Andhra Pradesh High Court - Amravati
Talari Narsimha Murthy, Anantapur Dt., vs The State Of Ap., Rep Pp., on 5 November, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, B Krishna Mohan
THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HONOURABLE SRI JUSTICE B.KRISHNA MOHAN
CRIMINAL APPEAL No.821 of 2016
JUDGMENT:- (Per Hon'ble Sri Justice C.Praveen Kumar) Heard through Video Conference (Blue Jeans App).
2. The sole accused in Sessions Case No.95 of 2016 on the file of the learned Additional Sessions Judge, Hindupur is the appellant herein. He was tried for an offence punishable under Section 302 I.P.C. for causing the death of his wife by name T.Devamma (hereinafter, referred to as "the deceased") on the intervening night of 8/9.9.2014 by beating her with a stick on her head, throttling her neck and killing her on the spot. Vide judgment, dated 24.03.2016, the learned Additional Sessions Judge convicted the accused for the offence punishable under Section 302 I.P.C. and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment of fine, to undergo simple imprisonment for a period of two years. Challenging the conviction and sentence imposed by the learned Additional Sessions Judge, the sole accused preferred this Criminal Appeal under Section 374(2) Cr.P.C.
3. The facts, as culled out from the evidence of the prosecution witnesses, are as under:
P.W.1 is the brother of the deceased while P.W.2 is the son of the deceased. The accused is the husband of the deceased. The marriage between the accused and the deceased took place about 18 years prior to the incident and were leading their marital life in 2 CPK, J & BKM, J Crl.A.No.821 of 2016 Chenduru, Gudibanda Taluk in Karnataka State. Both of them lived there for one year and thereafter, shifted to Kotnuru Village, Hindupur Mandal. Out of wedlock, they were blessed with three children. The eldest and youngest sons of the accused and the deceased were with P.W.1 and he was taking care of them, while the second son (P.W.2) was residing with his parents. About six months prior to the date of incident, there was a galata between the accused and the deceased with regard to dismantling of the ground floor and raising a building in the newly purchased site.
Unable to bear the harassment in the hands of the accused, the deceased and P.W.2 came to the house of P.W.1 and stayed there for sometime. At that time, the accused came to the house of P.W.1 to take back his wife and son. A panchayat was conducted prior to the taking back of the deceased. Thereafter, when P.W.1 telephoned to the deceased to find out the relationship between the accused and the deceased, she informed him that there is no change in the attitude of the accused.
On the date of incident, i.e., on the intervening night of 8/9.9.2014, while P.W.2 was sleeping with his mother on a bed, the accused came to the house and made noise by moving the utensils/vessels, to which the deceased woke up and questioned him as to why he was making such noise. At that time, the accused is said to have hit the deceased with a stout stick on the left side of the cheek and also near the eyebrow. Pursuant thereto, the deceased fell down. Seeing the same, P.W.2 ran down stairs and went to a marriage function where number of people were present. He came and informed one Seenappa about the incident, who woke up his son - P.W.3 and sent him to the house 3 CPK, J & BKM, J Crl.A.No.821 of 2016 of the accused. It is stated that at about 11:30 P.M., P.Ws.2 and 3 went to the house of P.W.2, but P.W.2 stood in the ground floor being afraid to go up. P.W.3 alone went upstairs but could not see anything as there was power failure. He came down from the first floor, took P.W.2, went back to the first floor and asked him to show where his mother was lying. P.W.2 is said to have showed the place. P.W.3 switched on the light from his cell phone and found the dead body of the deceased, which was covered with a mat. Thereafter, both P.Ws.2 and 3 came down from the upstairs, reached the house of one Obi Reddy, which is situated two houses after the house of the deceased, and informed him about the incident. Later, all of them went to the house of the deceased, found the dead body and came down from the upstairs. When P.W.3 questioned P.W.2 as to what happened, he disclosed that there was a galata with regard to the removal of ground floor of the building and then, the incident in question took place. As seen from the record, at about 5:00 A.M. on 09.09.2014, P.W.1 was informed about the incident by P.W.5. On coming to know about the incident, he along with others came to Kotnuru Village and found the dead body of the deceased in her house and also noticed injuries on the left side of the cheek, lips, chin and also found a ligature mark on the throat. By that time, the accused was not present in the house but they found P.W.2 in the house. When enquired with P.W.2 as to the cause of death of the deceased, he informed them that the accused killed the deceased by beating her with a stick. Later, at about 8:00 A.M., P.W.1 went to the police station and presented a written report basing on which, a case in Crime No.271 of 2014 of Hindupur I Town Police Station came to 4 CPK, J & BKM, J Crl.A.No.821 of 2016 be registered for the offence punishable under Section 302 I.P.C. Thereafter, P.W.8 - Inspector of Police, who registered the F.I.R., proceeded to the scene of offence and in the presence of the mediators, family members and eye witnesses, conducted inquest over the dead body of the deceased. During inquest, he seized a plastic mat, which is marked as M.O.1. Ex.P-3 is the Inquest Report. He also got photographed the dead body and the scene of offence. During inquest, he seized M.Os.2 to 4 - blouse, yellow and black colour saree and petticoat. The panchayatdars opined that the deceased died due to a deep injury under left eye, bleeding injury on the left side of chin, bleeding injury on the lower lip, contusion on throat and upper portion of the neck and abrasions on the chest portion. Thereafter, the body was sent for post mortem examination.
