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Andhra High Court · body

2006 DIGILAW 295 (AP)

Kocherla Veeraswamy v. State Of A. P.

2006-03-03

K.C.BHANU

body2006
( 1 ) THE present appeal is preferred by the appellant-accused aggrieved by the conviction and the sentence imposed by the learned District and Sessions Judge, Ongole, prakasam Division, in Sessions Case No. 169 of 2002 on 24-5-2004 for the offence punishable under Sections 302 and 201 IPC. ( 2 ) THE facts in brief are as follows: one Kocherla Grace Sunitha (hereinafter referred to as the deceased) was the wife of the accused and their marriage was performed about 14 years ago and they have been residing at Nirma! Nagar, Ongole in a rented house along with their children. The accused having addicted to all vices like drinking and debauchery started harassing the deceased for the last few years. While so, on the interventing night of 31-12-2000 / 1-1-2001 when the deceased along with her children went to the Church to offer prayers on the eve of new year s day, the accused having decided to kill the deceased went to the Church, where the deceased and his children were present and forcibly took them to his house in a hurried manner and later, the deceased and the accused went into their room separately, where the clash took place between them and consequently, the deceased was killed by strangulation. The accused informed his son (P. W. 2) that the deceased was not feeling well and later, with a view to screen away the evidence, the accused with the help of kalintha Nepolean, Kalintha Sudheer Babu, p. W. 7, Kocherla Adinarayana, Kocherla suryanarayana and Yennabathina chenchuramaiah shifted the dead body of the deceased to Maddipadu village, which is the native place of the accused and while making the arrangements to dispose of the dead body of the deceased, one Kalentha sudheer Babu informed P. W. 1 that the deceased was in serious condition. On that p. W. 1, P. W. 3 and others rushed to maddipadu and observed the ligature mark around the neck of the deceased. Meanwhile the accused fled away from there. ( 3 ) ON receipt of the complaint, a case in crime No. 1 of2001 under Section 174 Cr. P. C. was registered in the first instance and investigated into. During the course of investigation, inquest as well as post mortem examination were held over the dead body of the deceased. Meanwhile the accused fled away from there. ( 3 ) ON receipt of the complaint, a case in crime No. 1 of2001 under Section 174 Cr. P. C. was registered in the first instance and investigated into. During the course of investigation, inquest as well as post mortem examination were held over the dead body of the deceased. After completion of the investigation, the charge-sheet has been filed for the offences under Section 498-A, 302 and 201 IPC. ( 4 ) AFTERFILING the charge-sheet, the learned iii Additional Munsif Magistrate, Ongole, committed the same to the Court of Sessions, ongole. The learned Sessions Judge registered the same as a Sessions Case and framed the charges against the accused, read over and explained to him and the accused pleaded not guilty. ( 5 ) THE charges leveled against the appellant-accused read as follows:"on the intervening night of 31 -12-2000/ 1-1-2001 at Khadder Office Road, nirmal Nagar, Ongole, the accused did commit murder by intentionally causing the death of his wife Kocherla Grace sunitha, aged 35 years by strangulation and thereby committed an offence punishable under Section 302 IPC. ""on the same day, at the same time and place and during the same transaction as mentioned in charge No. 1, the accused having caused the death of his wife Kocherla Grace Sunitha (deceased), knowingly gave false information to his son Kotcherla nepolean that deceased was not feeling well and later with the intention of screening himself from legal punishment shifted the dead body of his wife to his native place Maddipadu village and thereby committed an offence punishable under Section 201 IPC. " ( 6 ) IN order to substantiate its case, the prosecution in all examined P. Ws. 1 to 18 and got marked Exs. P-1 to P-40. Aftercompletion of the prosecution evidence, the accused was subjected to examination under 313 cr. P. C. by putting incriminating circumstances found against him in the evidence of the prosecution witnesses. The plea of the accused is of total denial. No evidence either oral or documentary was adduced on behalf of the appellant-accused. ( 7 ) ON appreciation of oral and documentary evidence, the Court belowfound the appellant-accused guilty of the offence under Section 302 and 201 IPC and convicted and sentenced him to suffer life imprisonment and also to pay a fine of Rs. No evidence either oral or documentary was adduced on behalf of the appellant-accused. ( 7 ) ON appreciation of oral and documentary evidence, the Court belowfound the appellant-accused guilty of the offence under Section 302 and 201 IPC and convicted and sentenced him to suffer life imprisonment and also to pay a fine of Rs. 1000/- in default, to undergo simple imprisonment for a period of two months under the first count and to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs. 1000/- in default to undergo simple imprisonment for two months under the latter one. Having aggrieved by the same, the appellant- accused preferred the present appeal. ( 8 ) HEARD Smt. A. Gayathri