Andhra Pradesh High Court - Amravati
Hajagiri Johni Md.Hajagiri vs The State Of Ap., on 7 August, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Crl.A.No.563 of 2012
JUDGMENT :(Per Hon'ble The Acting Chief Justice C.Praveen Kumar) The sole accused in Sessions Case No.136 of 2009 on the file of the Additional District & Sessions Judge, West Godavari at Kovvur, is the appellant herein. He was tried for the offence punishable under Section 302 I.P.C. for causing death of his wife on the intervening night of 15/16-3-2008 at his house bearing Door No.13-298, Chagallu Village. By judgment dated 28.2.2012, the learned Sessions Judge convicted the accused and sentenced him to suffer imprisonment for life and also to pay a fine of Rs.1,000/-, in default, to suffer rigorous imprisonment for two months. Challenging the same, the present appeal came to be filed.
2. The facts in issue are as under :
The accused is husband of the deceased. P.W.1 is the mother of the deceased, while P.Ws.2 and 3 are children of the accused and deceased. P.Ws.4 to 6 are neighbours. The marriage of the accused with the deceased took place about 18 years prior to the incident. The accused, who was the resident of Govardhanagiri Metta, got addicted to vices and spent away all the income and also sold the immovable properties given by the parents of the deceased for his gambling. He never used to do any work and even if he earns anything, he used to spend away immediately. The accused used to forcibly take away the money earned by the deceased. As the accused was leading irresponsible life, P.W.1 and others sent the deceased to Bahrain to work as housemaid. P.W.1 arranged money for her travel to Bahrain. It is said that an amount of Rs.20,000/- was sent by the deceased to discharge the debt of the accused, but, without discharging the same, he 2 spent that amount for his gambling. She also sent an amount of Rs.20,000/- to P.W.1 with which she discharged her debt. It is said that with the amount sent by the deceased, a small house was also constructed by adding some more amount. Since the new house was not house-wormed, the deceased and the accused used to stay in the house of P.W.1 and during that time, the accused used to beat the deceased mercilessly for more money stating that he intends to purchase an auto. A month thereafter, they occupied the new house and during which time also, the accused was demanding the deceased to earn money and send him. During which time, he was also beating her for money. On the intervening night of 15/16-3-2008, the deceased came to the house of P.W.1 and after staying for some time, returned to her house. She informed P.W.1 that when she wanted to go to Bahrain, the accused objected her by abusing in filthy language. On the intervening night of 15/16-3-2008, morning at about 1 AM, P.W.1 heard loud cries from the house of the accused, which is at a distance of 20 yards from the house of P.W.1 and rushed to the house and initially through window she noticed the accused trampling the neck of the deceased with one leg, by keeping another leg on her chest. The grandson of P.W.1 (P.W.2) beat the accused with wooden rafter, to which the accused pushed him aside. While P.W.1 was pulling out the accused, he hit the head of the deceased to the door frame and pushed P.W.1 aside and escaped from that place, as other neighbours rushed to the scene. Immediately, they called for ambulance and took the deceased to Surya Hospital, Nidadavole. At the Hospital, the Doctor stated that her condition is critical and asked to take the deceased to the Government Hospital. At the Surya Hospital, Police recorded the statement of P.W.1. From Surya Hospital, Nidadavole, the deceased was taken to the Government Hospital, Rajanagaram, from there, to Government 3 Hospital, Kakinada. Ex.P1 is the statement of P.W.1 recorded at the Surya Hospital.
