Research › Search › Judgment

Andhra High Court · body

2005 DIGILAW 605 (AP)

Keerthi Kumar Modani v. State Of A. P.

2005-07-08

B.PRAKASH RAO, P.SWAROOP REDDY

body2005
( 1 ) THIS appeal is filed against the judgment of the learned Principal sessions Judge, Ranga Reddy District in s. C. No. 608 of 2002. The appellant, who is the sole accused before the learned Sessions judge, is convicted for the offence under section 302 IPC and sentenced to imprisonment for life. ( 2 ) THE case against the accused is that he killed his wife, Saroj, whom he married two years earlier to the incident; he used to harass the deceased by asking her to get money from her mother and that on 27-12-2001 he killed her at the house where he was living with the deceased as a tenant at L. B. Nagar, owned by the family of pw-10 by stabbing her. According to the prosecution case, the accused killed the deceased, somewhere in the morning and locked the doors from outside and went away. PW-1, a co-tenant saw the dead body of the deceased in the locked room. Thereafter information was sent to police. The police broke upon the lock and found the dead body. The evidence against the accused is only circumstantial i. e. , of his living with the deceased in the house that is being found locked from outside, while the dead body was lying in the house and recovery of certain material objects. ( 3 ) ACCEPTING the prosecution evidence of the accused killing the deceased, locking the door from outside and the recoveries, the learned Sessions Judge convicted the accused. ( 4 ) NOW, the contention of the learned senior Counsel is that there is absolutely no evidence, though there is no dispute about the accused being the husband of the deceased and about the homicidal death of the deceased and that the circumstances are not such that which prove that it is only the accused that has killed the deceased. The prosecution case that the accused killed the deceased, locked the door from outside is incorrect and that there is no consistency with regard to the prosecution evidence as to when the doors of locked house were opened; when the police reached the scene and with regard to recovery also the prosecution evidence is unacceptable and that there is no evidence to show as to when exactly the deceased died. According to the prosecution the offence has taken place at 8-00 a. m. and as per the evidence of PW-1, she has seen the deceased alive at 11-00 a. m. ( 5 ) ON the other hand the learned public Prosecutor contends that when there is no dispute that the accused and the deceased were living in the same house; when the dead body of the deceased was found in the house, particularly locked from outside, the key of which was recovered from the accused, the circumstances would point out at the guilt of the accused. ( 6 ) NOW, the point for consideration is whether there are any grounds for allowing the appeal. ( 7 ) THERE is no dispute about the homicidal death of the deceased. PW-8, who conducted autopsy over the dead body of the deceased found the following injuries. (i) An obliquely placed incised injury of 4 x 2 cms x muscle deep present on the lateral aspect of the right arm 4 cms above the elbow. The injury was directed laterally and upwards. (ii) An obliquely placed stab injury of 3 x 1. 5 cms cavity deep present on the left side of the neck 6 cms from the midline. The injury was directed medially and downwards. The tab entered the thoracic cavity and made an through and through stab injuries of 2. 5 x 1 cms and then made three stab injuries of 2 x al cms to the base of the heart after piercing the pericardium. About 800 ml. , of blood present in the pericardial sac. (iii) A horizontally placed stab injury of 1 x 1 cm x muscle deep present on the back of the neck in the mid line. 6 cms above the c7 spine. (iv) A horizontally placed stab injury of 2 x 1 cms x muscle deep present on the back of the neck adjacent and left to the above injury. (v) A horizontally placed stab injury of 2 x 1 cms x muscle deep present on the back of the neck below the above two injuries. (vi) An obliquely placed stab injury of 2 x 1 cms into muscle deep present on the back of the neck 2 cms below the Injury No. 4. (v) A horizontally placed stab injury of 2 x 1 cms x muscle deep present on the back of the neck below the above two injuries. (vi) An obliquely placed stab injury of 2 x 1 cms into muscle deep present on the back of the neck 2 cms below the Injury No. 4. (vii) A horizontally placed stab injury of 2 x 1 cms into muscle deep present on the back of the neck below the above injury. (viii) A horizontally placed stab injury of 1 x 1 cms into muscle deep present on the back of the neck adjacent and below the above injury. (ix) A horizontally placed stab injury of 2. 