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2019 DIGILAW 157 (AP)

Pasupureddi Lakshmi v. State of A. P.

2019-07-27

J.UMA DEVI, T.RAJANI

body2019
JUDGMENT : T. Rajani, J. 1. This appeal is preferred by the appellant, who is A2, questioning the conviction and sentence imposed vide judgment, dated 11.02.2014, passed in S.C. No. 99 of 2013, by the Court of Family Court-cum-III Additional District & Sessions Judge, Visakhapatnam whereby the appellant was convicted for the offences under Sections 302 and 120-B IPC and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/-, in default to undergo simple imprisonment for three months and rigorous imprisonment for a period of two years and a fine of Rs. 100/- in default of payment of fine, imprisonment for a period of one month respectively. 2. The case of the prosecution, briefly, is as follows: A1 is the husband of A2. One Gorle Ramana (hereinafter referred to as "the deceased") was a wayward person and was spending all his earnings on liquor. The father of the deceased i.e., Gorle Appanna @ Appalanaidu is a widower, his wife having died more than a decade ago and since then, he is having open liaison with A2 to the knowledge of one and all. The deceased used to work as a helper under LW11, who gives mike sets and lighting equipment for hire. But the deceased discontinued going there since few days before his homicidal death. LW-11 also chastised the deceased as he was seen very often at the house of A2, who is his own father's mistress. But the deceased did not mend his ways. His habits were so objectionable that LW9 on seeing his son going along with the deceased on a cycle took exception, slapped him and sent him to school. LWs. 8 and 10 also saw the deceased at the house A2 several times. While the matter stood thus, three months prior to the death of the deceased, he came to the house of the accused at about 09:00 p.m., in a highly inebriated condition and fell upon A2, soliciting sexual favours and had sexual intercourse forcibly even though she implored him that it is not proper since she is to be considered as a mother to him. Thereafter also the deceased used to come to the house of the accuseds the time of his choice, in a highly drunken stage and commit sexual aggression against A2. Thereafter also the deceased used to come to the house of the accuseds the time of his choice, in a highly drunken stage and commit sexual aggression against A2. As time went on, the deceased was emboldened to come to the house of the accused even while A1 was present and solicit sex with A2. Then A1 and A2 planned to get rid of the nuisance of the deceased permanently. On 06.01.2012, the deceased came to the house of the accused around 07:00 p.m. in a drunken state. Both the accused were present at that time. The deceased unabashedly asked A2 to sleep with him. A2 convinced that all of them should go to see all cinema at Thagarapuvalasa and at a convenient time and place, he can have sex also. While going by walk, they came to the liquor shop of one Panda Ramachandra Rao (P.W. 12) where A1 purchased a liquor bottle, the contents of which were consumed by the deceased and A1. While approaching the casurina tope of Uppada Sivareddy, A2 found it convenient to execute their plan and suggested the deceased to come there, for which he readily accepted. A2 laid herself on the ground. The deceased opened his pant and laid himself on A2 for intercourse. A1 seized the opportunity and attacked the deceased with bamboo stick and beat him with force and A2 pressed his testicles severely. The deceased was writhing in pain and convulsing. A2 picked up a casurina wood and beat the deceased all over his body. After some time, the deceased lay still and motionless. A1 and A2 sensed that deceased lost his breath and left the place. A2 gave her stick also to A1 and A2 secreted them in the bushes at some distance. Both of them returned by walk at about 10:00 p.m. A2 removed her saree and jacket and kept it in a wooden box in her house. A1 also kept his full hands shirt and full pant in the same box. LW1, who is the Ex-Sarpanch of A. Ravivalasa village, having came to know about the presence of the dead body in the casurina tope on 07.01.2012 at about 01:00 p.m., went there. LW4, who is an auto rickshaw driver and who saw the dead body, identified it as the deceased and informed the same to LW1. LW1, who is the Ex-Sarpanch of A. Ravivalasa village, having came to know about the presence of the dead body in the casurina tope on 07.01.2012 at about 01:00 p.m., went there. LW4, who is an auto rickshaw driver and who saw the dead body, identified it as the deceased and informed the same to LW1. Thereafter, LW1 gave a report, which was registered by LW22 as a case in crime No. 4 of 2012 of Bhogapuram police station. LW23, who is the Inspector of Police took up investigation. During investigation, LW24 arrested the accused in the presence of mediators, examined the witnesses, conducted inquest over the dead body of the deceased, prepared scene of observation report, recovered the material objects, and after completion of investigation, filed charge sheet. 