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2009 DIGILAW 178 (AP)

Shaik Khadar Basha v. State of A. P.

2009-03-18

A.GOPAL REDDY, B.CHANDRA KUMAR

body2009
JUDGMENT (Per A. Gopal Reddy, J.) Appellant/sole accused who was put on trial for the offence under Section 302 IPC in S.C.No. 304 of 2006 on the file of III Additional Sessions Judge, Guntur convicted and sentenced to imprisonment for life by judgment dated 4-9-2006 filed this appeal challenging the conviction and sentence recorded against him. 2. The gravaman of the charge against the accused is that on 10-12-2005 at 11.30 p.m. he murdered his wife - Shaik Imambi in a rented house of Kidambi Thirurmalachari Nagar, Sangadigunta, Guntur by turning round his lungi around the neck of the deceased. 3. The prosecution story as narrated during the course of trial may briefly be stated as under: The accused is the husband of Shaik Imambi (herein after called as "deceased") who is the daughter of P.W. 1. The deceased and her parents are natives of Prakasam district and in search of livelihood they were migrated to Gannavaram, Krishna district 20 years back. Due to misunderstanding between P.W.1 and her husband, she again migrated to Guntur and staying at 7th lane, Gandhinagar, Sangadigunta in a rented house and she has been blessed with four children. The marriage of the deceased was performed with the accused and she blessed with two children-one son and one daughter through the accused. About four months prior to the occurrence, the deceased and the accused along with two children migrated to Guntur and started living in the house of P.W. 1; they are working as coolies in Cotton Mill. The accused suspected the fidelity of the deceased and used to beat frequently. One week prior to the incident the accused beat the deceased in front of her parents and brothers alleging that he saw the deceased with one Moulali in compromising position. Unable to bear the behaviour of the accused, he was asked to get out of the house and accordingly the accused left the house of P.W. 1. After 3 or4 days the accused pleaded and requested P.W. 1 to allow him to stay in her house and promised to behave properly with his wife. As such P.W. 1 allowed the accused to live in her house keeping in view of the family ties and in the interest of children. After 3 or4 days the accused pleaded and requested P.W. 1 to allow him to stay in her house and promised to behave properly with his wife. As such P.W. 1 allowed the accused to live in her house keeping in view of the family ties and in the interest of children. Meanwhile, P.W. 1 has been searching alliance to her sons; as her house was small to accommodate the accused and his wife, the deceased and the accused have taken a portion of the house of P.W. 7 on rent and shifted to the said house with household arties in the rickshaw of P.W. 4 at 7 a.m. on 10-12-2005; later attended coolie work in cotton mill. After finishing the coolie work at 9 p.m. the deceased came to the house of P.W. 1 and spent for some time. Meanwhile the accused came to the house of P.W. 1 and spent for some time. Meanwhile the accused came to the house of P.W. 1 and took the deceased along with the daughter of 3 years leaving his son in the house of P. W. 1. On the same day night the accused turned round his lungi around the neck of the deceased and pulled both ends tightly, which resulted the death of the deceased. After ensuring that the deceased died, the accused left the house. On the next day morning i.e. 11-12-2005 at 6 a.m. the minor daughter of the deceased went to the house of P.W. 1 and informed that the deceased was not getting up from sleep. Immediately P.W. 1 and her family members went to the house of the deceased, where the accused was not present. They tried to wake up the deceased by touching her body but noticed that the deceased already died. Later P.W. 1 lodged a report-Ex.P-1 to the police, on which basis P.W. 14 - Sub-Inspector registered a case in Cr.No. 276 of 2005 under Section 174 IPC, as the cause of death was not known and issued FIR-Ex.P-8 to all concerned officers. Then he went to the scene of offence; observed the scene of offence in the presence of P.W. 11 and another and the same was photographed by P .W. 13; seized the blue colour cotton lungi- M.O. 1; prepared Ex. P-9-rough sketch; examined P .Ws. Then he went to the scene of offence; observed the scene of offence in the presence of P.W. 11 and another and the same was photographed by P .W. 13; seized the blue colour cotton lungi- M.O. 1; prepared Ex. P-9-rough sketch; examined P .Ws. 1 to 3; conducted inquest over the dead body of the deceased and sent the same to the Government General Hospital, Guntur for conducting postmortem examination. The panchayatdar opined that the deceased might have committed suicide or her husband-accused might have murdered her. He later examined P.Ws. 5 to 7 and prepared letter of advice on 30-12-2005; sent the material objects to F.S.L., Hyderabad; after receipt of final opinion of the doctor, who conducted post-mortem examination, he altered Section of law to 302 IPC and issued altered FIR - Ex. P-10 to all concerned. Later the Inspector of Police took up investigation on 28-01-2006 and on his instructions P.W. 14 arrested the accused. After receipt of relevant reports and after completion of investigation the Inspector of Police laid the chargesheet before the IV Additional Munsif Magistrate, Guntur. 4. On committal of case to the court of sessions, the III Additional Sessions Judge, Guntur framed a charge under Section 302 IPC and the same has been read over and explained to the accused in Telugu, who pleaded not guilty. 