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2014 DIGILAW 179 (AP)

Soreddy Satyanarayana Reddy v. State of A. P.

2014-02-06

ANIS, K.C.BHANU

body2014
JUDGMENT Anis, J. 1. This Criminal Appeal is filed by the appellant/accused, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'Cr. P.C.'), against the Judgment, dated 17.06.2009 in Sessions Case No. 102 of 2008 on the file of the VI Additional District & Sessions Judge, (Fast Track Court), Prakasam District at Markapur, whereunder and whereby, the appellant/accused was found guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, 'I.P.C.'), and accordingly, was convicted and sentenced to suffer imprisonment for life and to pay fine of ` 500/-, in default, to suffer rigorous imprisonment for three months. The brief facts that are necessary for disposal of the appeal may be stated as follows: One Soreddy Sakunthala (hereinafter be referred to as 'the deceased') and the accused are wife and husband. They were got married about 12 years prior to the date of the incident, and out of their lawful weadlock, they begot a child by name Soreddy Sai Josna (PW. 4). Ever since the marriage, the accused used to suspect the fidelity of the deceased and used to treat her cruelly. One year prior to the date of the incident, both the accused and the deceased, kept a Tea Bunk near Rayalaseema Restaurant, Giddalur, and used to eke their livelihood. Whenever, the customers used to come to Tea Stall and ask for Tea, the accused used to quarrel the deceased by saying "Yendhi Vaditho Matladedhi". About six months prior to the date of incident, the elders i.e., PW. 3, Chegireddy Venkata Reddy and Annem Rama Subbareddy, convened panchayat and advised both of them to live separately and accordingly, both of them were living separately. Thereupon, the accused went to Karnataka and was staying there, and the deceased was running the Tea Stall and was living in a house, at 4th ward, Veerannabavi Street, along with her daughter PW. 4 and cousin-sister PW. 2. Thereafter, on the birthday of PW. 4, the accused came to Giddalur, stayed for two days along with the deceased and left to Karnataka. Then again i.e., about two weeks prior to the date of incident, the accused came from Karnataka, quarreled with the deceased, beat her and left for Karnataka by telling PW. 2 "Mee Akka Sangathi Oka Nela Rojulalo Chusthanu". 4, the accused came to Giddalur, stayed for two days along with the deceased and left to Karnataka. Then again i.e., about two weeks prior to the date of incident, the accused came from Karnataka, quarreled with the deceased, beat her and left for Karnataka by telling PW. 2 "Mee Akka Sangathi Oka Nela Rojulalo Chusthanu". Then, three days prior to the date of incident, again the accused came from Karnataka and lived with the deceased. On 6.8.207 at 6:00 p.m., the deceased and the accused along with PW. 2, went to Sreenivasa Theatre to see the movie and returned the house. After taking dinner, the accused told to PW. 2 "Mee Avva Intiki Velli paduko", for which PW. 2 went to the house of her grand mother and slept there. Thereafter, in the midnight, PWs. 5, 6 and another on hearing cries, went to the house of the deceased, and saw the accused coming out of the house along with PW. 4. Then, they went inside and observed the deceased fallen on the ground in a pool of blood and her face was covered with a pillow. They removed the pillow and found the deceased dead with block injuries on her head. Later, PW. 2 came with a vessel of water, and on phone by PW. 2, PW. 1 came to the house of the deceased and found the deceased lying in a pool of blood with head injuries and she was informed by PW. 2 about the murder of the deceased, that the accused suspecting the fidelity of the deceased, gave a blow on the head of the deceased with a Chutney pounder and took away PW. 4. On 07.08.2007 at 10:30 a.m., PW. 1 went to Giddaluru Police Station, and presented a report Ex. P9 to PW. 9, who in turn, registered the same as a case in Cr. No. 116 of 2007 for the offence punishable under Section 302 I.P.C. and sent the original First Information Report along with the complaint to all concerned. PW. 10 took up investigation, visited the scene of offence in the presence of mediators PW. 7 and Annem Rama Subbareddy, seized some portion of blood stained floor (Gatchu) (MO. 1), control cement floor patches (MO. 2), some portion of blood stained bontha (MO. 3) and some portion of bontha without blood stains (MO. 4) under a cover of observation report Ex. 7 and Annem Rama Subbareddy, seized some portion of blood stained floor (Gatchu) (MO. 1), control cement floor patches (MO. 2), some portion of blood stained bontha (MO. 3) and some portion of bontha without blood stains (MO. 4) under a cover of observation report Ex. P4 attested by the same mediators. He prepared Ex. P11 rough sketch of the scene of offence, held inquest over the dead body of deceased under Ex. P5 inquest report, examined the witnesses, recorded their statements, sent the dead body of the deceased to postmortem examination, and sent the seized items to Regional Forensic Science Laboratory, Guntur. PW. 8 conducted autopsy