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2006 DIGILAW 824 (AP)

Koppisetti Satyanarayana v. State Of A. P.

2006-07-13

A.GOPAL REDDY, G.YETHIRAJULU

body2006
J U D G M E N T (per the Hon’ble Mr.Justice A. Gopal Reddy) The sole accused in S.C.No.33 of 2004 on the file of VI Additional Sessions Judge, Rajahmundry preferred this appeal against the judgment of the said court dated 29-03-2005 convicting him for the offence under Sections 302 and 380 IPC and sentencing him to suffer imprisonment for life for the offence under Section 302 IPC and two years rigorous imprisonment for the offence under Section 380 IPC. 2. The prosecution version as unfolded during trial is essentially as follows: The accused is the husband of the deceased -Koppisetti Ganga. Kudupudi Venkata Rao-P.W.1 is the brother; Kudupudi Tirupathamma-P.W.2 is the mother and Kuppisetti Durga-P.W.3 is the daughter of the deceased. The accused, who is the native of Panduru village, was living with his wife at Anaparthi. The deceased earlier married one Ramana of Jaddangi and blessed with one female child-P.W.3 through him, but due to differences separated with him and got married the accused who is working as coolie. The deceased and the accused used to quarrel with each other for money. On 22-07-2003 the deceased, accused and children were slept inside the house and P.W.2 alone slept out side the house after taking their dinner. On the next day i.e.23-07-2003 morning when P.W.2 woke up, P.W.3 informed her that she did not find the deceased; then P.W.2 went inside the house and found the deceased was in the kitchen covered with a bed sheet and rope was tighten to her neck. Later she send the said information to P.W.1, who in turn informed to the Panchayat Secretary-P.W.11. P.W.14 who received a report from P.W.11 registered a case in Cr.No.89 of 2003 for the offence under Section 302 IPC and 379 IPC and issued FIR-Ex.P13. On issuing the FIR, the Circle Inspector of Police-P.W.15 visited the scene of offence, drafted the observation report, conducted inquest over the dead body of the deceased, examined PWs 1 to 7 and sent the dead body to postmortem examination. P.W.12-Civil Assistant Surgeon, Area Hospital, Ramachandra Puram, who conducted autopsy over the dead body of the deceased on 24-07-2003, opined that cause of death may be due to Asphyxia, due to pressure over the front of the neck and accordingly issued Ex.P 11-postmortem certificate. On 22-10-2003 the accused himself surrendered before the Additional Judicial First Class Magistrate, Ramachandrapuram. P.W.12-Civil Assistant Surgeon, Area Hospital, Ramachandra Puram, who conducted autopsy over the dead body of the deceased on 24-07-2003, opined that cause of death may be due to Asphyxia, due to pressure over the front of the neck and accordingly issued Ex.P 11-postmortem certificate. On 22-10-2003 the accused himself surrendered before the Additional Judicial First Class Magistrate, Ramachandrapuram. P.W.15 got recorded the confessional statement of the accused in the presence of the mediators. Basing on which, M.Os.1 to 3-gold ornaments belonging to the deceased were recovered from the accused. The police after completion of the investigation laid the charge sheet. 3. The accused pleaded not guilty and claimed for trial. 4. In order to prove the case of the prosecution, P.Ws.1 to 15 were examined and marked Exs.P1 to P14 and M.Os.1 to 3. No oral or documentary evidence was let in on defense side. 5 The learned Sessions Judge after going through the entire evidence adduced by the prosecution convicted the appellant for the offence under Sections 302 and 380 IPC, referred to above, and sentenced him to imprisonment for life for the offence under Section 302 IPC and also to pay a fine of Rs.500/-, in default to suffer rigorous imprisonment for three months and further sentenced to suffer rigorous imprisonment for two years for the offence punishable under Section 380 IPC and also to pay a fine of Rs.500/-, in default to suffer simple imprisonment for six months. The learned Sessions Judge held that both the sentences shall run concurrently. 6. The accused being aggrieved by the judgment dated 29-03-2005 preferred this appeal challenging the legality and validity of the sentence imposed by the lower court. 7. In support of the appeal, the learned counsel for the appellant submitted that the lower court erred in relying on interested witnesses and in spite of discrepancy in the testimony of P.Ws.1 to 3 and 5 to 7. 7. In support of the appeal, the learned counsel for the appellant submitted that the lower court erred in relying on interested witnesses and in spite of discrepancy in the testimony of P.Ws.1 to 3 and 5 to 7. The prosecution miserably failed to establish about the accused shifting to Anaparthi village and living with the deceased, particularly when the appellant filed O.P.No.155 of 1999 for restitution of conjugal rights wherein a decree was passed in favour of the accused and in spite of the same, the deceased did not join the company of the accused, therefore, the accused filed O.P.No.150 of 2000 for granting divorce which was allowed itself improbablises that in spite of obtaining divorce he joined the company of the accused. In the absence of eye-witness to the incident, the lower court erred in convicting the accused only on the testimony of P.Ws.1 to 3 interested witnesses, whereas divorce decree obtained rule out the possibility of the presence of the accused in the house. 