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2003 DIGILAW 1038 (AP)

Gorikepudi Subba Rao v. State Of A. P.

2003-08-14

BILAL NAZKI, K.C.BHANU

body2003
K. C. BHANU, J. ( 1 ) THE sole accused in Sessions Case no. 390/1997 on the file of the II Additional district and Sessions Judge, R. R. District, is the appellant. The learned Sessions Judge convicted him under Section 302 I. P. C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 500. 00 and in default of payment of fine to suffer simple imprisonment for three months. ( 2 ) THE gravamen of the charge against the accused was that he committed the murder of Venkateswaramma @ Rajani by throttling her on 28-4-1996 and hung her body to a peg on the wall with a sari. ( 3 ) THE facts of the case in brief are stated as follows. The deceased was the legally wedded wife of P. W. 14. A male child was born during their wedlock. In the month of april 1996 she took a sum of Rs. 4,500. 00 from her husband. She told him that she would go to her parents house and left the house of p. W. 14 along with their son. On 20-4-1996 the accused introduced the deceased and the boy to P. W. 1 as his wife and son and told him that their names were Rajani and Gopi. The accused requested P. W. I to provide him a room in his house on rent. P. W. I accordingly provided a room on rent. The accused along with the deceased and the boy occupied the room on the same day. On 28-4-1996 P. W. I saw all the three persons in the house up to 9. 30 p. m. On 29-4-1996 at about 8 am on hearing the cries of the boy the neighbours including P. W. I went to the room of the accused and found the deceased hanging to a peg on a wall in the room in a kneeling position. P. W. I immediately lodged a report- ex. P-1 with the police. P. W. 10 registered a case and conducted the investigation. P. W. 11 conducted inquest. Ex. P-8 is the inquest report. P. W. 8 conducted post-mortem examination and opined that the death had occurred due to asphyxia consequent to constricting force around the neck. He issued ex. P-11 post-mortem certificate. On completion of the investigation, police filed a charge sheet. P. W. 10 registered a case and conducted the investigation. P. W. 11 conducted inquest. Ex. P-8 is the inquest report. P. W. 8 conducted post-mortem examination and opined that the death had occurred due to asphyxia consequent to constricting force around the neck. He issued ex. P-11 post-mortem certificate. On completion of the investigation, police filed a charge sheet. When the accused denied the charge under Section 302 I. P. C. , the prosecution examined 14 witnesses and exhibited 14 documents and marked four material objects. The trial Court after assessing the evidence on record came to the conclusion that the Prosecution proved the guilt of the accused and accordingly convicted and sentenced the accused by the impugned judgment, challenging the legality and correctness of which the accused filed the present appeal. ( 4 ) LEARNED senior counsel appearing on behalf of the accused-appellant contended that the circumstances relied upon by the prosecution were not proved, that conviction should not be based on the mere fact that the accused was last seen in the company of the deceased, that the medical evidence did not conclusively establish that the death of the deceased was homicidal, and that non- examination of the boy is fatal to the prosecution case, and so the conviction and sentence should be set aside. On the other hand, learned Public Prosecutor contended that the accused did not deny that he was living with the deceased by the date of the incident, that the medical evidence and the photographs rule out the possibility of the deceased committing suicide, that there was no possibility for any third person to enter into the room of the accused and commit the offence, and that the absconding of the accused is a strong circumstance to complete the link in the chain, and hence there are no grounds to interfere with the judgment under appeal. ( 5 ) THE deceased was the wife of P. W. 14. The boy was their son. In April 1996 she told her husband that she was going to her parents house along with the boy. Even one week thereafter, she did not return. Then p. W. 13, brother of P. W. 14, and P. W. 14 enquired with the mother of the deceased who told them that the accused took the deceased along with him. One week thereafter P. Ws. Even one week thereafter, she did not return. Then p. W. 13, brother of P. W. 14, and P. W. 14 enquired with the mother of the deceased who told them that the accused took the deceased along with him. One week thereafter P. Ws. 13 and 14 were informed that the deceased had died at Hyderabad. Along with some elders they reached the house of the accused at Hyderabad. P. W. I showed them the photograph of the deceased. They identified it to be of the deceased. The evidence of these witnesses practically remained unchallenged in the cross-examination. Thus the identity of the deceased has been established. ( 6 ) ADMITTEDLY, there are no eyewitnesses to the incident. The entire case rests upon circumstantial evidence. The law which is now well settled about circumstantial evidence is that the circumstantial evidence should be such as to point only to