence she was 25 years of

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age, and an abandoned wife. She had been working as a

coolly till a year prior thereto when she joined A-1 and A-

2 as their servant and started living in the Asharam. She

has stated about the existence of the temple at the hillock,

and the Asharam situated below at level ground. She has de-

scribed the activities of the Asharam and the special

interest which the deceased had in its affairs, details of

which have been given in the earlier introductory para-

graphs. She claims to be positive that the deceased and A-2

had illicit relations because of their sharing the same room

to sleep, which occasionally was visited by A-1 also. She

has also talked about the deceased carrying A-1 to the

hillock and his bringing her back on his shoulders in a

naked condition. She has spoken to the manner of dealing

with the collections and offerings and the purpose of his

pledging and buying gold. She sums it up by saying that if

Ramakuti Reddy (deceased) was not there, it would not be

possible to continue the Asharam. In a nutshell, she de-

scribed the deceased to have become indispensable to the

Asharam.

10.Now with regard to the actual occurrence PW. 1 says that

on Friday morning, four days prior to the occurrence, she

had gone uphill to the temple where she found A-1 and A-3

sitting in the temple and A-3 writing something to the

dictation of A-1. A-2 was close by. Having observed her

seeing what. A-1 and A-3 were doing, A-2 admonished her to

go away from there as she had no business to be around. On

that day she was certain that the deceased had not come to

the Asharam. The devotees who had come had done the Puja

and had been served food, whereafter they had left the

place. However A- 3 had visited the Asharam that day and by

the evening he too had left. He returned on Saturday

accompanied by her brother, the latter having come to invite

her for their sister's marriage scheduled to take place the

following Friday. She claims to have sought permission of

A-1 and A-2 to go for the marriage but she was told that she

could go for the purpose on the following Thursday. On the

next morning i.e. Sunday both A-3 and the brother of PWI

went away. On Monday evening A-3 came back accompanied by

the deceased. They were served food. While taking food PWI

heard some argument going on between the accused and the

deceased about the proposed marriage of the deceased, when

the deceased had lived with A-1 and A-2 for so much time and

yet had decided

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to marry another girl. All the same, when night set in, all

the five inmates of the Asharam being the three accused, the

deceased and PWI lay slept on the open platform, adjoining

the Asharam structure.

11.Now to the actual occurrence, it was claimed by PW. 1

that A- 1 was sleeping, on one side of the deceased and next

to him on the other side slept A-2 and next to A-2 was

sleeping PWI. At the right angle of the four lying in row

was sleeping A-3. Approximately at mid-night she got up by

chance to pass urine and having done so returned to her

place. While not yet asleep, she noticed A-3 slowly opening

the door of the Asharam and then bringing from inside a coir

rope about 11/2 yards in length, about one inch thick. At

that time the deceased was sleeping on his back with face

upwards towards the sky. While so, A-3 was said to have

passed the rope underneath the neck of deceased so as to

catch the end of the passed rope, catching both ends in his

hands. Co-ordinatingly, it was said, that A-1 sat on the

chest of the deceased catching hold both his hands and A-2

sat on his legs catching hold of his testicles, squeezing

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them; A-3 tightening the rope around the neck of the

deceased. After some struggle the deceased met his death.

Thereafter a white-stoned gold ring was removed by A-2 from

the finger of the deceased. A-2 also removed all the

contents of pocket of the shirt of the deceased which was

lying close by, taking the contents inside the Ashram room.

