Andhra Pradesh High Court - Amravati
Bandi Padmakka, Anantapuram Dt., vs State Of Ap., Rep Pp., on 23 July, 2021
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
HONOURABLE SRI JUSTICE C. PRAVEEN KUMAR
And
HONOURABLE SRI JUSTICE B. KRISHNA MOHAN
Criminal Appeal No.1379 of 2014
JUDGMENT:(Per Hon'ble Sri Justice C. Praveen Kumar) Heard Sri V. Raghu, learned legal aid counsel appearing for the Appellant and Sri S. Dushyanth Reddy, learned Additional Public Prosecutor, through Blue Jeans video conferencing APP.
1) The sole accused in Sessions Case No.374 of 2013 on the file of the Principal District and Sessions Judge, Ananthapuramu, is the appellant herein. She was tried for the offence punishable under Section 302 of the Indian Penal Code, 1860 for causing death of her husband (deceased No.1) and mother-in-law (deceased No.2). By its Judgment dated 08.08.2014, the learned Sessions Judge convicted the accused and sentenced her to suffer imprisonment for life and to pay fine of Rs.500/-, in default to suffer simple imprisonment for a period of three months. M.Os.1 and 2 were directed to be destroyed after the appeal time is over.
2) The substance of the charge against the accused is that on 05.03.2013 at about 10.30P.M. at the house of deceased No.1 Bandi Sanjappa in Yerragunta village, Kanekal Mandal, the accused beat the deceased (her husband) with a pestle on his head due to which he received severe bleeding injury, fell 2 down on the ground and died. At the same time, the accused hacked the deceased Bandi Thippamma (her mother-in-law) with a stand-knife on her head causing two bleeding injuries, which later led to her death.
3) The facts as culled out from the evidence of the prosecution witnesses are as under:
i) The accused is the wife of deceased No.1. PW1 is the son of accused and deceased No.1, and grand son of deceased No.2. About 9 months prior to the date of the incident, the marriage of the sister of PW.1 took place with one Hanumantha Reddy, a resident of Godiselapalli village, D. Hirehal Mandal. After the death of his paternal grandfather, the paternal grand mother of PW.1 used to stay with them in their house. On 05.03.2013, at about 8.00P.M. after having dinner, PW.1 went to their agricultural land for watering the trees. After one hour, PW.2, who is a resident of his some and friend of PW.1, informed him over phone that his grandmother was raising cries in the house.
Immediately, he rushed to his house and found the door locked from inside the house. PW.1 climbed the roof of his house and through the ventilator entered the house. He found his father lying dead. While his mother (the accused) and his grandmother (deceased No.2) were also present there. There was bleeding injury on the right 3 side of the head of his father. When asked, his grand mother (D.2) informed him that the accused beat his father with a pestle on his head and killed him. His grandmother (D.2) also informed that the accused beat her on her head with a knife stand (kathipeeta). PW.1 claimed to have asked the paternal grandmother as to why the accused killed his father, but, the grandmother was not in a position to give reply due to the injuries sustained by her. Then, he opened the bolt of the main door from inside the house, pursuant to which, the neighbours came there. It is said that when the bolt was opened, the accused fled away along with the blood stained pestle.
ii) The information about the incident was received by the V.R.O. of Brahmasamudram village. Accordingly, he proceeded to the house of PW.1 at about 9.30P.M. and found deceased No.2 in the house. According to him, the deceased No.2 is said to have made a statement stating that her daughter-in-law beat her with knife stand (kathipeeta) causing injuries and beat her husband (deceased No.1) with a pestle on his head. Basing on the information furnished by deceased No.2, a report was prepared and her left thumb impression was obtained on the report. Ex.P.4 is the report dated 05.03.2013 scribed by PW.5, the V.R.O. 4
iii) At about 9.40P.M., while PW.11, the Sub-Inspector of Police, was in the police station, received message about the murder of one Bandi Sanjap pa of Yerragunta village. He visited the scene of offence at 10.15P.M., and noticed the dead body of the deceased No.1 and the injured (Deceased No.2) at that place with bleeding injury on her head. It is stated that the injured Bandi Thippamma got scribed Ex.P.4 written report through PW.5 and the same was given to him at that place. Basing on the said report, PW.11 is said to have registered a case in Crime No.10 of 2013 for the offence punishable under Sections 302 and 307 IPC and issued Ex.P.5 FIR.