over the dead body of the deceased. PW. 9 gave report to the effect that blood was detected on Items 1, 3, 5, 6 & 7 and it is of human origin, but the blood was not detected on items 2 to 4. On 9.8.2007 at 4:15 p.m., PW. 10 along with the staff and mediators PW. 7 and others, rushed to Edga, situated near Sagileru Bridge on Nandyal-Giddalur road, and arrested the accused under the cover of mediators report Ex. P6. The accused confessed the offence committed by him in the presence of the same mediators, and in pursuance of the confession made by him, PW. 10 went to the house of the accused and seized the Chutney pounder under the cover of mediators report Ex. P7 and sent the accused for remand to judicial custody. He, then after receiving Ex. P8 post-mortem report and all other relevant documents and after completing the investigation, filed the charge sheet into the Court. 2. On appearance of the appellant/accused, the trial Court framed the following charge against him: That you on the intervening night of 6th/7th day of August, 2007 at 4th ward Veeranna Bhavi Veedhi, Giddalur, did commit the murder of your wife the deceased i.e., Soreddy Sakunthala by intentionally causing her death by beating with Chetny pounder on her head and forehead by you and you thereby committed an offence punishable u/s. 302 of Indian Penal Code and within my cognizance. 3. When the said charge was read over and explained to the appellant/accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charge against the appellant/accused, the prosecution examined P.Ws. 1 to 10 and got marked Exs. 3. When the said charge was read over and explained to the appellant/accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charge against the appellant/accused, the prosecution examined P.Ws. 1 to 10 and got marked Exs. P. 1 to P. 13, besides the case properties MOs. 1 to 7. 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 the prosecution witnesses. He denied the same and reported no oral or documentary evidence on his behalf. 6. The trial Court after hearing both sides and taking into consideration the oral and documentary evidence available on record, convicted and sentenced the appellant/accused as stated above. Aggrieved by the said conviction and sentence, the present appeal has been preferred by the appellant/accused. 7. Now, the points for determination are: 1. Whether the death of the deceased Soreddy Sakunthala is a homicidal death? 2. Whether the prosecution is able to prove its case beyond all reasonable doubt against the appellant/accused of the offence punishable under Section 302 I.P.C.? 3. Whether the Judgment of the trial Court is correct, legal and proper? 8. POINTS: The learned counsel appearing for the appellant/accused argued that a false case has been foisted against the appellant, though he was not present at the scene of offence at the time of incident; that the trial Court failed to see that there was no motive for the accused to kill the deceased; that PW. 1 is not the eye witness to the incident and she does not have any personal knowledge about the incident, and she narrated about the incident in Ex. P9 report, as if she had seen the incident; that PW. 2 is a chance witness, and she is not the resident of Giddaluru and also Lingampalli villages; that she is a married lady and there is no need for her to stay with the deceased and PW. 4; that the prosecution has not produced any evidence to show that on the date of the incident, she was present at the house of the deceased, and the prosecution failed to prove the last seen circumstance. The learned counsel also argued that the trial Court also failed to see that the independent witnesses PWs. 4; that the prosecution has not produced any evidence to show that on the date of the incident, she was present at the house of the deceased, and the prosecution failed to prove the last seen circumstance. The learned counsel also argued that the trial Court also failed to see that the independent witnesses PWs. 4 to 6 did not support the case of the prosecution, and if the evidence of PW. 3 is taken into consideration, he categorically stated that he acted as an elder to the disputes in between the accused and the deceased, that the accused attributed illegal intimacy against the deceased, that the elders advised both the accused and the deceased to live together or else live separately but not to quarrel, that subsequently, he came to know that the accused left Giddluru and lived in Karnataka; that the statement that PW. 3 came to know that accused visited Giddaluru, is a hear say evidence and he had no personal knowledge, that on the date of the incident, he went to the scene of offence and saw the dead body and also the pestle near the dead body, which is a weapon used in commission of the offence. It is also argued that the daughter of the deceased and accused, also stated that her father was staying at Karnataka and her mother and herself were only residing in their house and her mother is running a Tea Stall; that on the date of the incident, three unknown persons visited their house and she went to Akkireddipalli village. It is also argued that the prosecution also failed to prove the recovery of the weapon; and that there are no eye witnesses to prove the prosecution case and prayed the Court to acquit the accused. 