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2003 DIGILAW 168 (AP)

BHOOKYA PARINGYA v. State Of A. P.

2003-01-31

L.NARASIMHA REDDY

body2003
L. NARASIMHA REDDY, J. ( 1 ) THIS is an appeal by the sole accused in S. C. No. 90 of 1995 on the file of the Additional Sessions Judge, nizamabad. The Trial Court framed a charge against the appellant under Section 302 of indian Penal Code. Through its judgment dated 1. 8. 1996, the Trial Court convicted the appellant of the offence under Section 304 part-11 IPC, and sentenced him to undergo rigorous imprisonment for five years. ( 2 ) THE case of the prosecution was that the deceased Yeshoda was the wife of the appellant. Out of their wedlock, they had a son. Thereafter, the appellant developed illicit intimacy with a woman in the neighbouring thanda (habitat) on the pretext that the deceased was not good looking. He started ill-treating the deceased. Mediations were held by the elders of the accused and the appellant was reprimanded. ( 3 ) THE appellant was working as an employee in the flourmill in the neighbouring village. On the night of 1. 2. 1994 at about 9. 00 or 9. 30 p. m. , the appellant came to his house from his place of work. By that time, the deceased was sleeping. It is alleged that he has killed her by hitting on her head with a wooden plank. P. Ws. l to 3, the father, mother and brother of the deceased and P. W. 5, a resident of the same locality who heard her cries rushed to the house of the appellant. On seeing them, he ran away. Complaint was lodged by PW1 on 2. 2. 1994 and the Station House Officer, p. S. Machareddy, registered Crime No. 11/ 1994 under Section 302 of IPC. . After conducting the inquest, the dead body was sent for post-mortem examination, which revealed that the deceased died due to shock of intra-cranial haemorrhage following head injuries. ( 4 ) THE prosecution examined P. Ws. 1 to 11 and marked Exs. Pl to P9 and M. O. I. P. Ws. l to 3 as observed earlier, are the father, mother and brother respectively, of the deceased. P. W. 4 is the brother of P. W. 1. P. W. 5 is not related to the deceased or his other family members, but is a person belonging to the same caste and residing in the same thanda. P. W. 6 is the witness at inquest. P. W. 4 is the brother of P. W. 1. P. W. 5 is not related to the deceased or his other family members, but is a person belonging to the same caste and residing in the same thanda. P. W. 6 is the witness at inquest. P. W. 7 is the Medical Officer. P. W. 8 is the witness before whom the confessional statement of the appellant was recorded. P. W. 9 is the M. R. O. who held inquest. P. W. 10 is the Sub-Inspector who received the complaint and conducted the investigation up to a certain stage and p. W. 11 is the Inspector of Police who undertook the subsequent investigation. The trial Court found that the charge under section 302 is not established, but found the appellant guilty of offence under section 304 Part-II. ( 5 ) SRI K. M. Mahender Reddy, learned Counsel for the appellant submits that unless there exists an independent charge under Section 304 Part II, it was not open to the Trial Court to convict the appellant under that provision. His second contention is that there was an inordinate delay in submission of the complaint and the same was fatal to the case of the prosecution. His third contention is that there were several material contradictions in the depositions of the prosecution witnesses and the Trial court had committed irregularity in convicting the appellant ( 6 ) LEARNED Public Prosecutor on the other hand submits that it was open for the Trial Court to convict a person of an offence of lesser magnitude without framing a new charge or altering the one already framed. As regards the delay, he submits that the area was infested with naxalite activities and it was impracticable to expect the illiterate villagers to go at that night to the Police Station, which is several kilometres away from the village. He submits that the complaint was submitted at the earliest possible time and it cannot be said that there was any scope for making any improvements. As regards the contradictions pointed out by the learned counsel for the appellant, learned Public prosecutor submits that the so-called contradictions are in the evidence of PWs. 1 to 3 and even if their version as a whole is omitted from consideration, the evidence of p. W. 5, an independent witness is sufficient to uphold the conviction. As regards the contradictions pointed out by the learned counsel for the appellant, learned Public prosecutor submits that the so-called contradictions are in the evidence of PWs. 1 to 3 and even if their version as a whole is omitted from consideration, the evidence of p. W. 5, an independent witness is sufficient to uphold the conviction. ( 7 ) THE first contention of the learned Counsel for the appellant is as regards the conviction of the appellant under Section 304 part -II of I. P. C. without framing a charge under that Section. Under Sections 221 and 222 of the Code of Criminal Procedure, a criminal Court is vested with the power to convict an accused for an offence, which is not included