Andhra Pradesh High Court - Amravati
Odugu Sambasiva Rao, Bandar M., vs State Of Ap., Rep. Pp. Hyd., on 7 November, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, J.Uma Devi
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
&
THE HON'BLE Ms JUSTICE J.UMA DEVI
CRIMINAL APPEAL No.853 of 2013
JUDGMENT:(per Hon'ble Sri Justice C.Praveen Kumar) This appeal is filed against the judgment, dated 07.08.2013, in S.C.No.472 of 2011, on the file of the IX Additional District & Sessions Judge (Fast Track Court), Krishna, Machilipatnam, whereby, the appellant/sole accused was convicted for the offence under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- (Rupees one thousand only), in default to undergo simple imprisonment for a period of six months.
In brief, the case of the prosecution is as follows:
On 25.03.2022 at 17.30 hours PW.1-Odugu Thulasi, the mother of the deceased Odugu Dhanalakshmi, lodged a report at Bandar Taluk Police Station, stating that her husband killed her daughter. According to her, she is the second wife to the accused; that they were eking out their livelihood by doing agricultural cooli works and that her husband was doing carpentry works. After deserting the first wife, the accused married PW 1. Out of wedlock, they begot three children, one daughter (the deceased) and two sons. The deceased daughter was aged about 18 years. It is stated in her complaint that the accused used to state that he is unable to perform the marriage of the deceased daughter and that he would kill her. About three days prior to the incident, the mother of PW 1 gave Rs.3,000/- to the accused for preparing doors to the house. The accused without attending the said work, spent the amount for his vices.
2 CPK,J & JUD,J Crl.A.853 of 2013 While so, on 25.03.2011, PW.1 went outside for attending cooli works and at about 3 p.m when she returned to the home, heard cries of her daughter Dhanalakshmi from kitchen. She rushed to the kitchen and found her husband killing her daughter by getting her hanged with a rope. She pushed her husband aside and tried to save her daughter, but by that time, her daughter lost her breath. The accused fled away from the scene.
On receipt of Ex.P1-report from PW 1, the Sub-Inspector of Police, Bandal Taluk P.S registered a case in Cr.No.53/2011 under section 302 IPC and issued express FIRs to all concerned. On receipt of information, PW 17-the Inspector of Police, Machilipatnam visited the scene of offence on the same day at 6 p.m, observed the scene of offence in the presence of mediators, recorded the statements of the witnesses and seized the material objects. PW 17 conducted inquest over the dead body of the deceased on 26.03.2011 at 8 a.m in the presence of Panchayatdars and blood relatives and sent the body of the deceased to the Government Hospital, Machilipatnam for postmortem. On 27.03.2011 at 3.30 p.m, PW.17 arrested the accused and recorded his confessional statement. The Doctor who conducted autopsy over the dead body of the deceased issued Ex.P15 the post mortem report, wherein he opined that the cause of the death was due to cardio respiratory failure due to strangulation with wire. After completion of investigation, PW 17 filed the charge sheet, which was taken on file as P.R.C.No.37 of 2011 on the file of Judicial Magistrate of I Class, Special Mobile Court, Machilipatnam. On 3 CPK,J & JUD,J Crl.A.853 of 2013 appearance, copies of the documents as required under Section 207 came to be furnished. On committal under Section 209 Cr.P.C, a charge under Section 302 of IPC came to be framed against the accused, read over and explained to him in Telugu, for which the accused pleaded not guilty and claimed to be tried.
In support of its case, the prosecution examined PWs. 1 to 17 and marked Exs.P1 to P 22 and M.Os.1 to 7. After completion 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 prosecution witnesses to which he denied. However, no oral or documentary evidence was adduced on behalf of accused.
Basing on the evidence available on record, the Sessions Judge, found the accused guilty for the offence punishable under Section 302 of IPC and sentenced him to suffer imprisonment for life.
The learned counsel for the appellant would submit that though all the witnesses turned hostile, P.W.1 supported the case of the prosecution in chief examination but subsequently resiled from what has been said in chief. As all the blood relatives of the deceased and other witnesses have turned hostile, the learned counsel would contend that there is no legal evidence connecting the accused with the crime.
On the other hand, Sri K. Srinivasa Reddy, learned Public Prosecutor appearing for the State would submit that though all the witnesses turned hostile, the chief examination which gets 4 CPK,J & JUD,J Crl.A.853 of 2013 corroboration from all the independent witnesses can be looked into to convict the accused.
The point that arises for consideration is whether there is any legal material available on record to connect the accused with the crime?
As seen from the record, out of 17 witnesses examined by the prosecution, P.Ws.1 to 12 did not support the case of the prosecution and they were declared hostile. Except the evidence of Investigating Officer, there is no other evidence on record. It is to be noted that P.W.1 in her evidence deposed about the misbehavior of the accused towards the deceased as well as the bad vices of the accused; threatening by the accused three days prior to the incident stating that he would kill the deceased who used to advise him to change his behavior; hearing of cries of her daughter on the date of offence while she was returning home from outside; witnessing the act of the accused by herself and her son Girish; strangulating the decesed Dhana Lakshmi with a twine (jute rope) and also a chunni to the wooden plank on the top of the house and tagging the other end of the chunni around the neck of her daughter; running away by the accused on seeing them.
