Andhra Pradesh High Court - Amravati
Pathara Srinu, E.G.Dt., vs State Of Ap., Rep Pp., on 12 May, 2020
Author: C. Praveen Kumar
Bench: C. Praveen Kumar, K. Suresh Reddy
HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
&
HON'BLE SRI JUSTICE K. SURESH REDDY
Crl.A. No. 384 of 2015
JUDGMENT:- (per Hon'ble Sri Justice C. Praveen Kumar)
1) Heard Sri M. Chalapati Rao, learned counsel for the appellant and the learned Public Prosecutor appearing for the respondent-State through Video Conference operating in Blue-jeans App.
2) The sole accused in S.C.No. 198 of 2013 on the file of the Court of the learned Special Judge for Trial of Cases Under S.Cs. and S.Ts. (POA) Act-cum-X Additional District & Sessions Judge, East Godavari at Rajahmundry, is the appellant herein. He was tried for the offences punishable under Sections 302 and 498-A IPC for causing the death of his wife namely Pathara Nagamani by beating her with cycle pump indiscriminately. By its judgment dated 11.03.2015, the learned Sessions Judge convicted the accused on both the counts and sentenced him to suffer imprisonment for life and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for one month for the offence punishable under Section 302 IPC. However, no separate sentence was ordered for the offence punishable under Section 498-A IPC.
3) The gravamen of the charges leveled against the accused is that on the intervening night of 05/06.07.2012 at about 01:00 to 01:30 hours, in his house at Chinnampalem, 2 CPK,J & KSR,,J Crl.A_384_ 2015 H/o. Nellipudi village of Gangavaram Mandal, the accused caused the death of his wife namely Pathara Nagamani. It is also stated that the accused, being husband of the deceased, subjected her to cruelty.
4) The facts, as culled out from the evidence of the prosecution witnesses, are as follows:
PW1 is the father while PW2 is the mother of the deceased. PWs.3 and 4 are the daughter and the son of PWs.1 and 2. The accused is the husband of the deceased. It is stated that earlier Nagamani was married to one Belam Lingayya. Due to disputes between them, they got separated. Though they were blessed with three children, all of them were living with Lingayya. After the separation of Nagamani from her husband, she stayed with PW1 for one year, and thereafter, she married the accused. Both of them were not blessed with any children for many a reasons. When disputes arose between them, the deceased used to come to the house of PW1 and complain against her husband. There were occasions when the accused also went to the house of PW1 and took her back home assuring to look after his wife properly. It is stated that on the date of the incident between 09:00 or 10:00 p.m., neighbors namely PWs.5 to 8, who were living near the house of the accused, heard cries from the house of the accused. On hearing the same, PW5 went to the house of the accused and found the
3 CPK,J & KSR,,J Crl.A_384_ 2015 accused beating the deceased. Meanwhile, PWs.6 to 8 also came there. Then, PW5 informed the parents of the deceased about the incident. Thereafter, PWs.1 to 4 and others came to the house of the deceased and found the dead body of the deceased lying on the verandah. Later, a report came to be lodged by PW1, after getting it drafted through a literate person (PW7) of the village. Basing on the report, PW12 - Station House Officer registered a case in Cr.No. 38 of 2012 against the accused for the offence punishable under Section 302 IPC and issued Ex.P8 - F.I.R. Further investigation was taken up by PW13 - Inspector of Police, who deposed that on receipt of information about the incident, he proceeded to the police station, Gangavaram received a copy of Ex.P8 and recorded the statement of PW1. Thereafter, he sent a requisition to Tahsildar, Gangavaram for holding inquest over the dead body of the deceased. PW13 along with staff and Tahsildar proceeded to the scene of offence i.e. Chinnampalem where they held inquest over the dead body in the presence of PW11 and two others. Ex.P5 is the inquest report. Later, he inspected the scene of offence and prepared a rough sketch of the scene, which was marked as Ex.P9. A panchanama of the scene was prepared in the presence of PW11 and two others which was marked as Ex.P6 - Mediators report. During the said proceedings they seized M.Os.4 to 7 under Ex.P4 - observation report of the scene of offence. After completing 4 CPK,J & KSR,,J Crl.A_384_ 2015 the inquest proceedings, the inspector he sent the dead body for post-mortem examination. PW9 - Civil Assistant Surgeon, District Hospital, Rajahmundry conducted autopsy over the dead body of the deceased and issued Ex.P3 - the Post- mortem report. According to him, the cause of the death of the deceased was due to cranio-cerebral injury (Injury No.1). PW13 continued with the investigation and recorded the statements of PWs.2 to 8 and others. On 31.07.2012, on receipt of credible information, he along with PW11 proceeded to the house of the accused, arrested him and recorded his confession statement, pursuant to which, clothes worn by the accused were seized under M.Os.8 and 9. The accused also produced Ex.P7 - household card. Later, the accused was sent to judicial custody. The evidence of PW13 also discloses recording of statement of PW5 under Section 164 Cr.P.C. After completing the investigation, a charge sheet came to be filed which was taken on file as P.R.C.No. 22 of 2012 on the file of the Court of the Judicial First Class Magistrate, Rampachodavaram.
