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2022 DIGILAW 1301 (AP)

Kotni Govind Rao v. State Of A. P.

2022-11-16

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

body2022
JUDGMENT : C.Praveen Kumar, J. As the matter underwent several adjournments, due to absence of the counsel for the appellant, we took the assistance of Sri Challa Dhanamjaya, learned Senior Counsel, who after going through the papers, assisted us in disposal of this appeal. 2. The present Criminal Appeal came to be filed under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgment, dated 06.06.2014, in Sessions Case No.233 of 2011 on the file of the learned X Additional District and Sessions Judge, Visakhapatnam at Anakapalle, wherein the sole accused was tried for the offence punishable under Section 302 I.P.C. for causing the death of one Kommireddi Lalitha Kumari (hereinafter, referred to as “the deceased”) on 14.08.2010. Vide judgment, dated 06.06.2014, the learned Sessions Judge convicted the accused under Section 302 I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default of payment of fine, to undergo simple imprisonment for a period of three (3) months. 3. The substance of the charge levelled against the accused is that he hatched a plan to grab the properties of Kommireddi Lalitha Kumari and also to avoid repayment of money, killed her by mixing an insecticide poison in her food on the night of 14.08.2010. 4. The case of the prosecution, in brief, is as under: The marriage of the deceased was initially performed with one K. Rama Prasad and both of them lead a happy conjugal life for sometime. As they were not blessed with children, both of them got separated because of some ill-feelings. It is said that the deceased was a retired Lecturer and Head of Department in English in SRR and CVR Government College, Vijayawada. The accused was also a married man and blessed with one daughter and three sons. He lost his wife and his children were settled and living separately. He worked in Visakha Dairy for some period and took voluntary retirement and later, established Sudha Milk Products at Ugginapalem in 2005. In the year 2009, the accused came in contact with the deceased when she visited Goddess Nookalamma Temple at Anakapalle and thereafter, both of them decided to marry. On 13.02.2009, they got married at Annavaram Temple. He worked in Visakha Dairy for some period and took voluntary retirement and later, established Sudha Milk Products at Ugginapalem in 2005. In the year 2009, the accused came in contact with the deceased when she visited Goddess Nookalamma Temple at Anakapalle and thereafter, both of them decided to marry. On 13.02.2009, they got married at Annavaram Temple. Prior to the marriage, there were certain financial transactions between the deceased and the accused, which is evident from the evidence of P.W.8 – Manager in Canara Bank, who deposed that on 06.02.2009, there was a transaction in the account of the deceased showing payment of Rs.5,00,000/- to the accused by way of cheque, payment of Rs.6,20,000/- to the accused by way of cheque on 11.02.2009, two more on line transactions of Rs.5,00,000/- each on 06.02.2009 and 10.02.2009 showing transfer of money from the account of the deceased to the account of the accused at Bank of India, Anakapalle. While so, on 15.08.2010, accused informed P.W.2 on telephone about the dead body of the deceased lying in Sudha Milk Products at Ugginapalem. It is said that during the lifetime of the deceased, i.e., few days prior to the incident, the deceased telephoned to P.W.2 and informed her about the request made by the accused for providing bank loan for Sudha Milk Products by recommending to any known official of the bank. The deceased informed P.W.2 that she is mentally not fit and wanted to stay with P.W.2 for sometime in Visakhapatnam. P.W.2 is said to have informed the deceased and also to the accused that she does not know any bank people for recommending grant of loan. On 15.08.2010, while P.W.2 was at the house of her mother at Kakinada, at about 7:30 or 8:00 A.M., she received a call from the accused stating that he married Lalitha Kumari, the deceased herein, about one and a half year back. P.W.2 asked the accused to hand over the phone to the deceased for verification of the said fact but it was informed to P.W.2 that Lalitha Kumari is no more and that she died at Milk Factory at Ugginapalem. Immediately, P.W.2, her husband, her mother and younger brother started in a car to Ugginapalem. They also informed P.W.1 about the same. Immediately, P.W.2, her husband, her mother and younger brother started in a car to Ugginapalem. They also informed P.W.1 about the same. When they reached Ugginapalem at 11:00 A.M., noticed the body of Lalitha Kumari lying on a cot in a shed of Sudha Milk Factory. Her stomach was swollen and some fluid was coming out from her nose. P.W.2 also noticed two cool drink bottles in the surrounding place. The accused is said to have informed P.W.2 that the deceased died due to heart attack last night. On a request made by P.W.2, the body was kept in a freezer. On 16.08.2010, P.W.1 and one Chalapathi Rao Naidu and others came there and after seeing the body, set the law into motion by lodging a report with P.W.20, basing on which a case in Crime No.114 of 2010 of Kasimkota Police Station came to be registered under Section 174 Cr.P.C. Ex.P-16 is the F.I.R. As the deceased died within seven years of marriage, P.W.20 submitted