Research › Search › Judgment

Andhra High Court · body

2009 DIGILAW 421 (AP)

KOLAKALURI KOTAMMA v. STATE OF A. P.

2009-07-02

D.S.R.VERMA, R.KANTHA RAO

body2009
R. KANTHA RAO, J. ( 1 ) THE sole accused in S. C. No. 8 of 2005 on the file of the II Additional District and sessions Judge (Fast Track Court), Ongole, is the appellant herein. She was convicted by the learned Additional Sessions Judge for the offence under Section 302 IPC and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default, simple imprisonment for three months. ( 2 ) BRIEFLY stated prosecution case is as follows: the appellant is the wife of the deceased kolakaluri Bhaskara Rao. P. Ws. 1, 2 and 5 are the brothers of the deceased. P. W. 9 is the son of the appellant and the deceased. The marriage of the appellant with the deceased was performed about 30 years prior to the incident. P. W. 9 and two female children were born to them. According to the prosecution, the deceased was suspecting the fidelity of the appellant, on the ground that she had illicit intimacy with one Sundara rao and on that score, there used to be some quarrels between the appellant and the deceased. Ultimately, on the night of 2/3-3-2003, while both the appellant and the deceased were sleeping in the house, the appellant pressed the neck of the deceased while he was in unconscious state and as a consequence thereof he died. Thereafter, she escaped from the house and she was not to be seen for a period of two months since then. ( 3 ) ON the morning of the next day, P. W. 1 went to the house of the deceased to call him to coolie work, found the deceased dead and the appellant absent in the house. Subsequently, on a report lodged by P. W. 1 at 17. 00 hrs on 3-3-2003, the sub-Inspector of Police registered a case in Cr. No. 6 of 2003 under Section 174 Cr. P. C. After receiving the report from FSL to the effect that the deceased died to asphyxia due to pressure over the neck, P. W. 1 altered section of law from section 174 Cr. P. C. to 302 IPC. Subsequently, p. W. 12, Sub-Inspector of Police, Ongole, took over, completed investigation and filed charge sheet. ( 4 ) BEFORE the learned Additional Sessions judge, the prosecution in order to prove the guilt of the appellant examined PWs. 1 to 12, marked Exs. P. C. to 302 IPC. Subsequently, p. W. 12, Sub-Inspector of Police, Ongole, took over, completed investigation and filed charge sheet. ( 4 ) BEFORE the learned Additional Sessions judge, the prosecution in order to prove the guilt of the appellant examined PWs. 1 to 12, marked Exs. P-1 to P-14 and M. Os. 1 to 3. ( 5 ) THERE being no direct witness to the occurrence, the prosecution rested its case entirely on circumstantial evidence. The prosecution sought to prove the following circumstances: 1. that there used to be quarrel between the appellant and the deceased as the deceased suspected the fidelity of the appellant; 2. that on the intervening night of 2/3-3-2003, P. W. 1 and some other witnesses saw the appellant going away from their house; and 3. that the appellant was not to be seen for a period of two or three months since the date of the offence. ( 6 ) P. Ws. 1 and 2, who are no other than the brothers of the deceased, stated in their evidence about the quarrels between the deceased and the appellant since three days prior to the incident and subsequently, the deceased found dead in his house. ( 7 ) P. W. 7, a neighbour, stated in her evidence about witnessing the appellant fleeing away from her house at 3. 00 a. m. on 2/3-3-2003. She claims that she woke upto pass urine and found the appellant going towards north. P. W. 9, who is no other than the son of the appellant and the deceased, did not support the prosecution version. Even otherwise, as could be seen from Ex. P-6, he was not present at the house on the date of the incident and he was only informed by the appellant over phone about somebody killing the deceased. He did not speak about any quarrels between the appellant and the deceased. The evidence of P. W. 8 is not admissible because it shows that the appellant when questioned by the Sub-Inspector of Police did not agree that she committed the offence in the first instance, but subsequently admitted commission of offence. The said statement of the appellant being hit under Section 25 of the Indian evidence Act is not admissible in evidence. The said statement of the appellant being hit under Section 25 of the Indian evidence Act is not admissible in evidence. ( 8 ) THE learned trial Judge, on the basis of the entire evidence arrived at the conclusion that the circumstances are conclusive for drawing presumption that on the date of incident, the appellant was present and, accordingly, convicted and sentenced the appellant as mentioned above. ( 9 ) WE have heard the learned counsel for the appellant and the Public Prosecutor for the State. ( 10 ) NOW the point for consideration in this appeal is whether the order of conviction and sentence passed by the learned additional Sessions Judge can be sustained. ( 11 ) FIRSTLY, it is to be seen that P. Ws. 1 and 2, who are no other than the brothers of the deceased, spoke about quarrels between the deceased and the appellant since the deceased was suspecting the fidelity of the appellant. On a careful scrutiny of the evidence, it does not indicate anywhere that they are specific about witnessing the quarrel between the deceased and the appellant on the date of incident or that they saw both of them sleeping in their house on the night of the incident. P. W. 1 only stated that in the morning when he went to the house of the deceased to call him for collie work, he found the deceased lying dead. ( 12 ) P. W. 7 is also a chance witness, who claims to have seen the appellant at 3. 00 a. m. when she came out to pass urine. Even otherwise, since, according to P. W. 7, she saw the appellant left the house at 3. 00 a. m. it cannot be said that the appellant must be the person, who caused the death of the deceased. The evidence, with regard to the quarrel on the night of the incident, the deceased and the appellant sleeping together in the house on the night of the incident, is not forthcoming. 00 a. m. it cannot be said that the appellant must be the person, who caused the death of the deceased. The evidence, with regard to the quarrel on the night of the incident, the deceased and the appellant sleeping together in the house on the night of the incident, is not forthcoming. Therefore, basing on the evidence of P. W. 7, who is a chance witness, and the fact that the appellant was not to be seen for a period of two or three months after the death of the deceased, more particularly, when P. W. 9, who is no other than the son of the deceased, is not supporting the prosecution, the above mentioned circumstances do not inspire confidence of this Court to the effect that they are conclusive in nature in the matter of proving the guilt of the appellant. Thus, she is entitled for benefit of doubt. The learned trial Judge, therefore, is not justified in finding the appellant guilty under Section 302 IPC. The appellant, therefore, in our considered view is entitled for acquittal. ( 13 ) IN the result, the order of conviction and sentence passed by the II Additional sessions Judge, (Fast Track Court), Ongole, by judgment, dated 16-5-2005, in S. C. No. 8 of 2005, against the appellant is set aside and the appellant is acquitted. The fine amount, if any, paid by the appellant shall be refunded to her. The appellant, who is now undergoing jail sentence in this case, shall be set at liberty forthwith, if she is not required in any other case. ( 14 ) THE Criminal Appeal is allowed. Criminal Appeal is allowed