Thereafter it is alleged that one hand of the deceased was

caught by A-1 and the other by A-2, while both the legs were

caught hold of by A-3. Jointly they lifted and carried the

deadbody, occasionally keeping it on the ground, to a

distance of about 200 yards from the Asharam building and

left it on the cart track. There A-3 removed the rope from

the neck of the deceased and threw it on a nearby tree. A-1

then applied turmeric and vermilion to both the hands of the

deceased. Having thereafter wiped her hands with the towel

she threw it there. In the process, it is alleged that some

of the red bangles worn by A- 1 got broken and some pieces

got scattered. A-2 then went to the Asharam building and

brought the shirt, chappals and cigarette packet of the

deceased, keeping them near the deadbody. A rug was also

brought to cover the deadbody. On return it was found that

some feacal matter of the deceased had dropped on the

platform, PWI was asked by A- 1 and A-2 to clean it. She

did so and washed the platform. Thereafter PW. 1 claims to

have asked all the accused as to why they had killed the

deceased. She in reply was asked to keep her mouth shut and

warned that if it comes to the notice of the police, she

will be taken away by it. After the deed was accomplished

and while it was still dark, A-3 is said to have left the

place and went away. The following day being Tuesday, the

expected Puja was not performed because of the death of the

deceased as his deadbody lay within the view of the

visitors. On the arrival of the police on Tuesday night PW.

1 was not questioned. On her part she did not volunteer a

statement. Only on Wednesday morning when she was taken

near the deadbody of the deceased, she claims to have told

the police all what she had seen and done.

12. A-1 and A-2 were arrested on 13-5-1981. A-3 was

arrested on July 1, 1981, about seven weeks later. The

Police Officer arresting him showed to him the letter said

to have been got written from A-3,

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asking him as to who had got written that letter. It is

claimed by the Investigation that A-3 admitted having

written that letter at the dictation of A- 1. The Police had

asked A-3 to give another writing in order to have his

handwriting compared with the suggested dictated letter.

Nothing useful turned ultimately on that second writing

because A-3 at the trial admitted having written the

questioned letter but claimed that the police had got the

same written under threat. It would be worthy of recall

that in the Inquest report nowhere was it mentioned that A-3

had written the letter at the dictation of A-1 to the

deceased. The statement of PWI in the Inquest Report is

also deficient of this detail.

13. The High Court describes the questioned letter Ex.P.5

as a very long and rambling one, which is more like the

outpouring, agitated and confused mind of a "God-woman" like

A-1. The High Court has substantially translated the said

unsigned letter in its judgment conveying to the deceased,

in a broad manner, three messages:

(i) to come, disclose and account his money dealings and

pledges of gold ornaments to A-1 before his marriage;

(ii) with the sent money as to be added with some more he

should redeem the ornaments and bring them to A- 1; and

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(iii) that for the sake of his prior association in the

Asharam, he should come and receive the blessings of A-1 and

collect his marriage gift and possibly Rs. 10,000/- as

presentation.

14. This letter the prosecution claims was to allure the

deceased to the Asharam and it is for this purpose that the

deceased in the company of A-3 had been going about

redeeming the ornaments from various people within a day or

two before his death (who have been examined as prosecution

witnesses) in order to return the ornaments to A-1, and that

those ornaments were suggestedly returned to A-1 by the

deceased prior to his death.

15. What has been claimed by the prosecution to be an

allurement to the deceased to be visiting the Asharam, three

days prior to his scheduled marriage, in order to discharge

his obligations towards the Asharam, cannot conclusively be

said to be clandestine in character. The deceased may have

with the best of his motive been led to clear account with

the Asharam and in particular with A-1. It was not unnatu-

ral for A-1 to have trusted the deceased when he was looking

after and managing the whole affairs of the Asharam. When

his assistance and participation was withdrawn, the Asharam

affairs must have become disarrayed. The letter Ex.P.5 does

not appear to us to be conclusive on the subject, because in

the first place it is not signed or thumb marked by A-1, in

the second place the Inquest report does not disclose in any

manner that die writing was of A-3, even though PWI had

claimed at the trial A-3 to be its scribe, and in the third

place the strange conduct of the Police Officer arresting A-

3 to be carrying this letter till arrest on 1-7-198 1. The

plea of the defence that this letter was written at some

stage of the investigation under threat to A-3, or as a

substitute to the one mentioned in the Inquest report, might

well be true and in any case suggesting considerable doubt.

This aspect of the prosecution case, seeking to establish

sexual jealousy as the prime motivating factor, in

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writing that letter and alluring the deceased to the

Asharam, does not inspire confidence.

