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2022 DIGILAW 1199 (AP)

Chimata Nagaraju, Guntur Dist. v. P. P. , HYD

2022-11-03

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

body2022
JUDGMENT : C.Praveen Kumar, J. Heard Sri C. Ramakoteswara Rao, learned counsel for the appellant, Sri S.Dushyantha Reddy, learned Public Prosecutor for the State and perused the record. 2. The sole accused in SC No.461 of 2013 on the file of the III Additional Sessions Judge, Guntur, is the appellant herein. He was tried for an offence punishable under Section 302 of IPC, for causing the death of his wife deceased Chimata Nagamani (hereinafter referred to as “the deceased”) on 23.02.2011 at 8.30 a.m. in his house at Pedda Gollapalem village. 3. Vide judgment dated 06.03.2015, the learned III Additional Sessions Judge, Guntur convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs.1000/-. 4. The facts, in nutshell, are as under: PW.1 is the father of the deceased, while PW.2 is his co-brother. The marriage of the deceased with the accused took place about nine years prior to the incident and they begot two male children. Since the date of marriage, the accused was troubling the deceased, suspecting her fidelity and attributing illicit intimacy with others. It is said that unable to bear the harassment in the hands of the accused, the deceased went to the house of PW.2, but LW.11-P. Ravindra and one Pammidi Krishna Murthy, took the deceased and made her join her husband. Even then the suspicion against the deceased did not stop. It is said that the accused was addicted to alcohol and used to harass the deceased under the influence of alcohol. About four months prior to the incident, the deceased gave a report against the accused alleging harassment. Then the police referred the deceased and the accused for family counseling centre, Bapatla, where, they advised them to live together. On 23.02.2011 at about 8.30 a.m. PW.2 telephoned to PW.1 and informed him about hearing of cries from the house of the accused and on opening the door he saw the accused pressing the face of the deceased with a pillow saying ‘chavave lanja’. It is said that on seeing PW.2, the accused ran away from the house. PW.2 found the deceased dead. PW.1 along with other relatives went to Pedagolapalem village and there in the house of the accused, saw the body of deceased lying dead on the cot with a pillow on her face. It is said that on seeing PW.2, the accused ran away from the house. PW.2 found the deceased dead. PW.1 along with other relatives went to Pedagolapalem village and there in the house of the accused, saw the body of deceased lying dead on the cot with a pillow on her face. He enquired with PW.2, who narrated the incident. On the same day, PW.1 lodged a report in Karlapalem PS. Ex.P.1 is the said report. Basing on the said report, PW.13 registered a case in Cr.No.19 of 2011 of Karlapalem PS for the offence under Section 302 of IPC. Ex.P.17 is the FIR. Further investigation in this case was taken up by PW.12-Inspector of Police. According to PW.12, on receipt of a copy of the FIR, he proceeded to the scene of offence, which is situated in Chimatavari Bazar, Peddagollapalem village and in the presence of PW.7 and others, he prepared an observation report of the scene of offence and seized MO.1 from the yarn cot. Ex.P.2 is the observation report and Ex.P.15 is the rough sketch of the scene of offence. He also got photographed the scene of offence and that of the dead body of the deceased through PW.9. As light failed, he posted a guard at the scene of offence and on the next day, he again secured the presence of PW.7 and in his presence, conducted inquest over the dead body. Ex.P.3 is the inquest report. During inquest, he examined PWs.1, 2, 4 and others and recorded their statements. After inquest, the body was sent for postmortem examination. PW.10 is the Civil Assistant Surgeon, Area Hospital, Bapatla, who conducted postmortem examination over the body and noticed 14 injuries over the body. According to him, the cause of death was due to asphyxia due to homicidal smothering. Ex.P.9 is the postmortem report. PW.12 who continued with the investigation, effected the arrest of the accused on 07.03.2011 and after examining all the witnesses and collecting necessary documents, filed charge sheet, which was taken on file as PRC No.36 of 2011 on the file of the Additional Judicial Magistrate of I Class, Bapatla. 5. Ex.P.9 is the postmortem report. PW.12 who continued with the investigation, effected the arrest of the accused on 07.03.2011 and after examining all the witnesses and collecting necessary documents, filed charge sheet, which was taken on file as PRC No.36 of 2011 on the file of the Additional Judicial Magistrate of I Class, Bapatla. 5. On appearance of accused, copies of documents, were furnished to him, as required under Section 207 Cr.P.C. Since the case is triable by the Court of Sessions, the same was committed to the Court of Sessions under Section 209 Cr.P.C. After committal, charge as referred to above, came to be famed, read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. 6. In support of its case, the prosecution examined PWs.1 to 13, got marked Exs.P.1 to P.17 and MO.1. After completion of prosecution witnesses, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied. But however, did not adduce any evidence in support of his plea, except marking Exs.D.1 to D.3. 7. Relying upon the evidence of PWs.2, 4, 5 and 6 coupled with medical evidence, learned Sessions Judge, convicted the accused as stated above. Challenging the same, present appeal came to be filed. 