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2004 DIGILAW 1402 (AP)

Adari Suribabu v. State Of A. P.

2004-11-19

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) THE sole accused, Adari Suri Babu, in Sessions Case No. 194 of 1998 on the file of the III Additional district and Sessions Judge, East Godavari division at Kakinada, had preferred the present criminal appeal being aggrieved of the conviction and sentence imposed under sections 304 (Part II) and 506 of the Indian penal Code. ( 2 ) THE Sub-Inspector of Police, Tuni circle, filed charge-sheet against the accused for the offences under Sections 302 and 506 of the Indian Penal Code. The case of the prosecution is that the accused is a resident of Kotha Colony, Kotananduru village, who is a coolie in brick kiln of one koolla Ramana. Previously, the accused married a woman by name Nukaratnam and they lived some years together and after the birth of three children, the wife of the accused discarded him and went back to Narsipatnam. Again the accused married Ramanamma about 7 years back at Annavaram Temple. The deceased ramanamma (hereinafter referred to as the deceased ) is the second wife of the accused and they used to go for coolie work in the brick kiln of Koolla Ramana. For about six months, there were ill feelings between the accused and the deceased since the accused was suspecting the deceased to have been illicit intimacy with the owner of the brick kiln. Prior to last sankranti festival, the deceased quarrelled with the accused and went away to her parents house at Rajupeta. Boddeti tulasiveni, sister-in-law of the deceased interfered in between the couple and convinced both of them. Again on 28. 1. 1998 the said Tulasi Veni brought the deceased to the house of the accused and made them united. On the night of 28. 1. 1998, the deceased and the accused indulged in quarrel. On 29. 1. 1998 night the accused asked the deceased to sleep with him, for which the deceased bluntly refused and on that the accused being enraged of the same, attempted to commit suicide by pouring kerosene over him. Tulasi Veni obstructed him and admonished him for having attempted to commit suicide. The accused expressed his willingness to take away his life, as it was unless to live with his wife who was constantly refusing to give him conjugal pleasure. Tulasi Veni convinced him, and on that night the couple slept quiet. On 30. 1. Tulasi Veni obstructed him and admonished him for having attempted to commit suicide. The accused expressed his willingness to take away his life, as it was unless to live with his wife who was constantly refusing to give him conjugal pleasure. Tulasi Veni convinced him, and on that night the couple slept quiet. On 30. 1. 1998 Friday night the deceased slept with the accused in the room, while Tulasi Veni slept on pial of the house. In the early hours of 31. 1. 1998 saturday, the accused attempted to have sexual intercourse with the deceased in the room. But she refused to do so and pushed him. The accused grew angry and confronted with the deceased whether she would allow if Koolla Ramana were in his place. The deceased gave arrogant reply. In that anger, the accused picked up an iron blowpipe and beat the deceased with it and brought her out of the room by so beating her indiscriminately. When Tulsai Veni woke up and attempted to interfere, the accused threatened and intimidated her by raising iron blowpipe at her. She got back with fear. Neighbours gathered there by which time the deceased fell on the ground in front of the house of the accused in a pool of blood and died. Tulasi Veni, due to fear, went to her village Rajupeta and informed the incident to her husband and in-laws and came back to Kotananduru to give report. The V. A. O Kotananduru on 31. 1. 1998 at 6 p. m. , recorded the statement of tulasiveni and found the dead body of the deceased at the house of the accused and sent report to the police. The case was registered and investigation was taken up. The same was taken on file as PRC8 of 1998 by the Judicial Magistrate of First class, Tuni and inasmuch as the same is exclusively triable by the Court of Session, the case was committed to the Court of session and the Principal Sessions Judge, rajahmundry made over the same to the iii Additional District and Sessions Judge, east Godavari Division, at Kakinada, who had recorded the evidence of PWs. 1 to 10 and marked Exs. Pl to P17 and MOs. 1 to 4 and also Exs. 1 to 10 and marked Exs. Pl to P17 and MOs. 1 to 4 and also Exs. D1 to D3 and ultimately arrived at a conclusion that the accused is not guilty of the offence under Section 302 of the Indian Penal Code, but found him guilty for the offences under Sections 304 (Part II) and 506 of the Indian Penal code. ( 3 ) SRI C. Praveen Kumar, learned counsel representing the appellant made the following submissions: the learned Counsel submitted that on the strength of the evidence of PW1, whose presence is highly doubtful at the place of occurrence, recording conviction cannot be sustained. The Counsel also pointed out that there is abnormal delay of about 15 hours in lodging the report and this itself would go to show that the version of the prosecution is not true. The learned Counsel also made certain submissions relating to non-examination of Appala Naidu. Since