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2002 DIGILAW 86 (AP)

B. GOPAL NAIK v. State Of A. P.

2002-01-25

S.ANANDA REDDY

body2002
BILAL NAZKI, J. ( 1 ) THE accused in sc No. 565 of 1998 has been convicted and sentenced under Section 302 IPC for life imprisonment arid he has filed this appeal against the order of conviction and sentence. The charge against the accused was that, on the intervening night of 18/19th August, 1998 he had committed murder of his wife by beating her on her abdomen and had strangulated her and on 19-8-1998 at about 7. 30 a. m. , he tried to cause the disappearance of evidence by taking the dead body of the deceased by keeping it in the dicky of a car. Eventually he was charged under section 302 and also under Section 201 of ipc. He pleaded not guilty and was tried. Prosecution examined 17 witnesses and exhibited 22 documents. Before going through the arguments of the learned Counsel for the parties let us examine the statements of the witnesses. ( 2 ) ALTHOUGH PW1 is father of the deceased he has been declared hostile. PW2 has supported the prosecution story. PW2 is a Constable in Adoni Excise Police Station. He stated that he knew the accused and the accused was also working in Adoni excise Police Station. The accused and his wife were residing by the side of his house. Venkatamma, wife of the accused died on 19-8-1998. On the date of occurrence at about 6. 30 a. m. , the accused asked him to give Rs. 1,000/- as his wife had died. He did not give him any money. At about 7. 00 a. m. , he went to the house of the accused and saw the deed body of the deceased laying on a cot. He did not enter the house of the accused, he observed the dead body from the door. From there he went to the house of Thirupal Naik who was related to the deceased and informed him about the death of the deceased. From there he went to attend his duty. The accused used to come to his house in a drunken state and beat the deceased. The accused and the deceased used to quarrel with each other. ( 3 ) PWS. 3 and 4 are also relatives of the deceased but they have been declared hostile. PWs. 5 to 9 have also been declared hostile. Then comes PW10. The accused used to come to his house in a drunken state and beat the deceased. The accused and the deceased used to quarrel with each other. ( 3 ) PWS. 3 and 4 are also relatives of the deceased but they have been declared hostile. PWs. 5 to 9 have also been declared hostile. Then comes PW10. He stated that he was working as a Mascn in the house of pw8. The accused was residing in the house of PW8 as a tenant. On the date of occurrence at about 9-00 a. m. , he found the accused weeping in the house of PW8. The accused called the witness and PW9 and asked them to assist him in shifting his wife s dead body into the dicky of the car. He found the dead body of the deceased and then they shifted the dead body into the dicky of car. ( 4 ) PW11 is Excise SI, Chittoor. He stated that the accused was working with him and he was absconding from the office form 19-8-1998. He had come to know that the accused had killed his wife and was absconding. The Inspector of police on 8-9-1998 had asked him to send the leave letter of the accused and he had forwarded the letter Ex. P9. ( 5 ) PW12 is a witness to the inspection of scene of occurrence. In his presence police had seized one small note book which was found in the almyrah. Police had also seized one burnt saree, one lungi, one burnt bed sheet piece from the scence of occurrence under a cover of panchanama and obtained his signature. He identified mo1 saree, MO2 lungi, MO3 burnt piece of bed sheet and MO4 small note book. He stated that, they had found a car in front of the house of the accused and in the dicky they found that dead body of the deceased with injuries. Police held inquest over the dead body in his presence. ( 6 ) PW13 is the Civil Assistant surgeon who conducted the post-mortem. He found the following injuries on the body of the deceased :"external injuries: 1. Police held inquest over the dead body in his presence. ( 6 ) PW13 is the Civil Assistant surgeon who conducted the post-mortem. He found the following injuries on the body of the deceased :"external injuries: 1. A ligature mark present in the middle of neck present whole around the neck except 6 cms in front measuring 36 cms in length 2 cms in width 2" above the sternum, two scratch marks present on the right side of the neck just above the ligature mark size 1 1/2 cms x 1 cm. Skin deep cut section base of ligature mark, pale - congestion present adjacent to the ligature mark. Whole circumstance of the neck is 42 cms. 2. Diffused red contusion present on the front of chest measuring 6 cms x 2 cms. Cut section congested. 