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2024 DIGILAW 1017 (AP)

Harijana R. Manjunath v. State Of A P

2024-08-08

K SREENIVASA REDDY, K SURESH REDDY

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JUDGMENT : K.Sreenivasa Reddy, J. Sole accused in Sessions Case No.305 of 2015 on the file of the Additional Sessions Judge, Hindupur is the appellant herein. He was tried for the offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (for short, ‘IPC’) by the learned Sessions Judge. 2. Vide judgment dated 27.01.2016 in the aforesaid Sessions Case, the appellant was convicted of the offences punishable under Sections 302 and 201 IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.5,000/- in default to suffer simple imprisonment for a period of six months for the offence punishable under Section 302 IPC and to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.2,000/- in default to suffer simple imprisonment for a period of three months for the offence punishable under Section 201 IPC. The sentence imposed for the offence punishable under Section 201 IPC was directed to run concurrently with the life imprisonment imposed for the offence punishable under Section 302 IPC. 3. The substance of charges as against the accused is that on 31.12.2012 at about 5.00 PM, the accused, being husband of one Harijana Rathnamma (hereinafter referred to, as ‘the deceased’), having bore grudge against her as she addicted to vices and indulging in prostitution activities, having intention to murder her, and while the accused and the deceased proceeded to Mopurugundu by walk near the fields of Golla Thammanna, the accused picked a quarrel with the deceased, beat her with hands and strangulated her with saree and caused her death intentionally and thereby committed an offence punishable under Section 302 IPC, and after committing her murder, the accused did cause certain evidence of the said offence to disappear, turned the saree of the deceased around her neck and legs, dragged and laid the dead body in bushes to screen evidence and thereby committed an offence punishable under Section 201 IPC. 4. Case of the prosecution, in brief, is that all the material prosecution witnesses are residents of Mopurugundu village, Gudibanda mandal, Anantapur district. The deceased was also residing in Mopurugundu village. P.W.1 is brother of the deceased. P.W.2 is sister of the deceased. P.W.3 is niece of the deceased. Accused is husband of the deceased. Marriage of the deceased with the accused was performed about 10 years prior to the incident. The deceased was also residing in Mopurugundu village. P.W.1 is brother of the deceased. P.W.2 is sister of the deceased. P.W.3 is niece of the deceased. Accused is husband of the deceased. Marriage of the deceased with the accused was performed about 10 years prior to the incident. After the marriage, the couple led their marital life at Alukuru village. They were blessed with two male children. Thereafter, the accused started suspecting fidelity of the deceased and used to beat her. The same was informed by the deceased to P.W.1. Unable to bear the beating and harassment by the accused, she went to her parents’ house and was living there. Thereafter, the accused married another woman. The two male children were living along with the accused. The accused left second wife also, as he was habituated to drinking, liquor and playing cards. The accused slowly started coming to the deceased and tried to meet her. The accused was insisting the deceased to come along with him, for which the deceased denied stating that unless parents and brothers of the deceased consent for the same, she would not come with him. In connection with that, a dispute arose between the accused and the deceased. On 31.12.2012 at about 5.00 PM, the accused went to house of the deceased and took her and P.W.3 to Jammalabanda for buying new clothes on the eve of new year 2013. The deceased and P.W.3 accompanied the accused to Jammalabanda. The accused purchased a new saree to the deceased and one pair of dress to P.W.3, and thereafter, they started coming back to their village. While they were coming back, the accused slapped on the cheek of the deceased, pushed down the deceased and tightened her neck with her saree and dragged. Mean while, P.W.4 and L.W.5-Nagesh switched on a torch light to see what was happening. The accused abused them in filthy language, and on that, the said persons went away from that place. Afraid of the same, P.W.3 ran towards her home in a hurried manner and informed about the incident on the road near Golla Thammanna fields. On hearing the same, P.W.2 rushed to their house. P.W.1 and L.W.1-Harijana Pathappa went in search of the deceased and searched for one hour, but it was of no use. Afraid of the same, P.W.3 ran towards her home in a hurried manner and informed about the incident on the road near Golla Thammanna fields. On hearing the same, P.W.2 rushed to their house. P.W.1 and L.W.1-Harijana Pathappa went in search of the deceased and searched for one hour, but it was of no use. On the next day morning, they and P.W.2 found dead body of the deceased in Golla Thimmanna fields. On 01.01.2013 at about 12.00 noon, L.W.1-Harijana Pathappa gave information to police. Basing on the same, a case in crime No.1 of 2013 of Gudibanda police station was registered for the offence punishable under Section 302 IPC under Ex.P9-FIR. On receipt of express FIR from P.W.12, P.W.11, who was Inspector of Police, Madakasira police station, secured mediators and conducted inquest on the dead body of the deceased. During inquest, M.Os.1 to 5 