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2013 DIGILAW 1240 (AP)

Varikuppala Venkatesh v. State of A. P.

2013-12-31

ANIS, K.C.BHANU

body2013
JUDGMENT K.C. Bhanu, J. 1. This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, "Cr. P.C"), is filed by the appellant/accused against the Judgment, dated 07.08.2009 in Sessions Case No. 275 of 2007 on the file of the IV Additional Sessions Judge, Ranga Reddy District, whereunder and whereby, the appellant was found guilty of the offences punishable under Sections 498-A and 302 of the Indian Penal Code, 1860 (for short, "I.P.C.") and accordingly, he was convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of 5,000/-, in default, to suffer simple imprisonment for one year; and to undergo imprisonment for life and to pay a fine of 10,000/-, in default, to undergo simple imprisonment for two years for the offences punishable under Sections 498-A and 302 I.P.C. respectively. The brief facts that are necessary for disposal of the present appeal may be stated as follows: The accused is the resident of Moinabad village and Mandal, Ranga Reddy District. Susheela @ Durgamma (hereinafter referred to as 'the deceased') is the daughter of PWs. 1 and 2, and about six years prior to the date of incident, her marriage was performed with the accused. After the marriage, both of them lived happily and were blessed with two male children. Then, about one year prior to the date of incident, the deceased along with her husband and children came to Moinabad, to eke out their livelihood and started working as stone cutters, by staying in a rented house. After hailing to Moinabad, the accused addicted to consume liquor and used to beat the deceased by demanding the amount earned by her as coolie. Due to the harassment and ill-treatment made by the accused, the deceased returned to her parental house at Sahebnagar, and started living there. Thereafter, about 20 days prior to the date of incident, the accused went to the house of the deceased and requested her parents to send the deceased back with him, upon which PW. 1 and others held a panchayat before the elders and in pursuance of mediation, ciders sent the deceased with the accused. On 28.07.2006 in the evening hours, the accused returned home in a drunken state and demanded the deceased for the amount earned by her. 1 and others held a panchayat before the elders and in pursuance of mediation, ciders sent the deceased with the accused. On 28.07.2006 in the evening hours, the accused returned home in a drunken state and demanded the deceased for the amount earned by her. When the deceased refused to give the amount, the accused picked up a quarrel with her and beat her. The altercation between them prolonged up to 03.00 hours of 29.07.2006, and having failed to get money from the deceased and having infuriated with her attitude, the accused on that day at about 03:00 hours, with an intention to eliminate her, picked up an iron rod, which is used to break stones and beat the deceased on her head. Further, the accused banged the head of the deceased to a wall in the house, as a result of which she sustained severe bleeding head injury and died instantaneously, and thereafter, the accused fled away from the scene of occurrence. FW. 1 gave a complaint to PW. 11-Sub Inspector of Police, who in turn, registered the same as a case in Cr. No. 158 of 2006 for the offences punishable under Sections 498-A and 302 I.P.C., issued First Information Report to all concerned, examined PW. 1 and recorded his statement. PW. 12 took up further investigation, visited the scene of occurrence, examined the witnesses, recorded their statements, conducted a detailed scene of occurrence observation report, and seized one iron pad (MO. 1), blood stained wall piece, control wall piece and broken bangle pieces (MO. 2) under the cover of scene observation-cum-seizure panchanama Ex. P6 in the presence of PW. 8 and another. On the requisition given by PW. 12, PW. 9 visited the scene of occurrence and held inquest over the dead body of the deceased in the presence of the same witnesses. During the inquest, PW. 12 seized one pink colour blouse (MO. 4), brinjal colour printed saree (MO. 3), light black colour petty coat (MO. 5), got photographed the scene of occurrence and the dead body through a private photographer and thereafter, shifted the dead body of the deceased to autopsy and after autopsy, handed over the dead body to its blood relatives for funerals. 