3. Contusion present on the front of abdomen 4 cms x 2 cms on right side. Cut section congested. 4. 2 cms x 2 cms contusion over the back of left elbow. Cut section congested. Internal injuries: 1. Cut section of the neck muscle contused and petichial haemorrhage present. Clotted blood present. "according to his opinion the deceased had died of asphyxia due to strangulation. ( 7 ) PW14 is a handwriting expert, pw15 is Head Constable who registered the fir. PW16 is a witness to the taking of sample of handwritings of the accused and pw17 is the Investigating Officer. ( 8 ) IT was alleged that the diary which was found at the house of the accused contained the following sentence in telugu, "naa bharyaku pillalu kaaru ani annanduku cham. . . . . . . . . . . . . . . . . . . . " (for having said my wife does not bear children murd. . . . . . . . . . . . . . . . . . . . . . ). It is alleged that this is an admission of the guilt therefore the admitted writing of the accused was sent to the expert along with the writing in the diary. But, the learned senior Counsel appearing for the appellant submits that the handwriting which was taken to be admitted handwriting could have not been taken as admitted handwriting as the appellant was asked by the police officer to write something and it was sent as an admitted writing. But, the learned senior Counsel appearing for the appellant submits that the handwriting which was taken to be admitted handwriting could have not been taken as admitted handwriting as the appellant was asked by the police officer to write something and it was sent as an admitted writing. In any case, he submits that even if it is proved that the sentence was written by the accused even then it would not prove his guilt because the sentence written was an incomplete sentence. May be his wife had committed suicide and the accused wanted to write something else. Therefore, this half sentence, even if proved to have been written by the accused, could not connect him to the guilt. ( 9 ) IN the light of this evidence, we do not find sufficient evidence to connect the accused with the guilt. PW10 stated that the accused was in the house of PW8 and he had helped him in bringing out the body and keeping it in the dicky of car. This has been controverted even by the father of the deceased i. e. , PW1. He stated that the accused and his daughter were staying alone at Kurnool and then they had shifted to Adoni. After their marriage they were living happily and his daughter had never complained anything against the accused. He stated that his co-brother thirupal Naik came to his village and informed him about the death of his daughter. He along with Thirupal Naik, his wife and others left the village to go to Adoni. While they were going in a private bus on the way near Tuggali the accused came in a jeep opposite along with the dead body of his daughter. They stopped the jeep and asked the accused how the deceased died. He replied that he did not know about the cause of death. Then all of them and the accused went in the very same jeep to ii Town Police Station, Adoni and reported the matter to police. In the light of this statement it becomes difficult to accept the story putforth by PW10. He replied that he did not know about the cause of death. Then all of them and the accused went in the very same jeep to ii Town Police Station, Adoni and reported the matter to police. In the light of this statement it becomes difficult to accept the story putforth by PW10. ( 10 ) THE learned Public Prosecutor has drawn our attention to para-30 of the trial court s judgment where the trial Court found the following circumstances against the accused: (1) that the accused and the deceased were living alone in the house at adoni; (2) that the accused had informed pw2 who is his neighbour that his wife died and he did not inform that his wife had committed suicide; (3) that PW2 went to the house of the accused and found the deceased lying on a cot; (4) Had the deceased committed suicide, the accused being an excise Constable should have informed the police or at least PW2; (5) that the accused carried the dead body in a car to her parents place and on seeing the parents of the deceased and other relatives the accused ran away from the place; (6) PW1 in his cross- examination stated that while the accused and the deceased were staying at Kurnool once the deceased came to his house and complained that the accused was beating her on the ground that she did not conceive any children and that at the request of PW1, his brother and other panchayatdars the accused took away the deceased; (7) The investigating officer found MO4 small note book at the house of the accused in which it was written in