8. Per contra, learned Additional Public Prosecutor contends that P.Ws.1, 2 and 3-brother, mother and daughter of the deceased respectively stated that the deceased and the accused along with the children slept inside the house after taking their dinner and in the morning P.W.3 found absence of the deceased and the same was informed to P.W.2 and later they found the deceased in the kitchen covered with a bed sheet and rope tighten to her neck; almyrah was opened and some title deeds-Indira Vikasa Patras, Post Office Deposits and gold ornaments which were kept in the almyrah were missing apart from cycle. On the confessional statement of the accused gold ornaments were recovered from his house, which were identified to that of deceased. In view of the same, lower court rightly convicted the accused, which do not require any interference. 9. In the light of contentions raised, the point that arises for consideration is: “Whether the prosecution proved the guilt of the accused beyond reasonable doubt and whether the conviction and sentence imposed by the lower court are liable to set aside or modified?” 10. 9. In the light of contentions raised, the point that arises for consideration is: “Whether the prosecution proved the guilt of the accused beyond reasonable doubt and whether the conviction and sentence imposed by the lower court are liable to set aside or modified?” 10. The case being one which rests on circumstantial evidence, in the absence of eye witnesses who have seen the commission of offence, it has to be seen whether the evidence tendered by the prosecution is sufficient to bring home the guilt of the accused and whether the view taken by the lower court is a possible view and interference of this court is needed. 11. P. W.1 who is the brother of the deceased stated that the deceased got married sixteen years back to one Ramana and blessed one female child, viz., Durga-P.W.3 through him. The deceased after separation from her first husband (Ramana) got married the accused; initially they lived in Panduru village and subsequently shifted to Anaparthi village and used to quarrel with each other; frequently accused demanding money from the deceased for his expenses, as he addicted to alcohol. One morning at 7.30 A.M. his nephew-P.W.4 came to his house and informed that the deceased was died as a rope was tighten to her neck. On receiving such information he rushed to the house of the deceased and questioned his mother who is residing along with the deceased and also about the incident. His motherP.W.2 informed that all other persons except herself slept inside the house; P.W.3 woke up in the morning and found her mother missing, lying on the floor with nylon rope tighten to her neck and not responding on her call; on such information she went inside the house and found the deceased in the kitchen covered with a bed sheet and nylon rope tighten to the neck; she removed the rope with a hope that the deceased was alive. His mother further informed about missing of accused, cycle and other documents like Indira Vikasa Patrams in the house. In the cross-examination he stated that he do not know in which year the marriage of the deceased was performed; from how many years the deceased and the accused lived together in Panduru village, whether the deceased living with her mother separately from February, 1999 onwards and also about the O.P. filed by the accused and obtaining divorce decree. In the cross-examination he stated that he do not know in which year the marriage of the deceased was performed; from how many years the deceased and the accused lived together in Panduru village, whether the deceased living with her mother separately from February, 1999 onwards and also about the O.P. filed by the accused and obtaining divorce decree. The deceased also got money lending business and by virtue of the same she used to lend the money by executing pro-notes. P.W.2, the mother of the deceased stated that she is living with the deceased and after obtaining divorce from her husband-Ramana the deceased married the accused. She also stated that herself, deceased, accused and two children are residing in the house. On the date of death of the deceased, after taking dinner she slept out side the house. On the next day morning when she woke up, P.W.3her grand daughter informed that she did not find the deceased, T.V. and also opening of almyrah kept in the bed room. When she went inside the house she found that the deceased was covered with a bed sheet and rope was tighten to her neck. By close observation she came to know that the deceased died. On seeing the same she started crying loudly. On hearing the cries people came and later she sent the said information to P.W.1 through his grand son-P.W.4, after P.W.1 visited the house informed the same to the Panchayat Secretary, Anaparthi, P.W.11, who came to the residence and recorded their statements. By the time she went into the kitchen accused was missing. She also observed about missing of other articles, which were kept in almyrah. She admitted in the cross-examination that the accused filed O.P. for restitution of conjugal rights and denied the