3. On 16.3.2008, while P.W.14 - A.S.I. was present in the Police Station, he came to know about the admission of the injured in the hospital, he proceeded to the hospital and reached there by 7.30 AM. At that time, he found the injured person was unconscious. He recorded statement of P.W.1, which is placed on record as Ex.P1. The Doctor - P.W.8 endorsed that the patient was unconscious by that time. He recorded statements of P.Ws.2, 3 and 8 in the Hospital. From there, he proceeded to Chagallu Police Station and registered a case in crime No. 26 of 2008 under Sections 307 and 324 I.P.C. basing on Ex.P1. Ex.P9 is the F.I.R. Thereafter, P.W.14 proceeded to the scene of offence along with V.R.O. - P.W.11 and in their presence, prepared a scene observation report, which is marked as Ex.P5. He also got prepared the rough sketch of scene of offence which is marked as Ex.P10. Apart from that, he also got the scene of offence photographed through P.W.10. At the scene of offence, he seized the bloodstained ear studs, bangle pieces, wooden piece taken out of the door frame and also the controlled cement flooring piece which are marked as M.Os.1 to 7. Further investigation in this case was taken by P.W.16. On 18.3.2008, he verified the investigation done by P.W.14 and found to be on correct lines. He seized blood stained cloths of the deceased under the cover of Ex.P6. On 21.3.2008 at 6 AM he received the death intimation - Ex.P14 and basing on which, he altered the section of law from Section 307 I.P.C. to 302 I.P.C. Ex.P15 is the altered F.I.R. Further investigation in this case was taken up by the Inspector of Police, Nidadavole - P.W.17. On 21.3.2008 on receipt of express F.I.R. in crime No.26 of 2008 (altered F.I.R.) P.W.17 proceeded to the scene of offence, conducted inquest over the dead body in the presence of P.W.11. Ex.P8 is the inquest report. 4 During inquest, he is said to have examined P.Ws.1, 2, 6 and 7. Thereafter, the dead body was sent for post-mortem examination. P.W.15, Assistant Professor, Forensic Medicine, Rangaraya Medical College, conducted autopsy over the dead body and issued Ex.P11 - post-mortem certificate. At this stage, it is also to be noted that the Police also brought on record the dying declaration - Ex.P3 said to have been recorded by the M.R.O. - P.W.13 on 16.3.2008 at 2 AM. Subsequently, after collecting all the required documents and the material, charge-sheet came to be filed which was taken on file as P.R.C. No.1 of 2008 on the file of the Judicial Magistrate of I Class, Nidadavole. On appearance of the accused, all the documents as required under Section 207 Cr.P.C. were furnished and later on it was committed to the Court of sessions under Section 209 Cr.P.C. On appearance of the accused, charge under Section 302 I.P.C. came to be framed, read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. In support of its case, the prosecution examined 17 witnesses and got marked Exs.P1 to P16. After furnishing 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 prosecution witnesses, to which he denied and did not adduce any defence evidence, except getting the admission of P.W.1 and contradictions in the evidence of P.Ws.4, 5 and 7 marked as Exs.D1 to D8. Basing on the evidence of P.Ws.1 to 6 and 9 coupled with dying declaration, the learned Sessions Judge convicted the accused under Section 302 I.P.C. Challenging the same, the present appeal came to be filed.
4. The point that arises for consideration is, "Whether the evidence available on record is sufficient to hold the accused guilty with the charge under Section 302 I.P.C.?"
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5. Ms.Naseeb Afshan, learned counsel appearing for the appellant, would contend that there is absolutely no legal material to connect the accused with the crime. According to her, the version given by P.W.1 in the First Information Report is inconsistent with the version spoken to while giving evidence. It is stated that if really the accused has committed the murder as narrated by P.W.1, technically there shall be injuries on the neck and also fractures on the ribs. All the witnesses speak about accused putting one leg on the chest and another leg on the neck of the deceased while beating her. Apart from that, she would contend that when so many people are present at the house, it is very difficult to believe that the accused simply escaped after attacking the deceased. According to her, though 7 witnesses claimed to have witnessed the scene and noticed the dead body at the house, their evidence is contrary to the medical evidence. Coming to the Dying Declaration, learned counsel wound contend that the same is not only cryptic, but there is any amount of doubt whether really the Mandal Revenue Officer has recorded her statement. When the deceased was alive for more than three days, there is no explanation forthcoming as to why no effort was made to see that dying declaration was recorded by the Magistrate, hence, pleads that the same cannot be relied upon. Further, the evidence of P.W.1 is silent about the presence of other witnesses at the time of the incident.
6. On the other hand, learned Public Prosecutor would contend that there were four people at the time of the incident who deposed about the incident and two of them speak about the manner in which the incident took place. The presence of the accused in the house is stand established, so, the burden lies on him to explain as to how the deceased died, even if the version of P.Ws.1, 2 and 3 is to be disbelieved. Apart from that, he would contend that the medical evidence amply establishes 6 the involvement of the accused, commission of the offence, having regard to the nature of injuries found on the neck and also on the head of the deceased. He submits that even if Dying Declaration is excluded from consideration, still there is oral evidence on record to convict the accused in the crime.