a requisition to P.W.15 - Tahsildar for holding inquest over the dead body. Accordingly, P.W.15 proceeded to the scene of offence and conducted inquest over the dead body. During inquest, he examined P.Ws.1 to 3 and 5, and three others and recorded their statements. Ex.P-5 is the Inquest Report. After completing the inquest proceedings, he sent the dead body for post mortem examination. P.W.20 also prepared a rough sketch of the scene and prepared an observation report in the presence of P.W.11 and another mediator. Ex.P-6 is the scene observation report and Ex.P-17 is the rough sketch of the scene. He also seized some medicines apart from seizing two cell phones at the scene of offence. Further investigation in this case was taken up by P.W.21. P.W.23, Civil Assistant Surgeon, Area Hospital, Anakapalle, conducted post mortem over the dead body of the deceased on 16.08.2010 between 2:30 P.M. and 4:00 P.M. Ex.P-20 is the Post Mortem Certificate. After completion of post mortem examination, P.W.23 preserved visera for chemical analysis and after receipt of the report, he opined that the death of the deceased was due to heart failure due to blocking of coronary blood vessel by thrombus due to atherosclerosis associated with organophosphate, an insecticide poisoning. P.W.24, who continued with the investigation, approached the Post Mortem Doctor to obtain answers to the questionnaire submitted by P.W.22. P.W.24, who continued with the investigation, approached the Post Mortem Doctor to obtain answers to the questionnaire submitted by P.W.22. Basing on Ex.P-2 report from PW.2, he altered the section of law from Section 174 Cr.P.C. to 302 I.P.C. Ex.P-22 is the altered F.I.R. P.W.21, who received the altered F.I.R., visited the scene of offence on 16.8.2011, examined the scene of offence and noted the particulars. He examined P.Ws.2, 4, 5 and three others and recorded their statements. On 26.08.2011, he secured the presence of P.Ws.1 and 3 and recorded their statements. It is said that on 30.08.2011, while P.W.21 was at Circle Office, at 12-00 hours, the accused came to the office and surrendered before him. Pursuant thereto, he recorded the confessional statement of the accused and thereafter, all of them proceeded to Sudha Milk Products, Ugginapalem on 30.08.2011 at 2:00 P.M., where the accused produced M.O.2 – plastic jar containing monocrotophos – 36 percent S.C., hydrophos, insecticide poison, which was seized in the presence of P.Ws.11 and 13. Ex.P-18 is the admissible portion of the mediators’ report, dated 30.08.2011. During the course of investigation, P.W.21 visited Andhra Bank, Vijayawada, S.B.I., Machavaram, Vijayawada and Canara Bank, Vijayawada from where they secured photostat copies of the accounts of the deceased. After collecting all the necessary documents including RFSL Report, the successor of P.W.21, who is examined as P.W.25, filed a charge sheet, which was taken on file as P.R.C.No.15 of 2011 on the file of the learned Additional Metropolitan Magistrate, Anakapalle. 5. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to him. As the offence is triable by a Court of Sessions, the case was committed to the Court of Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned X Additional Sessions Judge, Visakhapatnam for trial and disposal in accordance with law. 6. Basing on the material available on record, charge, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, he pleaded not guilty and claimed to be tried. 7. To substantiate its case, the prosecution examined P.Ws.1 to 25 and got marked Exs.P-1 to P-22 and M.Os.1 and 2. 6. Basing on the material available on record, charge, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, he pleaded not guilty and claimed to be tried. 7. To substantiate its case, the prosecution examined P.Ws.1 to 25 and got marked Exs.P-1 to P-22 and M.Os.1 and 2. After the closure of the prosecution evidence, the 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 to which he denied. No oral or documentary evidence was adduced on his behalf. 8. As stated earlier, there is no representation on behalf of the appellant on number of occasions. Hence, we requested Sri Challa Dhanamjaya, learned Senior Counsel, to assist us. Learned Senior Counsel submits that there are no eye witnesses to the incident and the circumstances relied upon by the prosecution do not clinchingly establish the involvement of the accused in the crime. He further submits that it was the accused, who furnished information about the death of the deceased pursuant to which the family members went to the Sudha Milk Factory, where they noticed the dead body, which was directed to be kept in cold storage. According to him, the conduct of the accused and the cause of death, which tallies with the version given by the accused, if taken together, do not throw any suspicion on the accused. According to him, the incident is said to have place on 15.8.2010 and a report of the same was given by P.W.1 on the very next day which came to be registered under Section 174 Cr.P.C. and nearly a year thereafter, another report came to be given by P.W.2, developing the case and suspecting the involvement of the accused in the commission of the offence. He said that basing on the said report and the material collected by the Investigating Officer, the section of law was altered to Section 302 I.P.C. and the accused was arrested at that point of time. In other words, his argument appears to be that no suspicion was entertained against the accused for a period of one year and only a year later, because of some disputes in the family, suspicion is entertained against the accused. In other words, his argument appears to be that no suspicion was entertained against the accused for a period of one year and only a year later, because of some disputes in the family, suspicion is entertained against the accused. In view of the above, learned Senior Counsel would contend that there is no legal material available on record to connect the accused with the crime. 