suggestion that the deceased did not join the accused in spite of granting decree in favour of the accused. She also admitted about accused filing divorce O.P., but she do not know about obtaining divorce by the deceased. She identified the articles-M.Os.1 to 3 as that of the deceased. P.W.3, the daughter of the deceased who first seen the deceased stated that herself, her brother, deceased-mother, her grand-motherP.W.2 and accused are residing in the house. She also admitted about accused filing divorce O.P., but she do not know about obtaining divorce by the deceased. She identified the articles-M.Os.1 to 3 as that of the deceased. P.W.3, the daughter of the deceased who first seen the deceased stated that herself, her brother, deceased-mother, her grand-motherP.W.2 and accused are residing in the house. On the date of death of the deceased at about 9.30 P.M. they had dinner and after switch off the T.V., P.W.2 slept outside the house; all others slept inside the house. When she woke up at 5.30 A.M., she did not find her mother and T.V., almyrah was opened, documents and gold ornaments were scattered. She went outside the house and informed P.W.2 about missing of her mother, scattering of documents and opening of almyrah. Immediately P.W.2 came inside the house and found the deceased in the kitchen covered with a bed sheet and tightened with rope to her neck. After removing such rope, herself and P.W.2 found that the deceased was no more, and when they raised cries, adjacent people came. Later they found that the title deeds of the house, documents relating to the post office deposits, ration card and gold ornaments, which are kept in the almyrah, are missing. P.W.4 informed about the incident to P.W.1 and on such information P.W.1 visited the house of the deceased. P.W.5 who resides opposite to the house of the deceased and P.Ws.6 and 7 who are neighbours to the deceased stated that the deceased and the accused frequently quarrel with each other for money. P.W.8, who is the divorced wife of the accused, stated that the accused is in the habit of suspicion, therefore, she left his company. P.W.9, who is a resident of Anaparthi and owns Vigneswara Jewellery, stated about weighing of gold mangalasuthrams, gold rupulu numbering 5, rold gold ear studs and silver anklets at the request of the police. P.W.10 is the photographer who took photographs of the dead body of the deceased. P.W.11, who is an ex-Panchayat Secretary, stated that basing on the statement of P.W.1-Ex.P1 he gave reportEx.P4 to the police and in his presence the accused made the confessional statement about committing of offence and taking away the gold ornaments, viz., mangalasutrams, gold rupulu, gold sacred chain and silver anklets, Indira Vikasa Patras worth Rs.20,000/- and went away to Samarlakota on cycle. Basing on the confessional statement of the accused he went to Panduru Village along with police staff on 02-11-2003 and recovered all the above said articles in the house of the accused from a pit situated adjacent house of the accused in Panduru. P.W.12 who conducted autopsy over the dead body of the deceased found eyes protruded, tongue protruded, blebs present all over the body, nylon rope present around the neck and also found thefollowing external injuries: Ligature mark present all around the neck. Thickness about 2 inches. Head & Neck: Scalp intact, skull intact. Brain liquefied. Dissection of neck: underneath the ligature mark shows congestion of the neck muscles, extras vesation of blood underneath the muscles present. Hyoid fractured. Opening of the chest: rib cage intact. Lungs are congested. Heart empty. Opening of the Abdomen: abdomen wall is in tact. Stomach contains cooked rice. All the organs are congested. Uterus present. Bladder contains 50 ml. of urine. Pelvic wall intact. Spinal card are intact. P.W.13 declared hostile. The Circle Inspector of Police-P.W.15 who investigated into the crime stated about conducting of inquest over the dead body of the deceased and sending the same to postmortem examination. On 22-10-2003 he came to know that the accused surrendered before the Additional Judicial First Class Magistrate, Ramachandra Puram and accordingly filed requisition in the court for the police custody of the accused and recovered the articles on his confessional statement. 12. According to P.W.2, P.W.3 informed that she did not find the deceased, T.V. and also observed opening of almyrah kept in the bedroom. On such information she went inside the house and found the deceased in the kitchen covered with a bed sheet; whereas P.W.3 stated that when she woke up in the morning she did not find her mother, T.V. and other articles are also missing. P.W.1 came to the spot basing on such information. Admittedly, none of them are eye witnesses, but only stated the circumstances in which deceased died. 13. It is settled that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence as laid down by the Courts. 14. P.W.1 came to the spot basing on such information. Admittedly, none of them are eye witnesses, but only stated the circumstances in which deceased died. 13. It is settled that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence as laid down by the Courts. 