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2004 DIGILAW 1159 (AP)

Kokkanti Rajasekhar v. State Of A. P.

2004-10-07

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) KOKKANTI Rajasekhar, the sole accused in sessions Case No. 121 of 1994 on the file of the Sessions Judge, Cuddapah, aggrieved by the judgment, dated 18-11-1998, had preferred the present criminal appeal. ( 2 ) THE learned Judge, on appreciation of the evidence of P. Ws. 1 to 12, D. W. 1 and exs. P-1 to P-16, came to the conclusion that the accused is guilty of an offence under section 304-Part-ll IPC, and accordingly, sentenced him to undergo Rigorous imprisonment for a period of five years and to pay a fine of Rs. 2,000/- in default, to undergo rigorous Imprisonment for a period of three months. ( 3 ) SRI V. Venkataramana, Counsel representing the appellant-accused would submit that this is a case based on the circumstantial evidence, and in fact, the witnesses P. Ws. 1 to 5 were declared hostile and there is no acceptable evidence available on record, but however, the learned Judge recorded findings, based on the information said to have been furnished by the accused coupled with the evidence of D. W. 1 and had recorded findings as though the guilt of the accused had been proved by the prosecution. The learned Counsel would submit that the very approach adopted by the learned Judge definitely cannot be sustained, since the burden is on the prosecution to establish the guilt of the accused and not otherwise, more so, in a case based on the circumstantial evidence. The learned Counsel also would contend that in view of the close relationship between the parties and also the clear evidence of other witnesses, it would be highly improbable that the appellant-accused would have perpetrated the offence with which he had been charged. At any rate, on the strength of the medical evidence and the strong suspicion as against the accused, definitely, the accused cannot be convicted unless there is some acceptable evidence in this regard. ( 4 ) PERCONTRA, Sri Mohd. Osman Shaheed, learned Additional Public Prosecutor would contend that the learned Judge recorded the reasons in detail at paragraphs 22 to 26, and in the light of the reasons recorded by the learned Judge and also the medical evidence available on record, the conviction and the sentence imposed against the accused may have to be confirmed. Osman Shaheed, learned Additional Public Prosecutor would contend that the learned Judge recorded the reasons in detail at paragraphs 22 to 26, and in the light of the reasons recorded by the learned Judge and also the medical evidence available on record, the conviction and the sentence imposed against the accused may have to be confirmed. ( 5 ) THIS is a case, where the conviction and the sentence were imposed based on the circumstantial evidence. The deceased-Anuradha (hereinafter referred to as the deceased for the purpose of convenience) is the wife of the appellant-accused. P. Ws. 1 and 2 are the parents of the deceased. The marriage of the deceased with the accused was celebrated one and half months prior to 23 04-1991, and after marriage, they were residing at Door No. 1/163-3 at vadachalamnagar in Cuddapah Mandal. The deceased once came to her parents house and informed to her mother P. W. 2 that the accused was behaving beastly towards her in the privacy, due to which she was suffering from stomach pain and other complications and that when the deceased failed to yield to the accused, he used to beat, harass and threaten herto death. The appellant-accused developed ill-will towards the deceased, and he wanted to kill her as she was not fulfilling the sexual desire and on the intervening nignt of 23/24-04-1991, the accused demanded the deceased to fulfill his lustful wishes, and the deceased did not allow the accused for sexual intercourse again and again, and the accused threatened the deceased that he would kill her, if she does not satisfy his sexual desire, and thereupon the accused killed the deceased by strangulation. The accused admitted the deceased in Government Hospital, Cuddapah on the same day at 7. 00 a. m. , where the deceased died at 7. 30 a. m. The Medical officer opined that the deceased died of asphyxia due to strangulation. After the completion of the investigation, the Inspector of Police, Cuddapah Urban, filed a charge-sheet and the same was registered as P. R. C. No. 41 of 1992 on the file the II Additional munisif Magistrate, Cuddapah, and the same was committed to the Court of Session and the learned Sessions Judge tried the matter, recorded the evidence, recorded an acquittal for the offence under Section 302 IPC, but convicted the appellant-accused for the offence undersection 304-Part-ll IPC. Hence, the appeal. Hence, the appeal. ( 6 ) THE charge framed is as hereunder:-"that you on or about the intervening night of 23/24-04-1991 at your residence in Vedachalam Nagar, of Cuddapah, did commit murder by intentionally or knowingly causing the death of your wife Kokkanti Anuradha and thereby committed an offence punishable under section 302 of the Indian Penal Code and within my cognizance. " ( 7 ) P. W. 1-father of the deceased deposed about the marriage. This witness deposed that his daughter was having severe headache, and some times, she takes sleeping pills, some times unable to bear the headache, she strikes her head to the floor and he did not notice any injury on the dead body of his deceased daughter. He deposed that the police examined him and recorded his statement at the time of inquest. This witness was permitted to be cross-examined by the public Prosecutor. This witness specifically denied that he noticed the injuries on the neck of the deceased and that he suspected that force was used and that he stated before the police as in Ex. P-1. In the cross-examination by the accused, this witness deposed that after the marriage, till the death of his daughter, both the accused and his daughter lived happily and his daughter never informed him that the accused was harassing her. ( 8 ) P. W. 2 is the wife of P. W. 1, who was also cross-examined by the learned Public prosecutor. P. Ws. 3 to 5 were also cross-examined by the prosecution. ( 9 ) P. W. 6 deposed that the accused is a tenant of his brother-Karunakar and this witness simply deposed about the death of the deceased, and on