9. On the other hand, Sri S. Dushyanth Reddy, learned Public Prosecutor, opposed the same contending that though suspicion is entertained against the accused a year after the incident, but the material on record amply establish his involvement in the commission of the crime. He further submits that pending appeal, the accused has been released by grant of remission on certain conditions which the accused failed to comply. In any event, he would submit that release of the accused is always subject to the further orders to be passed by the Apex Court. 10. The point that arises for consideration is:- “Whether the prosecution has proved the guilt of the accused for the offence punishable under Section 302 I.P.C. beyond all reasonable doubt?” 11. POINT:- As stated earlier, there are no eye witnesses to the incident and the entire case rests on circumstantial evidence. The evidence of P.W.2 would show that on receiving information about death of the deceased, she along with her family members, proceeded to Ugginapalem Village, where they noticed the body lying in Sudha Milk Factory premises. Her stomach was swollen and some fluid was coming out of her nose. One fact which is required to be noted here is that there are no visible injuries on the body of the injured. Though suspicion is entertained against the accused and the body was kept in a freezer till the arrival of P.W.1, there are no eye witnesses to the incident and the case rests on circumstantial evidence. 12. In a case arising out of circumstantial evidence, the prosecution has to prove each of the circumstance relied upon by them and the circumstances so proved should form a chain of events connecting the accused with the crime. 12. In a case arising out of circumstantial evidence, the prosecution has to prove each of the circumstance relied upon by them and the circumstances so proved should form a chain of events connecting the accused with the crime. In Jawaharlal Das v. State of Orissa, AIR 1991 SC 1388 the Apex Court held that to base a conviction in a case arising out of circumstantial evidence, three conditions are required to be satisfied viz., 1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, 2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused and 3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. 13. One of the main grounds urged by the learned Public Prosecutor is that there is sufficient motive for the accused to do away with the life of the deceased. In other words, his argument appears to be that if the deceased is done to death, he would be getting movable and immovable property of the deceased. 14. Coming to the right of the accused over movable properties, it would be appropriate for us to refer to the evidence of P.W.3. The deceased herein is no other than the paternal aunt of P.W.3. According to him, on coming to know about the death, he along with others, proceeded to Ugginapalem Village in a car on 16.08.2010. They noticed the dead body of Lalitha Kumari in a freezer at milk unit belonging to the accused. P.W.2 was present there. On seeing the body, they suspected her death and then, P.W.1 lodged a report. In the cross examination, P.W.3 admits that the deceased made him as a nominee in her F.D.Rs in Andhra Bank, Sitarampuram, Vijayawada and that he has drawn an amount of Rs.6,00,000/- i.e., from F.D.Rs of Andhra Bank in the year 2011, being the nominee of the deceased. 15. In the cross examination, P.W.3 admits that the deceased made him as a nominee in her F.D.Rs in Andhra Bank, Sitarampuram, Vijayawada and that he has drawn an amount of Rs.6,00,000/- i.e., from F.D.Rs of Andhra Bank in the year 2011, being the nominee of the deceased. 15. Further, P.W.6, who was working as Senior Branch Manager, Sitaramapuram Branch, Vijayawada stated that the deceased has a balance of Rs.28,000/- and odd in S.B. Account and there is no nominee to that account. The deceased is having a locker and there is no nominee to that locker. The deceased got three fixed deposits of Rs.2,30,000/-, 1,00,000/- and Rs.2,70,000/- with one K. Chalapathi Rao, who is her nephew - P.W.3 as her nominee. Later, Chalapathi Rao is said to have approached the bank with a Death Certificate and withdrawn the amounts. 16. P.W.7 was working as a Branch Manager, S.B.I., Machavaram Branch, Vijayawada, deposed that there is no nomination to the account maintained by the deceased and according to him, the balance on that day is only Rs.200/-. 17. Coming to the evidence of P.W.8, he, in his evidence, deposed about the transactions in the account of the deceased. Most of the transactions referred to by him relate to the period prior to the death of the deceased. From the evidence of these witnesses, it cannot be said that there was any motive for the accused to do away with the life of the deceased. As seen from the evidence referred to above, P.W.3 was nominated as a nominee to most of the accounts maintained by the deceased and majority of the amount lying in the account maintained at Canara Bank was transferred to the accused prior to the death of the deceased. Therefore, it cannot be said that there was any motive for the accused to cause the death of the deceased for movable properties. 