iv) PW.10, the Inspector of Police, took up further investigation in the matter. According to him, the injured Thippamma was first shifted to Government Hospital, Kanekal and then shifted to Government Hospital, Kalyandurg for better treatment. According to him, he instructed PW.11 to bring the FIR to Kalyandurg and accordingly, reached Kalyandurg by 5.00A.M. on 06.03.2013. He recorded the statement of deceased No.2 at Government Hospital, Kalyandurg. Ex.P.11 is the statement.
v) After recording the statement, the injured was shifted to Government Hospital, Kanekal by 108 ambulance. 5 Thereafter, she was shifted to Government Hospital, Kalyandurg for better treatment.
vi) On 06.03.2013 at about 7.30AM., PW.10 proceeded to the scene of offence and in the presence of blood relatives of the deceased, including the inquest panchayatdars, conducted inquest over the dead body of the deceased No.1. Ex.P.5 is the inquest report. He collected blood stained earth and controlled earth lying in between kadapa stones slabs. The panchayatdars opined that the cause of death of deceased No.1 was due to head injury caused by the accused. At about 10.00A.M. they received intimation about deceased No.2 was succumbed to the injuries while undergoing treatment in Government Hospital, Kalyandurg. Immediately, he instructed PW.11 to conduct inquest over the dead body of deceased No.2. Ex.P.12 is the rough sketch of the scene of offence prepared by him.
vii) PW.10 sent the dead body of deceased No.1 to the Government Hospital, Rayadurg for post mortem examination. PW.4 the Medical Officer, Community Health Centre, Rayadurg conducted autopsy over the dead body of deceased No.1 on 06.03.2013 between 3.30P.M. to 6.00P.M. and issued Ex.P.3 Post Mortem certificate.
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viii) As per the instructions received, PW.11 conducted inquest over the dead body of the deceased No.2 in the presence of PW.7 and others between 12.00 noon to 3.00 P.M. Ex.P.16 is the inquest panchanama. It is said that the panchayatdars opined that the death of the deceased No.2 was caused due to head injury. After conducting inquest, the dead body was sent for post mortem examination. PW.8, the Civil Assistant Surgeon, conducted autopsy over the dead body of the deceased No.2 at mortuary room at Government Hospital, Kalyandurg. Ex.P.8 is the post mortem report.
ix) On reliable information about the accused, PW.10 along with Sub-Inspector of Police, his staff and panch witnesses and woman home guard proceeded to the house of one Thimma Reddy at Muridi-Hanumapuram village on 10.03.2013 at 12.30 noon. On seeing them, the accused tried to run away from that place, but she was apprehended. Her confessional statement was recorded and Ex.P.9 is the admissible portion in the confessional statement. In pursuance of her confessional statement, the accused led them to the outskirts of Yerragunta village near S.C. colony i.e. burial ground from where M.O.1 pestle was discovered. Ex.P.10 is the seizure panchanama. On 17.06.2013, PW.10 sent the blood stained terricotton lungi of deceased No.1 and other material objects to R.F.S.L., Tirupathi for analysis. 7 Ex.P.14 is the Analyst report. After collecting all the necessary documents, a charge sheet came to be filed, which was taken on file as PRC No.14 of 2013 on the file of Judicial Magistrate of First Class, Rayadurg.
x) 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 Session, the same was committed to the Court of Session under Section 209 Cr.P.C. On committal, charges as referred to above came to be framed, read over and explained to the accused, to which, she pleaded not guilty and claimed to be tried.
xi) In support of its case, the prosecution examined PW1 to PW.11 and got marked Ex.P.1 to Ex.P.16, besides marking M.Os.1 and 2. After completion of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against her in the evidence of prosecution witnesses, to which she denied, but, however no oral or documentary evidence was adduced in support of her plea. Relying upon the evidence of PW.1 coupled with the medical evidence and the investigating officer, the learned Sessions Judge convicted the accused for the offence punishable under 8 Section 302 I.P.C. Challenging the same, the present appeal came to be filed.