12 seized one pink colour blouse (MO. 4), brinjal colour printed saree (MO. 3), light black colour petty coat (MO. 5), got photographed the scene of occurrence and the dead body through a private photographer and thereafter, shifted the dead body of the deceased to autopsy and after autopsy, handed over the dead body to its blood relatives for funerals. Thereafter, the Circle Inspector of Police, assumed further investigation in this case, re-examined the witnesses and on 31.07.2006, he apprehended the accused, who confessed his guilt in the presence of mediators. The Circle Inspector of Police arrested the accused, sent him to the Court for judicial remand on 31.07.2006, sent the seized material objects to Forensic Science Laboratory, Hyderabad for analysis and report and thereafter, after receipt of the post-mortem report and Forensic Science Laboratory report, he filed the charge sheet into the Court. 2. On appearance of the appellant/accused, the trial Court framed the following charges against him: Charge No. 1: That you Venkatesh used to harass your wife Suseela @ Durgamma to give the hard earnings of her to you to utilise your vices both physically and mentally and thereby you have committed the offence punishable under Sec. 498-A IPC and within my cognizance. Charge No. 2: That you Venkatesh on 28.7.2006 in the evening hours started quarreling with your wife and continued the same till 3 a.m., of 29-7-2006 and in that quarrel with an intent to end the life of your wife you beat your wife with an iron rod on her head and also banged her head to a wall and your wife received injuries and died on the spot and thereby you have committed the offence punishable under Sec. 302 IPC and within my cognizance. 3. When the above charges were read over and explained to the appellant/accused in Telugu, he pleaded not guilty and claimed to be tried. 4. In order to bring home the guilt of the appellant/accused the prosecution examined P.Ws. 1 to 12 and got marked Exs. P1 to P10, besides the case properties M.Os. 1 to 5. 5. After closure of the prosecution evidence, the appellant/accused was examined under Section 313 Cr. P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same and reported no evidence either oral or documentary. 6. P1 to P10, besides the case properties M.Os. 1 to 5. 5. After closure of the prosecution evidence, the appellant/accused was examined under Section 313 Cr. P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same and reported no evidence either oral or documentary. 6. The trial Court after considering the oral and documentary evidence on record, found the appellant/accused guilty of the offences with which he was charged and accordingly, convicted and sentenced him as stated above. Challenging the said convictions and sentences, the present appeal has been preferred by the appellant/accused. 7. Now, the points that arise for determination are: 1. Whether the death of the deceased-Susheela @ Durgamma is a homicidal one? 2. Whether the prosecution has proved its case against the appellant/accused beyond all reasonable doubt for the charges under Sections 498-A and 302 I.P.C.? 3. Whether the judgment of the trial Court is correct, legal and proper? 8. The learned counsel for the appellant/accused contended that there is absolutely no evidence to show that the appellant was present on the fateful day of the incident in the house, and that he had committed the murder of the deceased; that the prosecution failed to establish the motive for the offence; and that the neighbouring witnesses did not support the case of the prosecution and therefore, the prosecution failed to establish that the appellant/accused committed the murder of the deceased. She also relied on some decisions, which will be referred hereafter at appropriate time. 9. On the other hand, the learned Additional Public Prosecutor contended that since the appellant/accused being the husband, would naturally be present in the house during night time and the explanation given by him to show that he went to his mother's house is found to be false and there is no possibility for any other person to enter into the house to commit the murder for gain; and that the medical evidence would clearly go to show that it is the case of homicidal death, and therefor he prays to dismiss the appeal. 10. POINTS: PW. 9 is the Mandal Revenue Officer, who conducted inquest on the dead body of the deceased. As per Ex. P7 inquest report, in the presence of PW. 8 and others, the inquest was conducted. The injuries sustained by the deceased were incorporated in Col. 10. POINTS: PW. 9 is the Mandal Revenue Officer, who conducted inquest on the dead body of the deceased. As per Ex. P7 inquest report, in the presence of PW. 8 and others, the inquest was conducted. The injuries sustained by the deceased were incorporated in Col. No. VII of Ex. P7. The opinion of the inquest mediators was incorporated in column No. XV of Ex. P7, which shows that it is the case of homicidal death as a result of injuries sustained by her. 11. PW. 10 is the doctor, who conducted autopsy on the dead body of the deceased and found the following external ante-mortem injuries. 