the guilt of the accused and the evidence should exclude all other hypothesis except that of the guilt of the accused. When a case rests upon circumstantial evidence, such evidence must satisfy the court on the following aspects (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused, (iii) 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 none else, and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be in consistent with his innocence. ( 7 ) THE circumstances relied upon by the prosecution are: (a) the death of the deceased was homicidal, (b) the accused was last seen in the company of the deceased, (c) except the accused, the deceased and the boy, no one else was there in the company of the deceased, (c) except the accused, the deceased and the boy, no one else was there in the house on 28-4-1996, and (d) on the next day the deceased was found dead. We shall now assess the evidence on record to ascertain whether the Prosecution has proved all these circumstances. ( 8 ) P. W. LL conducted inquest over the dead body of the deceased. Ex. P-8 is the inquest report which shows that the Inquest panchayatdars opined that the death could be because of hanging. P. W. 8 conducted post- v mortem examination on 30-4-1996 and found the following injuries. 1. Ligature mark above thyroid 32 x 20 cm completely encircling and slightly oblique in nature; 6 cm below the chin, 5 cm below the right ear, 4 cm right angle, 10 cm right mastroid, 6 cm below left ear, 5 cm left angle, mandible, 10 cm below the left mastroid and ligature marks ante mortem in nature. 2. Two small contusions 3 x 4 cm just below each ear. ( 9 ) P. W. 8 stated that the internal organs were congested and decomposed. The cause of death, according to him, was due to asphyxia consequent to constricting force around the neck. He stated that constricting force around the neck was possible when the ligature material was in contract with the skin of the neck all around. The injury was possible by tightly tying ligature material around the neck. The ligature material means and includes a cloth. He opined that the deceased had occurred three days prior to the autopsy. Ex. P-11 is the post-mortem certificate issued by him. The following question put by the defence counsel in the trial Court and the answer given by the doctor are relevant and thus are extracted below. Q. If the victim commits suicide by herself, the same ligature marks will occur or not? a. Generally, in case of suicidal hanging death the ligature marks will incompletely encircle the neck, but here it is a complete encircling. ( 10 ) THE above answer shows that the doctor ruled out the possibility of the deceased committing suicide, as in a case of suicide ligature marks would not completely encircle the neck, but the Doctor found ligature marks all around the neck. At this stage it is apposite to extract paragraph 2 of the judgment in Godabarish Mishra v. Kuntala mishra. "in our view, the case of committing suicide by self-strangulation by the deceased must be ruled out. At this stage it is apposite to extract paragraph 2 of the judgment in Godabarish Mishra v. Kuntala mishra. "in our view, the case of committing suicide by self-strangulation by the deceased must be ruled out. Both in modi s Medical Jurisprudence and toxicology and in Taylor s Principles and Practice of Medical Jurisprudence, to which our attention was drawn by mr. Ranjit Kumar, it has been clearly indicated that suicide by self-strangulation is very rare. For committing suicide by self-strangulation, the person committing suicide must take aid of a contrivance so as to ensure application of sufficient force until death by strangulation. Without such contrivance, sufficient force cannot be applied because initially with the application of force, insensitivity will develop for which the hands pulling the ends of the string must get loosened. In the instant case, no contrivance was noticed either by P. W. 6 or P. W. 7 who had come to examine the deceased on hearing the alarm. The accused has also not seen any contrivance at the place of incident and in her statement under Section 313 Criminal procedure code, she has not disclosed any fact, which was within her special knowledge, in support of a case by self-strangulation. " ( 11 ) THE evidence of P. Ws. l and 2 shows that the dead body was in a drooping posture with the knees of the body touching the ground. Exs. P-2 to P-5 also show so. When the knees of a person touch the ground, the attempt to commit suicide would not be successful. There was also no possibility for the deceased to take the aid of a contrivance so as to pull herself above the ground level. Neither the Investigating Officer nor any of the witnesses stated that they had observed any such contrivance. The observation report also did not show such contrivance. It appears that the deceased was first killed by one person and that person being unable to lift the weight of entire body so as to hang it in the air with the feet above the ground hung it in the kneeling position to camouflage it as suicide. From the medical evidence and the ocular evidence it can be said that the death of the deceased was homicidal and not suicidal. The Prosecution thus established the circumstance (a) beyond all reasonable doubt. From the medical evidence and the ocular evidence it can be said that the death of the deceased was homicidal and not suicidal. The Prosecution thus established the circumstance (a) beyond all reasonable doubt. ( 12 ) P. W. I was the owner of the house a room of which the accused requested to provide him on rent. P. W. I stated that the accused introduced the deceased and the boy as his wife and son. After ascertaining the avocation of the accused and on verifying a Xerox copy of the driving license, he provided one room on rent and on the same day the accused it P. W. I also stated that he saw the accused in the room at 9. 