telugu that "" Naa bharyaku pillalu kaaru ani annanduku cham. . . . . . . . . . . . . . . . . . . . " (for having said my wife does not bear children murd. . . . . . . . . . . . . . . . . . . .)"and PW14 handwriting expert stated that the writings in MO 4 is that of the accused; (8) PW2 deposed that the accused used to come to the house in a drunken state and beat the deceased; and (9) as per medical evidence the deceased had died due to asphyxix due to strangulation. . . . . . . . . .)"and PW14 handwriting expert stated that the writings in MO 4 is that of the accused; (8) PW2 deposed that the accused used to come to the house in a drunken state and beat the deceased; and (9) as per medical evidence the deceased had died due to asphyxix due to strangulation. However, the learned senior Counsel appearing for the appellant submits that certain circumstances which have been attributed by the trial Court are manifestly wrong. Even if these circumstances which have been pointed out by the learned trial Court and also by the public Prosecutor are taken to be proved, even then they do not conclusively prove that the accused had committed the murder. The fifth circumstance mentioned by the trial Court is not based on any evidence. The seventh circumstance is with regard to the note in the diary allegedly written by the accused. We have already stated that it cannot be accepted for the reasons given by us herein above. If these circumstances are taken out, then, we do not think that the guilt of the accused stands proved. Additionally, these circumstances were not put to the accused in examination under section 313 Cr. PC. The learned senior counsel appearing for the appellant relies on Sharad Birdhichand Sarda v. State of maharashtra, AIR 1984 SC 1622 . In para-114 of this judgment the Supreme Court stated :"apart from the aforesaid comments, there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz. , circumstances nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 wherein the case of Fateh Singh Bhagat singh v. State of Madhya Pradesh ( AIR 1953 SC 468 ) this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the criminal Procedure code cannot be used against him. This has been consistently held by this Court as far back as 1953 wherein the case of Fateh Singh Bhagat singh v. State of Madhya Pradesh ( AIR 1953 SC 468 ) this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the criminal Procedure code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under section 342 or Section 313 of the Criminal procedure Code, the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra (1976) 1 SCC 438 ) this Court held thus : "the fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him". "however, the learned Public Prosecutor submits that the circumstances appearing against the accused having not put to him in the examination under Section 313 Cr. PC would not be fatal for the prosecution. She relies on a judgment of Supreme Court in Vasa Chandrasekhar Rao v. Ponna satayanarayana, AIR 2000 SC 2138 . We have not found anything in this judgment which would support the argument of the learned Public Prosecutor. This judgment only states that, where the accused is asked to explain the circumstance against him and he offers no explanation or offers false explanation that would be an additional link in the chain of circumstances to point towards the guilt. We have found that the chain of link is not complete in the case on hand and in any case the circumstances appearing in evidence against the accused were not put to the accused, therefore, they cannot be considered in view of the judgment of Supreme Court in Sharad birdhichand Sarda v. State of Maharashtra (supra ). The learned Public Prosecutor has also drawn our attention to the judgment in gura Singh v. State of Rajasthan, 2001 crl. LJ 487, in support of his contention that the testimony of the hostile witnesses shall not to be excluded entirely and it does not become unworthy of consideration, but even in the statements of the witnesses who were declared hostile we have not found anything which would support the prosecution story. LJ 487, in support of his contention that the testimony of the hostile witnesses shall not to be excluded entirely and it does not become unworthy of consideration, but even in the statements of the witnesses who were declared hostile we have not found anything which would support the prosecution story. We have discussed the evidence of PW1 who is father of the deceased. Other witnesses also who were declared hostile have not supported the prosecution although they were vigorously cross-examined by the prosecution. ( 11 ) FOR these reasons, we allow the appeal and set aside the conviction and sentence.