7. In order to appreciate the rival contentions, it would be necessary to refer to the evidence available on record. The prosecution mainly relied upon the evidence of P.Ws.1 to 7, 9 and 12. P.W.1 is none other than the mother of the deceased. It may not be necessary to refer to the harassment meted out to the deceased by the accused, suffice it to refer to her deposition with regard to the manner in which the incident took place and the cross-examination done. According to her, on the intervening night of 15/16.3.2008 at about 1 AM or 2 AM she heard cries from the house of the accused, which was at a distance of 20 yards and on hearing the same, she went there and found the door locked. Though she tapped the door, the door was not opened, so she peeped through the window and saw the accused trampling the neck of the deceased with one leg, while keeping another leg on the chest. Her grandson - P.W.2 opened the door and also bet the accused on the back with wooden rafter twice. At that point of time, the accused pushed P.W.2 aside and while P.W.1 was pulling out the accused, the accused hit the head of the deceased to the door frame. Thereafter, he pushed P.W.1 aside and escaped from the scene. In the cross-examination, it has been elicited that the deceased left to Bahrain and the accused did not object to that. The deceased sent amount to the bank account of the accused and subsequently to the bank account of P.W.1. The suggestion that nothing happened as deposed by her that the accused trampled the neck of the deceased and also her chest and that he bet her head to the wooden frame was denied by her. The suggestion that 7 the deceased insisted for settling the accounts sent by her from Bahrain to her and her son-in-law Anwar Basha, then the quarrel ensued and in that quarrel, they pushed her down causing head injury to the deceased was also denied. The suggestion that since P.W.1, her son-in-law Anwar Basha and others tried to kill the accused and he escaped from that place due to fear of his life was also denied by her. She further denies as having said that on receiving information that the deceased and accused were quarrelling, she went to the house of the accused. It has been elicited that by the time she went to the house of the accused, it was 1 AM or 2 AM. From the suggestions given to the witness, the presence of the accused at the scene stands established, more so, when the case of the accused is that P.W.1, along with her son-in-law Anwar Basha, has pushed the deceased down, during which she sustained head injury and other suggestion being that P.W.1, her son-in-law Anwar Basha and others tried to kill the accused, then the accused escaped from that place due to fear. Two inconsistent suggestions came to be given to P.W.1, but both of them establish the presence of the accused at the scene. Therefore, the argument of the learned counsel for the appellant that P.W.1 was not present and that P.W.1 has not seen the incident and speaking lies cannot be accepted. It is also to be noted that the evidence of P.W.1 gets corroboration from the evidence of P.Ws. 2 and 3. At this stage, it is to be noted that a comment has been made that version set out in Ex.P1 runs contra to the evidence set out by P.W.1. Ex.P1 shows that on coming to know that there was quarrel, she went to the house of the deceased, there the accused obstructed her and closed the door and he abused the deceased as lanja and bet her. Her grand son opened the door and P.W.1 went into the house and saw accused beating the deceased on head and face with wooden rafter. When her grand son went to resist, the accused pushed him aside saying he would kill them and escaped from the place. It may be true that there is slight 8 variation in the version, but the fact that P.W.1 went to the house in the night and saw the incident of accused beating the deceased stand established. She being a village rustic lady, definitely there will be some kind of variation in the version, more so, when her statement in Ex.P1 came to be recorded in the Hospital at 7.30 AM on the following date. One cannot expect her to narrate the incident in the manner in which it has been stated before the Court. Therefore, we feel that her evidence cannot be brushed aside, more so, when the same is corroborated by the evidence of other witnesses and the medical evidence, which is discussed as under :
8. P.W.2 is son of the accused and the deceased. His version is to the effect that on the intervening night, himself and P.W.3 were in the house along with his father and mother and on hearing the cries of his mother, he woke up and saw his father beating his mother with the wooden rafter on her head and face. The accused pushed the deceased down and sat on her chest, throttled her throat uttering the words 'inka brathukundamani anukuntunnava'. On hearing their cries, when his grand mother - P.W.1 tapped the door, he opened the door. P.W.2 was aged about 14 years on the date of giving evidence and he must have been 10 years at the time of the incident. Though he was cross-