5 x 1. 5 cms into bone deep present on the back of the neck in the midline 1 cm the Injury No. 7. (x) A horizontally placed stab injury of 2 x 1 cms into muscle deep present on the back of the neck adjacent and right to the above injury. (xi) A horizontally placed stab injury of 2 x 1 cms into muscle deep present on the back in the inter scapula region in the midline 4 cms below the above injury. (xii) A horizontally placed stab injury of 1 x 1 cms into skin deep present adjacent and the right of the above injury. (xiii) A horizontally placed stab injury of 1 x 1 cm into skin deep present adjacent and 1 cm right to the above injury. (xiv) A horizontally placed stab injury 3 x 1 cms into muscle deep present can below the above two injuries. (xv) A horizontally placed stab injury of 2 x 1 cms into muscle deep present adjacent and to the right of the above injury. (xvi) A horizontally placed stab injury of 2. 5 cm 0. 5 cm into muscle deep present below the lateral end of the injury No. 14 (xvii) A horizontally placed stab injury of 2 x 1 cm into muscle deep present below the medial end of the above injury. (xviii) A horizontally placed stab injury of 1 x 1 cm into muscle deep present adjacent and to the left of above injury in the midline. (xix) A horizontally placed stab injury of 1 x 1 cm into muscle deep present adjacent and to the left of the above injury. (xx) A slash injury of 3 x 0. (xviii) A horizontally placed stab injury of 1 x 1 cm into muscle deep present adjacent and to the left of above injury in the midline. (xix) A horizontally placed stab injury of 1 x 1 cm into muscle deep present adjacent and to the left of the above injury. (xx) A slash injury of 3 x 0. 5 cms into skin deep present behind the right ear. The injury was tailing towards downwards. (xxi) A vertically placed incised injury of 1 x 1 cms muscle deep present on the back of the left fore arm with failing towards upwards and the injury is placed 3 cms below the elbow. According to him, the cause of death was due to stab injuries to heart and lungs. ( 8 ) EX. P-1, the complaint is lodged by pw-2. It was recorded by the Sub-Inspector of Police, PW-12 at 5-30 p. m. , on 27-12- 2001. As per this Ex. P-1, PW-2 got information about the deceased lying dead at the house of PW-10, where they were tenants, PW-2 and PW-3, her mother-in- law went and found the door locked from outside and they saw the deceased lying in a pool of blood in the bed room through windows. It is also mentioned in Ex. P-1 that they came to know that one Rajesh raju, friend of the accused came to the house of the accused in the morning. Thus, according to the FIR, which is recorded by a Police Officer, PW-12, even by 5-30 p. m. , the doors of the house, where the deceased was lying, were locked. The evidence of pw-12, the Sub-Inspector of Police is that at 5-30 p. m. , PW-2 came to the Police station and he recorded her statement, which is Ex. P-1. Thus, there is absolutely no dispute that Ex. P-1 was recorded at 5-30 p. m. , and on the basis of this Ex. P-1 it has to be held that upto 5-30 p. m. , the door was not opened. The evidence of PW-13, CI of police is that he proceeded to the scene at 5. 45 p. m. , and got the door broke open. ( 9 ) THE evidence of PW-1 is that at 2-00 p. m. , she found the deceased lying dead and the door of the house was locked from outside. The evidence of PW-13, CI of police is that he proceeded to the scene at 5. 45 p. m. , and got the door broke open. ( 9 ) THE evidence of PW-1 is that at 2-00 p. m. , she found the deceased lying dead and the door of the house was locked from outside. The evidence of PW-2 is that at 3-30 p. m. , they learnt about the death of the deceased, went to the house and saw the deceased laying dead in the room. By the time they went, police were already there and they have already broke open the lock. This is what she has stated in her chief-examination, itself. Thus, this evidence of PW-2 is against what she has stated in ex P-1. The evidence of PW-9, lock-smith, who broke open the door, is that at about 10-00 a. m. , he opened the door. He was declared hostile. In his cross-examination he has stated that he did not remember whether he opened the door at 6-30 p. m. The evidence of PW-10, the house owner is that pw-1 informed her at about 2-00 p. m. , about the deceased lying dead. They went and infonned