5. In order to prove its case, prosecution examined P.Ws. 1 to 14, marked Exs. P-1 to P-10 and exhibited M.Os. 1 to 4. In defence, Ex. D-1-portionof 161 Cr.P.C. statement of P .W, 9 was marked but no oral evidence was adduced. 6. The learned Sessions Judge after analyzing the oral and documentary evidence observed that the evidence adduced by the prosecution is legally very weak to base the conviction, as their evidence is based on suspicious information furnished by a minor girl of three years, but since the accused being the husband of the deceased and living in the house along with minor girl on the date of incident, the death is homicidal nature. Since the accused failed to offer any explanation how the deceased met with homicidal death and the evidence of P .W. 10-doctor clearly establishes that the deceased died due to strangulation who also found marks on the dead body, found the accused guilty for the offence under Section 302IPC and convicted for the same and sentenced to undergo imprisonment for life. 7. The accused was provided legal aid by the Legal Service Authority in preferring the appeal. 8. Sri E. Venkat Reddy, learned counsel for the appellant taken us through the entire evidence and findings of the lower court and contended that in the earliest point of time beforelodgingcomplaint-Ex.P-1 P.W.1 has not suspected that the accused committed the offence. P.W. 2, brother of the deceased received a phone call at 5 a.m. from the accused stating that he killed the deceased. Though P.W. 2 accompanied P.W. 1 to the police station for giving report, the said fact has not been reflected in Ex. P-1 - report.P.Ws. 1 and 2 are not eye-witnesses to the incident and they are chance witnesses. In view of the same, it is unsafe to convict the accused on the basis of evidence of P.W. 1. P.W. 4 has not supported the case of the prosecution and P.W. 5 who also resides in the house of P.W. 7 as tenant declared hostile. The prosecution failed to establish that the accused and the deceased took a portion in the house of P.W. 7 and resides therein. In the absence of any evidence that the accused and the deceased lived together in the house of P.W. 7 and the final report of the doctor who conducted autopsy over the dead body of the deceased has not been marked to prove that the deceased met with homicidal death, accused cannot be convicted for the offence under Section 302 IPC and entitled to acquittal. 9. Learned Additional Public Prosecutor while supporting the judgment of the trial court contended that P.W. 1, who is none other than the mother of the deceased and with whom the accused and the deceased lived for some time is a natural witness and whose house is nearer to the house of the deceased. The evidence of P.Ws. 6 and 7 supports the case of the prosecution that the accused and the deceased lived in a portion of the house of P. W. 7. 10. The entire case of the prosecution rests upon circumstantial evidence, as there are no eye-witnesses to the incident. 11. P W. 1 , mother of the deceased deposed that she had four daughters and one son. The deceased was the eldest daughter who was given in marriage to the accused eight years ago. 10. The entire case of the prosecution rests upon circumstantial evidence, as there are no eye-witnesses to the incident. 11. P W. 1 , mother of the deceased deposed that she had four daughters and one son. The deceased was the eldest daughter who was given in marriage to the accused eight years ago. The accused and the deceased resided at Hidambi Tirumala Acharinagar and blessed with two children -one daughter and one son aged 6 and 3 years respectively. The son is staying with her. The deceased was working in cotton mill as coolie. The accused was also working in cooton mill as mason. On 10-12-2005, deceased, her other two daughters and herself went to coolie work and returned at 9 p.m. After return the deceased prepared curry and went to her house at 10.15 p.m. which is at a distance of 100 yards from her house. In the early hours on 11-12-2005 her grand-daughter i.e. daughter of the deceased came to her house and asked to wash her anus with water as she went to calls of nature. When she asked the girl why she came, she told that her father killed her mother. Since she was a child, she did not believe her words. After some time an old women residing adjacent to the house of the accused informed that the deceased was not responding; immediately she went to the house of the accused and saw the dead body of the deceased; at that time her son-in-law-accused was not present in the house then she informed the same to her son P.W. 2. One week thereafter the accused telephoned to her asking to take his children a the house of his mother who is residing at Kakumanu and left them there. He also informed that he murder his wife-deceased suspecting her character. In the cross-examination she stated that on her narration he constable prepared Ex. P-1 - report. Police also examined her once before the accused making telephone and again after the accused making phone call. P.W. 2, son of P. W. 1 and brother of the deceased deposed while he was working in cotton mill the accused telephoned to him stating that he killed his wife but he did not take it as serious, as he was joking. Thereafter his mother-P.W. 1 telephoned and informed the same. P.W. 2, son of P. W. 1 and brother of the deceased deposed while he was working in cotton mill the accused telephoned to him stating that he killed his