14. As early as in 1952 the Supreme Court in HARNUMANT GOVIND NARGUNDKAR v. STATE OF M.P(1) held as under: “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not be leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 15. In BHAGAT RAM v. STATE OF PUNJAB(2) it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 16. It has been consistently laid down by the Apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 17. In PADALA VEERA REDDY v. STATE OF A.P.(3) the Supreme Court laid down that when a case rests upon circumstantial evidence, it must satisfy the following tests: 1. 17. In PADALA VEERA REDDY v. STATE OF A.P.(3) the Supreme Court laid down that when a case rests upon circumstantial evidence, it must satisfy the following tests: 1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; 2. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; 3. the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and 4. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 18. In STATE OF U. P, v. ASHOK KUMAR SRIVASTAVA(4) the Supreme Court pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 19. The Supreme Court further in SHARAD BIRDHICHAND SARDA v. STATE OF MAHARASHTRA(5) laid down the conditions precedent, before conviction could be based on circumstantial evidence; one of such is “there must be a chain of evidence so complete as not be leave any reasonable ground or the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 20. The learned counsel for the appellant placed reliance on the judgment of the Supreme Court in DASARI SIVA PRASAD REDDY v. PUBLIC PROSECUTOR (6), wherein it was held that 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 P.W.3, the evidence of P.W.4 had been believed, it would have gone a long way in substantiating the prosecution case. But, that has not been done in the instant case. If, coupled with the circumstance unfolded by the evidence of P.W.3, the evidence of P.W.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 circumstances 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. 21. P.W.11, who gave police report in respect of death of the deceased and drafted the Mahazar under Ex.P7, showing the seizure of articles, referred to above, stated that articles which were said to have been missed were recovered from the house of the accused. The prosecution has not explained what happened to Indira Vikasapatrams said to have been discovered and also cycle, mangalasuthrams and gold rupulu; whereas Ex.P9-Mediator’s report indicates recovery of two gold sutrams and Ex.P10-Identification report indicates recovery of gold traits of Varalakshmi idols, one pair of silver anklets and Mangala sutrams. 22. In STATE OF RAJASTHAN v. TEG BAHADUR(7) on which much reliance was placed by the learned counsel for the appellant, the Apex Court held that articles recovered such as ear rings, hair clip, pieces of bangles are of common use and can be found in any house and accordingly dismissed the appeal. 23. Undisputedly the appellant/accused is a resident of Panduru village and after his wife left his company, he married the deceased. When the deceased left his company he filed O.P.No.155 of 1999 for restitution of conjugal rights and the same was decreed in his favour. In spite of the same, deceased did not join the company of the accused and therefore, he filet, O.P.150 of 2000 on the file of II Additional Sessions Judge, Kakinada seeking divorce which was decreed. When the deceased left his company he filed O.P.No.155 of 1999 for restitution of conjugal rights and the same was decreed in his favour. In spite of the same, deceased did not join the company of the accused and therefore, he filet, O.P.150 of 2000 on the file of II Additional Sessions Judge, Kakinada seeking divorce which was decreed. Once the accused obtained divorce and residing at Panduru, the necessity of his joining the company of the deceased and residing at Anaparthi improbablises the case of the prosecution. None of the witnesses has stated that what made the accused to join the company of the deceased when he obtained divorce and not living with her from 1999 onwards. Though P.W.1 stated that the accused and the deceased lived in Panduru village for some time and subsequently shifted to Anaparthi; when they have shifted to Anaparthi has not been stated. Further, as per the evidence of P.W.1 the accused did not attend his coolie work and demand money from the deceased for his expenses and addicted to alcohol; whereas P.W.2 stated that the deceased was doing bangle business and also working as Secretary in Dwakra Group. If that be the case, no wife will permit the husband, who does not earn any income, to join her particularly, after obtaining divorce. The chain of events which has taken place to join the accused in the company of the deceased after he obtained divorce has not properly been explained by the prosecution. 22. In view of the same, it is highly improbablise that the accused joining the company of the deceased and committing the offence as alleged. When prosecution miserably failed about his joining the company of the deceased after obtaining divorce, we are inclined to give benefit of doubt to the accused. 23. In the result, appeal is allowed. The conviction and sentence recorded by the lower court against the accused for the offence under Sections 302 and 380 IPC is set aside. He shall be set at liberty forthwith, if not required in any other case. --X—