it is the contention of the learned Counsel the very version of the prosecution is that PW1 was waiting for the said Appala Naidu and pw1 being relative of the deceased not being the permanent resident of the locality, this witness may have to be taken as a chance witness and unless there is sufficient corroboration relating to her presence at the scene of occurrence, on the testimony of pw1 alone conviction cannot be sustained, especially in the absence of the evidence of said Appala Naidu. The learned Counsel also submitted that inspite of lapse of time none of the neighbours, said to have been present, gave any report. PW3 was declared hostile and in view of the evidence of PW1 and also contents of Ex. P1, the very presence of PWs. 2 and 3 at the scene of offence is highly doubtful. The learned counsel also placed strong reliance on peddireddy Subbareddi and others v. State of Andhra Pradesh, 1991 Crl. LJ 1391. ( 4 ) PER contra, learned Additional public Prosecutor submitted that non-examination of Appala Naidu is not very material, since even if Appala Naidu had been examined, he being the relative witness of the accused, the same contention would have been advanced. The learned additional Public Prosecutor had submitted that material witness is a witness whose evidence should be very essential for establishing the version of the prosecution and hence Appala Naidu cannot be said to be a material witness. The learned additional Public Prosecutor had submitted that material witness is a witness whose evidence should be very essential for establishing the version of the prosecution and hence Appala Naidu cannot be said to be a material witness. The learned Additional public Prosecutor also had pointed out to the evidence of PW1 and submitted that the delay was properly explained. On the strength of the sole testimony also conviction can be sustained. The learned Additonal public Prosecutor also placed reliance on amar Singh v. Balwinder Singh and others, 2003 (1) ALD (Crl) 508 (SC) = AIR 2003 sc 1164 , Chittar Lal v. State of Rajasthan, 2003 (2) ALD (Crl) 274 (SC) = AIR 2003 sc 3590 and Rammi alias Rameshwar v. State of M. P, 1999 (2) ALD (Crl) 708 (SC) = 1999 (8) SCC 649 . ( 5 ) HEARD the Counsel on record and also perused the findings recorded by the learned Judge. ( 6 ) PW1 in her evidence deposed in detail that six months prior to the death of the deceased, accused suspected fidelity of the deceased that she was having illicit intimacy with one Kummari Ramana and the deceased was informing them about the suspicion of her husband. Fifteen days prior to Sankranti festival 1998, the deceased came to her house. She was staying in their house for about 15 days and during that period she informed them about the suspicion of her husband. Fifteen days after sankranti festival 1998, on Wednesday, pw1 and the deceased came to the house of the accused. She followed her to leave her in the house of the accused. During the night of Wednesday, both the accused and the deceased were quarrelling with each other regarding their conjugal life. She intervened and pacified them that the same can be solved on the next day morning. On the next day night i. e. , Thursday night also there were disputes between the accused and the deceased regarding their marital life. The accused came out of the room telling that "pellamleni brathuku nakenduku". So saying, he came out of the room pouring kerosene on his head. PW1 removed kerosene tin from him and advised him that the dispute can be solved on the next day morning. On the Friday night, she sent the deceased to sleep with the accused. Both the deceased and the accused were sleeping inside the room. So saying, he came out of the room pouring kerosene on his head. PW1 removed kerosene tin from him and advised him that the dispute can be solved on the next day morning. On the Friday night, she sent the deceased to sleep with the accused. Both the deceased and the accused were sleeping inside the room. She was sleeping on pial of the same house. During the early hours of Saturday, she heard the cries from the room, where the deceased and the accused were sleeping. PW1 woke up and saw the accused coming out of the room with the deceased beating her with iron pipe. The accused was beating the deceased on the left side of neck and on face. The deceased fell unconscious lying at a distance of 2 yards from the room. She intervened while the accused was beating the deceased. But he threatened her raising the iron pipe. At that time, neighbours gathered there. The deceased Ramanamma died immediately. Later she went to her village Rajupeta. Then the time was 5. 00 a. m. She informed about the incident to her in-laws. On the same day at about 4. 30 p. m. , PW1 her husband and her in-laws came to Kotananduru village. After seeing the dead body, they went to VAO and PW1 gave oral complaint and he reduced the same into writing. Ex. P1 is the statement recorded by VAO. This witness was cross-examined. In cross- examination this witness admitted that it is true that the accused and the deceased and Kummari Ramana were doing coolie work at brick kiln and it is true accused used to attend coolie work leaving the house at early hours. PW1 also deposed that the accused came to the house at 9 p. m. , on wednesday. She did not take the deceased to Kummari Ramana to raise a dispute. The deceased was older than PW1 in age. No doubt again she says that she does not know whether the deceased was equal age to her. She also deposed that by the time they came to the house of accused from Rajupeta at 4 or 4. 