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2024 DIGILAW 1346 (AP)

Boya Maseed Eranna v. State of A. P.

2024-09-23

K.SREENIVASA REDDY, K.SURESH REDDY

body2024
JUDGMENT : K. Suresh Reddy, J. Accused No.1 in Sessions Case No.204 of 2013 on the file of the Court of learned II Additional District and Sessions Judge, Kurnool, at Adoni, is the appellant in the present Criminal Appeal. 2. A1 along with A2 to A6 was tried by the learned II Additional District and Sessions Judge, Kurnool, at Adoni under two charges. First charge was under Section 302 IPC and the second charge was under Section 201 IPC. 3. Substance of the charge is that on the intervening night of 09/10.09.2011, A1 to A6 intentionally caused the death of the wife of A1 namely Chinna Lakshmi (hereinafter referred to as "deceased") by strangulating her with a plastic rope and in the same process they gave false information to the parents of the deceased stating that she died due to heart attack, thereby committed offences punishable under Sections 302 and 201 IPC. 4. After completion of trial, A1 was convicted by the learned II Additional District and Sessions Judge, Kurnool, at Adoni, for the offence punishable under Section 302 IPC and was sentenced to suffer imprisonment for LIFE and also to pay fine of Rs.500/- (Rupees Five Hundred only), in default to suffer simple imprisonment for a period of one month. However, the learned II Additional District and Sessions Judge acquitted A1 for the offence punishable under Section 201 IPC and A2 to A6 for both the offences punishable under Sections 302 and 201 IPC. 5. Case of the prosecution, briefly, is as follows. (i) All the accused are residents of Badinehal village of Kowthalam Mandal, Kurnool district. All the material prosecution witnesses are residents of Pedda Kadabur village. PW.1 is the father and PW.2 is the brother of the deceased respectively. PW.3 is the son-in-law of PW.1. Marriage between A1 and the deceased was performed about eight (8) years prior to the date of incident and the couple blessed with two sons and a daughter. About five (5) days prior to the incident, A1 along with deceased and children went to the house of PW.1 and on the next day, A1 returned to his village. Again on the next day, A1 went to the house of PW.1 and returned back to his village along with the deceased and children. About five (5) days prior to the incident, A1 along with deceased and children went to the house of PW.1 and on the next day, A1 returned to his village. Again on the next day, A1 went to the house of PW.1 and returned back to his village along with the deceased and children. (ii) While so, in the early hours of 10.09.2011, A3 telephoned to PW.1 and informed him that the deceased suffered chest pain at about 4.00 AM and died at about 5.00 AM. PW.1 informed the same to his son (PW.2), his wife and his son-in-law (PW.3) and all of them went to the house of the accused and found the dead body of the deceased. They noticed ligature mark around the neck of the deceased. Having suspected about the ligature mark on the neck of the deceased, PW.1 went to the Police Station, Kowthalam and gave a report to the police. On 10.09.2011, at about 4.00 PM, PW.8 - the Head Constable, Kowthalam Police Station, received Ex.P1 from PW.1 and registered a case in Crime No.73 of 2011, under Section 174 Cr.P.C and issued FIR. Copy of FIR was marked as Ex.P9. At about 5.00 PM, PW.8 went to the house of the accused and found the dead body of the deceased. He posted a guard at the scene of offence and came back to the Police Station. On the next day at about 7.00 AM, PW.8 went to the house of the accused and held inquest over the dead body of the deceased in the presence of PW.5 and another. The inquest report was marked as Ex.P3. He sent the dead body to Government Area Hospital, Adoni for post-mortem examination. As the Doctors at Adoni were on strike, the dead body of the deceased was sent to Government Hospital, Kurnool. PW.7, who was working as Assistant Professor in the Department of Forensic Medicine, Government Medical College, Kurnool, conducted autopsy over the dead body of the deceased on 12.09.2011 and issued post-mortem certificate Ex.P6. On the basis of RFSL report Ex.P7, he opined the cause of death was due to asphyxia resulting from Throttling associated with ligature strangulation. The final opinion was marked as Ex.P8. On the basis of RFSL report Ex.P7, he opined the cause of death was due to asphyxia resulting from Throttling associated with ligature strangulation. The final opinion was marked as Ex.P8. After inquest was completed and on the basis of opinion given by the panchayatdars of the inquest, PW.8 filed alteration memo, which was marked as Ex.P10, altering the case from Section 174 Cr.P.C to Sections 302 and 201 IPC. The altered FIR was marked as Ex.P11. (iii) Further investigation was taken over by PW.10 - the Inspector of Police, Adoni. He went to the scene of offence and prepared rough sketch - Ex.P14. He secured the presence of PWs.1 to 3 and recorded their statements. On 17.09.2011, he also recorded the statement of PW.4. On 07.10.2011, he arrested A1, A2 and A4 in the presence of PWs.6 and 9. He recorded the confession statements of the arrested accused under Ex.P5. On 31.10.2011, he arrested the remaining accused and remanded them to judicial custody. After receipt of postmortem certificate - Ex.P6, final opinion - Ex.P8 and RFSL report - Ex.P7 and after completion of investigation, PW.10 filed charge sheet. 