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2010 DIGILAW 33 (AP)

Kambham Sunil v. State of A. P.

2010-01-28

D.S.R.VERMA, NOOTY RAMAMOHANA RAO

body2010
Judgment :- Nooty Ramamohana Rao, J. (1) This Appeal is preferred by both the accused, who have been convicted for an offence under Section 302 read with Section 34 of the Indian Penal Code, and sentenced to suffer rigorous imprisonment for life and were also ordered to pay a fine of Rs. 5,000/each and in default, to suffer simple imprisonment for six months each. (2) The appellants were tried by the learned Principal Sessions Judge, West Godavari at Eluru, in S.C.No. 128 of 2006, for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. (3) The case of the prosecution is that, on 9-6-2005, P.W. 2 and the deceased have gone to the house of one Mr. Yesubabu, father of the accused, for attending to painting and whitewash work of his newly constructed house. At about 11,30 a.m. P.W. 10, younger sister of the accused and daughter of Mr. Yesubabu, cried out for her brothers as she has noticed the deceased peeping into the bathroom while she was taking bath. The accused caught hold of the deceased and thrashed him using a painting brush. P.W. 2, who was attending to the whitewash work on the front side of the building, immediately rushed and tried to intervene so as to rescue the deceased from the hands of the accused, but however, he has been pushed away. P.W. 13, who was a neighbor of Mr. Yesubabu, upon hearing the shouts emanating from Yesubabu's house, intervened in the matter and tried to pacify the accused by suggesting that the father of the deceased be summoned before further action in the matter is undertaken. She has pushed the deceased into a room on the southern side of the house, which has a door, and bolted its door from outside. She was waiting for the father of the deceased to arrive by sitting beneath a Guava tree. However, before P.W. 2 could inform and fetch P.W. 1, the father of the deceased, P.W.3 another painter, who whoks with P.W. 1 together with the elder brother of the deceased, have reached the house of Mr. Yesubabu more with a view to ascertain the progress of the painting work under taken by P.W. 2 and the deceased, there. However, before P.W. 2 could inform and fetch P.W. 1, the father of the deceased, P.W.3 another painter, who whoks with P.W. 1 together with the elder brother of the deceased, have reached the house of Mr. Yesubabu more with a view to ascertain the progress of the painting work under taken by P.W. 2 and the deceased, there. Coming to know of the events, it is the elder brother of the deceased, who opened the door of the room, where upon he found the deceased lying on the floor. There was a rope hanging to a hook of the ceiling of the room and another portion of the rope, which got snapped, was lying besides the body of the deceased. In the mean time, P.W.1 also arrived at the scene and he has set the investigation into motion by lodging Ex. P-1 FIR, (4) In support of the prosecution case, 17 witnesses have been examined and 19 documents have been got marked as exhibits. (5) Excepting P.Ws. 2, 7, 13, 14 and 15, we need not have to brother much about the rest of the witnesses and their evidences, as some of them are treated as hostile and the evidence of the remaining witnesses is not so material of our inquiry. (6) P.W. 2 has specifically asserted that it is he and the deceased who had gone to the house of Mr. Yesubabu, the father of the accused, for attending to painting and white washing work of his newly constructed house and that he was attending to white washing work on the front side, while the deceased was doing painting work on the rear side and that he has heard the cries of the sister of the accused calling out for her brothers by shouting "Annayya" (brother). P.W. 2, further asserted that he had seen both the accused beating the deceased using a paintbrush, M.O. 5. When he intervened, with a view to separate the deceased from the accused, he was pushed aside. He has also deposed that P.W. 13 prevented the accused from beating the deceased further and it is she, who pushed the deceased into the room and bolted the door from outside. He further stated that at her behest he has proceeded to fetch the father of the deceased, P.W. 1. He has also deposed that P.W. 13 prevented the accused from beating the deceased further and it is she, who pushed the deceased into the room and bolted the door from outside. He further stated that at her behest he has proceeded to fetch the father of the deceased, P.W. 1. It took quite sometime for him to get the message to P.W. 1 and by the time he returned to the scene, more the one hour or one hour fifteen minutes time has passed. (7) P.W. 7, whose house is located in the neighborhood of the house of Mr. Yesubabu, father of the accused, has deposed that