in the charge. Sub-sections (2) of both the sections are quite clear on this aspect. They read as under:"221 (2): If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of subsection (1), he may be convicted for the offence which he is shown to have committed, although he was not charged with it. 222 (2): When a person is charged with an offence and facts are proved which reduced it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. " ( 8 ) THE requirement in law is that a person cannot be convicted of an offence of a higher gravity than the one for which charge was framed, without framing a new charge or altering the one already framed. Such a requirement is not there where a conviction is for an offence of a lesser magnitude ( 9 ) LEARNED Counsel for the appellant placed reliance upon the judgment of the supreme Court in Shamnsaheb M. Multtani v. State of Karnataka and others, (2001) 2 scc 577 . That was a case where a charge was framed under Section 302 IPC, but the conviction was ordered under Section 304-B ipc. The same was held not permissible for the reason that Section 304-B IPC read with Section 113-B of Evidence Act provide for a presumption against the accused and unless the accused was given an opportunity to rebut and disprove that statutory presumption, the said conviction is impermissible. The same was held not permissible for the reason that Section 304-B IPC read with Section 113-B of Evidence Act provide for a presumption against the accused and unless the accused was given an opportunity to rebut and disprove that statutory presumption, the said conviction is impermissible. Such a situation does not arise in this case. The nature of proof and other requirements are far less in case of offence under Section 304 Part-II compared to the one under Section 302. So much so, it is not even necessary to allege or prove the intention for the offence under Section 304 part II whereas the same is very much essential for the one under Section 302. Therefore, the contention raised by the learned Counsel for the appellant in this regard cannot be accepted. ( 10 ) THE second contention is about the delay in submission of the complaint. According to him, submission of a complaint during the morning hours of 2. 2. 1994 for an offence which took place at about 9. 30 p. m. , on the preceding day is belated and unless the delay is properly explained, the same is fatal to the case of the prosecution. He relies upon the judgments of the supreme Court reported in Balaka Singh v. State of Punjab and others, AIR 1975 sc 1962 , Ishwar Singh v. State of Uttar pradesh and others, AIR 1976 SC 2423 , vinod Chaturvedi v. State of M. P. and others, air 1984 SC 911 , and Sharad v. State of maharashtra and others, AIR 1984 SC 1622 . ( 11 ) AS regards the proposition that delay in submitting the complaint shall be fatal to the case of the prosecution, there is absolutely no scope for any second opinion. However, the question as to whether any delay can be said to have occurred in submission of a complaint has always been treated as of question of fact and no hard and fast rule existed in that regard. It all depends on the circumstances under which the crime came to be committed, the time at which it was noticed, the accessibility of the place where the complaint is to be registered etc. While in some cases delay of even hours was held to be fatal, in certain other cases, the delay of even months was held inconsequential. It all depends on the circumstances under which the crime came to be committed, the time at which it was noticed, the accessibility of the place where the complaint is to be registered etc. While in some cases delay of even hours was held to be fatal, in certain other cases, the delay of even months was held inconsequential. It needs to be observed that the offence was committed around 9. 30 p. m. By all standards, in a hamlet exclusively resided by Tribals that can be said to be late in the night. The police Station was situated at 10 to 15 kilometers away from the village. Availability of conveyance at that late hour is too remote. The area was infested with the naxalite activity. All the relations of the deceased were illiterates. It was not a case offaction. The appellant was not only the son-in-law, but also the sister s son of the complainant, P. W. I. The complaint was submitted on the next morning itself. Therefore, it cannot be said that there was any undue delay in submission of the complaint nor that the same was fatal to the case of the prosecution. ( 12 ) NOW comes the question of the appreciation of evidence by the Trial Court. Learned Counsel for the appellant points out that many witnesses have stated that they were examined by the police on the day (night) of incident itself, whereas the investigating Officers have stated that they recorded the statements on the next day. He contrasts the evidence of P. W. 3 with that of P. W. 10. ( 13 ) LEARNED Counsel relies upon a sentence in the cross examination of P. W. 3. , which reads:"on the same day (night), the appellant came and they examinedme. "pw10 categorically stated that he received the complaint on 2. 2. 