wife but he did not take it as serious, as he was joking. Thereafter his mother-P.W. 1 telephoned and informed the same. Immediately he went to the house of the accused and saw the dead body of his deceased sister. Then, he and P. W. 1 went to the police station and P.W. 1 gave Ex. P-1-eport to the police. He was present while inquest was held over the dead body of the deceased. In the cross-examination he deposed that at 5a.m. on 11-12-2005accused telephoned and stated to him that he killed his wife. P.W. 3, sister of the deceased deposed that on 11-12-2005 at 7 a.m. an old woman residing by the side of the house of the accused informed to his mother that her elder daughter died. 12. P.W.4-Kaparthi Nasarvali in whose rickshaw the accused and the deceased shifted the samans on 10-12-2005 declared hostile and not supported the case of the prosecution. P.W. 5 who resides as a tenant in the house of P.W. 7 also declared hostile and not supported the case of the prosecution. P.W. 6 who is residing in the same colony by the side of the house of P.W. 7 deposed that on 10-12-2005 the deceased and her family members joined in a portion of house of P.W. 7 on rent. He heard some altercation between the deceased and her husband at about 10.30 or 11 p.m.Atabout5a.m., on the next day i.e. 11-12-2005 there were cries that a lady in newly occupied portion of P.W. 7's house died, In the cross-examination he admitted that he do not know who joined the portion of P.W.7's house on 10-12-2005. He has no acquaintance with them. P.W. 7 in whose house the deceased and the accused said to have joined as tenant on 10-12-2005 deposed that P. W. 5 one of the tenants came to his house and stated that a lady was found dead in a portion of his house. Then he went and saw the dead body of a woman, a newly joined tenant. His evidence is of no use to the prosecution, since he has not stated that the accused took the portion on lease from him. Then he went and saw the dead body of a woman, a newly joined tenant. His evidence is of no use to the prosecution, since he has not stated that the accused took the portion on lease from him. P.W. 8 speaks about the accused making confession 20 days after the death of the deceased to his public telephone booth asking him to call P.W. 1. P.W. 9 corroborates about the accused making telephone from Piduguralla to the telephone booth of P.W. 8; he was present there at that time and he also spoke with the accused and asked him to go over to Guntur to live along with his wife and children then the accused told him that he killed his wife. P.W. 8 says that 20 days after the death the accused asked him to call P.W. 1, whereas P.W. 9 says one week after the incident accused make a telephone call to the telephone booth of P.W. 8. Therefore, their evidence is inconsistent about the accused making telephone call. P.w.10 who conducted postmortem examination deposed that deceased died due to strangulation resulting asphyxia. He issued Ex. P-4 - postmortem certificate. In Ex. P-4 cause of death to the best of his knowledge and belief was kept blank and he has not stated the cause of death of the deceased. 13. The Sub-Inspector of Police-P.W. 14 altered the original FIR-Ex.P-8 after receipt of final opinion of the doctor from Section 174 Cr.P.C. to Section 302 IPC under Ex. P-1 0altered FIR and for the reasons best known to him, final opinion of the doctor has not been marked to prove that the deceased met with homicidal death. In the absence of cause of death and suppression of incriminating material, the prosecution failed to prove that the deceased met with homicidal death. 14. From the narrative facts and the statements mentioned above clearly establish that the accused and the deceased were residing in the house of P .W. 1 till morning of 10-12-2005 and then only alleged to have shifted to the house of P.W. 7, left to coolie work, returned at 9 p.m. and went to the portion of house of P.W. 7 where they have obtained on lease, which has not been established by the prosecution from the evidence of P.W. 1. P. W. 7 has not stated that the accused obtained portion of the house on lease from him and joined on that day i.e. 10-12-2005. P.W. 5 who is a co-tenant has been declared hostile and not supported the case of the prosecution. 15. It is well settled that when the prosecution case rests upon circumstantial evidence, the same must be complete and incapable of explanation of any other hypothesis except that of the guilt of the accused and such evidence should not only be consistent and should be inconsistent with his innocence. Suspicion however strong cannot substitute legal evidence. 16. Once there is a missing link in chain of circumstances to connect the accused that he is living together with the accused on the date of offence, the principles laid down in West Bengal v. Mir Mohammad Omar1 cannot be invoked for convicting the accused and inference can not be drawn against the accused under Section 106 Evidence Act. Since the prosecution miserably failed to establish that the deceased met with homicidal death, the finding of the trial court cannot be upheld and we are compelled to extend benefit of doubt to the accused. 17.ln the result, Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/accused for the offence under Section 3021PC by the III Additional Sessions Judge, Guntur in S.C.No. 204 of 2006 are set aside. Consequently, the appellant/accused shall be set at liberty forthwith, if he is not required in any other case. The fine amount, if any, paid by the appellant/accused shall be returned to him.