Andhra Pradesh High Court - Amravati
Vadde Nelakota Adiseshu vs The State Of A.P., on 4 March, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, Battu Devanand
THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HONOURABLE SRI JUSTICE BATTU DEVANAND
CRIMINAL APPEAL No.1114 of 2015
JUDGMENT:- (Per Hon'ble Sri Justice C.Praveen Kumar) Heard both sides and perused the material on record.
2. The present appeal came to be filed assailing the sentence and conviction imposed against the accused in Sessions Case No.180 of 2014 on the file of the learned Sessions Judge, Ananthapuramu wherein he was tried and convicted for the offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (for short, "I.P.C."). Vide judgment, dated 02.09.2015, the learned Sessions Judge, Ananthapuramu convicted the accused for the offences punishable under Sections 302 and 201 I.P.C. and sentenced him to undergo imprisonment for life and pay a fine of Rs.2,000/-, in default, to undergo simple imprisonment for a period of one month for the offence punishable under Section 302 I.P.C.; and to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for a period of fifteen days for the offence punishable under Section 201 I.P.C. Both the substantive sentences were directed to run concurrently.
3. The substance of the charge against the accused is that on 09.11.2012, in his house situated in D.No.1/3-384, Rangaswamy Nagar, Anantapuram, the accused is said to have caused the death of his wife by name Vadde Madhavi (herein after, referred to as "the deceased") by throwing a mortar (rolu rai) on her head leading to instantaneous death.
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4. The facts, as spelt out from the prosecution witnesses, are as under:
P.W.1 is the sister of the deceased. P.W.2 is the brother-in- law of P.W.1. P.Ws.3 and 4 are residents of the same place. It is said that the deceased, who is the elder sister of P.W.1, was given in marriage to the accused about ten years prior to the deposition. Initially, they set up their family at Marthadu Village of Garladinne Mandal and out of wedlock, they were blessed with one son and a daughter. About a month prior to the incident, the accused shifted his residence from Marthadu Village to Rangaswamy Nagar locality, Ananthapuramu Town where he was eking out his livelihood by doing the job of a stone cutter. It has come on record that about three days prior to the death of the deceased, P.W.1 went to Kasapuram along with her family and after returning from Kasapuram, in order to give prasadam, she went to the house of the deceased at about 10:00 A.M., and found the deceased lying on the floor with head injuries. She also sensed foul smell emanating from the body of the deceased. She suspected that the deceased might have died about three days back. On raising cries, the neighbours including P.W.2 gathered at the scene. She found the accused and the children absent in the house. Thereafter, on 11.11.2012, she is said to have lodged a written report to P.W.11 -
the then Inspector of Police, Ananthapuramu III Town Police Station basing on which, he registered a case in Crime No.215 of 2012 for the offences punishable under Sections 302 and 201 I.P.C. Ex.P-12 is the written report of P.W.1 while Ex.P-13 is the F.I.R. Thereafter, P.W.11 visited the scene of offence and found the dead body of the deceased with head injuries. He examined 3 CPK, J & DEV, J Crl.A.No.1114 of 2015 P.Ws.1, 2, 6 and others and recorded their statements. Thereafter, in the presence of P.W.9 and others, he conducted inquest over the dead body of the deceased and also prepared a rough sketch of the scene. Ex.P-9 is the Inquest Report and Ex.P-14 is the rough sketch of the scene. Thereafter, he got photographed the scene of offence. It is said that during inquest, he seized M.O.1, which was found very close to the body of the deceased. After completing the inquest proceedings, he sent the body for post mortem examination.
P.W.5 - the then Assistant Professor, Department of Forensic Medicine, Government Medical College, Ananthapuramu conducted post mortem examination over the dead body of the deceased on 12.11.2012 at 11:00 A.M. and issued Ex.P-3 - preliminary Post Mortem Report. Subsequently, basing on Ex.P-4 - F.S.L. report, he got issued Ex.P-5 - Final Report. According to him, the cause of death was due to head injuries.
P.W.11, who continued with the investigation, examined P.Ws.1, 2, 3, 4, 6, 7, 8 and others. On 05.12.2012, he is said to have arrested the accused in the presence of P.W.10 and others at Ananthapuramu - Gooty Road near Thadakaleru i.e., near Raghavendra Kottala at about 4:10 P.M. and was brought to the police station at 5:30 P.M. wherein he identified the weapon used in the commission of offence, which was seized under Ex.P-15. The blood stained portion of M.O.1 was cut and sent to F.S.L. for analysis. Ex.P-16 is the letter of advice. After completing the investigation, a charge sheet came to be filed against the accused, which was taken on file as P.R.C.No.102 of 2013 on the file of the learned Additional Judicial Magistrate of First Class, 4 CPK, J & DEV, J Crl.A.No.1114 of 2015 Ananthapuramu for the offences punishable Sections 302 and 201 I.P.C.
5. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to him. As the offences are triable by a Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. for trial and disposal in accordance with law.
6. Basing on the material available on record, charges under Sections 302 and 201 I.P.C. came to be framed, read over and explained to the accused in Telugu to which, he pleaded not guilty and claimed to be tried.