Reddy, the learned counsel representing Sri M. Subba reddy, the learned Counsel for the appellant- accused and the learned Public Prosecutor appearing for the State. ( 9 ) THE learned Counsel appearing for the appellant has argued that P. W. 2, who is the son of the appellant and the deceased, was present at the time of the incident, but he did not speak anything as to the commission of offence and except the evidence of P. W. 2, there is no other material evidence on record and that the medical evidence also does not support the case of the prosecution. It is further contended that the judgment under appeal is only on conjectures and surmises and as such, a conviction cannot be based on mere surmises in the absence of any direct evidence adduced by the prosecution. Hence, the conviction and the sentence imposed against the appellant-accused, are liable to be set aside. ( 10 ) ON the other hand, the learned Public prosecutor contended that the deceased was last seen in the company of the accused by p. W. 2 and in such a case, it is the accused who is responsible for the commission of the offence and therefore, the accused is not even entitled to the benefit of doubt. ( 11 ) PERUSED the material available on record and the judgment under appeal. ( 12 ) AT the very outset, let us examine the cause of the death of the deceased. In this regard, the evidence of P. W. 13, Medical officer, who issued Ex. P-15-post-mortem certificate, P. W. 9 to 11-inquestdars to ex. P-18-lnquest Panchanama, is relevant for consideration. ( 12 ) AT the very outset, let us examine the cause of the death of the deceased. In this regard, the evidence of P. W. 13, Medical officer, who issued Ex. P-15-post-mortem certificate, P. W. 9 to 11-inquestdars to ex. P-18-lnquest Panchanama, is relevant for consideration. ( 13 ) P. W. 13-MEDICAL Officer, who conducted post-mortem examination over the dead body of the deceased, found the following injuries on the dead body of the deceased:external: 1. 4" x 2" obliquely placed abrased contusion of the right side of the neck. Erosion of the skin around the neck. Preserved for Histo Pathological examination. 2. Abrased contusion from the angle of mandible to right ear on right side 4" x 2". Internal: skull - No fracture. Brain normal size, cut section congested. Hyoid preserved. Ribs no fracture. Lungs normal size, cut section congested. Heart normal size, Cut section congested. Intestines distended with gas. Bladder empty. Pelvis no fracture. Spinal column normal. Ex. P-16-final opinion of the medical officer clearly goes to show that the deceased died due to strangulation. In his cross-examination, he admitted that in case of strangulation, lungs will be surfaced and that if ornaments are removed from the dead body, there will be scratches over the dead body. But, he deposed in his evidence that he did not mention as to the condition of the lungs. Except giving a bald opinion that the deceased died due to strangulation, the modus operandi that has been applied, has not been suggested by him for strangulation. In this regard, it is also pertinent to note that the investigation has not evinced any interest in ascertaining the fact as to the material object that has been used for commission of the offence. The Medical Officer has further made it clear that in case of strangulation, there may bef racture of hyoid bone. But, coming to the recitals in Ex. P-15-post-mortem certificate, the hyoid bone was found intact. He deposed that he is not an expert in Histo pathological examination. ( 14 ) THUS, the evidence of the medical offic er leads to raise a doubt crept in the mind of the Court as to the cause of the death of the deceased. But, coming to the recitals in Ex. P-15-post-mortem certificate, the hyoid bone was found intact. He deposed that he is not an expert in Histo pathological examination. ( 14 ) THUS, the evidence of the medical offic er leads to raise a doubt crept in the mind of the Court as to the cause of the death of the deceased. Apart from that, in view of the failure to recover any material object and also in view of the failure to elicit the nature of the material object in the medical evidence, with which, the strangulation could be possible, we feel that it is very difficult to conclude that the deceased died due to strangulation in view of wobbly evidence of the medical officer. ( 15 ) THE evidence of P. Ws. 9 to 12-inquest mediators and Ex. P-18-inquest panchnama is silent as to their opinion in regard to the death of the deceased. P. Ws. 9 to 12 turned hostile and they did not support the version of the prosecution. ( 16 ) NOW, let us examine as to whether the accused is responsible for the death of the deceased. ( 17 ) IT is the case of the prosecution that the accused having addicted to vices, used to harass the deceased and on the date of incident, when the deceased along with her children was in Church, the accused went to church and took them to his house in a hurried manner and later, the deceased and the accused went into their room, where an altercation took place and consequently, the deceased was killed by strangulation. ( 18 ) IN this regard, we have to examine the veracity of the prosecution witnesses. ( 19 ) P. W. 1, who is the brother of the deceased, deposed that the brother of the accused informed him over telephone that the deceased was in a serious