were seized. He examined and recorded statements of witnesses during inquest. The inquestdars unanimously opined that cause of death of the deceased was due to strangulation with a saree. P.W.9, who worked as Civil Assistant Surgeon, Madakasira, conducted autopsy on the dead body of the deceased. Ex.P6 is the post mortem examination report. According to the doctor, the deceased appears to have died of asphyxia due to strangulation. On 02.01.2013, P.W.11 took up further investigation, examined the witnesses and recorded their statements. On 21.03.2015, while he was present in his office at about 1.00 PM, P.W.7-Village Revenue Officer, presented a report, along with the accused, with Ex.P4-extra judicial confession made by the accused. P.W.11 secured presence of P.W.10 and another and in their presence, he examined the accused person. In pursuance of the confessional statement made by the accused, they proceeded to the scene of offence and reconstructed the scene of occurrence. On 21.03.2015 at about 4.15 PM, P.W.1 arrested the accused. After receiving post mortem examination report and other relevant documents, P.W.11 filed the charge sheet. 5. In support of its case, prosecution examined P.Ws.1 to 12 and got marked Exs.P1 to P14, besides case properties M.Os.1 to 8. After completion of prosecution side evidence, the accused was examined under Section 313 CrPC to explain the incriminating circumstances appearing against him in the evidence of prosecution witnesses. The accused denied the same. The learned Sessions Judge, after appreciation of the evidence on record, convicted and sentenced the appellant/sole accused, as stated supra. After completion of prosecution side evidence, the accused was examined under Section 313 CrPC to explain the incriminating circumstances appearing against him in the evidence of prosecution witnesses. The accused denied the same. The learned Sessions Judge, after appreciation of the evidence on record, convicted and sentenced the appellant/sole accused, as stated supra. Challenging the same, the present Criminal Appeal is preferred. 6. Heard the learned counsel for the appellant and the learned Assistant Public Prosecutor for the State. 7. Learned counsel for the appellant submits that there is no direct evidence to connect the appellant/ sole accused with the offence alleged, except the evidence of child witness who is examined as P.W.3; that the evidence of P.W.3 does not inspire confidence since she was a tutored witness; that the extra judicial confession Ex.P4 is a weak piece of evidence and is inadmissible in evidence and conviction cannot be based on the same, and the learned Sessions Judge has not appreciated the evidence on record in right perspective and erred in convicting and sentencing the appellant. Hence, he prays to set aside the impugned judgment. 8. On the other hand, learned Assistant Public Prosecutor appearing for respondent-State contended that there is direct evidence of P.W.3, who is a child witness, which is convincing, trustworthy and inspires confidence; that from the evidence of P.W.3, coupled with Ex.P4-extra judicial confession and evidence of P.W.7, the guilt of the appellant/sole accused is established beyond reasonable doubt; that the learned Sessions Judge rightly appreciated the evidence on record and convicted and sentenced the appellant/sole accused and there are no grounds to interfere with the impugned judgment. 9. Now, the point that arises for determination is whether the prosecution is able to bring home the guilt of the appellant/sole accused for the charges levelled against him, beyond reasonable doubt ? 10. P.Ws.1 and 2, who are brother and sister respectively of the deceased, did not witness the incident in question and their evidence is only a hear-say evidence. The entire case rests on the evidence of P.W.3, who is a child witness. She is daughter of P.W.2 and was studying 7th class. According to her evidence, the deceased is her maternal aunt and the accused is her maternal uncle. The entire case rests on the evidence of P.W.3, who is a child witness. She is daughter of P.W.2 and was studying 7th class. According to her evidence, the deceased is her maternal aunt and the accused is her maternal uncle. According to her, on the date of the incident, at about 6.00 PM, the accused invited the deceased and P.W.3 stating that he would buy new clothes to them at Jammalabanda; she and the deceased accompanied the accused to Jammalabanda, and the accused purchased new saree to the deceased and one pair of dress to her, and thereafter they started going back to their village; while they were going to their home, a quarrel ensued between the deceased and the accused, and the accused slapped on the cheek of the deceased; that accused pushed down the deceased and tightened her neck with her saree and dragged. She further deposed that mean while, two persons (P.W.4 and another) went there and switched on a torch light to see what was happening. The accused abused them in filthy language and on that, those two persons went away from the place; that afraid of the same, P.W.3 too ran towards her house and informed the same to everybody. 11. P.W.4 did not support the prosecution case. He was treated hostile by the prosecution. 