the same to a Constable residing in the first floor of the same house, who went and fetched the police by 2-30 p. m. The police got the lock put to the door broke open. Thus the evidence of PWs. 2 and 10, who are not even declared hostile shows that by 2-30 p. m. , the police were present and by then the door was also broke open. As per Ex P-5, the panchanama of scene of offence was conducted at 6-40 p. m. , and the police got the door broke open, at that time. Thus, there is total inconsistency in the prosecution evidence with regard to Ex P-l complaint; the time when the door was broke open and the time when Ex P-l was given. If by 2-30 p. m. , the police already reached the scene and Ex P-l was given at 5-30 p. m. , three hours after the arrival of the police, it becomes inadmissible. This Ex P-1 reached the Court at 1-30 a. m. , on 28-12-2001, that is again eight hours after it was recorded by the police. If by 2-30 p. m. , the police already reached the scene and Ex P-l was given at 5-30 p. m. , three hours after the arrival of the police, it becomes inadmissible. This Ex P-1 reached the Court at 1-30 a. m. , on 28-12-2001, that is again eight hours after it was recorded by the police. The delay is not explained and in all probability, Ex P-1 might have been recorded much earlier, as by 2-30 p. m. , the police reached the scene, as a Police constable, who was available, as a tenant in the same house, as per the evidence of pw-10, went to the Police Station and reported the matter. The Police Station is half-a-kilometer away only and it is in city, there is no transportation problem. The above inconsistencies i. e. , time of lodging the complaint, time of breaking open the lock, time of presence of the police at the scene, create a great suspicion against the prosecution case. On account of inconsistency with regard to the time of getting the lock of the house opened, it becomes doubtful whether the house was really locked from outside. ( 10 ) NOW coming to the recovery of material objects at the instance of the accused - PW-11, who is a panch for recovery is an Advocate. The learned Public prosecutor contends that there is no reason to disbelieve the evidence of PW-11 a respectable person. The evidence of this pw-11 is that on 30-12-2001 at about 4. 30 p. m. , when he was going in front of L. B. Nagar Police Station, a Constable stopped him and called him to the Police Station. When he went there, the accused and another panch witness were present. The accused made a confession and in pursuance of the same, the accused produced a key from his pocket, which was seized under panchanama. The accused lead them and the police to the electrical shop, the accused himself opened the shop, went inside and produced a polythene bag and handed over the same to the police, from which a bloodstained banian, drawer and knife were seized. In his cross-examination, he stated that he was returning from hayatnagar, when the police called him. The accused lead them and the police to the electrical shop, the accused himself opened the shop, went inside and produced a polythene bag and handed over the same to the police, from which a bloodstained banian, drawer and knife were seized. In his cross-examination, he stated that he was returning from hayatnagar, when the police called him. The evidence of PW-13, the Investigating officer is that for a person travelling from city to Hayatnagar, there is no necessity to pass through the Police Station. On the basis of this, the learned Senior Counsel contends that this witness was, in fact, not present; but his signature was subsequently obtained. We are not inclined to give much weight to this circumstance to disbelieve the evidence of PW-11 about his being called to the Police Station for the purpose of panchanama; but there are other circumstances to show that probably the evidence of this witness is incorrect. PW-5 is an adjacent shop owner of the accused. He stated that at about 4 -00 p. m. , he went to see the dead body of the deceased. The accused was there and police were also there. This witness was not declared hostile. When the accused was there at the dead body at 4. 