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2012 DIGILAW 1102 (AP)

Atmakuri Narayana v. State of A. P.

2012-11-07

N.V.RAMANA, P.DURGA PRASAD

body2012
JUDGMENT (Per N.V. Ramana, J.) This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, is filed questioning the conviction and sentence imposed against the appellant herein, by judgment dated 20-2-2008 passed in S.C. No. 41 of 2007 by the IV Additional Sessions Judge (Fast Track court-III), Khammam. 2. The case of the prosecution, in brief, is as follows: 3. The marriage of the deceased namely Yellamma, who is the daughter of P.W. 1, was performed with the accused about twelve years prior to the incident and they led marital life at Royyuru Village, Eturunagaram MandaI, Warangal District. They were blessed with two sons and a daughter. The accused got addicted to vices such as consuming liquor and playing cards since six years prior to the incident and used to harass the deceased to give him money earned by her by attending to coolie work. The deceased, unable to bear the harassment of the accused, left to her parents house along with her children. In the caste panchayat held, the accused assured to look after her well and brought her back to his house, but did not change his attitude and continued his harassment towards her. Therefore, about three months prior to the incident, the deceased again went to her parents house at Korekal. Five days thereafter, the accused also joined her at Korekal and they started residing in the house of one Balusupati Yerra Samaiah and eking out their livelihood by doing coolie work. At that time, the accused developed suspicion on the fidelity of the deceased and decided to do away with her life. On 14-5-2005, after having dinner, he picked up a quarrel with the deceased on the pretext that she is not returning to his village. He made their children sleep on a cot. Thereafter, he slept with the deceased on another cot at the backside of the house. In the midnight, while the deceased was sleeping, he hacked her with an axe on her head and ran away to his village Royyuru, by throwing the axe in the bushes on the way. On hearing the cries of the deceased, P.Ws.1 and 2, parents of the deceased, woke up and found the deceased with bleeding injury on head. Immediately, she was shifted to Government Hospital, Bhadrachalam, and while undergoing treatment in the said hospital, she succumbed to the head injury on 17-7-2005. On hearing the cries of the deceased, P.Ws.1 and 2, parents of the deceased, woke up and found the deceased with bleeding injury on head. Immediately, she was shifted to Government Hospital, Bhadrachalam, and while undergoing treatment in the said hospital, she succumbed to the head injury on 17-7-2005. On the report lodged by P.W.1, P.W.6 Assistant Sub-Inspector of Police, Peruru Police Station, registered a case in Crime No. 6 of 2005 for the offences punishable under Sections 302 and 498-A IPC and issued FIR P.W. 6 examined P.W.1 and recorded his statement. P.W.13-Sub-Inspector of Police took up further investigation in the case. He conducted inquest over the dead body of the deceased in the presence of P.W. 10 and one L. Venkata Narsaiah (LW. 12), under EX. P-7 inquest report, examined and recorded the statements of P.Ws. 2, 3 and others. He then sent the dead body of the deceased for postmortem examination. Thereafter, P.W. 12 Inspector of Police took up further investigation, examined and recorded the statements of P.Ws. 4, 9 and one Suvartha (L.W. 11). He observed the scene of offence, drafted Ex. P-4 scene of offence panchanama and seized controlled earth and bloodstained earth from the scene of offence under cover of crime details form, in the presence of P.W. 7 and one Lalaiah (L.W. 18). On 11-7-2005, he apprehended the accused and pursuant to the accused confessing to the commission of offence, seized M.O. 1 axe used in the commission of offence, from his house, in the presence of P.W. 8 and one Srinivasa Rao (L.W. 20). He then forwarded the material objects to the RFSL, Warangal, for analysis. After receipt of postmortem examination report and RFSL report ad after completion of investigation, he filed charge sheet against the accused. 4. The Sessions Judge framed charges against the appellant-accused for the offences punishable under Sections 302 and 498-A IPC. The appellant-accused pleaded not guilty for the said charges and claimed to be tried. 5. To prove the guilt of the appellant accused, the prosecution examined P.Ws. 1 to 13 and marked Exs. P-1 to P-8 and M.O. 1. No oral or documentary evidence was adduced by the appellant in defence. 6. The appellant-accused pleaded not guilty for the said charges and claimed to be tried. 