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2022 DIGILAW 1169 (AP)

Bhukya Chilaka Bai v. State of Andhra Pradesh

2022-10-31

B.V.L.N.CHAKRAVARTHI, C.PRAVEEN KUMAR

body2022
JUDGMENT : C. PRAVEEN KUMAR, J. 1. The present Criminal Appeal came to be filed under Section 374(2) of the Code of Criminal Procedure, 1973, challenging the judgment, dated 21.10.2015 in Sessions Case No. 146 of 2014 on the file of the learned XIII Additional District and Sessions Judge, Narasaraopet, Guntur District, wherein accused Nos. 1 and 2 were tried and convicted for the offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 [for short ‘IPC’]. Both the accused were sentenced to suffer imprisonment for life and to pay a fine of Rs. 500/- each in default to pay fine amount, simple imprisonment for one month each for the offence punishable under Section 302 I.P.C. and further sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 100/- each, in default to pay fine amount, simple imprisonment for a period of one month each for the offence punishable under Section 201 I.P.C. The substantive sentences were directed to be run concurrently. 2. The gravamen of the charge against the accused is that, on 23.06.2012 A1, on the advice of A2, who is the mother of A1, administered poison drops of FOSMITE 50% Insecticide along with some water to the daughter of A1, who was aged about 11 days on the date of the incident, which caused the death of the said baby. 3. The facts in issue are as under: (i) A1 is the mother, while A2 is the grandmother of the deceased infant girl, who was aged about 11 days on the date of incident. PW-2 is the husband of A1 and son-in-law of A2. PW-3 is the younger brother of PW-2, while PWs. 4 to 6 are residents of Papayamapalem village, where the incident took place. (ii) The evidence of PWs. 2 to 4 disclose that PW-2 and A1 had a female child as third issue and the said child died 11 days after her birth. PW-2 was using empty pesticide tins in his house. While so, A1 and A2 brought Castrol oil in the said tin and fed the said Castrol oil, which was brought in pesticide tin, to the infant girl by mixing the same with little water, as a result of the same, the infant girl died. PW-2 was using empty pesticide tins in his house. While so, A1 and A2 brought Castrol oil in the said tin and fed the said Castrol oil, which was brought in pesticide tin, to the infant girl by mixing the same with little water, as a result of the same, the infant girl died. Fearing PW-2, A2 is said to have buried the dead body of the daughter of PW-2 in burial ground of Papayapalem village. This happened on 23.06.2012. (iii) On 24.06.2012, PW-1, who is the Village Revenue Officer of Papayapalem village, came to know about the incident in question and accordingly, lodged a report with Bandlamottu police station, which is placed on record as Ex.P1. (iv) PW-9 the Sub-Inspector of Police, Bandlamottu police station, who received the report from PW-1, registered a case in Crime No. 51 of 2012 under Section 174 Cr.P.C. Ex.P10 is the copy of F.I.R. Immediately after Ex.P10, PW-9 deputed his staff to burial ground of Papayapalem village. On the same day, he sent a requisition to Tahsildar of Bandlamottu village to exhume the dead body of infant girl and also sent requisition to PW-8 to conduct autopsy over the dead body of infant girl. On 25.06.2012, he visited the house of PW-2, secured the presence of PW-1 and other, observed the scene of offence and seized a plastic pesticide tin, which is placed on record as M.O.1. An observation report during seizure of M.O.1 was prepared by PW-9 under Ex.P2. He also got prepared rough sketch at the hut of PW-2, which is marked as Ex.P3. It is needless to mention that the above proceedings took place in the presence of PW-1. (v) Pursuant to the disclosure statement made by the accused, PW-9 along with PW-1, PW-7 and others proceeded to the burial ground where the dead body was exhumed. Mandal Revenue Officer of Bollapalli Mandal conducted inquest over the dead body of a female infant at burial ground in the presence of PW-7 and others. Ex.P4 is the inquest report. During inquest, PW-9 examined PWs. 2 to 4 and recorded their statements. Later the dead body was sent for Post Mortem examination. (vi) PW-8, who worked as Civil Assistant Surgeon, Government Hospital, Vinukonda at the time of incident, conducted autopsy over the dead body of the infant girl and issued Ex.P7 Post Mortem report. Ex.P4 is the inquest report. During inquest, PW-9 examined PWs. 2 to 4 and recorded their statements. Later the dead body was sent for Post Mortem examination. (vi) PW-8, who worked as Civil Assistant Surgeon, Government Hospital, Vinukonda at the time of incident, conducted autopsy over the dead body of the infant girl and issued Ex.P7 Post Mortem report. During autopsy, no visible external injuries were found on the dead body, as such, he preserved the stomach, intestines, liver and kidney of the dead body for chemical examination and accordingly forwarded the same to Forensic Science Laboratory, Hyderabad. Ex.P8 is the report given by Forensic Science Laboratory. Basing on Ex.P8, PW-8 gave final opinion stating that the deceased died of “Asyphyxia due to consumption of organo phosphate substance.” (vii) After receipt of final opinion from PW-8, PW-9 altered the section of law from 174 Cr.P.C. to section 201 and 302 r/w 34 I.P.C and issued Ex.P11 altered F.I.R. Further investigation was taken up by PW-10-Inspector of Police, Vinukonda Police Station. (viii) During investigation, on 18.01.2013, PW-10, proceeded to scene of offence situated in Papayapalem village, examined the scene of offence, secured the presence of PWs. 1 to 6 and others, examined them and recorded their statements. On 29.01.2013, he along with mediators proceeded to Papayapalem village, arrested the accused and sent them for remand. (ix) PW-11-Inspector of Police, Vinukonda Rural police station, who verified the investigation done by PWs. 9 and 10, after collecting necessary documents and after completing the investigation, filed a charge-sheet, which was taken on file as P.R.C. No. 29 of 2013 on the file of the Junior Civil Judge’s Court, Vinukonda. 