9. On the other hand, the learned Additional Public Prosecutor appearing for the State argued that the evidence of PWs. 7 to 10 proved that the death of the deceased is a homicidal death; that the evidence of PWs. 1 to 3 established the motive for commission of the offence; that the prosecution is also able to prove the last seen theory from the evidence of PWs. 1 & 2; that the evidence of PW. 7 to 10 proved that the death of the deceased is a homicidal death; that the evidence of PWs. 1 to 3 established the motive for commission of the offence; that the prosecution is also able to prove the last seen theory from the evidence of PWs. 1 & 2; that the evidence of PW. 4 cannot be given much weight since she is residing with the accused after the death of the deceased and the prosecution proved the recovery of the weapon as per the confession given by the accused, in the presence of the independent mediators; that the prosecution proved its case beyond reasonable doubt; and that there are no grounds to interfere with the conviction and sentence passed by the trial Court and prayed the Court to dismiss the appeal. 10. POINT 1: PW. 7 is the Village Revenue Officer, Giddaluru. He stated that he acted as one of the mediators for the inquest conducted over the dead body of the deceased; that in the presence of himself and other inquest panchayatdars, PW. 10 Investigating Officer conducted inquest panchanama, and all the panchayatdars opined under Ex. P5 inquest report that the deceased died due to head injury. 11. PW. 8 is the doctor, who conducted postmortem on the dead body of the deceased and found the following injuries; Eyes are closed. Mouth partially opened. Hair is black. Rigor mortis present in lower limbs. Injuries: 1. Right eye black eye 2. Incised wound 1 1/2" 1/2" transversely above the right eye brow. Bone deep. 3. Incised wound 1/2" above the first incised wound size 1" X 1/2" bone deep. 4. Incised wound 3" size over the center of the vertex vertically. 5. Diagonally 2" size incised wound over the right parietal eminence. Internal Examination: Skull: 1. Fracture of right frontal bone above the right eye brow. 2. Meaninges are torn. Intracr Anial haemorrhage present over parietal lobe and frontal lobe and brain congested. Neck: No bony injury. Muscles pale. Thorax: No bony injury, lungs congested. Heart is empty. Abdomen: Liver, spleen kidneys congested, stomach and intestines containing undigested food particles. Urinary bladder empty, Uterus congested. PW. 8 opined under Ex. 2. Meaninges are torn. Intracr Anial haemorrhage present over parietal lobe and frontal lobe and brain congested. Neck: No bony injury. Muscles pale. Thorax: No bony injury, lungs congested. Heart is empty. Abdomen: Liver, spleen kidneys congested, stomach and intestines containing undigested food particles. Urinary bladder empty, Uterus congested. PW. 8 opined under Ex. P8 postmortem certificate that the deceased appeared to have died due to head injury leading to shock and intracranial haemorrhage leading to cardial respiratory failure; and that the death of the deceased occurred about 30 to 36 hours prior to the postmortem examination. PW. 8 also stated that the injuries are sufficient to cause the instantaneous death and the said injuries could be possible by blunt object like MO. 5 pestle; that where skin is closed to bones even if the blow was given by blunt object it causes split injuries appearing like incised wound. Thus, from the evidence of PWs. 7, 8 & 10 and the recitals in Exs. P5 & P8, it is proved that the death of the deceased is homicidal in nature. 12. POINTS 2 & 3: There is no dispute that the scene of offence is the residential house of the deceased situated upstairs building in the hall of 4th ward in the Veerannabhavi Street, Giddalur. PW. 10 Investigating Officer conducted the scene of offence observation in the presence of PW. 7 under Ex. P4 observation report, prepared Ex. P11 rough sketch of the scene of offence, recovered blood stained cement floor objects (MO. 1), control cement floor patches (MO. 2), piece of blood stained bontha (MO. 3) and bontha (MO. 4). The accused has not disputed about Exs. P4, P11 and MOs. 1 to 4. 13. PW. 1 is the mother of the deceased. She came to know about the incident from PW. 2. She is the resident of Lingapuram village. She stated that ten years-prior to the death of her daughter (deceased), she performed the marriage of the deceased with the accused and after the marriage both of them resided in Mohiddinpuram, and they were blessed with PW. She came to know about the incident from PW. 2. She is the resident of Lingapuram village. She stated that ten years-prior to the death of her daughter (deceased), she performed the marriage of the deceased with the accused and after the marriage both of them resided in Mohiddinpuram, and they were blessed with PW. 4; that in the beginning, the accused treated the deceased properly; that they started a Tea Stall in Mohiddinpuram and the accused used to suspect the