5. To prove the guilt of the appellant accused, the prosecution examined P.Ws. 1 to 13 and marked Exs. P-1 to P-8 and M.O. 1. No oral or documentary evidence was adduced by the appellant in defence. 6. The Sessions Judge, having appreciated the entire evidence available on record, held the appellant-accused guilty for the offences punishable under Sections 302 and 498-A IPC, convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 500/-, in default to undergo simple imprisonment for a period of three months, for the offence punishable under Section 302 IPC, and to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 500/-, in default to undergo simple imprisonment for a period of three months, for the offence punishable under Section 498-A IPC. 7. We have heard the counsel for the appellant and the Additional Public Prosecutor for the State and perused the judgment under appeal and other material available on record. 8. The point that arises for consideration in the present appeal is whether the prosecution could establish the guilt of the appellant-accused for the offences punishable under Section 302 and 498-A IPC beyond all reasonable doubt? 9. P.W. 1 is the father of the deceased. P.W.2 is the mother of the deceased. P.W. 3 is the Medical Officer, to whom the deceased was first taken for treatment. P.W. 4 is said to have conducted panchayat between the accused and the deceased. P.W. 5 is the Medical Officer, who conducted autopsy over the dead body of the deceased and issued post-mortem examination report. P.W. 6 is the A.S.I. of Police, who registered the case based on EX. P-1 report lodged by P.W. 1. P.W. 7 is mediator to the confession of accused and recovery of M.O. 1 axe at his instance. P.W.9 is said to have conducted panchayat between the accused and the deceased. P.W.10 is mediator to inquest report P.W.11 is the Medical Officer, who gave first aid to the deceased. P.W.12 is the Inspector of Police and P.W. 13 is the Sub-Inspector of Police, who investigated the case. 10. P.W.9 is said to have conducted panchayat between the accused and the deceased. P.W.10 is mediator to inquest report P.W.11 is the Medical Officer, who gave first aid to the deceased. P.W.12 is the Inspector of Police and P.W. 13 is the Sub-Inspector of Police, who investigated the case. 10. The prosecution, to prove that the accused used to harass the deceased demanding the money earned by her by doing coolie work and in that regard panchayat was held between them, relied upon the evidence of P.Ws. 1 and 2, who are the father and mother of the deceased respectively, and P.Ws. 4 and 9, who are said to have conducted panchayat between the accused and the deceased. 11. P.W.1 stated that the accused stopped doing any work since about seven years. He was addicted to vices such as drinking and gambling. The accused used to beat the deceased and harass her. He used to snatch away the coolie amounts earned by the deceased, to meet his vices. The deceased, unable to bear the harassment of the accused, came to his house and he sent her back, requesting the accused to look after her properly, but the accused continued his harassment. It happened twice or thrice. He placed the matter before the village elders namely Kogila Muthaiah (P.W. 9), Rodda Mallaiah (P.W.4) and one Kogila Latchaiah. In the panchayat, the accused admitted his mistake and assured to look after the deceased properly. The said panchayat was held about three months prior to the incident. After the panchayat, the deceased joined the accused, but he did not change his behaviour. P.W.1 further stated that thereafter, he shifted his residence to Korekal and stayed in the house of his brother-in-law namely Yerra Samaiah. About three months prior to the incident, the deceased along with her three children came to his house in Korekal and informed that the accused was harassing her in drunken state far money. She expressed her unwillingness to join the accused. Four or five days later, the accused also came to his house. When they questioned about his harassment towards the deceased, he did not speak anything. The accused also stayed in their house. He used to beat the deceased, after they went to coolie work. The accused used to ask the deceased to come to his village, but the deceased refused to go. 12. When they questioned about his harassment towards the deceased, he did not speak anything. The accused also stayed in their house. He used to beat the deceased, after they went to coolie work. The accused used to ask the deceased to come to his village, but the deceased refused to go. 12. P.W. 2 corroborated the version of P.W. 1, by deposing about the harassment of the accused towards the deceased for money and P.Ws. 4 and 9 conducting panchayat in that regard, and the accused coming and staying with the deceased at Korekal and demanding the deceased to come with him to his village. 