4) Sri V. Raghu, learned legal aid counsel appearing for the appellant submits that there are no eye witnesses to the incident and the case mainly rests on the statement made by the deceased No.2 before the V.R.O. and the police. He further submits that there are number of circumstances to indicate that the accused is not responsible for the death of the deceased. He further submits that if really the incident took place in the manner narrated by the prosecution, the neighbours would have witnessed the incident as the main door of the house was a grilled door. Further, since it was a grilled door, there was no necessity for PW.1 to climb the terrace and enter the house by removing the tiles of the slab. Apart from this, the learned counsel for the appellant mainly submits that the statement of the deceased No.2, which is in the form of an oral dying declaration cannot be used as a material for the death of deceased No.1, as the two incidents are separate and did not take place in the course of same transaction. He took us through these two dying declarations in support of his plea.
5) The same is opposed by Sri. S. Dushyanth Reddy, learned Additional Public Prosecutor appearing for the State. According to him, there are no reasons to disbelieve the two statements of the deceased made before V.R.O. and the 9 police. In fact, since the death of the deceased No.2 was not instantaneous, it cannot be said that there is possibility for deceased No.2 to make the statement.
6) The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt?
7) It is no doubt true that there are no eye witnesses to the incident and that the case rests on the circumstantial evidence. In order to prove the same, the circumstances so relied upon by the prosecution are to be proved beyond reasonable doubt and the said circumstances so proved should lead to an irresistible conclusion that it was the accused alone who is responsible for the guilt.
8) The main ground urged by the learned counsel for the appellant is that the statements made by deceased No.2 under Ex.P.4 and Ex.P.11, wherein they refers to the injuries caused not only on her (D2) , but also on deceased No.1, the same cannot be used in so far as the death of deceased No.1 is concerned. Coming to the death of deceased No.2 is concerned, the learned counsel for the appellant tried to contend that the statement made by deceased No.2 under Ex.P.4 and P.11 even if treated as Dying Declarations and are admissible in evidence, the ingredients constituting an offence under Sec.302 IPC are not made out.
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9) In order to appreciate as to whether the statement of deceased No.2 can be used as Dying Declaration in so far as the deceased No.1 is concerned, it would be just and proper to refer Ex.P.4 and P.11.
10) Ex.P.4 is the statement said to have been made by the injured (deceased No.2) to Sub-Inspector of Police, Kanekal, which formed the basis for the First Information Report. It is no doubt true that the said statement is not attested by the doctor, but it came to be made at the house of the deceased when the V.R.O. (P.W.5) went to the scene on receipt of information about the incident. A reading of the statement categorically show that after the death of her husband, deceased No.2 started residing in the house of deceased No.1, who had two sons. It is said that her daughter-in-law, who is wife of the deceased No.1, developed illegal contacts with some one in the village. On coming to know about the same, deceased No.1 used to quarrel with her daily and advise her to mend her behaviour as they may lose their prestige in the village. Being an elder in the house, deceased No.2 also advised the accused to change her habits. But, the accused is said to have paid a deaf ear to the advice given.
11) While so, on 05.03.2013, at about 9.30P.M. when her grand son (PW.1) went to water their fields, the deceased No.2 along with deceased No.1 and the accused were in the house. At that time, the deceased No.1 is said to have told the 11 accused that because of her attitude, they are likely to lose their respect in the village and asked her to stop having illegal contact with others. To this, the accused became angry and an altercation took place between the deceased No.1 and the accused. In the said altercation Deceased No.2 supported her son/deceased No.1. At that point of time, the accused is said to have raised her voice stating that the deceased No.2 and the deceased No.1 are obstructing her joy and happiness and unless they are eliminated she could not find a way for her happiness. So saying, the accused is said to have beat deceased No.1 with a pestle on his head. As a result of it, the deceased No.1 sustained a bleeding injury, fell down and died on the spot. On seeing the same, the deceased No.2 raised cries and went towards her son (deceased No.1). Then the accused proclaiming that she will kill her also, took a kitchen knife stand and hit on her head, causing bleeding injuries. As a result of the blow, the deceased No.2 fell down crying loudly. On hearing the same, the neighbours, PW.2 and one Golla Bheema Reddy came to the house and later informed PW.1.