1994 and he examined pws. 3 to 5 on that day. The statement ofpwio in the chief examination is as under:"m. R. O. held inquest over the dead body in ex. P3. I assisted him on 2. 2. 1994 at 3 p. m. to 5 p. m. , I examined P. Ws. 3 to 5 and jammu recorded their statements. " ( 14 ) NOTHING was suggested to P. W. 10 to discredit his version. The stray sentence in the evidence of P. W. 3 cannot be read out of context. P3. I assisted him on 2. 2. 1994 at 3 p. m. to 5 p. m. , I examined P. Ws. 3 to 5 and jammu recorded their statements. " ( 14 ) NOTHING was suggested to P. W. 10 to discredit his version. The stray sentence in the evidence of P. W. 3 cannot be read out of context. Further P. Ws. 1,2 and 3 being the parents, and brother of the deceased, for all practical purposes, their evidence needs to be omitted. ( 15 ) P. W. 5 has categorically stated that the appellant developed intimacy with a woman by name Leela and the same resulted in disputes between the appellant and the deceased. He further stated that he participated in the settlement of disputes and sent the deceased to live with the accused and three days thereafter, at about 10. 00p. m. , he heard cries from the house of the accused. He deposed that when he went there, on noticing him and others, the appellant ran away. Nothing was elicited from him to contradict his version. Whatever may be the desirability or otherwise of relying on the evidence of pws. 1 to 4, nothing can be said about the independent nature and reliability of the evidence of P. W. 5. Though he stated in categorical terms that on hearing the cries, he went to the house of the appellant; found the dead body of the deceased and on noticing them the appellant ran away, it was not even suggested to him that either he did not come to the scene of offence or that the appellant did not run away. This single circumstance is sufficient to uphold the conviction against the accused- appellant. ( 16 ) AS regards the appreciation of circumstantial evidence, learned Counsel for the appellant had relied upon the judgments of the Supreme Court in shamnsaheb M. Multtani s case (supra), ashish Batham v. State of M. P. and others, air 2002 SC 3206 , Dhananjay Shanker shetty v. State of Maharashtra and others, air 2002 SC 2787 , Toran Singh v. State of M. P. and others, AIR 2002 SC 2807 and vaduguchanti Babu v. State of Andhra pradesh and others, AIR 2002 SC 2911 . In all these cases, the Honourable Supreme court reiterated the principles of appreciation of circumstantial evidence. In all these cases, the Honourable Supreme court reiterated the principles of appreciation of circumstantial evidence. In fact, in one of the cases extracted above, i. e. , in Ashish batham s case cited supra, the following enunciations of the Law by Baron Anderson to the Jury in Reg. v. Hodge (1838) 2 Lewin 227), was extracted: "the mind was apt to take pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete. " ( 17 ) THIS principle hardly needs any emphasis and is of universal application. The note of caution is with reference to the circumstances where an occasion arises for providing missing links. When the evidence on record discloses that P. W. 5 has gone to the scene of offence within minutes and the accused ran away from the same, hardly there is any necessity to provide any missing link. ( 18 ) ONE important circumstance in the present case is that apart from the accused and the deceased, there were no other inmates in the house when the offence took place. Many witnesses uniformly spoke to the effect that the appellant ran away on seeing them. However, a suggestion was made on behalf of the accused to the said witnesses that at the hut where the appellant was residing there was a vegetable creeper and for plucking the vegetables one has to climb the hut. He intended to drive home a point that the deceased had climbed the hut to pluck the vegetables and having fallen from there, received head injuries and died instantaneously. Firstly, such suggestions were themselves contradictory. The type of suggestions made to one witness varied substantially with the one put to others. For example, it was suggested to P. W. 3 that the deceased fell from the top of the hut and received head injuries and to P. W. 2 to the effect that to get vegetables one has to climb the hut. The type of suggestions made to one witness varied substantially with the one put to others. For example, it was suggested to P. W. 3 that the deceased fell from the top of the hut and received head injuries and to P. W. 2 to the effect that to get vegetables one has to climb the hut. However, in the cross- examination of P. W. 10, the following was elicited:"there are no vegetables on the hut of the accused. "no suggestion in this regard was made to p. W. 5 at all. ( 19 ) EVEN assuming that there existed such a vegetable creeper, it is rather unimaginable that a person that too, a lady climbs the hut at 9. 