P.W.7 - Civil Assistant Surgeon, Hindupur conducted post mortem over the dead body of the deceased and issued Ex.P-8 - Post Mortem Certificate. He opined that the cause of death of the deceased was due to Hypovolemic shock secondary to multiple cut injuries.
On 26.2.2015, at about 7:00 A.M., on credible information, P.W.9 - Inspector of Police proceeded to the scene after collecting the mediators. On seeing the police, the accused tried to escape but he was surrendered and questioned about his identity wherein he voluntarily disclosed his name. Pursuant to the statement made by the accused, the weapon i.e., stick used in the commission of the offence was discovered in the presence of mediators and the same was seized under Ex.P-6 - discoverynama. M.O.5 is the stick said to have been used by the accused. After 5 CPK, J & BKM, J Crl.A.No.821 of 2016 collecting all necessary documents, P.W.9 filed charge sheet, which was taken on file as P.R.C.No.34 of 2015 on the file of the learned Judicial Magistrate of First Class, Hindupur against the accused for the offence punishable under Section 302 I.P.C.
4. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to him. As the offence is triable by a Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned Additional Sessions Judge, Hindupur for trial and disposal in accordance with law.
5. Basing on the material available on record, charge, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, he pleaded not guilty and claimed to be tried.
6. To substantiate its case, the prosecution examined P.Ws.1 to 9 and got marked Exs.P-1 to P-11 and M.Os.1 to 5. After the closure 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 the prosecution witnesses to which he denied. No oral or documentary evidence was adduced on behalf of the accused.
7. Out of nine witnesses examined by the prosecution, P.Ws.4 and 5 did not support the prosecution case and they were treated hostile by the prosecution. However, considering the evidence of P.W.2, the conduct of the accused and the nature of injuries and in view of Section 106 of the Indian Evidence Act, 1872, the learned 6 CPK, J & BKM, J Crl.A.No.821 of 2016 Sessions Judge convicted and sentenced the accused as mentioned supra. Challenging the same, the present appeal came to be filed by him.
8. Sri N.Parameswara Reddy, learned Legal Aid Counsel appearing for the appellant/accused, would contend that there is any amount of doubt as to the presence of P.W.2 in the house on the date of incident. He pleads that if really P.W.2 was present in the house, he would have informed about the incident to the tenants, who were residing in the ground floor, instead of going to a place where a marriage was taking place, more so when it is at a distance of ten houses away from his house. He further pleads that if really P.W.2 was present and witnessed the incident, P.Ws.3 and 4, to whom the information about the incident was given, would have informed the police but strangely, all of them kept quiet till the arrival of P.W.1 to the scene and then, the law was set into motion on his report. According to him, there was abnormal delay in lodging the report and the delay was used to foist a false case against the accused. Hence, pleads that no reliance can be placed on the evidence of P.W.2. Having regard to the above circumstances and as the entire case rests on the evidence of P.W.2, pleads that it is a fit case where benefit of doubt can be extended or in the alternative, pleads that in the absence of any motive, the nature of offence may be altered.