4. On appearance of the accused, copies of documents as required under Section 207 Cr.P.C. came to be furnished. Since the case is triable by Court of Sessions, the matter was committed to the Sessions Court under Section 209 Cr.P.C. Basing on the material available on record, charge as referred to above came to be framed, read over and explained to the accused, to which, the accused pleaded not guilty and claimed to be tried. 5. In support of its case, the prosecution examined PW-1 to PW-11 and got marked Ex.P1 to Ex.P13, besides marking M.O.1. 5. In support of its case, the prosecution examined PW-1 to PW-11 and got marked Ex.P1 to Ex.P13, besides marking M.O.1. After completion of prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied and no documentary evidence was adduced on their behalf. 6. Relying upon the seizure of plastic pesticide tin from the house of accused and the body of the deceased containing insecticide poison, which was the cause of death of infant girl, coupled with the fact that the dead body was recovered at their instance, the learned Sessions Judge convicted both the accused. Challenging the same, the present Criminal Appeal came to be filed. 7. Sri Challa Srinivasa Reddy, learned counsel for the appellants, would contend that there are no eye witnesses to the incident and the case rests on circumstantial evidence. According to him, the circumstances relied upon by the prosecution are not proved by legal evidence and as such, conviction and sentence awarded to the accused has to be set aside. 8. On the other hand, Sri S. Dushyanth Reddy, learned Additional Public Prosecutor, opposed the same contending that though there are no eye witnesses to the incident, the fact that the dead body came to be recovered at the instance of the accused, is sufficient to base a conviction. 9. The point that arises for consideration is: “Whether the circumstances relied upon by the prosecution are proved and if proved, whether they are sufficient to convict the accused? 10. Before proceeding further, it is to be noted that PWs. 5 and 6 did not support the prosecution case and were treated hostile by the prosecution. As stated earlier, there are no eye witnesses to the incident and the case rests on the circumstantial evidence. In a case arising out of the circumstantial evidence, the prosecution has to prove each of the circumstance relied upon by them and the circumstances so relied upon should form a chain of events connecting the accused with the crime. 11. In the instant case, as seen from the record, the prosecution failed to prove the evidence PW-6, who saw the accused No. 2 took the deceased to burial ground as per her 161 Cr.P.C. statement. Apart from that, the evidence of PWs. 11. In the instant case, as seen from the record, the prosecution failed to prove the evidence PW-6, who saw the accused No. 2 took the deceased to burial ground as per her 161 Cr.P.C. statement. Apart from that, the evidence of PWs. 2 to 4, who are father of the deceased, brother of PW-2 and elder of the village, in their evidence in chief categorically state that PW-2 was using empty pesticide tins and A1 and A2 have brought Castrol oil in the said tin, on the 11th day of the birth of the second daughter, A1 and A2 fed Castrol oil to the infant girl mixing with water, as a result of which, the infant girl became sick and died. Fearing PW-2, the accused have buried the dead body. Strangely this version of PWs. 2 to 4 was never confronted by the learned Public Prosecution with their earlier statements. 12. The case of the prosecution as seen from the charge sheet and the charges framed against the accused is something different. No explanation is forthcoming from the Public Prosecutor as to why PWs. 2 to 4, who gave a different version from the averments in the charge sheet, were not treated as hostile, in arguing the matter has to be viewed seriously. The Public Prosecutor should have been diligent enough while conducting trial. It is for the State to look into this matter and see that the instances of this nature do not happen again. The evidence of these three witnesses, which remained unchallenged by the State, is taken into consideration, it does not prove the culpability of these two accused in the commission of offence. At this stage, it would be apt to extract the version of PWs. 2 to 4 which is as under: PW-2: “..........Myself and A1 are having a daughter by name Durga Bayi and son byname Siva Naik. Myself and A1 had a female child as third issue and she died three years ago. I am using empty pesticide tins in my house. A1 and A2 have brought “Amudam” (Castrol Oil) oil in the said tin. On the 11th day, after birth of my second daughter, A1 and A2 feeded Castrol oil to my second daughter and she fell sick and died on the same day. I am using empty pesticide tins in my