30 p. m. , the police were not present at the house of the accused. The police came to the house of accused by 9. 00 p. m. , on that day. She also deposed that by the time they came to the house of accused from Rajupeta at 4 or 4. 30 p. m. , the police were not present at the house of the accused. The police came to the house of accused by 9. 00 p. m. , on that day. PW1, her husband and her in-laws came to the house of the accused at 4 or 4. 30 p. m. , and after seeing the dead body, they went to the VAO and gave report. This witness also deposed that it is not true to say that she has stated before the police as in ex. D1 that the accused tried to pour kerosene on his head and she did not state before police that she was waiting in the house of accused for the arrival of Appala naidu, as he knew about the disputes between the deceased and the accused and it is not true to say that she has stated before the police that the accused beat the deceased with iron pipe on her neck, face and chest. The deceased fell down in between the hut and the house under construction. Several suggestions put to this witness had been denied. ( 7 ) PW2 deposed that the accused suspected his wife that she had illicit intimacy with one Kummari Ramana. She also deposed that she heard cries from the house of the accused. On hearing the cries, pw2 and her father Apparao (LW2) woke up and went to the house of the accused. By the time they went there, PW1 and the neighbours were present there. They saw accused running away with iron pipe in his hand towards eastern side. They saw the dead body of Ramanamma at the house of accused. PW2 also deposed that she does not know how the deceased died. In the cross-examination she deposed that she did not state before police that she saw the dead body lying in front portion of room of accused as in Ex. D2. The other suggestions were denied. PW3 was declared hostile and PW3 was cross-examined by the prosecution and also the defence Counsel as well. PW4 simply deposed about the suspicion relating to illicit intimacy and also pw1 coming to the field and informed them that the accused beat the deceased with iron pipe and that she died. PW5 is the photographer. The other suggestions were denied. PW3 was declared hostile and PW3 was cross-examined by the prosecution and also the defence Counsel as well. PW4 simply deposed about the suspicion relating to illicit intimacy and also pw1 coming to the field and informed them that the accused beat the deceased with iron pipe and that she died. PW5 is the photographer. He deposed about Exs P2 to p6 the photographs and negatives. PW6 is the crucial witness. This witness deposed that at present he has been working as cleaner. Prior thereto he used to manufacture bricks in the village and he knows the accused and his wife Ramanamma, who used to attend work in his brick kilns. They did the work for about 6 or 7 months and later stopped working in his brick kiln, suspecting that the deceased was having illicit intimacy with him. In cross- examination this witness denied certain suggestions. This witness also deposed that it is not true to say that he killed the deceased Ramanamma and that police arrested him. PW7 is the VAO, who had deposed about Ex. P1 and also police preparing observation mahazar and drafting of mahazar Ex. P8. This witness also deposed about the conduct of inquest, drafting of the inquest report Ex. P9. This witness further deposed about the arrest of the accused under a cover of Ex. P10 mahazar. This witness further deposed that the accused led them to the Tar road leading Kotananduru to Lakshmidevipeta at 3. 00 p. m. , and at his instance M. O1 iron rod and one bloodstain banian M. O2 were seized under the cover of mahazar of Ex. Pl 1. Exp 11 was drafted by him. No doubt, in cross-examination of pw7 this witness deposed that the police enquired about PW6, as they wanted to arrest him. The other suggestions were denied. PW8 is the doctor, who conducted post-mortem examination, who had noted external and internal injuries and deposed about Ex. P 12 post-mortem certificate issued by him. This witness clearly deposed that by beating with MO 1 the injuries could have been caused. PW9 is the Sub-Inspector of Police, who deposed about the details of investigation. This witness in cross-examination no doubt deposed that as LW 16 Alla Appala Naidu was available at the place of dead body, he secured his presence. This witness clearly deposed that by beating with MO 1 the injuries could have been caused. PW9 is the Sub-Inspector of Police, who deposed about the details of investigation. This witness in cross-examination no doubt deposed that as LW 16 Alla Appala Naidu was available at the place of dead body, he secured his presence. According to him he is a close relation to the accused. The contradictions Exs. D1, D2 and D3 were put these witnesses. PW10 is the Inspector of police, who deposed about the other details of investigation and filing of the charge-sheet. ( 8 ) ON a eareful scrutiny of Ex. P1 and also the