5) On appearance of the accused documents as required under Section 207 Cr.P.C., were furnished to the accused and since the case is exclusively triable by Court of Sessions, the same was committed to the Court of the Special Judge for Trial of Cases Under S.Cs. and S.Ts. (POA) Act-cum-X 5 CPK,J & KSR,,J Crl.A_384_ 2015 Additional District & Sessions Judge, East Godavari at Rajahmundry under Section 209 Cr.P.C.
6) On appearance of the accused, charges as stated earlier came to be framed against him, read over and explained to him in Telugu, to which, he pleaded not guilty and claimed to be tried.
7) To substantiate its case, the prosecution examined PWs.1 to 13 and got marked Exs.P1 to P9 and M.Os.1 to 9.
8) After the closure of 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, however he did not adduce any oral or documentary evidence in support of his case.
9) Believing the evidence of PWs.5 to 8 who were examined as eye-witnesses to the incident, the learned Sessions Judge convicted and sentenced the accused as aforementioned. Challenging the same, the present Criminal Appeal came to be filed.
10) Sri M. Chalapati Rao, learned legal aid counsel appearing on behalf of the appellant, would contend that there is absolutely no legal evidence on record connecting the accused with the crime. According to him, the evidence of PWs.1 to 4 would show that the incident did not happen in 6 CPK,J & KSR,,J Crl.A_384_ 2015 the manner spoken to by the prosecution witnesses. His plea is that if really the incident has occurred as spoken to by the prosecution witnesses, definitely the accused would not have slept in the house, by the side of the dead body of his wife. Further, he points out that Ex.P1 came to be lodged through an illiterate of their village, and definitely, the version to the effect that the report was scribed by PW7, has to be viewed with suspicion. He further pleads that the source of information to PWs.1 to 4 about the incident does not tally with the version given by PWs.5 to 8 since none of them deposed about receiving any phone call from PWs.5 to 8 with regard to the incident in question. From the evidence of PWs.1 to 8, he would submit that both the accused and the deceased used to consume alcohol, and having regard to this fact, the incident must have happened in different circumstances. He would further contend that a reading of the evidence of PWs.5, 7 and 8, creates any amount of doubt as to whether they witnessed the incident in question or not. He further pleads that though PW7 claims to have seen the accused beating the deceased, but the scene of offence does not anywhere indicate the same. Hence, he coming out in the middle of the night on hearing the cries of the deceased and witnessing the incident appears to be doubtful. That apart, he would contend that when PW7 claimed to be eye- witness to the incident, his name should have been reflected in Ex.P1 scribed by him. Further, a reading of the contents 7 CPK,J & KSR,,J Crl.A_384_ 2015 of Ex.P1 shows that PW7 could not have witnessed the incident and that his presence at the scene is doubtful.