house. A1 and A2 have brought “Amudam” (Castrol Oil) oil in the said tin. On the 11th day, after birth of my second daughter, A1 and A2 feeded Castrol oil to my second daughter and she fell sick and died on the same day. A2 on the same day took the dead body of my second daughter and buries in the burial ground, Papayapalem village. Three days after the death of my second daughter, her body was exhumed by police in the presence of PW-1 and other. Police did not examine me in this case. I do not know the cause of death of my second daughter. Again I begot a male child, 8 months ago.........” PW-3: “..........PW-2 is having three children, the second daughter of PW-2, died about 2 ½ years ago, when she was aged about 11 days. A1 is the wife of PW-2. A2 is the mother of A1. I came to know from A1 that she and A2 feeded Castrol oil mixed in the empty pesticide tin to the third daughter of PW-2 and she died. A2 buried the dead body of daughter of PW-2, in burial ground of Papayapalem village. One day after the death of daughter of PW-2, her dead body was exhumed by the police in the presence of Doctor and inquest was held over the dead body of daughter of PW-2.........” PW-4: “..........A1 is the wife of PW-2. LW-9 Dandamma is admitted in Hospital, Macherla to underwent surgery. PW-2 and A1 are having a daughter and son. Deceased in this case is the second daughter of PW-2 and A1. The second daughter of PW-2 died 11 days after her death. I came to know from PW-3 that A1 feeded Castrol oil mixed in the plastic pesticide empty tin to the deceased in this case and after consuming the Castrol oil, she died. Fearing from PW-2, A1 and A2 buried the dead body of the deceased in this case, in burial ground of Papayapalem village. Three days after the death of deceased, the police, M.R.O. and a doctor exhumed the dead body of deceased and held inquest over the dead-body.........” 13. As stated earlier, a reading of the above, which was not subjected to cross examination by the Public Prosecutor. It clearly demonstrates that it was a case of accidental death. Three days after the death of deceased, the police, M.R.O. and a doctor exhumed the dead body of deceased and held inquest over the dead-body.........” 13. As stated earlier, a reading of the above, which was not subjected to cross examination by the Public Prosecutor. It clearly demonstrates that it was a case of accidental death. In other words, thinking that it was an empty pesticide tin which was used to bring Castrol oil was administered to the baby. Therefore, the argument of the learned counsel for the appellants that in a given set of circumstances and more particularly, in the absence of any motive to the accused to kill the deceased, it cannot be said without any hesitation that it was a case of accidental death. 14. The next circumstance relied upon by the prosecution is the recovery of the body at the instance of the accused. It is no doubt that the dead body was recovered from the burial ground and the same was exhumed pursuant to the disclosure statement alleged to have been made by the accused. It is to be noted here that the said statement made by accused is not a confession leading to discovery under Section 27 of the Indian Evidence Act for the reason that the dead body was shown on 25.06.2012, while arrest of accused was affected on 29.01.2013. A doubt arises as to why the police did not arrest the accused on 25.06.2012 itself. The argument of learned counsel for the appellants that everything has been cooked up and arrest was shown on 29.01.2013, cannot be brushed aside. 15. Be that as it may, even assuming for the sake of argument that the body was recovered pursuant to the information given by accused Nos. 1 and 2, it does not indicate any suspicion, it appears to be a natural circumstance, where the accused fearing something in the hands of PW-2, buried the dead body, appears to be a natural circumstance. Apart from that, it is also to be noted that the case of the prosecution as per the charge sheet is that it was A2 alone, who was buried the dead body, but PWs. 5 and 6 were examined to speak about the same, did not support the prosecution case. Apart from that, it is also to be noted that the case of the prosecution as per the charge sheet is that it was A2 alone, who was buried the dead body, but PWs. 5 and 6 were examined to speak about the same, did not support the prosecution case. However, there is no evidence on record to show that the body was exhumed at the instance of A2, none of the witnesses examined to speak about the same. 16. Having regard to the above, we feel that the reason given by learned Sessions Judge in convicting the accused based on the recovery of pesticide tin from the house of accused may not be sufficient in the given set of circumstances to connect the accused with the crime. 17. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellants/accused Nos. 1 and 2 in the Judgment, dated 21.10.2015, in Sessions Case No. 146 of 2014 on the file of the XIII Additional District and Sessions Judge, Narasaraopet, Guntur District for the offences punishable under Sections 302, 201 r/w 34 I.P.C. is set-aside and they are acquitted for the said offences. Consequently, the appellants/accused Nos. 1 and 2 shall be set at liberty forthwith, if they are not required in any other case or crime. The fine amount, if any, paid by the appellants/accused Nos. 1 and 2 shall be refunded to them. 18. Consequently, miscellaneous petitions, if any, pending shall stand closed.