12) According to her, her grand son, PW.1, entered the house through sky light, opened the lock, and then the accused ran way with the pestle. D2 summarised her statement stating that since they advised the accused to change her attitude and stop illegal contacts, the accused killed the deceased No.1 and also intended to kill the 12 deceased No.2 by causing bleeding injury. The above statement was said to have been recorded on 05.03.2013 at about 9.30P.M.
13) Ex.P.11 is the second statement of the D2, said to have been recorded at the very same time by the very same Sub- Inspector of Police, wherein the contents of the statements are exactly identical to the one referred to above.
14) A reading of these two statements would categorically indicate that the accused was in the habit of developing illegal contacts with the others in the village, which was not the liking of deceased No.1 and the deceased No.2. Both of them warned the accused to change her attitude, but there was no change in her behaviour. On the fateful day at about 8.30P.M., while all the three of them were in the house, deceased No.1 again requested the accused to change her attitude as it is likely to cause disrespect to their family in the village. A quarrel ensued between both of them. There was exchange of heated words between them. In the course of quarrel the accused picked a pestle lying there and gave a blow on the head of deceased No.1, as a result of which, deceased No.1 fell down. On seeing the same, the deceased No.2, who is the mother of deceased No.1, by raising cries proceeding towards D1. At that point of time, the accused by proclaiming that she will kill deceased No.2 as well, took a kitchen knife stand (kathi Peeta) and hit on her head causing 13 bleeding injury. As a result of which Deceased No.2 also fell down. However, the accused remained in the house till the arrival of PW.1, who entered the house through the opening the sky light. When the lock of the main door was opened, the accused is said to have ran away with the pestle. From the above it is clear that the second incident is a part of the first incident and both the incidents took place in the course of same transaction.
15) In Tejram Patil v. State of Maharashtra1, the Hon'bale Supreme Court held as follows:
".....It is thus clear that the DD is admissible not only in relation to the cause of death of the person making the statement and as to circumstances of the transaction which resulted in his death. If the circumstances of the said transaction relate to death of another person, the statement cannot be held to be inadmissible when circumstances of "his" death are integrally connected to the circumstances of death of such other person."
16) In the above case, the Hon'ble Supreme Court categorically held that the Dying Declaration is admissible not only in relation to the cause of death of the person making the statement, but also as to the circumstances of the said transaction which resulted in his death. If the circumstances of the said transaction relate to the death of another person, the statement cannot be held to be inadmissible in evidence when the circumstances of his death are integrally connected to the circumstances of death of such other person. 1 2015 (8) SCC 494 14
17) Since both the incidents are integrally connected with each other forming part of same transaction, which resulted in death of the person making the statement as well as the death of other person, the statement of D.2 would be relevant to the cause of death of such other person i.e. D.1 also.
18) Learned counsel for the appellant further submits that having regard to the manner in which the incident took place, it cannot be said that the accused had any intention to cause the death, more so, when the two statements disclose quarrel and exchange of heated words between the deceased No.1 and the accused immediately prior to the incident.
19) In order to appreciate the same, it will be appropriate to refer the evidence of PW.1, who is none other than the son of the deceased No.1 and accused and the grand son of deceased No.2. According to him, the accused, who is his mother, did not develop any illicit intimacy with anybody and to his knowledge, "either his father" or his paternal grand mother ever quarrelled or abused the accused in his presence. On 05.03.2013 after having dinner he went to the fields for watering. After one hour, PW.2 informed him over phone about his paternal grand mother raising cries. Immediately, thereafter, he went to the house and as the bolt was locked from inside the house, climbed the roof and through the ventilator entered the house and noticed his father lying dead. His mother and grand mother were also 15 there in the house. He noticed a bleeding injury on the right side of the head of his father. When enquired, his grand mother informed him that the accused beat his father with pestle on his head. He noticed his grandmother with injuries. It was informed to him that the accused beat her with kathipeeta. When PW.1 opened the door, the accused is said to have ran away with the said pestle. On hearing the cries, the neighbours gathered there and thereafter the information about the incident was given to the V.R.O., who came to the scene of offence and recorded the statement of injured/D.2 which is placed on record as Ex.P.4. PW.1 categorically stated that he does not know the reason why the accused killed his father and paternal grandmother. In the cross-examination, the witness admits that in his presence the accused never quarrelled either with his deceased father or his deceased paternal grandmother.