30 p. m. , in darkness. At any rate, the defence did not lead any evidence on this aspect. It is relevant to note here that the fact pleaded by the accused was something in his special knowledge. He was under obligation to prove the same- The application of the principle underlying Section 106 of Evidence Act is not confined to the evidence that is to be adduced by the prosecution alone. In state of West Bengal v. Mir Mohammed omar and others, (2000) 8 SCC 382 , the supreme Court had provided an important guidance in this regard. The law was aptly stated when the Supreme Court observed as under:"the pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. " ( 20 ) THERE is nothing on record to show that the appellant had made any effort to explain as to why he ran away from the scene instantly if in fact the deceased fell from roof of the hut. ( 21 ) UNDER the existing system of adjudication of criminal cases, the accused is conceded the right to remain silent. ( 21 ) UNDER the existing system of adjudication of criminal cases, the accused is conceded the right to remain silent. However, a dent appear to have been made into this principle in relation to cases which turn up on circumstantial evidence and where the accused claims or is founded to be in the knowledge of certain important aspects of the crime. The same is evident from the observations made by the Hon ble supreme Court in certain recent cases. In ganeshlal v. State of Rajasthan, 2001 (8) supreme 317 , the Supreme Court was dealing with a case where the accused was found to be in possession of stolen property. Referring to the purpose of examination of the accused under Section 313 of Cr. P. C. and the inference that can be drawn by the trial Court in the event of the accused failing to explain about the circumstances, it observed as under:"ordinarily, the purpose of Section 313 of the Code of Criminal Procedure is to afford the accused an opportunity of offering an explanation of incriminating circumstances appearing in prosecution evidence against him. It is not necessary for the accused to speak and explain. However, when the case rests on circumstantial evidence, the failure of the accused to offer any satisfactory explanation for his possession of the stolen property, though not an incriminating circumstance by itself, would yet enable an inference being raised against him, because the fact being in the exclusive knowledge ofthe accused, it was for him to have offered an explanation, which he failed to do. "after referring to the judgment in State of maharashtra v. Suresh (2000) 1 SCC 471 , it was observed that:"this Court held that a false answer offered by the accused on his attention being drawn to such circumstance renders the circumstance capable of inculpating him. The Court went on to say that in a situation like this such a false answer can also be counted as providing a missing link for completing the chain of circumstantial evidence. " ( 22 ) ANOTHER important observation is the one made by the Supreme Court in state Government of NCT of Delhi v. Sunil, 2001 SCC (Crl) 248, as regards the approach of the Court to the version presented by the police. " ( 22 ) ANOTHER important observation is the one made by the Supreme Court in state Government of NCT of Delhi v. Sunil, 2001 SCC (Crl) 248, as regards the approach of the Court to the version presented by the police. K. T. Thomas, J. , observed as under:"it is an archaic notion that actions of the police Officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the. presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the Legislature. Hence when a Police Officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the Police Officer is either unreliable or at least unsafe to be acted upon in a particular case. If the Court has any good reason to suspect the truthfulness of such records of the police the court certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions. "if the case on hand is examined keeping the principles referred to above in view, it is evident that apart from there being ample evidence to establish the guilt of the accused, there exist circumstances enabling the Trial Court to draw an inference on account of the failure or refusal of the accused to explain the circumstances which were in his special and exclusive knowledge. ( 23 ) VIEWED from any angle, I do not find any ground to interfere with the conviction of the appellant herein by the trial Court. ( 23 ) VIEWED from any angle, I do not find any ground to interfere with the conviction of the appellant herein by the trial Court. The same is accordingly upheld. ( 24 ) COMING to the sentence, the record discloses that it is an unfortunate case where the father of the victim, who complained of the ghastly incident, was declared hostile. Whatever be the motive behind his turning hostile, it only reflects the decay of moral values in life. The temptations for PW1 were so strong that he has chosen to forgot or ignore the wrong done to his daughter. If the case was to rest on the evidence of PW1, and in the absence of the evidence of PW5, totally different results altogether would have ensued. ( 25 ) HAVING regard to the totality of the circumstances, this Court feels that ends of justice will be met if the sentence imposed on the accused is reduced from five years to three years. ( 26 ) THE Criminal Appeal is accordingly dismissed with the variation of sentence as indicated above.