condition and then, himself and his parents went to maddipadu. He further deposed that when he enquired the children, they disclosed that the accused informed them that their mother was serious. He further deposed that when he enquired the children, they disclosed that the accused informed them that their mother was serious. ( 20 ) EVEN if the evidence of P. W. 1, who is no other than the brother of the deceased is taken into consideration, he did not state anything about P. W. 2, who is no other than the son of the deceased informing him about the overt acts of the accused in causing the death of the deceased. Apart from that, he did not even state anything as to the conduct or attitude or character of the accused to draw any inference in that regard. In this view of the matter, we feel that the evidence of p. W. 1 is of no help to the case of the prosecution. ( 21 ) NOW, there remains the only alleged eye witness to the occurrence viz. , the evidence of P. W. 2. He stated that on the date of incident, while himself, his mother and two brothers were in the Church, his father- accused came there and took them back to the house and after coming to the house, he slept along with his brothers. On the next day, at 8. 00 a. m. , the accused woke up and asked them to get ready to go to the Church. Then, his father (accused) went to wake up the deceased. They all found the deceased body cold. Then, his father asked them to go to Maddipadu village saying that he would take the deceased to hospital. At about 11. 30 a. m. , on that day, his father brought his mother in a car to Maddipadu and then, he came to know that his mother died. ( 22 ) HIS cross-examination goes to show that there were no disputes between the deceased and the accused and they were very cordial and the accused is bearing the expenditure of P. W. 2 and his brothers. Nothing has been elicited from his examination as to the conduct and vices of the accused. ( 22 ) HIS cross-examination goes to show that there were no disputes between the deceased and the accused and they were very cordial and the accused is bearing the expenditure of P. W. 2 and his brothers. Nothing has been elicited from his examination as to the conduct and vices of the accused. ( 23 ) EVEN on a perusal of the evidence of p. W. 2, there is no scope in any way to attribute any mala fides on the part of the accused and apart from that, there are bona fides on the part of the accused in sending the children to his native village when the deceased was found dead. ( 24 ) P. W. 4, who is no other than mother of the deceased, deposed that they received a phone call from the brother of the accused stating that the deceased was in serious condition and then, she along with her husband and children went to Maddipadu and found the dead body of her daughter lying. She also deposed that the deceased used to inform her that the accused was having bad habits. Except saying so, she did not speak anything as to the attitude and conduct of the accused towards her daughter. It could be elicited from the evidence of p. W. 3 that the deceased used to suffer from fits. Thus, the evidence of P. W. 3, is of no help to the case of the prosecution inasmuch as she is neither an eye witness to the occu rrence nor she deposed anything adversely as to the conduct and character of the accused. ( 25 ) P. WS. 4 to 8 turned hostile and they did not support the version of the prosecution. However, they all stated that the accused was present till the dead body was cremated. This version of these witnesses falsifies the case of the prosecution that the accused fled away immediately after the incident. ( 26 ) IT is well settled that a conviction cannot be based on mere surmises and conjectures. Even there are no such circumstances or any evidence leading to draw any such inference against the accused. This version of these witnesses falsifies the case of the prosecution that the accused fled away immediately after the incident. ( 26 ) IT is well settled that a conviction cannot be based on mere surmises and conjectures. Even there are no such circumstances or any evidence leading to draw any such inference against the accused. ( 27 ) IN the facts and circumstances of the case and in view of the evidence of P. W. 2, who is no other than the son of the deceased and the accused and in view of the shaky evidence of the medical officer and in view of the failure to seize the modus operandi, we feel that the Court below has failed to consider all these aspects and therefore, the Court below is not justified in convicting the accused. ( 28 ) HENCE, We have no hesitation to hold that the accused is not guilty of the charges levelled against him and thereby, he is entitled to be acquitted under Section 235 (1) Cr. P. C. ( 29 ) IN the result, the conviction and the sentence imposed by the learned Principal district and Sessions Judge, Ongole, prakasam District against the appellant- accused for the offences under Sections 302 and 201 IPC in Sessions Case No. 169 of 2002, on 24-5-2004, are hereby set aside and the appellant-accused is acquitted of the said charges. ( 30 ) HENCE, the appellant-accused shall be set at liberty forthwith, if he is no longer required in any crime. ( 31 ) FINE amount, if any paid by the appellant-accused, shall be refunded after expiry of statutory period. Accorongly, the Criminal Appeal is allowed.