13. Though according to P.Ws. 1 and 2, the accused used to harass the deceased and did not change his attitude even after conducting panchayat, but in their cross-examination, both of them have categorically admitted that they did not lodge any report with the police against the alleged harassment of the accused towards the deceased either before or after the alleged panchayat was conducted. Further, according to them, even during his stay with the deceased at Korekal, the accused used to beat her asking her to come to his village. Even then, they did not lodge any report with the police. The conduct of P.Ws. 1 and 2 in not lodging any report with the police, in spite of the accused continuing his harassment towards the deceased even after the alleged panchayat was conducted, and instead allowing him to stay with the deceased, is quite unnatural. This unnatural conduct of P.Ws. 1 and 2 coupled with the admission made by them that the accused and the deceased led marital life for 12 years and begot three children, creates a doubt in the mind of the court with regard to their version about the alleged harassment of the accused towards the deceased. 14. Further, P.W. 4, who is said to have conducted panchayat between the accused and the deceased, though deposed that the accused used to beat the deceased in drunken condition and that himself, P.W.9 and one Kogila Laxmaiah conducted a panchayat regarding the disputes between the accused and the deceased, but he did not state the reason for the alleged disputes between the accused and the deceased. Further, his cross-examination reveals that he came to know about the alleged disputes between the accused and the deceased only when he held panchayat and prior to and after panchayat, he does not know how the relation between the accused and the deceased was. Thus, his evidence does not help the prosecution to prove that the accused used to harass the deceased for the amounts earned by her by doing coolie work. 15. Further, the statement of P.W.4 that himself and P.W.9 conducted a panchayat between the accused and the deceased, is not corroborated by P.W. 9. According to P.W.9, he did not conduct any panchayat between the deceased and the accused, and when there were quarrels between the accused and the deceased, he only advised them not toe quarrel and to live happily. In his cross-examination, he categorically stated that after he advised, the accused and the deceased lived happily. He too did not state the reason for the alleged quarrels between the accused and the deceased. 16. Thus, except the evidence of P.Ws. 1 and 2, who are none other than the father and mother of the deceased, which is not trustworthy, there is no other independent corroborating evidence on record to show that the accused used to harass the deceased for the amounts earned by her by doing coolie work or for the reason that she is not coming to his village. The evidence of P.Ws. 4 and 9 being inconsistent with each other as regards conducting of panchayat between the accused and the deceased, their evidence also does not help the prosecution to prove that a panchayat was conducted between the accused and the deceased as regards the alleged harassment of the accused towards the deceased for money. Further, though according to the prosecution, the accused suspected the fidelity and harassed her on that ground also, but the fact remains, the prosecution did not adduce any evidence to prove that allegation. The prosecution, thus, failed to prove that the deceased was subjected to any physical or mental harassment by the accused, and hence could not establish the charge under Section 498-A IPC against the accused, beyond all reasonable doubt. 17. So far as the charge under Section 302 IPC is concerned, the prosecution mainly relied upon the evidence of P.Ws. 1 and 2, which is circumstantial in nature. 18. 17. So far as the charge under Section 302 IPC is concerned, the prosecution mainly relied upon the evidence of P.Ws. 1 and 2, which is circumstantial in nature. 