8. Sri C. Ramakoteswara Rao, learned counsel appearing for the appellant, mainly, submits that the evidence adduced by the prosecution is neither cogent nor convincing and as such, the conviction cannot be based on such evidence. According to him, there was no necessity for PW.2 to pass through the house of accused for going to his cattle shed, when there is another route available, which is shorter than the route preferred on the date of incident to go to the cattle shed. He further submits that though PWs.4, 5 and 6 claims to have gone to the house of accused on hearing cries of PW.2, but probability of hearing the cries of PW.2 and going there is remote for the reason that the houses of PWs.4 and 5 are far away from the house of the accused. He further submits that though PWs.4, 5 and 6 claims to have gone to the house of accused on hearing cries of PW.2, but probability of hearing the cries of PW.2 and going there is remote for the reason that the houses of PWs.4 and 5 are far away from the house of the accused. Even in respect of the house of PW.6, though it is pleaded that her house is situated one house away from the house of accused, but in the cross-examination, she admits that a vacant site of one Chimata Goverdhan exists between her house and the house of the accused and as such, she could not hear the cries. Therefore, his argument is that the case has been set up by the prosecution only for the sake of property. In support of the same, he contends that while accused is in jail, PW.1 occupied the property of the accused and is cultivating the same, which was admitted by PW.1 in his cross-examination. That being so, he would contend that the dispute as projected by the prosecution is incorrect and only for the sake of property, accused has been implicated. Learned counsel for the appellant further submits that the defense taken by the accused that the deceased committed suicide due to stomach pain may not be correct, but still initial burden is on the prosecution to prove that it was the accused, who was responsible for the death of the deceased and thereafter, the burden shifts on the accused to disprove the same. As the prosecution failed to discharge their initial burden, false defense even if taken by the accused may not come in the way of passing an order in favour of the accused. 9. Learned Public Prosecutor opposed the same contending that there are no reasons to disbelieve the evidence of PW.2. According to him, PW.2 is an eye witness and his presence at the scene of offence cannot be doubted. He further submits that there is no reason for PW.2 to speak falsehood against accused. He further submits merely because PW.1 is cultivating the land of the accused does not lead to a conclusion that the said land was occupied. Probably because of the relationship between PW.1 and the deceased, he must be cultivating the land of the accused. According to him, this is neutral circumstance, which does not favour the accused. He further submits merely because PW.1 is cultivating the land of the accused does not lead to a conclusion that the said land was occupied. Probably because of the relationship between PW.1 and the deceased, he must be cultivating the land of the accused. According to him, this is neutral circumstance, which does not favour the accused. Coming to the evidence of PWs.4, 5 and 6, the learned Public Prosecutor would contend that merely because, their houses are not shown in the rough sketch of scene of offence, it does not mean that their houses are situated far away. Having regard to the admissions in their evidence, it stands established that their houses are nearer to the houses of the accused. He further submits that since the evidence of PW.2 corroborates the medical evidence, conviction and sentence imposed by the trial court warrants no interference. 10. Now the point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt? 11. As stated earlier, the entire case rests on the evidence of PWs.2, 4, 5 and 6. Before dealing with the evidence of PWs.4 to 6, We intend to refer to the evidence of PW.3, who is no other than the son of the accused and the deceased. It is no doubt true that PW.3 was not an eye witness to the incident. His evidence discloses that every day his father used to abuse and beat his mother. On the date of death of his mother, he went to the school and when he was leaving for the school, his father was abusing and beating his mother. The evidence of PW.3 is sought to be relied upon by the prosecution, as a corroborative piece of evidence, to establish the presence of PW.2 at the scene of offence. It is to be noted that PW.1 in his cross-examination admits that PW.3 was going to school in a school bus and returning in the same bus. According to him, the classes in school commence by 10.30 a.m. and it takes half an hour for the school bus to reach their village. It would be appropriate to extract the said admission, which is as under: “It is true LW.4 was going to school in the school bus and returning home in the same bus. According to him, the classes in school commence by 10.30 a.m. and it takes half an hour for the school bus to reach their village. It would be appropriate to extract the said admission, which is as under: “It is true LW.4 was going to school in the school bus and returning home in the same bus. It is true the studies in school is commenced by 10.30 a.m. It takes half an hour for the school bus to reach the school from Pedagollapalem village.” 