fidelity of the deceased; that subsequently, they shifted their residence to Giddalur and there also the deceased was running the Tea Stall; that she raised a panchayat against the accused before the elders PW. 3 and others; that the elders advised the accused to live separately if he continued to suspect his wife; that immediately after the panchayat, accused went to Karnataka and her daughter was staying at Giddalur along with PW. 4; that accused used to visit the deceased once in a month or two from Karnataka; and that PW. 2 was residing with the deceased in her house; that three days prior to the date of the incident, the accused came from Karnataka and stayed in the house of the deceased till the date of the incident; that on the date of the incident, the accused took the deceased, PWs. 2 & 4 to Srinivasa theatre to see the movie, and after seeing first show, they returned to the house at 9:00 p.m.; that PW. 2 went to the house of her maternal grand mother for sleeping; that the deceased, accused and PW. 4 slept in the house; that on the following day in the morning at 6:00 a.m., PW. 2 went to the house of the deceased, but PW. 4 and accused were not found there; that PW. 2 found the deceased dead and found one pillow on her face; that PW. 2 informed the same to her, and that there was a bleeding injury on the head of the deceased; that on receiving the phone information, she immediately came from Lingapuram village to Giddaluru; that after seeing the dead body of the deceased, she went to Giddalur Police Station and gave Ex. P9 complaint to the police. In the cross-examination of PW. 1, it is elicited that the distance between Lingamapuram and Giddalur is 50 to 60 kms; that PW. P9 complaint to the police. In the cross-examination of PW. 1, it is elicited that the distance between Lingamapuram and Giddalur is 50 to 60 kms; that PW. 2 is a married person even prior to the date of the incident; that she did not bring the deceased and PW. 4 to Giddalru as the deceased wanted to live independently; that she did not give any report to the police earlier when the police scolded and beat the deceased and denied that during the night of the incident, the accused, deceased, PWs. 2 & 4 did not go to cinema theatre to watch a show and the accused was in Karnataka and that somebody used to visit the house of the deceased every day, and they demanded ` 50,000/- from the accused and falsely implicated the accused in this case. 14. PW. 9 Sub Inspector of Police Cimakurthi, after receiving Ex. P9 complaint from PW. 1, registered the same as a case in Cr. No. 116 of 2007 and issued Ex. P10 First Information Report. 15. According to prosecution, on the date of the incident PW2, accused, deceased and PW. 4 went to watch a movie at Srinivasa Theatre and returned to house at 9:30 p.m. PW. 2 went to her grand mother's house, which is situated 100 meters away from the house of the deceased, to sleep. In the morning at 6:00 a.m., PW. 2 came to the house of the deceased and saw the dead body of the deceased in a pool of blood with a head injury. So, according to the prosecution, PW. 4 is the solitary eye witness to the incident and the remaining witnesses are circumstantial witnesses. PW. 4 has not supported the prosecution case. According to her, accused was staying at Karnataka and herself and her mother deceased were staying at Giddaluru. Her mother was running a Tea stall and accused did not visit the house of the deceased after he left Karnataka to see her. On the date of the incident, some unknown persons came to the house of the deceased during midnight and she went to Ankireddipalli village and she does not know how her mother died. 16. As per the evidence of prosecution, PW. 4, who is the daughter of the accused and deceased, was in the house with the deceased on the date of incident and witnessed the incident. 16. As per the evidence of prosecution, PW. 4, who is the daughter of the accused and deceased, was in the house with the deceased on the date of incident and witnessed the incident. She was declared hostile. As the only eye witness turned hostile, the prosecution has to necessarily rely upon the circumstantial evidence to prove the guilt of the accused. 17. The Prosecution is relying on the evidence of PW. 2 to prove the last seen theory. According to the learned counsel for appellant, PW. 2 is a chance witness and planted witness. PW. 2 is the resident of Chinamakkana village. She is the wife of one Srinivasa Reddy and she is the daughter of the senior maternal aunt of the deceased. In the cross-examination, she admitted that her first husband's name is Krishna Reddy, who is the resident of Narayanapalli in Ardhaveedu Mandal and the distance between Giddaluru and Narayanapalli is 100 kms and her marriage with Krishna Reddy was performed one year prior to the date of the incident and she did not obtain divorce from the Court and she was residing in Lingapuram village even after her marriage. PW. 1, who is the mother of the deceased, has not stated that PW. 2 is the resident of Lingapuram village and after her marriage, she was staying there. It is an admitted fact that PW. 1 is the mother of the deceased and resident of Lingapuram village, whereas, the deceased and PW. 4 are residing in Giddalur. PW. 1 also stated that when the accused left for Karnataka, the deceased used to run a Tea Stall at Giddalur and she wanted to lead independent life on her own legs. Except PW. 2, nobody has seen the accused coming from Karnataka to Giddalur on the date of incident. Now, it is to be seen whether PW. 2 came from Chinamakkana village to Giddalur and stayed with the deceased, PW. 4 and the accused and whether she accompanied them to Srinivasa theatre to watch a movie. Her evidence does not speak by what time she came to Giddalur and what movie she watched in Srinivasa theatre. 