20) PW.2, who is said to have informed about the incident to PW.1 did not support the prosecution case and was treated hostile by the prosecution. PW.3, who is the elder brother of deceased No.1 also did not support the prosecution case and was treated hostile. PW.4 is the doctor who conducted the post-mortem, while PW.5 is the V.R.O. who recorded the statement of deceased No.2. PW.6 and PW.7 did not support the prosecution case and were treated hostile. PW.8 is the doctor, who conducted post-mortem examination over the dead body of the deceased No.2. PWs.10 and 11 are the 16 official witnesses. Therefore, the entire case rests on the evidence of PW.1 coupled with Exs.P.4 and P.11.
21) As seen from the evidence referred to earlier, PW.1 was not treated hostile by the prosecution. His evidence go to show that there was no quarrel between the accused and the deceased No.1 in the house and to his knowledge, his mother (the accused) did not develop any intimacy with anybody. His evidence also disclose that on receiving information, he entered the house by climbing the roof and through the ventilator entered the house and found the deceased No.1 dead with an injury on his head, while his mother (accused) and grandmother (deceased No.2) were near the body of D.1. He came to know from his grandmother as to how the incident took place.
22) The evidence of PW.1 makes it clear that after the incident, the accused never made any effort to run away from the scene and only after the door was opened by PW.1, the accused ran away from the scene. It is not the case of the prosecution that the door was locked from outside or the accused was not aware as to how door has to be opened. The accused was living with her husband and children in the said house since pretty long time. Further, the accused never attempted to cause more injuries on her mother-in-law (D.2), though she was alive and raising cries.
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23) The contents of the two Dying Declarations would show that the incident in question is preceded by a quarrel between the deceased No.1 and the accused and in the course of exchange of words and when the deceased No.1 asked the accused to change her habits, she is alleged to have beat deceased No.1 with a pestle on his head. It was a single blow leading to instantaneous death. Deceased No.2 was also in the very same room at that time, she screamed loudly against the accused and went near her son. Then the accused is said to have attacked deceased No.2 as well with a different kitchen instrument. Though two injuries were found on the body of D.2 but the statement shows that a single blow was given with kathipeeta on her head. It would be appropriate to refer to the evidence of the two doctors, PW.4 and PW.8, who conducted post mortem examination on the dead body of the deceased No.1, and deceased No.2 which are as under:
"1) A laceration of 5 X 2 X 1cm present on the occipital region of the right side of the head;
2) An abrasion of 2 X 1 cm present on the left forearm."
24) The evidence of PW.8, the doctor, who conducted post mortem on the dead body of the deceased No.2, which is as under:
"1) A small laceration 7 X 2cm over right side of frontal bone;
2) A small laceration mid frontal bone of size 3 X 4 cms from mid frontal bone up to left side of parietal bone;
3) A small laceration over middle finger of left hand 18 For all the above injuries the edges are sharp and anti-mortem in nature."
25) As stated earlier, there is only one lacerated injury on the right side of the head on D.1, which appears to be a fractured injury and in so far as deceased No.2 is concerned, there are two small lacerations on the frontal and parental region. The question now is whether the accused had any motive or intention to kill these two persons.