evidence of PW1 well supported by the evidence of PW2, the incident on the fateful day cannot be doubted in anyway. Submissions at length were made that the dead body was found in front of the house of the accused and specific suggestions were put that PW6 could have been responsible for the death of the deceased and not the accused. The evidence of PW1 is natural and convincing. She had categorically deposed about the disputes relating to the conjugal life between the wife and husband and also the. suspicion of the husband relating to the character of the wife. This is the earliest version given by PW1 even in Ex. P1 and she had deposed the same as PW1 before the court. Just at the time of happening of the incident the evidence of PW2 also is available in corroboration to the evidence of PW 1. Hence, the presence of PW1 at the scene of offence cannot be doubted in anyway. The mere fact that she had stated she was waiting for Appala Naidu and the said Appala Naidu was not examined would not alter the situation in anyway, since he cannot be said to be a material witness as far as the happening of the incident on the fateful day is concerned. It is true that there was some delay in giving ex. Pl since she had approached her in-laws and husband, came back to kotananduru Village, thought of giving the report, approached VAO and then gave ex. P1 report. Submissions at length were made that despite the gap of about 15 hours in between none of the neighbours had reported the matter to the police. Pl since she had approached her in-laws and husband, came back to kotananduru Village, thought of giving the report, approached VAO and then gave ex. P1 report. Submissions at length were made that despite the gap of about 15 hours in between none of the neighbours had reported the matter to the police. It is too natural that the neighbours would have waited for relatives of deceased and hence the delay cannot be viewed with any suspicion. Reliance was placed on peddireddy Subbareddi and others v. State of A. P. (supra) where the Apex Court held that:"delay of 15 hours in lodging FIR- Eye witness after witnessing occurrence not reporting to any of the villagers- His testimony clouded with strong suspicion-False implication of accused not completely ruled out-Accused entitled to acquittal". It is needless to say delay in giving First information Report always cannot be said to be fatal for prosecution version and if explained as in the present case, the same cannot affect prosecution episode. ( 9 ) IN Rammi alias Rameshwar v. State of M. P. (supra), while dealing with appreciation of evidence in relation to criminal trial it was held that-"post event conduct of witness cannot be predicted- It varies from person to person as different people react differently to what they witness-Occurrence taking place in a bus- witness, a passenger, not informing the family members of the deceased nor bringing the matter to the notice of the police. It is held, in the circumstances, conduct of the witness cannot be said to be abnormal" ( 10 ) RELIANCE was also placed on chittar Lal v. State of Rajasthan, (supra ). Even if the evidence of PW1 is believable and trustworthy there cannot be any doubt that conviction can be sustained on the strength of such testimony. The evidence of pw1 is so natural, well supported by the evidence of PW2 and also the medical evidence. Hence, in the facts and circumstances, the findings recorded by the learned Judge cannot be found fault in anyway and the said findings are hereby confirmed. The evidence of pw1 is so natural, well supported by the evidence of PW2 and also the medical evidence. Hence, in the facts and circumstances, the findings recorded by the learned Judge cannot be found fault in anyway and the said findings are hereby confirmed. However, in the light of the facts and circumstances, in view of the disputes relating to the conjugal life and also suspicion in relation to illicit intimacy may be the requisite intention or mens rea for commission of offence under Section 302 of the Indian Penal Code had not been proved and hence the learned Judge arrived at the correct conclusion that the said ingredients had not been attracted. ( 11 ) IN view of the facts and circumstance and taking into consideration the age of the mother of the accused and also the other circumstance under which the offence had been perpetrated, this Court is of the considered opinion that the conviction as such to be confirmed, but the sentence to be modified to rigorous imprisonment of three years and a fine of rs. 2,500/-, in default simple imprisonment for six months for the offence under Section 304 (Part II) of the Indian Penal Code and rigorous imprisonment of six months and pay a fine of Rs. 500/-, in default to suffer simple imprisonment for two months for the offence under Section 506 of the Indian penal Code. It is needless to say that both the sentences to run concurrently. It is also brought to the notice of the Court that the appellant-accused had undergone imprisonment for sufficient time. It is needless to say he is entitled to set off in accordance with law. Except the modification of the sentence as referred supra, in all particulars the findings are hereby confirmed. ( 12 ) THE appeal shall stand dismissed subject to the aforesaid modification.