11) Coming to the evidence of PW8, he would contend that the house of PW8 is not shown in the scene of offence and when there was no electricity connection to the house of the accused, the possibility of PW8 witnessing the accused beating the deceased at his house, which is situated at a distance of two houses away from the house of PW8, appears to be doubtful. In other words, his plea is that PWs.7 and 8 are set up witnesses and their evidence cannot be accepted.
12) On the other hand, the learned Public Prosecutor would contend that even accepting the entire arguments of the learned counsel for the appellant to be true, still burden lies on the accused to explain as to how the body of the deceased was lying in his house, more so, when his presence in his house on the fateful day is not disputed. He further pleads that though PWs.7 and 8 did not actually enter his house, but they could see the accused beating his wife and the body lying in the verandah and thought that it is a regular affair of accused arriving home in an drunken state and beating the deceased. Hence, pleads that the finding of the trial Court recording the conviction and sentence requires no interference.
13) The point that arises for consideration is:
8 CPK,J & KSR,,J Crl.A_384_ 2015 Whether the prosecution was able to bring home the guilt of the accused for the offences alleged beyond all reasonable doubt?
14) In order to appreciate the same, it is necessary to refer to the evidence of the witnesses.
15) PW1 is the father of the deceased. He in his evidence deposed that the accused is his son-in-law and husband of his elder daughter by name Nagamani. Due to disputes between Nagamani and her first husband - Lingaiah, they got separated. Out of wedlock, they were blessed with three children who are living with Lingaiah. One year prior to the incident, Nagamani and the accused got married but they were not blessed with any children. Whenever disputes arose between them, the deceased used to come to the house of P.W.1. He further deposed that the accused used to come to his house and take his wife after giving assurance that he would look after her well. PW1 further deposed that about two years prior, PW6 telephoned to his son and informed that Nagamani was in serious condition. Then, PW1 along with his family members and neighbours went to the house of the accused and found dead body of Nagamani lying in the veranda of the house of the accused. He also found injuries on the head, back and on the thighs of the deceased. He then lodged a report - Ex.P1, drafted through a literate person of his village, to the Station House Officer, Gannavaram.
9 CPK,J & KSR,,J Crl.A_384_ 2015
16) PW1 in his cross-examination admits that about two years priors to her death, Nagamani married the accused and they lived happily for some period. Subsequently, though disputes arose between them, they lived together. At about 01:00 a.m. (midnight) one Heeramma received a phone call and informed his son about all the facts mentioned in Ex.P1 - report and his son, in turn, informed the same to PW1. He further deposed that he found the accused and his mother present in their house and the accused was sleeping beside the dead body of his daughter. He further deposed that the accused informed him that he beat and killed Nagamani. He denied the suggestion that at the instance of his neighbors he lodged Ex.P1 report with false averments against the accused.
17) PW2, who is the mother of the deceased, in her evidence deposed on the same lines as stated by PW1 in respect of the marriage of the accused. She further deposed that Nagamani used to inform her about the harassment and beatings by the accused. Whenever Nagamani visited her house for festivals, PW2 used to pacify her to live amicably. Three days prior to the death of Nagamani, the deceased came to her house after having a dispute with the accused, who came and assured his in-laws to look after the deceased well. Believing his words, they sent back the deceased along with the accused. On the third day, one Palla Giramma 10 CPK,J & KSR,,J Crl.A_384_ 2015 informed PW2 over phone that Nagamani was in serious condition. Immediately, she along with others went and found the dead body of the deceased with injuries all over the body lying in the verandah of the house of the accused. She further deposed that PWs.6, 7 and others informed her about homicide of her daughter by the accused. They lodged a report - Ex.P1 which was drafted through PW7. PW2 deposed that she was not examined but PW1 was examined by the Inspector of Police.
18) In cross-examination, PW2 admits that the accused took her daughter stating that he would maintain her, but he killed her. They did not lodge any report against the accused nor placed the matter before the elders, whenever her daughter informed about the accused harassing her. There were only trivial disputes between the accused and her daughter. By the time they reached the house of the accused, the accused was sleeping by the side of her daughter's dead body. She denied a suggestion that due to disputes between the accused and PW7, the accused was implicated in this case. She further denied a suggestion that she is deposing falsely since she and her husband did not like the marriage between the accused and her daughter.