that day, the accused came and informed his wife and his sister-in- law-Savitri that his wife (deceased) fell unconscious and thereupon, he went and saw the deceased and he advised the accused to take her to the hospital. He deposed that the accused and the deceased are living normally and happily. ( 10 ) P. W. 7-one of the mediators for inquest, deposed about the inquest over the dead body of the deceased-Anuradha and also inquest report-Ex. P-7, which contains his signature. ( 11 ) P. W. 8 is the retired Mandal Revenue officer, who conducted the inquest for the dead body of the deposed and also deposed about Ex. P-7. ( 10 ) P. W. 7-one of the mediators for inquest, deposed about the inquest over the dead body of the deceased-Anuradha and also inquest report-Ex. P-7, which contains his signature. ( 11 ) P. W. 8 is the retired Mandal Revenue officer, who conducted the inquest for the dead body of the deposed and also deposed about Ex. P-7. ( 12 ) P. W. 9-HEAD Constable had deposed about the registering of the Crime No. 37 of 1991 under Section 174 Cr. P. C. ( 13 ) P. W. 10-Sub-lnspector of Police deposed about certain details of the investigation conducting of inquest, completion of inquest and sending the dead body of the deceased for post-mortem examination. This witness also deposed about the post-mortem certificate-Ex. P-11 which shows that the death is due to asphyxia of manual strangulation, and about the alteration of First Information Report to section 302 IPC. Ex. P-12 is the altered f. I. R. Later, the Inspector of Police took up the investigation. ( 14 ) P. W. 11 is the Civil Assistant Surgeon, who had conducted the post-mortem examination over the dead body of the deceased and had noted the external and internal injuries, which are ante-mortem. Ex. P-11 is the post-mortem certificate, and this witness no doubt, deposed that the deceased would appear to have died of asphyxia due to manual strangulation. ( 15 ) P. W. 12-lnspector of Police deposed about the details of the investigation and filing of the charge-sheet by his predecessor. ( 16 ) ONE Rajeswari sister-in-law of the accused was examined as D. W. 1. She deposed that the accused is her husband s elder brother, and all of them are residing in the same house. In the evening of the day prior to the death of the deceased at about 5. 00 p. m. , the deceased went to the hospital complaining severe head-ache. She took some treatment and tablets. D. W. 1 deposed that she served food to the deceased at about 7. 30 p. m. and thereafter, the deceased took some tablets and went to sleep, but however, she was weeping because of severe head-ache. In the early morning some time between at about 5. 00 a. m. or 6. She took some treatment and tablets. D. W. 1 deposed that she served food to the deceased at about 7. 30 p. m. and thereafter, the deceased took some tablets and went to sleep, but however, she was weeping because of severe head-ache. In the early morning some time between at about 5. 00 a. m. or 6. 00 a. m. , when the accused was waking up his wife, he found blood coming from the nose of the deceased and then called all the inmates of the house. On that, neighbours also came to their house. The deceased was taken to the hospital. There were no quarrels between the accused and the deceased at any time, and the deceased never complained against her husband at anytime. There is no possibility of the accused killing the deceased by strangulation of manual process, because there were no quarrels between the accused and the deceased. This witness was cross- examined by the prosecution. ( 17 ) ON appreciation of the evidence available on record, the learned Judge recorded certain findings that the evidence of d. W. 1 is not in conformity with what had been stated by the accused in Ex. P-8. There may be some variance or some discrepancy, when Ex. P-8 is compared with the statement made by D. W. 1. The learned Judge, as can be seen from the findings recorded, had been more guided away by the statement made by the accused. In view of the fact that the accused was with the deceased during that night, and in the light of the medical evidence, there is no other possibility and the only possibility is that the accused could have perpetrated this crime as against the deceased. In substance, this is the approach adopted by the learned Judge. The evidence of D. W. 1 also had been relied upon by the learned Judge in recording such findings. ( 18 ) THIS is a case based on circumstantial evidence. P. Ws. 1 and 2 the parents of the deceased had deposed that there were no serious disputes between accused and deceased. The evidence of D. W. 1 also had been relied upon by the learned Judge in recording such findings. ( 18 ) THIS is a case based on circumstantial evidence. P. Ws. 1 and 2 the parents of the deceased had deposed that there were no serious disputes between accused and deceased. The version of the prosecution is that the accused was pressurizing the deceased to allow him to have sexual intercourse many a time, for which the deceased was not a willing party and that was the reason, which drove the accused to cause death of the deceased on the fateful day. Except this strong suspicion, on the strength of the medical evidence, that too, on the ground that on the fateful day night, the accused was with the deceased, no other acceptable evidence had been placed before the Court. In view of the circumstances pointed out or the reasons, which had been adopted by the learned Judge on the strength of the statement of the accused and the evidence of D. W. 1 and the medical evidence, this Court is of the considered opinion that there may be some suspicion, but definitely, it cannot be a substitute to the proof required in a criminal trial. ( 19 ) IN view of the facts and circumstances the findings recorded by the learned Judge cannot be sustained, and accordingly, the findings are hereby set aside for want of legally acceptable evidence and also all the connecting circumstances proving the guilt of the accused and the guilt of the accused only and nothing but guilt. This Court is of the opinion that the appellant-accused is entitled to the benefit of doubt, and accordingly, the conviction and the sentence imposed by the learned Judge are hereby set aside and the criminal Appeal is allowed. The bail bonds of the appellant-accused shall stand cancelled.