3. The Additional Judicial Magistrate of First Class, Vizianagaram, took cognizance of the case on file; issued NBW against the accused; when A2 was produced, the case against her was separated and the same was numbered as PRC No. 36 of 2013; committed to the court of sessions and the same was numbered as S.C. No. 99 of 2013 on the file of the court of Family Court-cum-III Additional Sessions Judge at Vizianagaram. The trial court, on appearance of the accused, framed charges against him for the offences under Sections 302 and 120-B read with 34 IPC against A2 and the same were read over and explained to her in telugu. She pleaded not guilty and claimed to be tried. After recording the plea of not guilty by the accused, the court below conducted the trial of the case, during which the court examined P.Ws. 1 to 15 and marked Exs. P1 to P27 and M.Os. 1 to 12 on behalf of the prosecution. After concluding the prosecution evidence, the accused was examined under Section 313 Cr.P.C. about the incriminating circumstances appearing against her in the prosecution evidence, which she denied and did not choose to examine any witness on her behalf. 4. The Court below, after appreciating the evidence and considering the material on record, passed the impugned judgment, convicting A2 for the offence as aforesaid. 5. Aggrieved by the said conviction and judgment, the present appeal is preferred on the following grounds: The court below erred in convicting the accused based on the circumstantial evidence, which is inconsistent. 4. The Court below, after appreciating the evidence and considering the material on record, passed the impugned judgment, convicting A2 for the offence as aforesaid. 5. Aggrieved by the said conviction and judgment, the present appeal is preferred on the following grounds: The court below erred in convicting the accused based on the circumstantial evidence, which is inconsistent. The court below erred in believing the extra judicial confession before the VRO. In fact there is no need to confess before the VRO and the VRO's statement is false. The court below ought to have discarded the evidence on the theory of last seen, as the brandy shop owner is a planted witness who is friendly with the police. The court below failed to see that the deceased is a wayward person. So also his father who has got illicit intimacy with A2 and son who also forcibly had sexual intercourse with A2 though A2 is like a mother to him. Such persons will have so many enemies in the village and so there is possibility of his being killed by anybody. 6. Heard Sri T.S. Rayulu, the legal aid counsel appearing to defend the appellant and the learned Public Prosecutor appearing for the respondent. 7. The counsel for the appellant contends that the evidence of the prosecution is not at all sufficient to convict the accused. There are absolutely no witnesses, who spoke about the possibility of the accused alone killing the deceased. He also submits that the motive is also not properly proved by the prosecution and hence, circumstantial evidence cannot be relied upon if it is not cogent and is strong enough to unerringly point towards the guilt of the accused. 8. On the other hand, the Public Prosecutor submits that the evidence of PW7 would show that he has seen the accused along with the deceased just prior to the offence and hence, it would lend strong support to the case of the prosecution. 9. Based on the above arguments and the material on record, the following points can be framed for determination. 1. Whether the evidence of PW7 would suffice to conclude that the accused killed the deceased. 2. Whether the other evidence on record would support the evidence of PW7 to form a link. 3. Whether the judgment of the lower court is sustainable. 4. To what result. POINT Nos. 1 and 2:- 10. 1. Whether the evidence of PW7 would suffice to conclude that the accused killed the deceased. 