30 p. m. on 28-4-1996. Except giving a suggestion that the accused never approached him seeking a room on rent, nothing has been elicited in the cross-examination of P. W. 1. Thus it is clear that the deceased was seen with the accused at 9. 30 p. m. on the previous day of the incident. He is totally an independent witness. He had no grudge or enmity with the accused to implicate him falsely. Therefore, we hold that the accused and the deceased were last seen together at 9. 30 p. m. on 28-4-1996 and there was no one else in the room except the accused, the deceased and the boy, and the Prosecution has thus established the circumstances (b) and (c ). ( 13 ) LEARNED counsel for the accused relied upon a decision iri Bodhraj v State of ] and K. It is held in Paragraph 31 of that judgment as follows:"the last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. " ( 14 ) LEARNED senior counsel also relied upon a decision in Uttam Sadda v. State of punjab in which it has been held that the fact that the accused and the deceased were together before the death of the deceased is by itself not sufficient to bring home the guilt and at the most it may raise suspicion which however strong cannot take the place of proof. ( 15 ) P. W. 2 was a co-tenant. Her evidence that the accused stayed with the deceased and the boy in a room of the house in the month of April 1996, and that on 29-4-1996 at about 8 a. m. on hearing the cries of the boy, she went to the room of the accused and saw the deceased hanging to the peg of the wall with a sari in kneeling position remained unchallenged. P. W. I saw the accused and the deceased together at 9. 30 p. m. on the previous day of incident. They must have slept after 9. 30 p. m. by bolting the door from inside. If a third person had to enter into the room after 9. 30 p. m. essentially he had to break open the door and encounter the accused before committing any offence which would certainly leave marks of some fight. But, there is no evidence of such fight or encounter. Ex. P-7 Panchanama of the scene of offence-also does not reveal any such marks. Ex. P-7 was prepared by P. W. 10. He too did not state anything about it. It is pertinent to note at this juncture that it was not the case of the accused that he had been out of the room after 9. 30 p. m. on 28-4-1996. When the above evidence is assessed together, it is clear that there was no possibility of any third person entering into the house after 9. It is pertinent to note at this juncture that it was not the case of the accused that he had been out of the room after 9. 30 p. m. on 28-4-1996. When the above evidence is assessed together, it is clear that there was no possibility of any third person entering into the house after 9. 30 p. m. on 28-4-1996 and the time-gap between the accused and the deceased last-seen together and the noticing of the dead body the next day at 8 a. m. was so small that the possibility of a third person entering into the house during that time did not exist. Therefore, the decision in the case of Bodhraj (2 supra) is distinguishable on facts and has no application to the facts of the present case. ( 16 ) LEARNED Public Prosecutor relied upon a decision in Birabal v. State of M. P. In that case the facts that the accused and the deceased left together towards a jungle, that the accused alone came back in the evening of the fateful day, and that when asked the accused stated that the deceased would come later were established. The Apex Court held that the false explanation of the accused that he did not go to the jungle, in addition to the above circumstances, was an additional link to the chain. ( 17 ) THE learned Public Prosecutor also relied upon a decision in Prabhakar v. State of maharashtra. In paragraph 16 it is held as under:"once circumstances (a) (homicidal death) is established, then taken in conjunction with the other circumstances, particularly the undisputed fact that at or about the time of Malti s death, no third person excepting the accused and the deceased was present in the house, it will inescapably lead to the conclusion that in all human probability, it was the accused-appellant and none else, who had murdered the deceased by strangulating her to death. " ( 18 ) ANOTHER decision relied upon by the learned Public Prosecutor is Ganeshlal v. State of Maharashtra. In that case the husband and his family members were present in the house at the time when the deceased was burning, no attempt was made by them to save the deceased, and they introduced the false plea of suicide. " ( 18 ) ANOTHER decision