12. From the above admission, it is very clear that the classes in the school in which PW.3 is studying, commence at 10.30 a.m. and he goes to school by bus, which takes half an hour to reach the school. That being so, PW.3 must have been in the house at the time of incident i.e., at 8.30 a.m. It is no body’s case that PW.3 leaves the house prior to the arrival of the bus in to the village. The evidence of PW.3 is silent about the incident at 8.30 a.m. and the presence of PW.2 at the time of incident. Hence it throws suspicion over the version of PW.2, who claims to have seen the incident at 8.30 a.m. In fact the evidence of PW.3 does not establish occurrence of any incident at 8.30 a.m. 13. Coming to the evidence of PW.2, he was examined as an eye witness to the incident. According to him, on 23.02.2011 at about 8.30 a.m. while he was proceeding towards his cattle shed in front of the house of accused, he heard cries from the house of accused, went in to the house, by pushing the door and saw the accused pressing the face of Nagamani with a pillow. On seeing PW.2, accused is said to have ran out of the house. Then he raised cries and on hearing his cries PWs.4, 5 and 6 came to the house of accused. Thereafter he telephoned to PW.1 and informed him about the incident. In the cross-examination of PW.2, it has been elicited that the cattle shed of PW.2 is on the northern side of main road and that the main road is a tar road. He further admits in the cross-examination that his house is one furlong away from the house of accused and the cattle shed is only half furlong from his house. He further admits in the cross-examination that his house is one furlong away from the house of accused and the cattle shed is only half furlong from his house. It is relevant to extract the said admission of PW.2, which reads as under. “There is only one cross road in between my house and house of the accused. It is true the house of accused is one furlong away from my house. It is true my house is half furlong away from my cattle shed.” 14. From the answers elicited in the evidence of PW.2, it is clear that his cattle shed is far away if one passes through the house of the accused than from his house. That being so, the argument of the learned counsel for the appellant that PW.2 would not have choosen to go through long route, to go to his cattle shed, cannot be brush aside. At this stage, learned Public Prosecutor would contend that the route which PW.2 was passing through, on the date of incident, is the normal route, which he uses and there is nothing wrong in going through a longer route. In other words, his argument appears to be choosing a longer route by leaving shorter route to go to cattle shed cannot be a ground to disbelieve his evidence. In fact, in the cross-examination, a suggestion was given by the learned counsel for the accused that he always uses shorter route to go to main road, but the same was denied. While denying he adds that he used to go to his cattle shed through the house of the accused. Immediately thereafter, another suggestion was given that there is no necessity to go through the house of the accused to reach the cattle shed and there is no way to the cattle shed from the house of the accused, but the same was also denied. It will be appropriate to extract the said suggestion, which is as under: “It is true the main road is situated to the southern side of said lane. It is incorrect to suggest that way to go to my cattle she is through main road, the witness adds I use to go to my cattle shed through the house of accused. It is incorrect to suggest that way to go to my cattle she is through main road, the witness adds I use to go to my cattle shed through the house of accused. It is incorrect to suggest that there is no necessity for to go through the house of the accused to reach the cattle shed and there is no way to my cattle shed from the house of accused.” 15. From the suggestion given to PW.2 and the admission referred to earlier, it is very much clear that there was a shorter route to go to the cattle shed of PW.2, and the shorter route is less by half a furlong. The normal human tendency would be to take shorter route to reach the destination, more so, when it is by walk. Therefore, having regard to the admission of PW.2, coupled with the evidence of PW.3, a doubt arises as to whether really PW.2 has seen the incident at 8.30 a.m. in the house of accused. 16. The prosecution sought to corroborate the evidence of PW.2 with the evidence of PWs.4, 5 and 6. We have seen the rough sketch of the scene of offence prepared by the Investigating Officer, which is placed on record as Ex.P.15. A perusal of the said sketch, clearly shows that the houses of PWs.4, 5 and 6 are not shown in the sketch, which means, their houses are not near to the house of accused. If the houses were nearer to the house of accused, the Investigating Officer would have shown their houses in the sketch. 17. PW.4 in his evidence deposed that his house is two houses away from the house of accused. She also deposed that on hearing the cries of PW.2, she went to the house of the accused. Strangely, her house is also not shown in the sketch. Apart from that in the cross-examination, PW.4 admits that she did not state before the police, i.e., in her 161 Cr.P.C. statement about hearing the cries of PW.2 at about 9 a.m. from the house of accused. Further, PW.5, who is the wife of PW.2, in her evidence deposed that she heard the cries of PW.2 from the house of accused and went towards the house of accused. Strangely, her house is also not shown in the sketch, as it is situated far away from the house of accused. Further, PW.5, who is the wife of PW.2, in her evidence deposed that she heard the cries of PW.2 from the house of accused and went towards the house of accused. Strangely, her house is also not shown in the sketch, as it is situated far away from the house of accused. Coming to the evidence of PW.6, she in her evidence deposed that her house is one