P.W.1 in her evidence deposed that her daughter used to advice the accused to change his behaviour and to behave decently; and not to create gallata in the house and because of check, the accused developed grudge against her daughter Dhana Lakshmi. Her daughter also informed to L.W.9 who admonished the accused to behave properly. She further stated that her 5 CPK,J & JUD,J Crl.A.853 of 2013 husband spent money for alcohol and killed her daughter as she was complaining to everyone about his misconduct. She also further stated that she gave statement before the Judicial Magistrate of the I Class, Avanigadda about the same that she can identify the chunni used by her husband to kill the deceased.
On 22.01.2013 P.W.1 was recalled and continued with the chief examination. However, in the cross-examination, P.W.1 totally denied as to what is stated in her chief examination. She also deposed that she has given the statement before the Magistrate of First Class, Avanigadda to the dictation of Avanigadda Police. She also stated that she did not know who killed his daughter.
P.W.2, who is the brother of the deceased, deposed that the deceased Dhanalakshmi is his elder sister and she was writing examination in his school on 25.3.2011 and at that time a boy came to the examination hall and informed about the death of his sister Dhanalakshmi. Then he handed over his examination paper to the invigilator, left the examination hall and reached home where he found his sister dead. He also stated in his evidence that they lived happily and that he does not know as to how his sister died. He was also declared hostile by the prosecution.
Similarly, P.W.3 who is another brother of the deceased did not speak anything about the incident. He was also declared hostile by the prosecution.
6 CPK,J & JUD,J Crl.A.853 of 2013 P.W.4 who is the brother-in-law of the accused stated that the accused and deceased were lived cordially and he does not know as to how the deceased died. He was also declared hostile by the prosecution.
P.W.5, the eldest son of P.W.1, and P.Ws.6 and 7, the grand- parents of the deceased and P.W.8, the relative of the accused also did not come forward to speak anything against the accused. For the reasons best known to them, they have not supported the case of the prosecution.
That being the evidence on record, the only point that arises for consideration is whether the evidence of chief of P.W.1 can be accepted, more so when no other evidence is available on record corroborating the prosecution case?
As stated earlier, P.W.1 supported the case of the prosecution in her chief but subsequently in her cross-examination went back and gave a somersault to what she has stated in her chief.
The Apex Court, vide its order dated 14.10.2019, in a Special Leave Petition (Criminal) Diary No.28533 of 2019 (Narra Peddi Raju vs. State of A.P now State of Telangana), held as follows:
"P.W.1, in examination, supported her case and virtually repeated what has been said in the FIR. However, in cross-examination, she turned hostile and denied whatever had been said in the examination in chief. The time of occurrence was changed from 5.30 p.m to 6.00 p.m and in cross-examination, she even stated that it was dark and could not see the person who assaulted her. In fact, in
7 CPK,J & JUD,J Crl.A.853 of 2013 cross-examination, the prosecurtix stated that she did not even know the accused and could not identify who had assaulted her as it was very dark. After being declared hostile, she was again cross-examined by the prosecution. The main suggestion put to her was that she has been won over by the accused. The husband of the victim appearing as P.W.2 also did not support the case of the prosecution. According to him, his wife did not inform about any rape committed with her.
The Trial Court virtually convicted the accused relying upon the statements recorded under Sections 154 and 161 of the Code of Criminal Procedure, 1973 (Cr.P.C) and totally bypassing the statements made on oath in the Court. It is the statement made on oath in the Court which has to be the foundation of conviction. The conviction of an accused cannot be based on a statement of the witnesses recorded under Section 161, Cr.P.C or even under Section 154, Cr.P.C especially when the witnesses resile from their earlier statements while appearing in the Court and make a completely different statement in the Court.
No doubt, it is true that conviction in a case of rape can be based on the sole testimony of the prosecutrix. However, there is one caveat, which is, that the statement should inspire confidence. This is a case of victim who is blowing hot and cold and changing her stand from time to time. Such a witness cannot be classified as a trustworthy witness and therefore based on her statement alone it would not be proper to convict the accused. As already stated above, even the husband has not supported the victim." If the evidence of P.W.1 goes, there is no other evidence on record to connect the accused with the crime. In view of the above, the prosecution failed to prove the case beyond all its reasonable doubt.
In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/accused in the 8 CPK,J & JUD,J Crl.A.853 of 2013 judgment, dated 07.08.2013, in Sessions Case No.472 of 2011, on the file of the IX Additional District & Sessions Judge (Fast Track Court), Krishna, Machilipatnam are set aside. Consequently, the appellant/accused is acquitted of the charges framed against him. He shall be released forthwith from the custody, if he is not otherwise required in any other case or crime. The fine amount, if any, paid by him shall be refunded to him.
_________________________ C.PRAVEEN KUMAR, J ___________________ J.UMA DEVI, J Date: 07.11.2019 Gk 9 CPK,J & JUD,J Crl.A.853 of 2013 THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR & THE HON'BLE Ms JUSTICE J.UMA DEVI CRIMINAL APPEAL No.853 of 2013 Date:07.11.2019 Gk.