18. The learned counsel for appellant argued that the prosecution failed to produce the cinema tickets to prove their case. It is also argued that the prosecution has also not produced any evidence to show the date of birth of PW. 18. The learned counsel for appellant argued that the prosecution failed to produce the cinema tickets to prove their case. It is also argued that the prosecution has also not produced any evidence to show the date of birth of PW. 4 to prove that accused attended the birthday of PW. 4. As per the evidence of independent witness-PW. 3, who categorically stated that after the disputes arose, he along with other elders advised the accused to stay and live amicably or to live separately, and on that, the accused left Giddaluru and was staying at Karnataka and he never stated that he has seen the accused in the company of the deceased. It is also argued that the evidence of PW. 2 being a married woman staying in the house of the deceased cannot be believed and no explanation is given by the prosecution to that effect. PW. 2 in her evidence stated that she is the resident of Chinnamakkena village, but not Giddaluru. Therefore, the contention raised by the counsel for the appellant that PW. 2 was not present on the date of the incident and she had not seen accused and deceased together, is to be accepted. 19. The last seen theory must be so proximate to the time of offence. There is no other evidence to show that the accused was in the company of the deceased immediately before the incident, at the time of incident or immediately after the incident. If really the accused went to movie with the deceased on that day apart from PW. 2, many other persons must have seen them in that locality. Except the evidence of PWs. 2 & 4, the prosecution has not produced any independent witness to prove that the accused was in the company of the deceased on the date of the incident. 20. The learned counsel for the appellant also argued that recovery of MO. 5 pestle was not believable. PW. 3 in his cross-examination admitted that he saw the pestle (MO. 5) near the dead body of the deceased. But the investigating officer in his evidence stated that the accused had hidden the pestle in the ataka of his rented house. Actually, the accused does not have any rented house. PW. 7 mediator for the scene of offence and also seizure of MO. 5 under Ex. 5) near the dead body of the deceased. But the investigating officer in his evidence stated that the accused had hidden the pestle in the ataka of his rented house. Actually, the accused does not have any rented house. PW. 7 mediator for the scene of offence and also seizure of MO. 5 under Ex. P7 stated the factum of the accused kept the chutney pounder (M.O. 5) at his house was not mentioned in Ex. P6 panchanama and stated that the accused went into the house and brought the chutney pounder (M.O. 5) and produced the same before the police. Except the evidence of PW. 2, there is no evidence to prove that accused came from Karnataka to Giddalur on the date of the incident. The investigating officer has not recorded the statements of any independent witnesses, whose houses are situated near the house of the deceased, who had a chance to see the accused in the company of the deceased on the date of incident. Therefore, the evidence of PW. 2 inspires no confidence that she came from Chinamakkana village or Lingapuram to Giddaluru village on the date of the incident and she had last seen the accused in the company of the deceased. 21. Thus, in view of the above discussion and in the absence of any independent evidence, we are of the view that the prosecution has not established the guilt of the appellant/accused beyond all reasonable doubt for the offence punishable under Section 302 I.P.C., and therefore, the conviction and sentence recorded by the trial Court are unsustainable and the appellant/accused is entitled for acquittal. Accordingly, the Criminal Appeal is allowed setting aside the conviction and sentence recorded by the VI Additional District & Sessions Judge, Prakasam division at Markapur, vide Judgment dated 17.06.2009 in Sessions Case No. 102 of 2008 against the appellant/accused of the offence punishable under Section 302 I.P.C. The appellant/accused is found not guilty of the above offence 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. Fine amount, if any, paid by him shall be refunded to him. Miscellaneous petitions, pending if any in this criminal appeal shall stand closed.