6. In support of its case, the prosecution examined PWs.1 to 10, marked Exs.P1 to P17 and exhibited Mos.1 to 3 - clothes of the deceased. On behalf of the defence, Exs.D1 to D6 were marked. 7. When the accused were examined under Section 313 Cr.P.C., they denied the incriminating material appearing against them and reported no defence evidence. 8. Accepting the evidence of PWs.1 to 3, coupled with the medical evidence of PW.7, the learned II Additional District and Sessions Judge, Kurnool, at Adoni, found Accused No.1 alone guilty of the offence punishable under Section 302 IPC and, accordingly, convicted and sentenced him as aforesaid, vide impugned judgment dated 11.02.2016 (sentence was passed on 12.02.2016). Aggrieved by the said judgment, the present Criminal Appeal has been preferred. 9. Heard Sri Virupaksha Dattatreya Gouda, learned counsel appearing for the appellant/A1, and Sri Kochiri Anand Kumar, learned Assistant Public Prosecutor for the respondent/State. 10. Learned counsel for the appellant/A1 strenuously contends that there are no eye witnesses in the present case and the prosecution rests its case only on the circumstantial evidence. He further contends that the evidence of PWs.1 to 3 did not disclose the motive for the accused to kill the deceased. 10. Learned counsel for the appellant/A1 strenuously contends that there are no eye witnesses in the present case and the prosecution rests its case only on the circumstantial evidence. He further contends that the evidence of PWs.1 to 3 did not disclose the motive for the accused to kill the deceased. According to PWs.1 to 3, A1 intended to marry the daughter of his sister, who is shown as A5, and he used to insist the deceased for her consent to marry the daughter of A5. He further contends that though in their evidence, PWs.1 to 3 stated that A1 used to harass and insist the deceased to give consent for his second marriage, they did not adduce any evidence in that regard. He further contends that the prosecution also did not adduce any evidence to show that A5 was having a daughter of marriageable age. As such, he contends that the prosecution has not established the motive for A1 to kill the deceased. 11. We have carefully scrutinised the evidence of PWs.1 to 3. PWs.1 to 3 have categorically stated that A5 was having one daughter. It is not disputed by the accused also that A5 was having a daughter. It is suggested by the accused that the daughter of A5 was aged about 9 or 10 years. The accused also filed Ex.D6 – certified copy of Household Card of A5 and her family members, which shows the age of daughter of A5 was 9 or 10 years. But, the accused did not examine any witness to substantiate Ex.D6. On the other hand, PW.1 has specifically stated in the cross-examination that the age of daughter of A5 was between 18 or 19 years as on the date of incident. The accused did not place any material to show the age of the daughter of A5, but they are not disputing that A5 was having a daughter. As such, the prosecution is able to prove the motive for A1 to kill the deceased. 12. The next circumstance relied on by the prosecution is the "last seen theory". Admittedly, even according to the defence, A1 and the deceased along with their three minor children are residing in their house. As such, except A1 and the deceased, no other elder person is residing in the house. So far as A2 to A6 are concerned, they are residing in a different house. Admittedly, even according to the defence, A1 and the deceased along with their three minor children are residing in their house. As such, except A1 and the deceased, no other elder person is residing in the house. So far as A2 to A6 are concerned, they are residing in a different house. Admittedly, the dead body of the deceased was found in the house of A1 on the intervening night of 09/10.09.2011. As such, it is for A1 to explain as to how the deceased met with homicidal death. But, the appellant/A1 has come up with a version that the deceased was having extra marital relationship with another person. The defence version is that, on the night of 09.09.2011, A1 went to the fields and in the early hours when he returned home, he did not find the deceased. When he went to search the deceased, her dead body was found in the bushes. Thereafter, to safeguard the reputation of the family, he brought the dead body of the deceased from bushes to his house and laid in the front yard of the house. Having observed the defence carefully, we have no hesitation to come to the conclusion that A1 has come up with a false version. If really the deceased was having extra marital relationship with another person, obviously there must have been some mediation before the elders. 13. PW.5 – the VRO, who conducted inquest over the dead body of the deceased, has stated that he did not hear any rumour about the character of the deceased. Even the Investing Officer also in his evidence stated that his investigation did not disclose any illegal intimacy of the deceased with any other person. If really the deceased was having any illegal intimacy, A1 ought to have furnished the name of the paramour of the deceased. As such, the defence taken by A1 also falls to ground. 14. Coming to the medical evidence adduced by the prosecution, PW.7 – the Assistant Professor in the Department of Forensic Medicine, Government Medical College, Kurnool, has stated that the cause of death of the deceased was due to asphyxia resulting from Throttling associated with ligature strangulation. The evidence of PW.1 discloses the ligature mark around the neck of the deceased in "L" circle, but the ligature mark was not obliquely positioned, which shows that the deceased was strangulated by A1. 