00 p. m. , it is not known as to why the accused was not apprehended immediately and the key etc. , were not recovered from him. The evidence of PW- 13, the CI of Police is that on 30-12-2001 the ID party apprehended the accused and brought him to the Police Station. In view of the evidence of PW-5, this evidence of pw-13 that ID party police apprehended the accused on 30-12-2001 becomes doubtful and on account of all this the evidence of pw-11 cannot be safely relied upon. ( 11 ) NOW, coming to the time of death, as per the charge, the deceased was killed at 8-00 a. m. PW-13, the Investigating officer says that as per their investigation, the offence was committed at 9-40 or 10- 00 a. m. The evidence of the Medical officer, who conducted autopsy, is that the approximate time of death was twenty-four hours prior to post-mortem. Post-mortem was held between 11-15 a. m. , and 12-30 p. m. , on 28-12-2001 i. e. , next day of the offence. Post-mortem was held between 11-15 a. m. , and 12-30 p. m. , on 28-12-2001 i. e. , next day of the offence. Twenty-four hours prior to the post- mortem examination would be something like 12-00 noon of the previous day. PW- 1 s evidence is that she saw the deceased alive at about 11-00 a. m. , and at about 2-00 p. m. , she found the deceased dead. That means, the deceased might have died, somewhere between 11-00 a. m. , and 2-00 p. m. , may be around 12-00 noon. Thus, the prosecution evidence is inconsistent even with regard to time of the death of the deceased; no doubt this has no great bearing on the case. However, the learned Senior counsel contends that prejudice is caused to the accused, as the charge shows that the offence was committed at 8-00 a. m. We are not inclined to give much weight to this circumstance. ( 12 ) IN the light of the above inconsistencies in the prosecution case, now, it has to be seen whether the accused, himself, was responsible for the death of the deceased. As already referred, there is no dispute about the accused being in the house that night and his case is that he left the house in the morning at 9-00 a. m. , to the shop. There appears to be no dispute about this fact that the accused went to open the shop at 9-00 a. m. , and the death occurred on that day around 12-00 noon. It is not impossible for the accused to come home after he went to the shop, commit the offence and again go back to the shop. But, there is no evidence to show that in between he came home. PWs. 1, 4 and 10, the neighbours or any one else did not say about the accused coming home in between. PW-4 stated that she returned home around 2-00 p. m. , from the college. As such there was no possibility for her to see whether the accused came home earlier. It is also possible that the accused came home and pws. 1, 4, 10 and other neighbours have not noticed his presence there. But it is for the prosecution to establish that the accused has come home in between. The learned trial Judge observed that in Section 313 cr. It is also possible that the accused came home and pws. 1, 4, 10 and other neighbours have not noticed his presence there. But it is for the prosecution to establish that the accused has come home in between. The learned trial Judge observed that in Section 313 cr. P. C. statement the accused has stated that he went to shop at 8-00 a. m. , and opened his shop, at 1-30 p. m. ; as such the evidence of PW-5, who stated that the accused was at the shop upto 1-00 p. m. , is false. But a reading of Section 313 Cr. P. C. statement of the accused reveals that he went out at 8-00 a. m. , from home, opened his shop, at 1-30 p. m. , he went to Market. Thus, what he has stated is that upto 1-30 p. m. , he was in the shop. ( 13 ) IN Ex. P-1 there is a reference to a stranger coming to the house in the morning. PW-2 stated that they came to know that one Rajesh Raju a friend of the accused came to the house of the accused in the morning. It is not known as to why the name of this Rajesh Raju is mentioned in ex. P-1. Whether the prosecution wanted to say that the accused killed the deceased with the help of this Rajesh Raju or that rajesh Raju killed the deceased. When the name of Rajesh Raju was found in ex. P-1, obviously he was known to the persons around; but no efforts are made to examine this Rajesh Raju. Even regarding the time of his visit to the house of the accused, simply it is stated "morning". Thus, there is material to show that the accused and the deceased being together that night and thereafter the accused going out but, there is no material to show that immediately before the death of the deceased, the accused was at his residence to say that he alone is responsible for the death of the deceased. ( 14 ) THE learned Public Prosecutor contends that the door of the house was locked from outside, it was broke open by the police and the key was recovered from the accused, which would show that the accused, himself, killed the deceased, locked the door