19) PW3, who is the younger sister of the deceased, also deposed on the same lines as deposed by PWs.1 and 2 in respect of the marriage of the accused. She further deposed 11 CPK,J & KSR,,J Crl.A_384_ 2015 that the accused used to consume liquor and beat Nagamani in the state of intoxication. The deceased used to inform her and her mother about the harassment and beatings by the accused whenever she visited their village for festivals or on other occasions, then, her mother used to pacify them and the accused used to take the deceased back home assuring that he would take care of her sister properly. She further deposed that three days prior to the incident, her sister Nagamani came to her house after having dispute with the accused. The accused beat her sister out of suspicion. The accused also came to her house and assured them that he would properly treat Nagamani and would not beat her. Then, they sent back the deceased along with the accused. At about 01:00 a.m. (mid-night), they received a phone call from Palli Giramma that her sister was in serious conditions. Then, PWs.1, 2, her brother and others went and found the dead body of the deceased lying in the verandah of the house of the accused with injuries all over the body and also observed a cycle pump by the side of the her sister's dead body. When enquired regarding injuries, PWs.6 and 7 informed them about homicide of her sister by the accused due to beatings throughout the night. They lodged Ex.P1 - report drafted thorough Annika Satyanarayana of Chinnampalem village and she was examined by the Inspector of Police.
12 CPK,J & KSR,,J Crl.A_384_ 2015
20) PW3 in her cross-examination stated that the accused loved and married her elder sister. There were trivial disputes between the accused and the deceased as the accused suspected her fidelity. She denied the suggestion that she and her parents were against the love marriage of the deceased with the accused.
21) PW4, who is brother of the deceased, deposed on the same lines as stated by PWs.1 to 3 with regard to the marriage of the accused with the deceased. He further deposed that the accused used to consume liquor and beat Nagamani in the state of intoxication. He also deposed that at about 01:00 A.M. (mid-night), they received a phone call from Giramma stating that the deceased was in serious condition. Then, he along with PWs.1 to 3 and others went to the house of the accused and found the dead body of the deceased lying with injuries on the verandah of the house of the accused. They noticed injuries all over the dead body and also observed cycle pump by the side of his sister's dead body. When enquired, they were informed by PWs.5, 6 and others about the accused beating the deceased throughout the night.
22) PW4 in his cross-examination admits that the accused loved and married the deceased. After the marriage, they lived happily for some time, and subsequently, disputes arose between them with regard to addiction to liquor by the 13 CPK,J & KSR,,J Crl.A_384_ 2015 accused. He further deposed that on one or two occasions the deceased informed his mother that the accused was beating her. He denied the suggestion that none were present at the house of the accused by the time they reached there.
23) P.W.5, who was the resident of Chinnampalem Village, in his evidence deposed that both the accused and the deceased used to quarrel with each other and in a state of intoxication, the accused used to beat the deceased suspecting her fidelity. It is said that on the date of incident, during night time, the accused beat the deceased with cycle pump. On hearing her shouts, P.W.5 came to the house and noticed the accused beating the deceased. She caught hold of the deceased and gave rice soup to her. Meanwhile, P.Ws.7 and 8 came there and telephoned to P.Ws.1 to 4. In the cross-examination, she admits that there are only trivial disputes between them and by the time she went there, the deceased was lying in a room. She further states that she came back to her house and then again went back with rice soup and by then, others were not present. She further admits that she did not inform anybody about the quarrel between the accused and the deceased.
24) P.W.7, who is also a resident of the same village and lives about 10 houses away from the house of the accused, deposed that there were quarrels between the accused and 14 CPK,J & KSR,,J Crl.A_384_ 2015 the deceased and on the date of incident at about 1.30 AM (while the evidence of P.W.5 refers to the incident after 10.00 PM), P.W.7 heard shouts of the deceased as he was sleeping in the veranda of his senior paternal uncle's house, which is two houses away from the house of the accused. According to him, he did not take serious note of the shouts, as it was a routine course of events in the house of the accused. As the cries became louder, he, along with his brother, came out of the house and observed the accused beating his wife. He further deposed that, meanwhile, P.W.5 came and administered rice soup to the deceased. In the cross-examination he admits that the accused and the deceased lived happily, except for trivial disputes between them. He further says that by the time he went to the house of the accused, none were present. The witness adds, P.W.5 was coming behind him. In the cross-examination P.W.7 further admits that there is no electrical supply to the thatched house of the accused.