examined, nothing useful came to be elicited. On the other hand, it has been elicited that he was sleeping when his mother and father were quarrelling and he woke up on hearing the cries of his mother. He also speaks about the residents assembling on hearing the cries. He admits that his father used to demand his mother for money and whenever she refuses to give money, he used to beat her. Further, it has been elicited in the cross-examination that he bet the accused with rafter on his back 4 or 5 times at the time of the incident. Therefore, the argument of the learned counsel for the appellant that version of P.W.2 with regard to 9 beating with rafter is inconsistent with the evidence of P.W.1 is incorrect. The learned counsel for the appellant contends that if really P.W.2 had beaten his father with rafter, there would be some injuries on the body of the accused. First of all, it is to be noted that P.W.2 was aged about 10 years at the time of the incident and definitely the force with which he must have been hit may not have been caused external injuries on the body of the accused. Further, the accused was never subjected to medical examination so as to find out any injuries on his body. The issue now is not whether there are any injuries on the body of the accused, but, is, whether P.W.2 is speaking the truth. Since the presence of P.W.2 came to be established through suggestions given to P.W.2 in the cross-examination, we feel that he not only present in the house at that time, but also saw the incident in question. We see no ground to disbelieve the evidence of P.W.2.
9. Similarly, P.W.3 is younger brother of P.W.2 who also was sleeping in the house along with his parents on the date of the incident. In his evidence he also speak about getting up on hearing the cries of his mother and witnessing the accused beating his mother with wooden rafter on her head. Though he was also cross-examined, we feel that nothing has been elicited to discard his testimony. On the other hand, it has been elicited that his father used to consume alcohol and in that condition, he used to beat his mother. The suggestion that he was tutored by his grand mother was denied by him. Therefore, these two witnesses, who were present in the house, not only speak to the incident in question, but also speak about the presence of P.W.1 and the manner in which she came into the house i.e., 'P.W.2 opened the door facilitating P.W.1 to enter the house, and all of them witnessing the incident and also unsuccessfully trying to prevent the same. After causing injuries, 10 the accused left the place. P.Ws.4 to 7, 9 and 12 are all the neighbours who speak about the incident in question as well.
10. P.W.4 in his evidence stated that on the date of incident at about 1.30 AM, while he was sleeping, heard loud cries of the children from the house of the accused and he came out of the house and saw through the glass window that the wife of the accused was lying on the floor and the accused was trampling her by placing his left leg on the face of his wife and keeping his right leg on the door frame. Though he tapped the door, the same was not opened and when P.W.1 came there and tapped the door, P.W.2 opened the door and all of them went inside the house. The accused came out of the house and ran away from the house. The deceased was unconscious with injuries. He was also subjected to cross-examination, but, we feel that nothing has been elicited to discard his testimony. On the other hand, it was elicited that by the time P.W.4 saw through the window glass, the accused kept his left leg on the left side of the face of the deceased. He admits that she cannot give the details of persons who gathered there from the surrounding area. He further admits that he did not go inside the house when P.W.2 opened the door and that even before the arrival of P.W.1, he saw the incident through the window and the door of the house was opened by P.W.2 only after the arrival of P.W.1.
11. P.W.5 is another witness who was also examined to speak about the incident in question. He deposed that he saw the accused in the house and soon after the doors are opened, the accused escaped from that house by pushing aside all of them. He also speak in the same lines as that of P.W.4. The cross-examination done was also on the same lines as that of P.W.4. In his evidence he speaks about going into the house after arrival of P.W.1 and noticing the deceased lying with bleeding injuries. The evidence of P.Ws.6 and 7 is also on the same 11 lines, hence we do not want to repeat again. P.W.9 is another crucial witness, who is none other than the son-in-law of P.W.1 and co-brother of the accused. His evidence is also to the same effect.