and went away. ( 14 ) THE learned Public Prosecutor contends that the door of the house was locked from outside, it was broke open by the police and the key was recovered from the accused, which would show that the accused, himself, killed the deceased, locked the door and went away. As already referred, when actually the door was broke open is not clear. There is inconsistency with regard to the breaking open of the door. It is doubtful whether the door was locked from outside. The natural conduct would have been not to lock the door from outside, in case, the accused has killed the deceased, as that would fix him ruling out possibility of any one else coming into the house. The learned trial Judge held that the fact of the door being locked from outside is amply established by the evidence of pws. 1 to 4 and 9, but, for the reasons discussed, we are not inclined to accept that the prosecution has conclusively proved that the door was locked from outside. The observation of the learned Judge that when the accused went out of the house, with his wife inside, there is no necessity for him to lock the house from outside, the very fact of putting a lock after killing his wife gives scope for any amount of suspicion is unsustainable. First of all, there is no proof of the accused locking the door from outside and it is not as if, it is conclusively proved that he killed the wife, to say that putting lock after killing the wife would give rise to suspicion. The intention of the trial Judge might be that locking the door from outside, when the wife was lying dead inside would give rise to suspicion; but as repeatedly observed there is no material to show that the accused locked the door and that he so locked the door after knowing that his wife was lying dead inside. In case it is proved that the accused closed the door knowing that his wife was lying dead inside, it can be conclusively held that the accused killed the deceased. In case it is proved that the accused closed the door knowing that his wife was lying dead inside, it can be conclusively held that the accused killed the deceased. Further observation of the learned Judge that "it was for the accused to prove that when he came out of the house leaving his wife inside and if he does not know who killed his wife and then after coming to know about it, he should have given report and informed his relatives, but that he did not do the same, are also incorrect, as it is the case of the accused that he was not at all present and he was not the first person to know about the death of the deceased. There is absolutely no evidence to show that the accused was the first person to know about the death of the deceased and, in fact, it was not proved by the prosecution at all. The finding of the learned Judge that if some unknown person entered the house and killed his wife for gain, there was no need to put lock and even the keys must be with that unknown person; but, in this case the claim that the keys were recovered from the accused also cannot be supported, as it is not established beyond doubt that the house was found locked and the key was recovered from the accused, though the observation that a stranger that killed the deceased would not have locked the door from out side is correct. The recovery of key from the accused is also disbelieved by us. Such being the case, there is any amount of scope for any one else to come to the house of the accused in his absence and kill the deceased. In support of his contention, the learned Senior Counsel appearing for the accused relied on a decision of the supreme Court in Dasari Siva Prasad reddy v. Public Prosecutor, High Court of A. P. , 2004 AIR SCW 5068. In that case, the accused was found at home at about 6-30 a. m. , when the deceased died and, he, himself, went and informed the brother of the deceased staying in the same town and brought him, saying that the deceased met with suspicious death. In that case, the accused was found at home at about 6-30 a. m. , when the deceased died and, he, himself, went and informed the brother of the deceased staying in the same town and brought him, saying that the deceased met with suspicious death. Still the Hon ble Supreme Court held that it cannot positively be said that the accused, himself is responsible for the death of the deceased. In Paragraphs 24 and 25 of the judgment, the Hon ble Supreme Court held that: "however, there is one circumstance which is suggestive of the strong possibility of the presence of the accused at his house. As per PW3 s evidence which