18. Coming to immovable property, there is no evidence on record as to the immovable properties which the deceased was having, except an apartment in which P.W.9 – Carpenter was living. According to him, on one day, when he telephoned to the deceased for payment of rent, there was no answer and so, he went to the flat, where the watchman informed him that Lalitha Kumar was no more. His evidence shows that none came to collect rent. According to him, on one day, when he telephoned to the deceased for payment of rent, there was no answer and so, he went to the flat, where the watchman informed him that Lalitha Kumar was no more. His evidence shows that none came to collect rent. Therefore, if really the accused has killed the deceased for the sake of property, every effort would have been made by him not only to get the property transferred but also to collect rent from the property belonging to the deceased. Hence, the first circumstance namely motive for the accused to cause the death of the deceased is not proved beyond doubt by the prosecution. 19. Coming to the next circumstance, the case of the prosecution is that the death of the deceased was due to the presence of organophosphate, an insecticide poison in the viscera. The question is who administered the poison to the deceased. In a case arising out of death due to poison, the Hon’ble Apex Court, in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 : 1984 Cri LJ 1738, laid down in paragraph 165, four important circumstances for recording a conviction, which are reproduced as under:- “165. So far as this matter is concerned, in such cases the Court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction: (1) there is a clear motive for an accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, (3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to the deceased.” 20. The question that arises for consideration is:- “Whether it was the accused who administered poison to the deceased?” 21. The prosecution mainly relies on recovery of plastic jar at the instance of the accused, to establish that the chemical was purchased and administered by the accused. But one crucial fact which requires to be noticed here is that the incident was on 15.08.2010 and a report was given on the next day by P.W.1. In the said report, no suspicion was entertained against anybody. But one crucial fact which requires to be noticed here is that the incident was on 15.08.2010 and a report was given on the next day by P.W.1. In the said report, no suspicion was entertained against anybody. Nearly a year later, i.e., on 11.08.2011, P.W.2 presented another report to Kaimkota Police Station raising suspicion over the accused and also the manner in which the deceased was lying on the cot, her stomach being swollen, jewellery on her body missing, two cool drink bottles and one empty liquor bottle in the surroundings, some burnt curd rice in a vacant area behind Sudha Milk Product shed. Basing on her complaint, which was given, a year after the incident, section of law was altered to Section 302 I.P.C. and then, the accused was arrested. Pursuant to the statement made by the accused, an empty plastic jar containing monocrotophos – 36 percent S.C., hydrophos, insecticide poison was said to have been recovered from Sudha Milk Factory premises. The said recovery was alleged to have been made in the premises of P.Ws.11 and 13. Both the mediators, in whose presence the alleged recovery was made, did not support the prosecution case and were treated hostile by the prosecution. Even otherwise, the recovery alleged to have been made was nearly a year later after the incident and in the absence of any evidence that the said jar contains any poisonous substance, a doubt arises as to whether a recovery of a empty jar, a year later, can be made basis to connect the accused with the crime. In the absence of any other circumstances, we feel that it is a fit case where benefit of doubt can be extended and the accused can be acquitted. 22. In the result, the conviction and sentence recorded by the learned X Additional District and Sessions Judge, Visakhapatnam at Anakapalle vide judgment, dated 06.06.2014, in Sessions Case No.233 of 2011 against the appellant/accused for the offence punishable under Section 302 I.P.C. are set aside. The appellant/accused shall be released forthwith if he is not required to be detained in any other crime. Fine amount, if any, paid by the appellant/accused shall be refunded to him. 23. Accordingly, the Criminal Appeal is allowed. 24. The appellant/accused shall be released forthwith if he is not required to be detained in any other crime. Fine amount, if any, paid by the appellant/accused shall be refunded to him. 23. Accordingly, the Criminal Appeal is allowed. 24. At this stage, learned Public Prosecutor would contend that pending appeal, the accused has been released by the Government on giving him remission on certain terms and conditions but he is not complying with the terms and conditions. 25. In view of the judgment passed in this Criminal Appeal, the authorities shall proceed further in accordance with law. Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.