12. From the evidence of these witnesses, it is very much evident that all of them saw the accused beating the deceased with rafter. Apart from that, they also saw the accused placing his one leg on the neck and another leg on the chest. A comment has been made saying that if really the accused has attacked in the manner stated by the witnesses, there would have been injuries on the body of the deceased, which is not spoken to by the Post-mortem Doctor, more particularly injuries on the face and fractures to ribs due to accused putting pressure with his leg on the chest. It will be useful to refer to the evidence of P.W.15 - Post- mortem Doctor and also Ex.P11 - Post-mortem Certificate issued by him. A perusal of Ex.P11 - post-mortem certificate would show that there were 8 external injuries on the body of the deceased and 7 internal injuries. A perusal of the report would show external injury No.1 is on the right side of the forehead and external injuries 2 to 5 are on the back and front portion of both arms. External injury No.6 is blackness of the left eye. External injury No.7 is greenish contusion on left bony cheek below the outer angle of left eye. External injury No.8 is just above the injury No.7. From the above it is clear that the first injury was on head and injuries 7 and 8 are on the left bony cheek 3 centimetres below the outer angle of left eye. The internal injuries not only corresponding to the external injuries, but categorically disclose injuries on scalp, on the occipital region, frontal region and on temporal bone etc.
13. The evidence of P.W.15 further discloses that the deceased died due to cranio-cerebral injury (head injury) by hitting the head against blunt and hard object. The post-mortem report, which we have referred to earlier, clearly indicates injuries on the head, both external as well as 12 internal. It may be true that in the cross-examination the Doctor admitted that there are no external injuries on the chest and there are no fracture injuries to the ribs. But, one does not know the pressure with which the accused put his leg on the chest portion of the deceased. It is not as if the deceased is old lady and her bones are bridled causing fracture due to the said act. In view of the aforesaid reasons, the absence of injuries on the chest will not make us disbelieve the prosecution case when the evidence of P.W.15 - Doctor amply establishing injuries on the neck and on the left cheek portion just below the left eye. Therefore, the act of the accused in putting his leg over the neck stands established in view of these injuries. Therefore, the argument of the learned counsel for the appellant that oral evidence is not supported by medical evidence cannot be accepted.
14. It may be true that P.W.1 was not given the details of the persons who gathered at the scene as commented by the learned counsel for the appellant, but the fact is that incident was happened in the middle of the night and P.W.1 must have been worried due to the incident rather than observing who gathered at the scene. We feel that non-mention of the same is not fatal to the case of the prosecution.
15. Coming to the dying declaration, we are inclined to accept the argument of the appellant for two reasons : (1) No effort was made by the Police to get dying declaration of the deceased recorded through Magistrate when she was alive for more than three days. No explanation is forthcoming from the prosecution. (2) Even P.W.13, who said to have recorded the statement of the deceased at Surya Hospital, Nidadavole, states that the deceased was in semi-conscious state when recording the statement. Further, in Ex.P1 report given by P.W.1 she categorically states that the deceased was unconscious after the injury. That being the position it may not be safe to believe or accept the dying declaration. 13
16. But, merely because dying declaration is disbelieved, the entire case cannot be thrown out, as false in one thing cannot be false in everything. Hence, even if the dying declaration is excluded from consideration, still there remains the oral evidence of P.Ws.1 to 7, 9 and 12, whose evidence, we feel, is not only consistent but also corroborates the medical evidence. Hence, having regard to the above, the finding of the trial court in convicting the accused for the offence punishable under Section 302 I.P.C. is confirmed.
17. In the result, the Criminal Appeal is dismissed confirming the conviction and sentence in Sessions Case No.136 of 2009 passed by the Additional District & Sessions Judge, West Godavari at Kovvur, vide judgment dated 28.2.2012, finding the accused - appellant guilty for the offence punishable under Section 302 I.P.C. and sentencing him to imprisonment for life and to pay an amount of Rs.1,000/- as fine, in default, to suffer rigorous imprisonment for two months. As the appellant-accused is on bail, his bail bonds shall stand cancelled. The appellant-accused is directed to surrender before the Court concerned so as to serve the sentence, in default, the Court concerned shall proceed in accordance with law.
Consequently, miscellaneous petitions pending, if any, shall stand closed.
____________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR __________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 07.08.2019 SKMR