18. According to P.W. 1, on the night of incident, the three children of the accused and the deceased slept on one cot, while the accused and the deceased slept on another cot. Himself and his wife P.W. 2 slept on a cot on the road in front of their house. In the midnight, he heard some sounds from the side of the cot of the accused and the deceased. Then himself and his wife went there and found the deceased groaning with bleeding injuries on her temple region. They did not find the accused there. On hearing their cries, the neighbours gathered there and they took the deceased to Government Hospital, Perur, in a jeep belonging to one Ganapathi. As the condition of the deceased was serious, the doctor advised them to take her to Venkatapuram hospital and accordingly they took her to Venkatapuram hospital, where the doctor, after giving first and to the deceased, asked them to take her to Bhadrachalam hospital. Then they took her to Government Hospital, Bhadrachalam. The deceased died on Tuesday at about 12.30 p.m. i.e., three days after the incident. Thereafter, he gave Ex. P-1 report. 19. P.W. 2 corroborated the version of P.W. 1 that on the night of the incident, the children of the accused and the deceased slept on a separate cot, and the accused and the deceased slept on another cot at a distance, while herself and P.W. 1 slept on one other cot on the road in front of their house. She stated that in the midnight, P.W. 1 came and woke her up and then she went near the cot of the accused and the deceased, and found the deceased with a bleeding injury on her left temporal region. The accused was not present there. 20. Though P.W. 1 deposed in his chief examination that on hearing sounds from the side of the cot of the deceased, himself and P.W. 2 went to the cot of the deceased and found her with bleeding injuries on her left temporal region, but in his cross-examination, he stated that at first, he went and saw the condition of the deceased and then called P.W. 2 and then she came there. Thus, he gave inconsistent statements in his evidence. This apart, it was elicited in his cross-examination that the distance between their cot and the cot of the deceased is about 100 feet or 150 feet. IF that is so, his evidence that he heard sounds from the cot of the deceased, which is at a distance of about 100 to 150 feet from their cot, cannot be believed. Further, though in EX. P-1 report, he stated that on 14-5-2005 at about 9.00 p.m. the accused made agalata in drunken state and asked the deceased to come to his native place Royyuru, but he did not depose anything about the said galata in his chief-examination, except denying the suggestion put by the defence counsel in his cross-examination that there was no galata between the accused and the deceased on the night on 14-5-2005. Even the evidence of P.W.2 does not reveal that any galata took place between the accused and the deceased before they slept. Thus, the only incriminating part in the evidence of P.Ws. 1 and 2 is that the deceased and the accused slept on one cot on the night of incident and after the incident, the accused was found missing from the scene of offence. P.Ws. 1 and 2 neither found the deceased and the accused quarreling with each other before the incident nor witnessed the accused running away from the scene of offence after the incident, nor were informed by the deceased that the accused caused the injury sustained by her. 21. Further, it was elicited in the cross-examination of P.W. 1 that the house of one Galib is near to the place where the deceased and the accused slept on a cot. The prosecution though cited the said Galib as a witness in the list of witnesses, but did not examine him. Further, though P.W. 1 stated that the neighbour from four or five houses gathered at the scene of offence, the prosecution did not examine anyone of them, for the reasons best known to them. 22. Further, according to P.Ws. 1 and 2, they found the deceased with a bleeding injury on her left temporal region. Further, though P.W. 1 stated that the neighbour from four or five houses gathered at the scene of offence, the prosecution did not examine anyone of them, for the reasons best known to them. 22. Further, according to P.Ws. 1 and 2, they found the deceased with a bleeding injury on her left temporal region. P.W.3 Medical Officer, to whom the deceased was first taken for treatment, and P.W. 1 Medical Officer, who gave first aid to the deceased, have also categorically stated that they found bleeding injury on the left side of the head of the deceased. According to the prosecution, the accused hacked the deceased with M.O.1 axe on her left temporal region, while she was sleeping on a cot. But, P.W. 12 Investigating Officer did not seize the said cot and on the other hand, he stated in his cross-examination that he found no bloodstains on the cot. It is unbelievable that there would be no bloodstains on the cot, in spite of the deceased sustaining bleeding injury on her left temporal region while sleeping on the cot. 23. Further, EX. P-1 report was lodged by P.W. 