1. Obliquely placed laceration 5 X 1 X bone deep over the mid frontal region a right parietal region. 2. Horizontally placed laceration of 1 X 0.5 muscle deep over the pinna of right ear. 3. Horizontally placed laceration 3 X 2 X bone deep over the right Mastoid area. 1 cm from right ear surrounded by contusion. 4. Obliquely placed laceration of 2 X 1 bone deep, over the upper part of the left neck. 5 cms from left ear. 5. Obliquely placed laceration of 3 X 2 bone deep over the left mastoid area 2 cms form left ear. 6. Horizontally placed laceration 3 X 1 X muscle deep over the right check 3 cms below right eye. 7. Contused abrasion 0.5 X 0.5 over the middle of the lower lip. 8. Contused abrasion 0.25 X 0.25 cms over the right forehead. 6 cms above the right eye brow. 9. Contused abrasion of 1 X 0.5 cms over the left forehead above the left eye brow. 10. Horizontally placed laceration of 1 X 0.25 cms muscle deep over the upper part of the chin 0.5 cms below the lower lip. 11. Multiple contused abrasion of over the area of 10 X 5 cms of varying sizes from 0.25 X 0.25 cms to 0.5 X 0.25 cms over the front and sides of the neck. 12. Contused abrasion of 0.5 X 0.5 cms over the chin. 13. Skull-diffuse scalp contusion of 5 X 3 cm over the right frontal parietal region. 14. Brain diffuse sub dural & Sub-Arachinoid hemorrhage over the left cerebral hemisphere. 15. Contusion of neck muscles & under lying neck structures Reddish blue in colour. 16. Fracture dislocation of C2 & C3 vertebrae & surrounded the diffuse contusion. 13. Skull-diffuse scalp contusion of 5 X 3 cm over the right frontal parietal region. 14. Brain diffuse sub dural & Sub-Arachinoid hemorrhage over the left cerebral hemisphere. 15. Contusion of neck muscles & under lying neck structures Reddish blue in colour. 16. Fracture dislocation of C2 & C3 vertebrae & surrounded the diffuse contusion. 17. Hyoid cartilage & Thyroid cartilage are intact and nothing particular. PW. 10 opined that the above injuries are fresh and the cause of the death is due to the head injury associated with cervical vertebral injury. Ex. P8 is the postmortem report. Thus, the evidence of PW. 10, and recitals in Ex. P8 remained unchallenged and the medical evidence leaves no room to conclude that the death of the deceased is homicidal. 12. The accused is no other than the husband of the deceased. After the marriage, the accused and the deceased started living happily in Leninnagar. Some time later, they shifted their residence to Moinabad in order to eke out their livelihood. Even at Moinabad, they lived happily. The scene of occurrence is not in dispute. PW. 8 is one of the mediators, who was present when PW. 12 observed the scene of occurrence as in Ex. P6. It is the house of PW. 6. One room was given on lease to the accused. Even the accused is not disputing about taking place of the death of the deceased in the room, in which he and his wife were living.- 13. There is no direct evidence to show that the accused is the assailant of the deceased. The case rests upon the circumstantial evidence. When a case rests upon circumstantial evidence, law is well settled that all the circumstances must firmly and unerringly point out the guilt towards the accused and all the circumstances if taken cumulatively, form a chain so complete that within all human probability, the crime was committed by the accused and none else. When a case rests upon circumstantial evidence, the following circumstances have to be proved by the prosecution in view of the decision reported in Sharad Biridhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 . (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for 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. Bearing the above principles in mind, it has to be seen whether the prosecution is able to establish the guilt of the accused beyond all reasonable doubt. 14. PWs. 1 to 3 are the father, mother and sister of the decease respectively. Admittedly, all these persons are the residents of Sahebnagar, Vanasthalipuram, Ranga Reddy District. They were not present at the time of the incident. On coming to know about the death of the deceased, on the information given by the brother of the accused, they rushed to the scene of occurrence and saw the dead body of the deceased in the room. They did not speak any motive for the accused to commit the murder except a petty incident that took place about one month prior to the incident. It is alleged that the accused beat the deceased on her head and sutures were made. The reason for beating was that at that time, the accused was in a drunken state. Therefore, the evidence of these witnesses is not helpful for the case of prosecution to show that the accused was present in the house on the fateful day of the incident. 