12. In common parlance, in case of a child witness, her evidence has to be scrutinized with much care and caution, and unless and until there is corroborative evidence to the evidence of a child witness, the same cannot be relied upon. At the same time, if the evidence of a child witness is not unreliable and nothing has been elicited in cross-examination so as to tilt the case of the prosecution, the evidence of the child witness can be relied upon. In the case on hand, P.W.3 categorically deposed with regard to the incident that had taken place right in front of her. In cross-examination, Court put a question to the child witness under Section 165 of the Indian Evidence Act, 1872, as to whether anybody, more particularly her mother and uncle, tutored her to give the evidence. To that, P.W.3 gave answer stating –“I am giving evidence what I have seen at the scene of offence not as tutored by my mother and my uncle.”. To that, P.W.3 gave answer stating –“I am giving evidence what I have seen at the scene of offence not as tutored by my mother and my uncle.”. The evidence of the child witness P.W.3 is consistent and nothing has been elicited during her cross-examination so as to discredit her testimony. 13. Apart from the same, it is the evidence of P.Ws.1 and 2, who are none other than brother and sister of the deceased, that the accused was coming to their house now and then, and on the date of the incident, the accused visited their house and took the deceased and P.W.3 in order to buy clothes to them at Jammalabanda. That fact is established by virtue of evidence of P.Ws.1 and 2. The evidence of P.W.3, on that aspect, is corroborated by the evidence of P.Ws.1 and 2. Therefore, presence of P.W.3 at the time of the incident is quite natural and probable. On the date of the incident, when P.W.3 returned her house by crying, P.Ws.1 and 2 and their father questioned P.W.3 as to what had transpired. To that, P.W.3 answered that the accused slapped the deceased and dragged her by putting saree around her neck. Thereafter, both P.Ws.1 and 2 and father of the deceased searched for the deceased, but they could not find the deceased. On the next day, they could trace dead body of the deceased and thereafter, father of the deceased gave information to police at 12.00 noon on 01.01.2013. 14. A perusal of Ex.P9-FIR, it has been categorically mentioned in the earliest point of time that on the fateful day, it is the accused, who visited house of the deceased and took the deceased, who is his wife, and P.W.3 in order to buy clothes on the eve of new year. Though father of the deceased (LW1) was not examined by the prosecution, it would not in any way tilt the case of the prosecution. When police receive information with regard to commission of a cognizable offence, they are empowered to set the criminal law into motion by registering FIR. 15. Though father of the deceased (LW1) was not examined by the prosecution, it would not in any way tilt the case of the prosecution. When police receive information with regard to commission of a cognizable offence, they are empowered to set the criminal law into motion by registering FIR. 15. P.W.7, Village Revenue Officer of Valasa and incharge of Amarapuram, deposed that the accused made extra judicial confession before him stating on 21.03.2015 stating inter alia that while coming back from Jammulabanda after buying clothes to his wife and P.W.3, he killed his wife in between Jammulabanda and Mopurugunta road for having extra marital relation, and the same has been recorded by P.W.7, which is marked as Ex.P4. 16. Learned counsel for the appellant relied on a decision in 2000 (1) ALD (Cri) 508 (SC), wherein the Hon’ble Apex Court held that the evidence of a child witness examined after two days of the incident cannot be believed and that the High Court is justified in acquitting the accused. In the said case, the occurrence of the incident took place on 08.08.1982 but her statement under Section 161 CrPC was recorded on 10.08.1982, though after the occurrence, she was residing with her uncle at a stone throw distance from the house. 17. In the present case, police registered FIR on 01.01.2013 and P.W.3 was examined on 02.01.2013. The statement of P.W.3 was recorded immediately on the next day. In common parlance, it is settled that evidence of a child witness has to be evaluated with care and caution for the reason that the child witness would be susceptible for tutoring. In such circumstances, the evidence of a child witness requires corroboration, before accepting it. Irrespective of the fact, it is settled that if the evidence of a child witness inspires confidence of the Court, without there being any embellishments or improvements, in such a case, the Court can rely upon the evidence of the child witness. In the case on hand, when the learned Sessions Judge questioned the child witness P.W.3, in no unambiguous terms, the witness stated that she was deposing what she had seen at the scene of offence and not as tutored by her mother or uncle. In view of the aforesaid reasons, this Court relies upon the evidence of P.W.3. In the case on hand, when the learned Sessions Judge questioned the child witness P.W.3, in no unambiguous terms, the witness stated that she was deposing what she had seen at the scene of offence and not as tutored by her mother or uncle. In view of the aforesaid reasons, this Court relies upon the evidence of P.W.3. The learned Sessions Judge, upon proper appreciation of the evidence on record, rightly convicted and sentenced the appellant/sole accused, and this Court is of the opinion that the judgment passed by the learned Sessions Judge is well reasoned and calls for no interference by this Court. 18. Accordingly, the Criminal Appeal is dismissed, confirming the judgment dated 27.01.2016 in Sessions Case No.305 of 2015 on the file of the Additional Sessions Judge, Hindupur. As a sequel, pending miscellaneous petitions, if any, shall stand closed.