two boys came to the house of Mr. Yesubabu to attend to the painting work and the deceased was one of them and that the deceased was found lying on the floor in a room in the newly constructed house of Mr. Yesubabu. (8) P.W. 10 sister of the accused has deposed that at about 11.30 a.m., while she was taking bath in the bathroom, one of the two boys, who came to attend to the painting work, was seen peeping into the bathroom and, therefore, she cried out for her brothers. (9) P.W. 13, who lives next door to the house of Mr. Yesubabu, has deposed that at about 11.30 a.m., upon hearing some cries (shouts) from the house of Mr. Yesubabu, she rushed to the house of Mr. Yesubabu and saw the accused getting hold of the shirt-collar of one of the boys, who had come for attending to the painting work and that it is she, who prevailed upon the accused to wait for the arrival of the father of the deceased and that it is she, who has sent the second boy, who has come for the painting work, to go and fetch the father of the deceased, P.W. 1. P.W. 13 has deposed further as under: "...............I kept the boy (Deceased) in one room and bolted the doors. Then I was sitting under the tree of Guava (Jama). Thereafter the brother of deceased and another boy came there. The deceased's brother opened the door and found the dead body of the deceased on the floor of the room. P.W. 13 has deposed further as under: "...............I kept the boy (Deceased) in one room and bolted the doors. Then I was sitting under the tree of Guava (Jama). Thereafter the brother of deceased and another boy came there. The deceased's brother opened the door and found the dead body of the deceased on the floor of the room. Thereafter P.W. 1 came." (10 ) (10) P,W. 14, the Civil Assistant Surgeon attached to the Government District Headquarters Hospital at Eluru, who conducted the post-mortem examination, has observed the following external injuries on the deceased: "1. Contusion over the left upper arm. Blackish brown in colour. 10 x 2 cms., on the left upper arm, 2. Another contusion on the right upper arm 18 to 2 cm., brownish black in colour." He also found a ligature mark lower down of the neck extending from the right, 6 cm below the angle of mandible to the left 5 cm below the angle of mandible. The seize of the ligature mark is 16 x 2 cm. He found fracture of Thyroid cartilage. He has opined that the deceased might have died due to Asphyxia and due to pressure over the neck. He issued the post- mortem examination certificate, Ex. P-15. In his opinion, the ligature marks of 2 cm width found on the neck of the deceased can be caused by M.Os. 1 and 2, which are the two portions of the rope. In his opinion, the death may have been caused due to homicide, but not a suicidal one. When P.W. 14 has been cross-examined, he ascertatively deposed that, on the body he found resistance of the victim and, importantly, there is resistance on the neck. He has denied, quite emphatically, the suggestion made to him that the death of the deceased is not homicidal and it is only suicidal one. (11) P.W. 15, local Paychayat Secretary and witness to the punchanama, Ex. P-16, has given the complete details of various objects found in the newly constructed house of Mr. Yesubabu in general, and the room in which the body of the deceased was found lying on the floor, in particular. M.O. 5, the iron paintbrush was found lying in the room wherefrom the body of the deceased was retrieved. P-16, has given the complete details of various objects found in the newly constructed house of Mr. Yesubabu in general, and the room in which the body of the deceased was found lying on the floor, in particular. M.O. 5, the iron paintbrush was found lying in the room wherefrom the body of the deceased was retrieved. (12) On a proper appreciation of the evidence marshaled before the Sessions Court, the learned Sessions Judge had come to the conclusion that the accused have caused the death of the deceased and, therefore, he convicted them both for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Hence, this Appeal. (13) We have heard Sri C. Padmanabha Reddy, learned senior counsel for the appellants and the learned Pubic Prosecutor. (14) Sri Padmanabha Reddy, learned senior counsel would contend that there is no direct evidence available on record for one to come to a firm conclusion that it is the accused, and in particular, both of them, to have caused the death of the deceased. Further, P.W. 13 is the one, who pushed the deceased into a room, thus, retrieving him from the possession of the accused and bolted the room from outside. She was literally standing guard by waiting for the arrival of the father of the deceased, P.W. 1. It is further urged that it is the brother of the deceased, who came first and opened the door and found the body of the deceased lying on