2. Whether the other evidence on record would support the evidence of PW7 to form a link. 3. Whether the judgment of the lower court is sustainable. 4. To what result. POINT Nos. 1 and 2:- 10. P.W. 12, who is a resident of Perapuram Village, is working as a salesman in the Janapriya Wine Shop at Savaravilli village. He deposed that on 06.01.2012 at about 08:00 p.m., A1 and A2 along with the deceased came to his shop. A1 used to come to his shop for begging and also used to take liquor, occasionally and therefore he has acquaintance with them. He has acquaintance with the deceased, since he used to come from Savaravilli for repairing electrical works. On 06.01.2012, A1 an A2 and the deceased came to his shop and purchased Gold Riband Quarter bottle liquor by paying Rs. 60/- and also purchased two glasses and one water packet. A1 came into his shop while deceased and A2 were standing nearby the shop in a vacant place. A1 and deceased consumed alcohol equally, and they proceeded towards Bhogapuram on the highway. Hence, the evidence of PW12 shows that only A1 and the deceased proceeded towards Bhogapuram, where the incident occurred, which was on 06.01.2012 at 08:00 p.m. 11. The Doctor, who conducted post mortem examination, was examined as PW10. He deposed that, on receipt of the requisition from the Bhogapuram Police, he conducted post mortem on the dead body of the deceased Goprle Ramana on 08.01.2012 at 08:30 a.m. He does not speak about the time of the death of the deceased, though he stated that the deceased might have died due to the injuries, which are found on his body. The preliminary post mortem report was marked as Ex. P4 and the final report was marked as Ex. P5. As per Ex. P4, the approximate time of death of the deceased is stated to be 12 to 24 hours prior to the post mortem examination report. Hence, the time is not found to be proximal to the time stated by PW12. The post mortem examination was conducted two days after the date on which PW12 saw A1 and the deceased going together towards Bhogapuram. Hence, the time is not found to be proximal to the time stated by PW12. The post mortem examination was conducted two days after the date on which PW12 saw A1 and the deceased going together towards Bhogapuram. Hence, unless the death is proximate to the time at which the accused and the deceased were seen together, it cannot be held with certainty that it is the accused No. 1, who might have killed the deceased. Moreover, the role of A2 cannot be seen from the evidence of PW12 as he did not state that A2 went along with the deceased and that A1 and A2 had any talk with each other with regard to the conspiracy between them to kill the deceased. 12. The other evidence on record does not help in proving the guilt of the appellant. It is only PW7, who deposed about the probable motive that A2 might have had. According to his evidence, the deceased used to work under him during his life time. He knows that PW2 had illicit intimacy with A2. The deceased, who is the son of PW2, used to visit the house of A2. He admonished the deceased saying that since his father had illicit intimacy with A2, it is not proper for him to have such kind of illicit intimacy with her. But no grievance of A2 is stated by PW7. The other witnesses are only the witnesses, who spoke about seeing the dead body and about the inquest and the investigation. PW8 is the witness, who spoke about the confession of A2. But the confession of A2 is not admissible since there is absolutely no recovery made from her. POINT No. 3:- 13. Hence, in view of the above evidence, we opine that the judgment of the lower court cannot be sustained and the accused is entitled for benefit of doubt. POINT No. 4:- 14. In the result, the Criminal Appeal is allowed setting aside the conviction and sentence recorded against the appellant vide judgment, dated 11.02.2014, passed in S.C. No. 99 of 2013, by the Court of Family Court-cum-III Additional District & Sessions Judge, Visakhapatnam. Consequently, the appellant is acquitted of the charges levelled against her. The appellant shall be set at liberty forthwith, if not required in any other crime. The fine amount, if any, paid by the appellant shall be refunded to him. Consequently, the appellant is acquitted of the charges levelled against her. The appellant shall be set at liberty forthwith, if not required in any other crime. The fine amount, if any, paid by the appellant shall be refunded to him. As a sequel, the miscellaneous applications pending, if any, shall stand closed.