was believed by the trial Court, the appellant contacted him in the morning at 6 a. m. and brought PW-3 to his house giving a hint that something untoward happen to his sister (i. e. , the deceased ). Added to this, the accused, in the normal course, is expected to be at his house in that night. However, these factors need not give rise to an irresistible inference that the accused remained in the house in the previous night and the accused alone must have been responsible for the murder. At best, it can be said that the view taken by the trial Court is not the only possible view. But, that is not enough to reverse the acquittal. A strong suspicion, no doubt, exists against the appellant, but such suspicion cannot be the basis of conviction going by the standard of proof required in a criminal case. The distance between may be true and must be true shall be fully covered by reliable evidence adduced by the prosecution. But, that has not been done in the instant case. If, coupled with the circumstance unfolded by the evidence of PW-3, the evidence of PW-4 had been believed, it would have gone a long way in substantiating the prosecution case. But, in the instant case, apart from the fact that the appellant was at his house, on the morning of 20th April, 1996, there is no other circumstance whatsoever which connects the accused to the crime, though serious suspicion looms large about his involvement. But, in the instant case, apart from the fact that the appellant was at his house, on the morning of 20th April, 1996, there is no other circumstance whatsoever which connects the accused to the crime, though serious suspicion looms large about his involvement. The view taken by the trial Court that the prosecution could not establish the complete chain of circumstances incriminating the accused is a reasonably possible view and the High Court should not have disturbed the same. Having regard to the state of available evidence, the benefit of doubt given to the accused by the trial Court warranted no interference by the High Court. " it has to be held that the accused alone is not responsible for the death of the deceased. ( 15 ) THE learned Public Prosecutor relied on a decision of the Hon ble Supreme Court in State of U. P. v. Dr. Ravindra Prakash mittal, AIR 1992 SC 2045 . In this case, the wife died of burnings. The evidence established that both of them were in one room throughout the night. There was evidence for motive. In these circumstances, the Hon ble Supreme Court held that the accused is responsible for the death of the deceased. In view of the former decision of the Supreme Court referred above, we are not inclined to accept the contention of the learned Public Prosecutor that on the basis of the principle laid down in State of U. P. (supra), accused has to be found guilty of the offence and the prosecution case is proved against the accused. ( 16 ) THE injuries found on the deceased, as many as twenty-one in number, would also show that probably the aggrieved husband would not have caused so many injuries. Only an enraged husband, who has a feeling that his wife had an affair or she did anything drastic, might have caused so many injuries; but no husband, who has a complaint of a suit from his in-laws place and such other small things. Admittedly, five tolas gold and cash of Rs. 11,000. 00 at the time of marriage and subsequently another sum of Rs. 7,000. 00 were given to the accused by in-laws. ( 17 ) IN the circumstances, we hold that the prosecution case against the accused is not proved beyond reasonable doubt. Admittedly, five tolas gold and cash of Rs. 11,000. 00 at the time of marriage and subsequently another sum of Rs. 7,000. 00 were given to the accused by in-laws. ( 17 ) IN the circumstances, we hold that the prosecution case against the accused is not proved beyond reasonable doubt. There was ample opportunity for any body to enter the house and commit murder. Accordingly, we allow the appeal and set aside the conviction and sentence imposed on the appellant-accused by the learned Principal sessions Jude, Ranga Reddy District at L. B. Nagar in S. C. No. 608 of 2002. ( 18 ) IN the result the appeal is allowed. The conviction and sentence imposed on the appellant-accused by the learned principal Sessions Judge, Ranga Reddy district at L. B. Nagar, Hyderabad in S. C. No. 608 of 2002 are set aside. The appellant- accused, Keerthi Kumar Modanl son of chandulal Modani R/o L. B. Nagar, hyderabad, shall be set at liberty forthwith if he is not required to be detained in any other case.