15. PWs. 4 and 5, who are the neighbouring residents of the locality, who can speak about the presence of the accused at the time of incident, did not support the case of the prosecution. They have given a complete go-bye to their earlier statements made to the police. Except marking their statements recorded under Section 161(3) Cr. 15. PWs. 4 and 5, who are the neighbouring residents of the locality, who can speak about the presence of the accused at the time of incident, did not support the case of the prosecution. They have given a complete go-bye to their earlier statements made to the police. Except marking their statements recorded under Section 161(3) Cr. P.C., nothing has been elicited in their cross-examination to prove the charges leveled against the accused. 16. PW. 6, who is the owner of the room, is admittedly residing in Maharajpet, Shankarpalli. Upon coming to know about the incident, he came to the scene of occurrence and the neighbouring residents informed him that the accused killed his wife. His evidence is hearsay and therefore, it is not admissible under law. PW. 7, who is said to be the mediator present at the time of execution of Ex. P2 undertaking said to have been given by the accused, did not support the case of prosecution. 17. PW. 11 is the Sub-Inspector of Police. After receipt of Ex. P1 report from PW. 1, he registered a case in Cr. No. 158 of 2006. PW. 12 is the Investigating Officer. He simply conducted the investigation by giving a requisition to the Mandal Revenue Officer to conduct inquest, sent the dead body to the Government Hospital for postmortem examination and arrested the accused. Even after the arrest of the accused, no incriminating facts have been discovered in pursuance of his confessional statement. Though he stated that as per his investigation, only the accused and the deceased were living in the room, that cannot be taken as the evidence to convict the accused. Though he collected the evidence to show that the accused was in the house on that night, he has not produced that evidence. 18. Learned counsel for the appellant/accused relied upon a decision reported in Dasari Siva Prasad Reddy v. The Public Prosecutor, High Court of A.P. AIR 2004 SC 4383 : 2004 (2) ALD (Crl.) 677 (SC), wherein it is held as follows: 24. A strong suspicion, no doubt, exists against the appellant but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. The distance between 'may be true' and 'must be true' shall be fully covered by reliable evidence adduced by the prosecution. A strong suspicion, no doubt, exists against the appellant but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. 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 PW3, the evidence of PW4 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 circumstance 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. Further, the learned counsel also placed reliance on the decision reported in Malleshappa v. State of Karnataka 2008 (1) ALT (Crl.) 19 (SC), wherein it is held as follows: 23. In the light of the evidence available on record, can it be said that the circumstances of last seen together by itself and necessarily lead to the inference that it was the appellant who committed the crime? The High Court took the view that accused Nos. 6 and 7 are entitled to the benefit of doubt though, P.W. 10 stated in her evidence that the appellant, accused Nos. 6 and 7 took her son Yankanna on the fateful day. No motive was shown with regard to accused Nos. 6 and 7 for their involvement in the crime. It is under those circumstances, the High Court said that the burden shifts to the appellant to show as to what happened to the deceased-Yankanna. In our considered opinion, the High Court committed serious error in arriving at such conclusion. The first information report lodged by P.W. 10 itself is highly doubtful. P.W. 10's evidence itself does not reveal any circumstances to hold that the prosecution has established the charge against the appellant. In our considered opinion, the High Court committed serious error in arriving at such conclusion. The first information report lodged by P.W. 10 itself is highly doubtful. P.W. 10's evidence itself does not reveal any circumstances to hold that the prosecution has established the charge against the appellant. The appellant's failure to offer any explanation in his statement under Section 313 Cr. P.C. is not a circumstance to hold appellant guilty of the charge. The prosecution has failed to establish as to when the death of Yankanna took place, it could be at any time between 12th July, 2001 to 21st July, 2001. There is nothing on record to show as to what transpired between 12th July, 2001 to 21st July, 2001. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant. Learned Counsel for the State relied upon the decision in Mohibur Rahman and another v. State of Assam (2002) 6 SCC 715 which in fact is in support of the defence and nor the prosecution. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place. As already noted the death body has been recovered about 14 days after the date on which the deceased was last seen in the company of the accused. The distance between the two places is about 30-40 kms. The event of the two accused persons having departed with the deceased and thus last seen together (by Lilima Rajbongshi, P.W. 6) does not bear such close proximity with the death of victim by reference to time or place. According to Dr. Ratan Ch. Das the death occurred 5 to 10 days before 9.2.1991. The event of the two accused persons having departed with the deceased and thus last seen together (by Lilima Rajbongshi, P.W. 6) does not bear such close proximity with the death of victim by reference to time or place. According to Dr. Ratan Ch. Das the death occurred 5 to 10 days before 9.2.1991. The medical evidence does not establish, and there is no other evidence available to hold, that the deceased had died on 24.1.1991 or soon thereafter. So far as the accused Mohibur Rahman is concerned this is the singular piece of circumstantial evidence available against him. We have already discussed the evidence as to recovery and held that he cannot be connected with any recovery. Merely because he was last seen with the deceased a few unascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence under Section 201 IPC is concerned there is no evidence worth the name available against him. He is entitled to an acquittal. From the above decisions, it is clear that suspicion however strong, cannot take the place of legal proof. 19. In this case, there is no evidence to show that prior to the time of incident, the accused was present in the room, so as to draw inference that he might be responsible for causing the death of the deceased. Except proving that the death of the deceased is homicidal in nature, the prosecution has not established the factum of the presence of the accused in the house on the fateful day of the incident. One of the reasons given by the learned Sessions Judge to convict the accused is that an inference can be drawn that the accused has committed the offence as he was absconding from the date of incident and he did not attend the last ceremonies and obsequies of his wife. Mere absconding, and non presence, of the accused at the time of last rituals cannot lead to draw an inference that the crime must have been committed by the accused. Though the accused pleaded alibi that he was not present in the house, the plea of alibi has been disbelieved by the trial Court. Mere absconding, and non presence, of the accused at the time of last rituals cannot lead to draw an inference that the crime must have been committed by the accused. Though the accused pleaded alibi that he was not present in the house, the plea of alibi has been disbelieved by the trial Court. In any view of the matter, it is for the prosecution to establish that the accused was present in the house on the fateful day of the incident. Such evidence is lacking. Therefore, the findings of the trial Court are not based on proper appreciation of evidence and hence the judgment of the trial Court is liable to be inferred with. 20. There is absolute no evidence to show that the deceased was treated with cruelty, within the meaning of Section 498-A I.P.C. Cruelty means, any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of a woman, or harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by or, any person related to her to meet such demand. PWs. 1 & 2 did speak about cruelty meted out to the deceased. Hence, prosecution failed to establish the necessary ingredients for the offence punishable under Section 498-A I.P.C. 21. Thus, in view of the above discussion, we are of the view that the prosecution failed to establish the guilt of the appellant/accused beyond all reasonable doubt for the offences punishable under Sections 498-A & 302 I.P.C. and therefore, the convictions and sentences recorded by the trial Court are unsustainable and the appellant/accused is entitled for acquittal. Accordingly, the Criminal Appeal is allowed setting aside the convictions and sentences recorded by the IV Additional Sessions Judge, Ranga Reddy District, vide Judgment, dated 07.08.2009, in Sessions Case No. 275 of 2007 against the appellant/accused for the offences punishable under Sections 498-A and 302 I.P.C. The appellant/accused is found not guilty of the above offences and accordingly, he is acquitted of the same. The appellant/accused shall be released forthwith, if he is not required to be detained in any other case. The appellant/accused shall be released forthwith, if he is not required to be detained in any other case. Fine amount, if any, paid by him shall be refunded to him. Miscellaneous petitions, pending if any in this criminal appeal shall stand closed.