26) The statement made by D.2 show that accused claimed to have stated that to enjoy her life, she has to eliminate the two deceased. If really her intention was to eliminate these two persons, she would not have spared deceased No.2, who was alive till the arrival of PW.1 to the house. Further, if her intention was to cause injuries, she would not have been remained herself in the house without making any effort to escape from the house after opening the door. Only after the arrival of PW.1 and after he opened the door, the accused escaped. It could be at the instance of PW.1 as well, which could be inferred from his evidence in court. Therefore, it appears to be a case where the accused never intended to kill the deceased, but everything happened pursuant to quarrel that ensued just prior to the incident between the deceased No.1 and the accused. If really there were frequent quarrels with regard to the conduct of the accused, PW.1 would have definitely mentioned the same in his evidence. On the other hand, his evidence is totally silent on this aspect. 19
27) Time and again, the Hon'ble Supreme Court in a catena of decisions held that it is not the number of injuries that matter for constituting the offence, but the circumstances, under which the incident took place and the weapon used in the commission of offence and the manner in which it was used.
28) In Shivappa Buddappa Kolkar @ Buddppagol v. State of Karnataka and others2, the Hon'ble Supreme Court while dealing with a situation where a single blow was given by the accused, with an axe on the head of the deceased, leading to instantaneous death, altered the conviction from Section 302 IPC to one under Section 304 Part II IPC.
29) In Stalin v. State3, the Hon'ble Supreme Court held as follows:
"It emerges that there is no hard and fast rule that in a case of single injury Section 302 IPC would not be attracted. It depends upon the facts and circumstances of each case. The nature of injury, the part of the body where it is caused, the weapon used in causing such injury are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not. It cannot be laid down as a rule of universal application that whenever the death occurs on account of a single blow, Section 302 IPC is ruled out. The fact situation has to be considered in each case, more particularly, under the circumstances narrated hereinabove, the events which precede will also have a bearing on the issue whether the act by which the death was caused was done with an intention of causing death or knowledge that it is likely to cause death, but without 2 2005 SCC (Crl.) 93 3 AIR 2020 SC 4195 20 intention to cause death. It is the totality of the circumstances which will decide the nature of offence."
30) As seen from the evidence on record, it is not the case of the prosecution that the accused had a motive to kill the two deceased persons. If really the accused has intended to kill or had motive to kill the two persons, she would have planned in a different way in causing the death. But the material on record show that she picked up a pestle and a kathipeeta used daily in kitchen and for cutting vegetables, in attacking the deceased, which itself indicates that everything happened in a spur of the moment and because of the quarrel that took place between the deceased No.1 and the accused. Further, the injuries on the deceased No.2 were found to be two small lacerations on the frontal and partial region, which lead to her death long after the incident.
31) The incident in question is preceded by a quarrel between the accused and the deceased No.1 and in the said quarrel, the accused picked up a pestle and gave a single blow and immediately after the assault deceased No.2 intervened and questioned the highhanded act of the accused. At that point of time, the accused picked up another weapon like a kitchen knife and hit a blow to deceased No.2. The conduct of the accused in killing of two deceased persons assumes importance to show that she had no intention to kill them. If really she had intention to kill, definitely she would have escaped from the place, but she did not do so. She kept quiet 21 though deceased No.2, who was alive by then, was raising cries after PW.1 entered into the house and after opened the door, she went away.
32) For the aforesaid reasons and taking into consideration the totality of the circumstances, we feel that the accused cannot be held liable for the offence punishable under Section 302 IPC. Accordingly, the same requires to be scaled down to Section 304 Part-II IPC. Hence, the conviction of the accused is altered from Section 302 IPC to Section 304 Part II IPC.
33) In the result, the Criminal Appeal is allowed in part. The conviction and sentence imposed against the appellant in S.C.No.374 of 2013 on the file of Sessions Judge, Ananthapuramu at Ananthapuramu, for offences punishable under Section 302 IPC vide judgment dated 08.08.2014 is altered to one under Section 304 Part II IPC. For the altered conviction, the appellant/accused is sentenced to undergo rigorous imprisonment for a period of ten (10) years. The remand period, if any, undergone by the appellant/accused during investigation, trial and after conviction, shall be given set off under Section 428 Cr.P.C.
________________________ C. PRAVEEN KUMAR, J ________________________ B. KRISHNA MOHAN, J Date: 23-07-2021 Ksn