15. The evidence of PW.1 discloses the ligature mark around the neck of the deceased in "L" circle, but the ligature mark was not obliquely positioned, which shows that the deceased was strangulated by A1. 15. Apart from coming with a false defence, A1 also gave false information to PW.1 stating that the deceased complained chest pain at about 04.00 AM and died at about 05.00 AM on the fateful day, which also lends support to the prosecution. 16. Learned counsel for the appellant has relied on a decision reported in Nizam and others v. State of Rajasthan, AIR 2015 SC 3430 : 2015 (2) ALD (Crl.) 898 (SC), wherein the Hon'ble Apex Court held as follows. “In the light of the above, it is to be seen whether in the facts and circumstances of this case, whether the courts below were right in invoking the “last seen theory.” From the evidence discussed above, deceased-Manoj allegedly left in the truck DL-1GA-5943 on 23.01.2001. The body of deceased-Manoj was recovered on 26.01.2001. The prosecution has contended the accused persons were last seen with the deceased but the accused have not offered any plausible, cogent explanation as to what has happened to Manoj. Be it noted, that only if the prosecution has succeeded in proving the facts by definite evidence that the deceased was last seen alive in the company of the accused, a reasonable inference could be drawn against the accused and then only onus can be shifted on the accused under Section 106 of the Evidence Act.” 17. In another decision reported in Gargi v. State of Haryana, AIR 2019 SC 4864 : 2020 (1) ALD (Crl.) 48 (SC), relied on by the learned counsel for the appellant, the Hon'ble Apex Court held thus. “28.1 Insofar as the "last seen theory" is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The Trial Court and the High Court have proceeded on the assumption that Section 106 of the Indian Evidence Act directly operates against the appellant. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The Trial Court and the High Court have proceeded on the assumption that Section 106 of the Indian Evidence Act directly operates against the appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Indian Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das (supra) in the following: “10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the Accused……” 18. But, in the case on hand, the prosecution is able to prove the "last seen theory", coupled with other circumstances i.e., motive for A1 to kill the deceased, cause of death and inconsistent false explanations. As such, the above referred judgments of the Hon'ble Supreme Court are distinguishable with the facts of the present case. 19. Further, learned counsel for the appellant has contended that the statements of PWs.2 and 3 and LW.2 recorded by PW.8 were suppressed by the prosecution and the accused were not supplied with the said statements, due to which the accused have deprived of their valuable right to cross-examine the prosecution witnesses. In support of the said contention, he relied on the decisions reported in Gangula Venkateswara Reddy v. The State of Andhra Pradesh, 2009 (1) ALD (Cri) 453 and Nandikanuma Lakshmamma v. State of Andhra Pradesh, 2008 Law Suit (AP) 1050. 20. It is true PW.8 recorded the statements of LW.2 and PWs.2 and 3 at the time of inquest. The said aspect was answered by the learned II Additional District and Sessions Judge in para 32 of the impugned judgment, which reads thus. 20. It is true PW.8 recorded the statements of LW.2 and PWs.2 and 3 at the time of inquest. The said aspect was answered by the learned II Additional District and Sessions Judge in para 32 of the impugned judgment, which reads thus. “.........As the statements of LW.2- Pareedamma and PWs.2 and 3 were recorded by PW.8 only at the time of inquest and in view of the fact that PWs.2 and 3 deposed in their evidence in corroboration of the contents of the inquest panchanama and the statements of them to PW.10, it cannot be said at any stretch of imagination that LW.2-Pareedamma and PWs.2 and 3 gave statements contrary to their version in Ex.P3. Therefore, this Court is of the opinion that non-filing of those 3 statements of LW.2-Pareedamma and PWs.2 and 3 into Court and non-supply of copies of those statements to the accused, had not caused any prejudice to the accused.” 21. As such, the decisions relied on by the learned counsel for the appellant with regard to non-supply of statements are distinguishable with the facts of the present case. 22. As the prosecution is able to prove the guilt of the appellant/A1 beyond all reasonable doubt by way of chain of circumstances, we do not find any reason to interfere with the conviction and sentence recorded against the appellant/A1 by the learned II Additional District and Sessions Judge, Kurnool, at Adoni in Sessions Case No.204 of 2013. Hence, there are no merits in the present Criminal Appeal and the same is liable to be dismissed. 23. In the result, the Criminal Appeal is dismissed by confirming the conviction and sentence imposed against the appellant/A1 by the learned II Additional District and Sessions Judge, Kurnool, at Adoni, in Sessions Case No.204 of 2013, dated 11.02.2016 (sentence was passed on 12.02.2016). As a sequel thereto, the miscellaneous petitions, if any, pending in this Criminal Appeal shall stand closed.