1 on 17-5-2005 at 22.00 hours, while the incident occurred on the night of 14-5-2005, and thus there is a delay of three days in lodging EX. P-1 report. Though the prosecution tried to justify the delay that occurred in lodging Ex. P-1 report with the police, by mentioning in Ex. P-3 FIR that the delay was due to shifting of the deceased to Bhadrachalam for treatment, but the fact remains, the deceased has undergone treatment for three days after the incident and it is not known as to why the hospital authorities have not intimated to the police about the admission of the deceased, particularly, when it was a medico-legal case. P.W.1 after admitting the deceased in the hospital on 15-5-2005, could have reported the matter to the police, if really he had suspected the accused to have hacked the deceased, but he did not do so and waited till the death of the deceased on 17-5-2005. Thus, the delay in lodging Ex. P-1 report by P.W. 1 is not properly explained. Further, P.W.1 admitted that he is not the scribe of Ex. P-1 and he even did not furnish the name of the scribe. Even P.W.6 A.S.I. of Police, who registered the case based on Ex. Thus, the delay in lodging Ex. P-1 report by P.W. 1 is not properly explained. Further, P.W.1 admitted that he is not the scribe of Ex. P-1 and he even did not furnish the name of the scribe. Even P.W.6 A.S.I. of Police, who registered the case based on Ex. P-1 report, stated that he did not verify with P.W. 1 about the name of the scribe of Ex. P-1. Thus, it is clear that there are laches on the part of the investigating agency, which are fatal to the case of the prosecution. 24. Admittedly, there are no eyewitnesses to the incident. The entire case of the prosecution is based on circumstantial evidence. The law is well settled that when the case of the prosecution is wholly based on circumstantial evidence, presumption of innocence of the accused must have a dominant role. It is also equally well settled that in cases where the evidence is of circumstantial nature, the circumstances which lead to the conclusion of guilt of the accused, in the first instance should be fully established, and all the facts so established, should be consistent with the hypothesis of the guilt of the accused alone. The circumstances should be of a conclusive nature and tendency, and should be of such nature as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be shown that within all human probability the act must have been committed by the accused. 25. In the instant case, except the evidence of P.Ws. 1 and 2, who are none other than the father and mother of the deceased, that the accused and the deceased slept on one cot on the night of incident and they found the accused missing from the scene of offence after the incident, absolutely there is no other evidence available on record to establish any other circumstances that connect the accused with the commission of the murder of the deceased, beyond all reasonable doubt. Of course, the prosecution could establish that M.O. 1 axe, which is said to have been used by the accused in the commission of offence, was recovered at the instance of the accused, by P.W.12 Inspector of Police, in the presence of P.W. 8. But however, since the prosecution has failed to establish that all the links in the chain are properly connected and point to the guilt of the accused beyond all reasonable doubt, which is essential in a case wholly based upon circumstantial evidence, we are of the considered opinion that it is not safe to convict the accused, solely based on the recovery of M.O. 1 axe at the instance of the accused and the interested testimony of P.Ws. 1 and 2, which does not inspire confidence in the mind of the Court, and more particularly, when there are laches on the part of the investigating agency in not examining any of the neighbours of P.Ws. 1 and 2 and the scribe of Ex. P-1 report, and the prosecution failed to explain properly the reasons for the delay that took place in lodging Ex. P-1 repot by P.W. 1. Hence, we hold that the accused is entitled for benefit of doubt and is liable to be acquitted for the charges framed against him. 26. In the result, the criminal appeal is allowed. The conviction and sentence imposed against the appellant-accused, by judgment dated 20-2-2008 passed in S.C. No. 41 of 2007 by the IV Additional Sessions Judge (Fast Track Court-III), Khammam, for the offences punishable under Sections 302 and 498-A IPC is hereby set aside. The appellant-accused is acquitted for the said charges and he shall be set at liberty forthwith, if he is not required in any other case, and the fine amount if any paid by him shall be refunded to him.