25) P.W.8, who is the brother of P.W.7, deposed on the same lines as that of P.W.7, but, however, in the cross- examination admits that only during drunken state the accused used to quarrel and beat his wife and except that period, the accused was not quarreling with anyone.
26) From the evidence of P.Ws.1 to 4 it is clear that on receipt of information from P.Ws.7 and 8, they reached the 15 CPK,J & KSR,,J Crl.A_384_ 2015 scene of offence and found the accused sleeping by the side of the body of the deceased. Though P.Ws.7 and 8 claims to have seen the incident by coming out of the house, but, in their own admissions in cross show that by the time they reached the house, none were present in the house. Their evidence further establishes that the accused used to beat the deceased only in a drunken state and otherwise he used to be normal. The evidence of P.W.5 clearly establishes the incident in question and she categorically deposed about witnessing the incident, which is not demolished in the cross. It is no doubt true that merely because he was in drunken condition, the benefit as contemplated under Section 85 IPC cannot be extended. It is not a case where benefit under Section 85 IPC has to be extended, since there is no evidence on record to show that he was made to consume alcohol or he was administered alcohol without his knowledge or against his will. Therefore, the benefit of Section 85 IPC as sought for by the learned counsel for the appellant cannot be extended, but one fact that is required to be noted here, is the conduct of the accused after the incident.
27) But, the conduct of the accused, which is noticed from the evidence of P.Ws.1 to 4, is quite strange. In normal circumstances, any accused after assaulting his wife or otherwise, runs away from the scene of offence, more so, when others claim to have noticed the incident. But, here is 16 CPK,J & KSR,,J Crl.A_384_ 2015 a case where the accused in a drunken state beat the deceased, fell down on the ground and went into sleep. This appears to be the sequence of events in which the incident in question took place. Further, the evidence on record amply establish that the disputes between them were very trivial in nature and everyday both of them used to quarrel with each other, which was found to be routine/common in the family of the accused. As held by us earlier, though learned counsel took the plea that the incident took place in a drunken condition, but Section 85 of I.P.C. will not come to aid of the accused. As observed by us earlier, from the evidence of the witnesses, it emerges out that immediately after beating the deceased, the accused did not run away from the scene of offence, but, on the other hand, fell asleep by the side of the body, meaning thereby, that, he never had any intention to do away the deceased. Like an incident, which happens regularly at home, he must have beaten her in a drunken condition and fell asleep. But, definitely, we can say that he had knowledge that his act would lead to the death of the deceased. Further, it is not the case of the prosecution that the accused was armed with any weapon. He picked up a cycle air filling pump, which was lying there and beat her in a drunken condition. Therefore, having regard to the facts and circumstances in which the incident took place, it can be said that the though 17 CPK,J & KSR,,J Crl.A_384_ 2015 the accused had no intention to kill, but had knowledge that his act would lead to death of the deceased.
28) In the light of the evidence adduced by the prosecution witnesses and as the ingredients, constituting offences punishable under Sections 304 IPC and 498-A IPC, are attracted against the accused, we hold that the offence under Section 302 IPC under which the accused is convicted by the trial Court, is altered to Section 304 Part-II IPC while sustaining the conviction of the offence punishable under Section 498-A IPC. Accordingly, the accused is sentenced to undergo rigorous imprisonment for a period of seven years and also to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for a period of one month for the offence under section 304 Part-II IPC. Both the substantive sentences shall run concurrently.
29) In the result, the Criminal Appeal is partly allowed to the extent indicated above.
As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.
__________________ C. PRAVEEN KUMAR, J 12.05.2020 ________________ K. SURESH REDDY, J bcj / rpd