the floor. Therefore, the learned senior counsel would contend that it is not a case of homicidal death, but it is a clear case of suicide committed by the deceased as he was apprehensive that the word would have already reached his father about his incident conduct in peeping into the bath room while P.W. 10 was taking bath and as he was overcome by the feeling of guilt he committed suicide. The learned senior counsel would submit that there was no evidence on record to suggest that the accused had gained entry or access to the deceased after P.W. 13 has pushed him into the room in question and bottled its door from outside. The learned senior counsel would submit that there was no evidence on record to suggest that the accused had gained entry or access to the deceased after P.W. 13 has pushed him into the room in question and bottled its door from outside. The Learned senior counsel has also drawn our attention to the following statement found in the Medical jurisprudence and Toxicology by N.J. Modi and contended that in the absence of access of the accused to the deceased, who was confined in a room, where the body was ultimately found, the symptoms between homicidal and suicidal hanging, being similar, it is a clear case of suicidal hanging, rather than homicidal hanging. "Having is usually suicidal. Of thirty-two cases of hanging that came under Modi's observation during a period of over six years, thirty were suicidal............. Homicidal hanging, though rare, has been recorded. Usually more than one person are combined in the act, unless the victim is a child, or very weak and feeble, or is rendered unconscious by some intoxicating or narcotic drug. In a case where resistance has been offered, marks of violence on body and marks of a struggle or footprints of several persons at or near the place of the occurrence are likely to be found." The learned senior counsel would also submit that homicidal hanging is a near impossibility. The learned senior counsel would further submit that as per the deposition of P.W. 15, who was a party to the inquest punchanama, it appears that there was an almairah in the room in which the deceased was found dead. In view of that fact is was contended that there was a possibility for the deceased to climb the almairah and tie one end of the rope to the hook of the ceiling and the other end of the rope around his neck and jumped himself down in order to commit suicide. (15) In a case of this nature, where direct evidence to the actual incident is not available, it is the circumstances, which precede the incident, have to be gathered as to link the accused to the act complained of. (15) In a case of this nature, where direct evidence to the actual incident is not available, it is the circumstances, which precede the incident, have to be gathered as to link the accused to the act complained of. In the present case, such circumstances can be gathered from the depositions of P.W. 2 and 13, who have categorically stated that upon the cries of P.W. 10, it is both the accused, who caught hold of the deceased and then thrashed him for his alleged act of peeping through the batch room while their sister P.W. 10 was taking batch. P.W. 2 could not retrieve the deceased from the accused. It is P.W. 13, who has pushed the deceased into a room and bolted it from outside and sent away P.W. 2 to fetch the father of the deceased. By the time the brother of the deceased arrived at the scene of offence and when he opened the door, he found the deceased lying on the floor. It is, therefore, clear that the death has occurred in the newly constructed house of Mr. Yesubabu, the father of the accused. Thus, it is clear that no one, other than the accused, would have had access to the place where the death had occasioned. (16) In other words, the presence of the accused at the scene of offence and at the time of offence had been categorically established by the evidence on record, including that of P.W. 10, who is no other than the sister of the accused. It has to be further noticed that Mr. Yesubabu, father of the accused, was not available at the time of commission of the offence at his house. Therefore, it is obvious, that only the accused were present at their house at the time of offence. And they were having the knowledge that it was P.W. 13, who pushed the deceased inside a room of the newly constructed house of their father. When the brother of the deceased came to the scene of offence and opened the room, he found the deceased lying on the floor dead with a piece of the rope lying besides the body. When the brother of the deceased came to the scene of offence and opened the room, he found the deceased lying on the floor dead with a piece of the rope lying besides the body. Therefore, the presence of the accused at the scene of offence was very much established and the