9. Sri K.Srinivas Reddy, learned Public Prosecutor, would submit that there is no reason to disbelieve the evidence of P.W.2. His presence in the house is natural and that the evidence of P.W.1 establishes the fact that P.W.2 was staying with his parents.
7 CPK, J & BKM, J Crl.A.No.821 of 2016 Therefore, till the evidence of P.W.2 is disproved, the burden shifts on to the accused to establish how his wife died on the intervening night of 8/9.9.2014 in view of Section 106 of the Indian Evidence Act. In the absence of any explanation given by the accused, according to him, the prosecution has proved its case beyond all reasonable doubt. Coming to the issue as to whether the nature of offence can be altered, he would contend that there are number of injuries on the body of the deceased and as such, the question of scaling down the offence from Section 302 I.P.C. to Part I or Part II of Section 304 I.P.C. does not arise.
10. The point that arises for consideration is:
"Whether the prosecution is able to prove the guilt of the accused for the offence punishable under Section 302 I.P.C. beyond all reasonable doubt?"
11. POINT:-
In order to establish the same, it would be appropriate for us to refer to the evidence of some of the witnesses. Though P.W.2 is the sole witness to witness the incident, but we intend to refer to the evidence of P.W.1 to answer the issue raised by the learned counsel for the appellant about the presence of P.W.2 in the house of accused and the deceased on the date of incident.
12. P.W.1, in his evidence, categorically deposed that the marriage between the accused and the deceased took place 18 years prior to the incident and initially, they lived in Chenduru Village of Karnataka State for one year and thereafter, shifted to Kotnuru Village, Hindupur Mandal where they were blessed with three children. He further deposed that while the eldest and the youngest were with him, the second son i.e., P.W.2 was living with 8 CPK, J & BKM, J Crl.A.No.821 of 2016 the accused and the deceased. He also speaks about the disputes between the accused and the deceased and unable to bear the same, the deceased and P.W.2 came to his house. According to him, the accused came to his village during which time, a panchayat was convened. However, his evidence shows that there was no change in the attitude of the accused. P.W.1 was cross examined at length but nothing useful has been elicited to show that P.W.2 was not present in the house of accused and the deceased, at the time of the incident. On the other hand, it has been elicited that the eldest son of the deceased and the accused was working in a private company in Daruru of Karnataka State. After receiving phone call, himself, his parents, Murthy, Krishnamurthy, blood relatives, Amaresh and elder son of the deceased came to Kotnuru Village. Though in evidence in chief, P.W.1 categorically stated that P.W.2 was living with the accused and the deceased, but not even a suggestion was put to P.W.1 to the effect that P.W.2 was not present in the house along with the deceased and the accused. When once the evidence of P.W.1 reveals the presence of P.W.2 in the house at the time of incident, it is now to be seen whether P.W.2 has witnessed the incident.
13. The argument advanced by the learned counsel for the appellant, with regard to the presence of P.W.2, is that if really he was present, he would have informed the tenants who are living in the down floor of his house instead of going to a distance where a marriage was being performed.
14. At this stage, we intend to refer to the evidence of P.W.8, who registered the crime and conducted preliminary investigation. His 9 CPK, J & BKM, J Crl.A.No.821 of 2016 evidence in chief is to the effect that after receiving the information, at about 8:00 A.M., on 09.09.2014, he proceeded to the scene of offence, secured the blood relatives and panchayatdars and then, conducted inquest over the dead body of the deceased. He also examined the persons present there. In the cross examination, it has been elicited that people living in the ground floor were not there on the date of his examination. He further stated that he did not examine the persons present as they are not acquainted with the facts of the case. It would be relevant to extract the relevant portion in the admission, which is as under:
"I did not receive any information on the night of death of the deceased. Witness adds he received an information at 8.00 A.M. on the next day of the death of the deceased. It is not true to suggest that either parents, brother, relatives of the deceased were present at the scene of offence by the time I reached. It is not true to suggest that the parents of the deceased were present at the scene of offence and I did not examine them. The people who are living in the ground floor as tenants were not there on that day of my examination. It is true to suggest that I did not examine the persons who are shown in my sketch appears to be acquainted with the facts in this case. I did not seize the alleged blood stained shirt of LW4. It is true to suggest that I did not seize the weapon of offence. At the time of inquest I did not find the weapon of offence. I do not remember whether the parents of the deceased attended to the Govt. Hospital, Hindupur while the P.M. is in progress. It is not true to suggest that the accused is not responsible for the death of the deceased. It is further not true to suggest that since the deceased had an illicit intimacy with some other person, that person killed her and we falsely foisted a false case against an innocent person and investigating to him. It is not true to suggest that we scribed the Ex.P-1 and got the signature of LW1. It is not true to suggest that no witness stated his statement that the accused is responsible for the death of the deceased. It is not true to suggest that all the statements of persons examined are prepared at police station. It is not true to suggest that I did not seize M.O.1."