relied upon by the learned Public Prosecutor is Ganeshlal v. State of Maharashtra. In that case the husband and his family members were present in the house at the time when the deceased was burning, no attempt was made by them to save the deceased, and they introduced the false plea of suicide. In those circumstances the Apex court held that the circumstantial evidence is complete and consistent with the only conclusion that the inmates alone committed the crime. ( 19 ) THE defence of the accused in the present case was of total denial. He did not offer any explanation for the death of the deceased. It is also settled law that the conduct of the accused prior and subsequent to the incident is relevant factor. If really any person other than the accused had entered into the room and committed the offence, he would have resisted the attempt of that person and raised hue and cry. The accused did not do so. There is ample evidence on record to show that on 29-4-1996 the deceased was found hanging. Thus the Prosecution established the circumstance (d) also. Therefore, relying upon the above decisions of the Apex Court and after assessing the evidence on record we hold that the accused had committed the offence. ( 20 ) LEARNED senior counsel for the appellants contended that at least the police should have recorded the statement of the boy to speak about the circumstances leading to the death of the deceased and such non-examination would warrant adverse inference to be drawn against the prosecution. The law is well settled that the Prosecution is bound to produce only such witnesses as are essential for unfolding its case. Before an adverse inference can be drawn it must be proved to the satisfaction of the court that the witnesses withheld are eyewitnesses and are material to prove the case. The boy was aged about 5 years at the time of the incident. The incident in question took place after 9. 30 p. m. on 28-4-1996. By that time, being of tender age, he must have already slept. Therefore, there was no possibility for him to see how his mother had died. The boy can be presumed to have either slept or have been wakeful. In either case,, it is against the accused only. 30 p. m. on 28-4-1996. By that time, being of tender age, he must have already slept. Therefore, there was no possibility for him to see how his mother had died. The boy can be presumed to have either slept or have been wakeful. In either case,, it is against the accused only. The reason is, in the former case, if a third person had entered into the house, there would be commotion of that third person trying to break open the door and the accused resisting the attempt of that person from committing the offence which would naturally awake the deceased and make her raise hue and cry as a consequence of which the boy would have woken up and raised hue and cry. And in the latter case, if a third person had entered into the house and committed the offence, he would have raised hue and cry drawing attention of the accused and also of neighbours. Since the boy did not do so, it can be said that that no third person had entered into the room after 9. 30 p. m. on 28-4-1996, and the boy was sleeping through out the night. This view is reinforced by the fact that on 29-4-1996 at 8 a. m. , probably the time at which the boy woke up, the boy raised hue and cry on seeing his mother in such pitiable state. When such was the case, there was no need for the investigating Officer to record the statement of the boy only to be stated that he was sleeping through out the night. Perhaps that was the reason why the police did not choose to examine the boy. Therefore, non-examination of the boy cannot be said to be fatal to the case of the Prosecution. ( 21 ) THE recovery of M. Os. 3 and 4 in pursuance of the confessional statement of the accused cannot be said to be an incriminating circumstance against the accused, as the evidence of P. Ws. 4 and 7 shows that at the request of the accused and the deceased P. W. 4 took them to the shop of p. W. 7 to pledge the articles. The other contention is that the Prosecution did not come up with motive for the accused to commit the murder of the deceased. 4 and 7 shows that at the request of the accused and the deceased P. W. 4 took them to the shop of p. W. 7 to pledge the articles. The other contention is that the Prosecution did not come up with motive for the accused to commit the murder of the deceased. In a case of circumstantial evidence, motive may be one of the strongest links to connect the chain, but absence of motive would not necessarily become fatal, provided the other circumstances would complete the chain and connect the accused with the commission of the offence. ( 22 ) FROM the evidence on record we have no hesitation in holding that the prosecution case is conclusive in nature with complete and unbroken chain of circumstances leading to the irresistible and unmistakable conclusion that it was the accused, and he alone, who committed this crime. There are absolutely no grounds to interfere with the order of conviction and sentence. Hence, the appeal is liable to be dismissed. ( 23 ) IN the result, the appeal is dismissed, confirming the conviction and sentence passed by the court below.