possibility of committing the offence can only be linked to the accused, inasmuch as, the death of the deceased was preceded by the outrageous conduct of the accused of beating him. This is one circumstance to be reckoned seriously. (17) P.W. 13 has candidly spoken of the fact that it is she, who sent away P.W. 2 to fetch the father of the deceased and that it is she, who confined the deceased to the room and bolted it from outside and that it is the deceased's brother, who opened the door and found him lying on the floor, dead. Between the arrival of the brother of the deceased and the act of pushing the deceased into the room and bolting the door from outside by P.W. 13, there was sufficient passage of time. It is, therefore, clear that excepting the accused, the presence of all others, during this period in the house in question, is ruled out. Further, P.W. 7, has also deposed that the dead body was found lying on the floor of the newly constructed house of Mr. Yesubabu. (18) Further, the injuries caused by the two accused using M.O.5, are the two external injuries, which are noticed by P.W. 14, doctor, during his post-mortem examination. It is, therefore, clear that after having thrashed the accused, the access of the accused to the deceased could not have been ruled out completely. (19) No one has spoken of the snapped portion of the rope lying around the neck of the deceased. If it is a case of suicidal death and for the sheer weight of the dead person if the rope got snapped off, then that portion of the rope must be lying around the neck of the deceased. It cannot get separated from the neck of the deceased. Whereas in the instant case, the snapped portion of the rope was found lying besides the body of the deceased. This is also one other circumstances, which has got to be taken into account. It cannot get separated from the neck of the deceased. Whereas in the instant case, the snapped portion of the rope was found lying besides the body of the deceased. This is also one other circumstances, which has got to be taken into account. (20) P.W. 15, has specifically described about the presence of the rope lying by the side of the dead body, but not around the neck of the deceased. It is no doubt true that P.W. 15 has spoken abut the presence of an almairah in the room, where the dead body was found lying. When a suggestion has been left to him as to the possibility of the deceased climbing on to the almairah for reaching the hook, he has discredited the same. Therefore, the possibility of a suicidal hanging can be safely ruled out for, even if the deceased, remorsefully, felt like committing suicide, he must be able to climb upon some support to reach the hook and ensure that there should be enough gap between his feet and the floor, for him to die due to hanging. In such a case, the material used as support for reaching the ceiling first and then discarding it later on to hang oneself should be found besides the deceased. There was no such material found in the room, which could have possibly helped the deceased to reach the hook first and then free himself from the platform or support-base, so as to hang himself from the hook. We, therefore, have no hesitation to rule out the possibility of death being caused by suicide. (21) In this context, while on must remember that the snapped portion of the rope was not found lying around the neck of the deceased, but, in fact, it was found lying beside the body. It is appropriate to notice that the medical opinion has categorically found that the death has been caused by homicide and suicide is ruled out and, in fact, there was resistance of the victim found in the medical opinion of P.W. 14, doctor. For this reason also we can safely rule out the death being caused by suicide. It is appropriate to notice that the medical opinion has categorically found that the death has been caused by homicide and suicide is ruled out and, in fact, there was resistance of the victim found in the medical opinion of P.W. 14, doctor. For this reason also we can safely rule out the death being caused by suicide. Hence, the reliance placed by the learned senior counsel for the appellants on the opinion contained in Modi's Medical Jurisprudence and Toxicology, is of no avail, (22) The above are the strong circumstances, in our considered view, to formulate a complete chain, strong enough, to incriminate the a complete chain, strong enough, to incriminate the accused with the offence charge with. (23) We do not find any merit in the contention canvassed on behalf of the appellants and we have not found any material on record worth taking into consideration to interfere with the findings recorded by the Sessions Court. (24) Accordingly, the conviction and sentence recorded by the Sessions Court in S.C.No. 128 of 2006, is confirmed and in the result the appeal is dismissed.