10 CPK, J & BKM, J Crl.A.No.821 of 2016 Therefore, the argument of the learned counsel for the appellant that the conduct of P.W.2 in not informing the tenants throws some suspicion cannot be accepted. It is clear from the evidence referred to above that the absence of tenants in the ground floor made P.W.2 to run to some other place where some persons were there and inform them about the incident. After all, P.W.2 is a child aged about 13 years on the date of incident and after seeing the incident, he ran away from the house and went to a place where people were gathered.
15. According to the evidence of P.W.2, after seeing the incident, he came down, went to a marriage function where number of people gathered and informed one elderly person by name Seenappa about the incident. Seenappa has sent his son - P.W.3 along with P.W.2, as some galata happened in his house. The evidence of P.W.3 would show that he accompanied P.W.2 and reached his house and asked him to come up upstairs, to which, he denied. Then, P.W.3 alone went to upstairs but could not see anything as there was no power. He came down and asked P.W.2 to come up and show the place where his mother was lying and accordingly, P.W.2 showed the place and with the help of cell phone light, found the dead body of the deceased covered with a mat. Thereafter, they came and informed P.W.4 about the incident. It is in the evidence of P.W.3 that P.Ws.4, 2 and 3 again came to the house of P.W.2 and saw the body. When they questioned as to what happened, P.W.2 is said to have informed them about the manner in which the incident took place. Therefore, these circumstances clearly indicate that P.W.2 was 11 CPK, J & BKM, J Crl.A.No.821 of 2016 present in the house on the date of incident and witnessed the incident.
16. The next question would be whether the evidence of P.W.2 can be accepted. It is no doubt true that P.W.2 is a child witness but before he was examined, the learned trial Judge put some preliminary questions to test the capacity of the child and after understanding his mental capacity, recorded his evidence in chief and then, allowed cross examination by the defence lawyer, within the parameters of Section 273 Cr.P.C. A reading of the evidence of P.W.2 categorically shows that due to disputes between his father and mother regularly, they went to the house of P.W.1 unable to bear the harassment in the hands of the accused. The accused went to the village of P.W.1 where a panchayat was conducted in the village. His evidence clearly shows that even after coming over from the said village, there was no change in the attitude of the accused. While so, on the fateful day, at about 1:00 A.M., while he was sleeping along with his mother on one bed, the accused came home and started making some noise with utensils. The deceased woke up and questioned the accused as to why he was making such noise. At that time, the accused took up a stout stick and beat the deceased (his mother) on the left side of the cheek and also near the eyebrow, to which, the deceased fell down with injuries. On seeing the same, P.W.2 struggled himself and ran down from up stairs to a marriage function where number of people gathered and informed about the incident to one elderly person - Seenappa, who sent his son along with P.W.2 to his house to know about the incident.
12 CPK, J & BKM, J Crl.A.No.821 of 2016 This evidence of P.W.2 is sought to be doubted as unbelievable but when presence of P.W.2 at the house stands established, there is no reason to disbelieve his evidence with regard to the attack on the deceased. At this stage, it is urged by the learned counsel for the appellant that when the evidence of P.W.2 is to the effect that two blows were given by the accused, it is strange as to how so many injuries are present on the body of the deceased. A reading of the evidence of the child witness - P.W.2 would show that after noticing the accused giving two blows to the deceased, he ran down and went to a place where a marriage was going on. This was at about 1:00 A.M. At the said place, he informed about the galata which was going in his house to one Seenappa, who in turn woke up his son - P.W.3 and directed him to go along with P.W.2 to his house. Therefore, from the evidence of P.W.2, it is clear that he has seen the incident only to the extent of accused giving two blows and thereafter, what happened is not known to him. It is not the case of the accused that a third person entered into the house later and caused injuries. There is every possibility of accused inflicting some more blows on the deceased, before escaping from the scene. The fact that there are number of injuries on the body is also reflected in the inquest report, which is prepared immediately on the next day morning. Therefore, the discrepancy, if any, with regard to the medical evidence vis a vis the oral evidence, in our view, do not demolish/destroy the prosecution case.