house away from the house of accused. She is none other than the wife of one Chimata Venkateswarlu, whose house was shown in the sketch after a vacant site, bazaar and thereafter her house. In the cross-examination she admits that the house of PW.2 is existing between her house and the house of the deceased and the vacant site of one Chimata Govardhan is existing between her house and the house of accused and that she went into the house of deceased five or ten minutes after PWs.4 and 5 have gone there. The vacant site of Chimata Govardhan is intervening between her house and the house of the accused and therefore, hearing the cries of PW.2 at about 8.30 – 9 a.m. from the house of accused appears to be remote. Further, in Ex.P.15 rough sketch the house of PW.6 is not shown. Further, PWs.4, 5 and 6 in one voice have stated that they were examined by the police on the next day of the incident. No explanation is forthcoming from the prosecution for not examining the above witnesses on the date of incident itself. 18. Further, a report about the incident was given at 3.00 p.m. when the police reached the scene of offence in the evening. Obviously, the delay in lodging the report/registering crime at the belated stage assumes importance. The incident took place on 23.02.2011 about 8.30 a.m. and information was given to PW.1 by PW.2 at 9 a.m. In the cross-examination, PW.1 admits that he along with others left Karlapalem by 9 a.m. and reached Pedagolapalem by 9.30 a.m. He also admits that Karlapalem PS is at a distance of 5 k.m. from Pedagolapalem village. He also admits that he went to the police station before 12 noon and handed over Ex.P.1 report. He further admits that he handed over the first report to one Bullaya at the house of accused. He also admits that he went to the police station before 12 noon and handed over Ex.P.1 report. He further admits that he handed over the first report to one Bullaya at the house of accused. When the evidence of this witness would show that he reached police station before 12 noon, it is strange as to how no crime was registered till 3 p.m. Obviously this period must have used to foist a case against the accused for the sake of the property. This aspect assumes significance, from the answer elicited in the cross-examination of PW.1, wherein he admits that the father of the accused is alive and he is owning Ac.2.75 of land and that PW.1 occupied the said land after the accused is lodged in jail. It would be useful to extract the said portion in the cross-examination of PW.1, which reads as under: “It is incorrect to suggest my daughter Nagamani committed suicide and taking advantage of her death a false case is foisted against the accused. It is true father of accused is owning Ac.2.75 of land. It is true after the accused is sent to jail, I occupied Ac.2.25 cents of said land and cultivating the same. It is true father of accused is alive and he is doing coolie work. It is true grand-father of accused was alive by the date of death of my daughter Nagamani.” From the above it is evident that all is not well in the case of the prosecution. 19. The cause of death as projected by the prosecution that the accused was suspecting the fidelity of his wife and because of which killed the deceased, does not appear to be true. It may be true that there was some mediation before PW.8 because of differences between accused and the deceased, but a perusal of Ex.P.5 report given by the deceased to Sub Inspector of Police, Karlapalem PS, some months prior to the incident, show that the accused was forcing her to dispose of Ac.1.00 of land that was given by her father towards dowry and give money to him. The report further discloses that her father-in-law and her husband jointly demanded the deceased to dispose of the said land and hand over the sale proceeds to the accused. Because of the said complaint, a panchayat was also held in the village. The report further discloses that her father-in-law and her husband jointly demanded the deceased to dispose of the said land and hand over the sale proceeds to the accused. Because of the said complaint, a panchayat was also held in the village. The relevant portion in Ex.P.5 report reads as under: “At the time of our marriage, my father gave Ac.1.00 of land, one watch, one gold ring and one chain to my husband. He is forcing me to dispose of the one acre of land and to give the money to him. My father in law-Subrahmanyam, son of Venkateswarlu and my husband jointly demanding me to dispose of the land and to give the sale proceeds to them.” In view of Ex.P.5 report given by the deceased to the Sub Inspector of Police, which was forwarded to the Family Councilor Centre, Bapatla, for counseling, the motive as suggested by the prosecution does not appear to be correct. 20. In view of the circumstances referred to above a doubt arises as to whether really PW.2 has seen the incident; whether PWs.4, 5 and 6 could have heard the cries and gone to the house of accused. Having regard to the delay in lodging the report and the conduct of PW.1 in occupying the land of the accused, after accused being sent to jail, a doubt arises as to case of the prosecution. Hence, benefit of doubt can be given to the accused and accordingly, the conviction and sentence is liable to be set aside. 21. In the result, the Criminal Appeal is allowed setting aside the conviction and sentence imposed against the appellant/accused in S.C.No.461 of 2013 by the learned III Additional Sessions Judge, Guntur, by judgment dated 06.03.2015 and the appellant/accused shall be set at liberty forthwith, if he is not required in any other case. Miscellaneous petitions, if any, pending in this appeal shall stands closed.