16.We come back to the statement of PW 1 to test the total

case of the prosecution. Having gone through her statement

in the light of the arguments advanced by teamed counsel and

having pondered over the matter, we are of the view that it

would be unsafe to maintain the conviction of the appellants

on the bare testimony of PWI. It is noteworthy that she was

a grown up young woman of 25 years of age, seemingly

vigilant and alert. tier statement reveals that except for

her serving the household as maid servant no extra pressure

stood put on her, from which it could be gathered that she

was enslaved and could be frightened to submission to keep

her mouth shut. Her alert eyes and cars had seen and heard

A-1 dictating a letter to A-3 and yet we do not find mention

of this detail in the statement attributed to her in the

Inquest report She claims that after the crime was

committed, and before the deadbody was removed from a

platform close to the Asharam, the contents of the pocket of

the shirt of the deceased lying close-by were emptied by A2,

and yet we find the investigation claiming that a four-page

letter was found in the pocket of the shirt of the deceased,

which was brought from the Asharam to be placed near the

deadbody of the deceased. It is ununderstandable as to why

such an incriminating document, more so when the contents of

the pocket of the shirt had been removed by A-2 in the pres-

ence of A- 1 and A-3, was allowed to remain or put back in

the pocket by A-2. seems to us that introduction of the 1

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and it's recovery and it's authorship, connect it with the

visit of the deceased the Asharam, was a thoughtless and

clumsy attempt on the part of the investigation to supply

the motive for the crime. We reject this piece of evidence.

17. What surprises us most is the silence of PWI in

narrating this incident to others at the earliest possible

time. To begin with she had the opportunity of disclosing

about the incident, if not for anything else, but to unload

herself to the devotees who had come on that Tuesday to the

Asharam and had seen one of the most ardent of them lying

murdered. That apart when questioned by PW-7 she could have

unloaded her information before he left for the Police

Station or to have, accompanied him. Significantly, in the

first information report, Ex.P.3 the presence of PW-1 in the

Asharam, finds mention. She had the opportunity to speak

out then. Thirdly when the Police arrived in the evening,

she could have volunteered her statement to the Police much

before the Inquest, even if it was postponed to the

following morning. That by itself is a suspicious

circumstance as to why Inquest stood postponed, specially in

the background of what was stated in Ex.P.3. Positive

suspicion and assertion of the murder having taken place on

account of factionalism was mentioned in Ex.P.3, not even

remotely suggesting the inmates of the Asharam to be

responsible for it. PW. 1 making a statement the following

day, at the time of Inquest, shows that by that time the

investigation had been successful in framing her to be

witness of the crime; the hours of the night intervening

being sufficient for the purpose. Further the version given

by her appears to be highly improbable and artificial.

According to the prosecution because of a deep-rooted sexual

jealousy A-1 hatched a plan in a cold-

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blooded manner to kill the deceased and with the help of A-2

and A-3 executed it in a diabolical manner by strangulating

the deceased. P.W. 1 was after all a maid servant and in

such a situation it is highly unthinkable that A-1 to A-3

would have allowed her to sleep near the scene of occurrence

almost next to them and thus enable her to witness the same.

On the other hand, they could have easily sent her away when

she asked their permission to go to her village in

connection with her sister's marriage. The fact that she

came forward with this artificial version about the oc-

currence at a belated stage itself shows that she was fixed

up as a witness later during the investigation. Thus in our

view, it is unsafe to rest conviction of the appellants on

such a witness as PWI, and on such a piece of evidence as

letter Ex.P.5. The other evidence of the investigation

relating to A-3 and the deceased being seen moving together

and effecting redemptions of pawned ornaments, leaving apart

the contents and their merit, becomes insignificant in the

view we have taken on the eye witness account. The accused

persons are thus entitled to acquittal.

18.For the foregoing reasons peal succeeds, the judgment and

order of the High Court affirming that of the Court of

Session is set aside and the appellants are acquitted of the

charge. They are on bail. They need not surrender to their

bail bonds.

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