17. Further, when once the presence of the accused in the house stands established, the burden lies on the accused, under Section 106 of the Evidence Act, to prove as to how his wife died. Things 13 CPK, J & BKM, J Crl.A.No.821 of 2016 would have been different had the accused not present in the house on that day but as held by us earlier, when once his presence stands established through the evidence of P.W.2, the burden shifts on to him to explain as to how the deceased sustained injuries. There is absolutely no explanation from the side of the accused. He simply denied the offence without giving any explanation as to how the deceased died. At this stage, we feel that the conduct of the accused also plays very important role. The incident in question is said to have been took place on the intervening night of 8/9.9.2014. After committing the offence, the accused never bothered to come back to his house to find out as to what happened to his son and wife. If really he was innocent and not involved in the commission of offence, definitely, the normal conduct would have been to come and enquire as to how his wife and child are. On the other hand, the evidence on record show that nearly 4 ½ months later i.e., on 26.2.2015, he was apprehended at Kollakunta Bus Stop. This conduct of the accused also assumes significance having regard to the other circumstances referred to earlier.
18. In view of the above, we feel that the prosecution was able to bring home the guilt of the accused beyond all reasonable doubt. At this stage, learned counsel for the appellant would contend that there is absolutely no motive for the accused to commit the offence. Motive, as observed by the Apex Court, attains no significance when there are eye witnesses to the incident. In the present case, as observed by us earlier, there were disputes between the accused and the deceased pursuant to which, the deceased and P.W.2 went to a different village and stayed there. At 14 CPK, J & BKM, J Crl.A.No.821 of 2016 that point of time, the accused came there and wanted to take back his wife and son. A panchayat was also held. Thereafter, he was allowed to take back his wife and son but the evidence of P.Ws.1 and 2 categorically establishes that there was no change in the attitude of the accused and on the fateful day, he claims to have quarreled with his wife and then, beat her with a stout stick. Things would have been different had there been only one injury on the body of the deceased. But this is a case where number of injuries were found on the body of the deceased, which are as under:
"1. 6x2x1/2 cms laceration over left Zygomatic region and fracture of zygomatic bone.
2. 2x2x1/2 cms laceration (curved) over chine.
3. 6x1x1/2 cms laceration over parietal region.
4. 4x1x1 cms cut laceration over occipital region.
5. 3x1x1 cms laceration over occipital region with exposing bone.
6. 3x3 cms abrasion over left side of the chest.
7. Multiple grazes over left breast and epigastric region.
8. Abrasions over back of neck.
Internal findings:-
Heart - congestion present, Lungs - congested, Liver - congestion present, Cirrhopic changes present. Stomach - Above 100 grams of food bolus present. Intestines - Swollen, pale.
Kidneys - congestion present Bladder - Empty Rectum - Empty Skull - fracture occipital bone present Brain - Intra cerebral haemorrhage present."
The cause of death was due to Hypovolemic shock secondary to multiple cut injuries.
19. Having regard to the nature of injuries found on the body of the deceased, the question of scaling down the offence, in our view, would not arise. Hence, viewed from any angle, we find no force in 15 CPK, J & BKM, J Crl.A.No.821 of 2016 the argument of the learned counsel for the appellant. Accordingly, this appeal is liable to be dismissed.
20. In the result, the Criminal Appeal is dismissed confirming the conviction and sentenced passed by the learned Additional Sessions Judge, Hindupur vide judgment, dated 24.03.2016, in Sessions Case No.95 of 2016 for the offence punishable under Section 302 I.P.C.
Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR _____________________________ JUSTICE B.KRISHNA MOHAN Date : 05.11.2020 AMD 16 CPK, J & BKM, J Crl.A.No.821 of 2016 44 THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE B.KRISHNA MOHAN CRIMINAL APPEAL No.821 of 2016 Date : 05.11.2020 AMD