7. To substantiate its case, the prosecution examined P.Ws.1 to 11 and got marked Exs.P-1 to P-16 and M.O.1. 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.
8. Basing on the evidence available and the material on record, the trial Court convicted the accused and sentenced him, as stated earlier. Challenging the same, the present appeal came to be filed.
9. Sri M.Chalapathi Rao, learned counsel appearing for the appellant/accused, would contend that there are no eye witnesses to the incident and the circumstances relied upon by the prosecution do not in any way connect the accused with the crime. He further submits that merely because the dead body was found in the house, does not by itself mean that it was the accused, who 5 CPK, J & DEV, J Crl.A.No.1114 of 2015 has committed the offence, more so, when the offence took place beyond seven years of their marriage. He further pleads that the incriminating material used by the prosecution was never put to the accused in his 313 Cr.P.C. examination. Viewed from any angle, he would plead that the prosecution has failed to prove its case beyond all reasonable doubt.
10. The same is opposed by the learned Public Prosecutor.
11. The point that arises for consideration is:
"Whether the prosecution is able to bring home the guilt of the accused for the offences punishable under Sections 302 and 201 I.P.C. beyond all reasonable doubt?"
12. POINT:-
It is to be noted here that there are no eye witnesses to the incident and the case rests on circumstantial evidence. In a case arising out of circumstantial evidence, the prosecution has to prove each of the circumstances relied upon by them and the circumstances so proved should form a chain of events connecting the accused with the crime. In Jawaharlal Das v. State of Orissa's case,1 the Apex Court held that to base a conviction in a case arising out of circumstantial evidence, three conditions are required to be satisfied. 1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; 2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and
3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused 1 AIR 1991 SC 1388 6 CPK, J & DEV, J Crl.A.No.1114 of 2015 and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
13. Keeping in view the principles laid down by the Apex Court in the judgment referred to above, we shall now deal with the case on hand.
14. Admittedly, there are no eye witnesses to the incident. P.W.1, in her evidence, deposed that originally, the accused along with his wife lived in Marthadu Village of Garladinne Mandal and thereafter, a month prior to the incident, they shifted to Rangaswamy Nagar locality in Ananthapuramu Town. She deposed that she has no idea about the relationship and the understanding between the accused and the deceased prior to her death. According to her, about three days prior to the incident, she went to Kasapuram and on her way back to her home on 11.11.2012, she went to the house of the deceased at about 10:00 A.M. and noticed her lying on the floor with head injuries. She also smelt foul smell emanating from the body of the deceased. On raising cries, P.W.2 and others gathered at the scene. She further deposed that she did not notice the accused and the children in the house at that time. According to her, III Town Police, Ananthapuramu came to the house of the deceased and obtained her signature on the blank paper and that she does not know what was written in that blank paper.
At that stage, she was declared hostile by the learned Public Prosecutor and was cross examined by the learned Public Prosecutor. All the suggestions given were denied by her except that there was a family function in which the accused and the 7 CPK, J & DEV, J Crl.A.No.1114 of 2015 deceased attended the function. It has been elicited in the cross examination that the said function was completed at 7:00 P.M. and thereafter, from the venue of the said function, the accused and the deceased along with their children went to their house and P.W.1 and her family members returned to their house and on the next day, her family members went to Kasapuram and on returning from Kasapuram, she visited the house of the deceased and saw her dead body but admits that she has not visited the police station to lodge a report. She further admits that she stated before the police that the accused suspected the fidelity of the deceased. Learned counsel for the accused also cross examined P.W.1 suggesting that the terms between the accused and the deceased are cordial but whenever the accused used to come home by consuming alcohol, he used to harass the deceased.
15. From the evidence of this witness, it is clear that the report alleged to have been given by her to the police setting law into motion was denied by her. She gives a go bye to the report given to the police stating that she does not know the contents. At this stage, she was declared hostile. But in the earlier portion of her evidence, she speaks about the marriage between the accused and the deceased and they living in Rangaswamy Nagar Locality of Ananthapuramu Town but strangely, this version of P.W.1 was not put to the accused during his 313 Cr.P.C. examination.
16. P.W.2 is the close relative of P.W.1. He also speaks about the marriage between the accused and the deceased and they initially setting up their family at Marthadu Village. Even according to him, one month prior to the death of the deceased, the accused shifted his family to the house of P.W.4 located at 8 CPK, J & DEV, J Crl.A.No.1114 of 2015 Rangaswamy Nagar, which is very near to his house. According to him, he has last seen the deceased and the accused along with children two days prior to her death at Anjaneyaswamy Temple in Ananthapuramu in connection with Ayyappaswamy Deeksha function hosted by P.W.1 and her husband, which was over by 7:30 P.M. According to him, from there, the accused along with the deceased and children went to their house. He further speaks about himself along with P.W.1 and her husband and relatives going to Kasapuram on the following day of Ayyappaswamy Deeksha function and returning to Ananthapuramu on Sunday. He further deposed about P.W.1 going to the house of the deceased to give prasadam and finding the doors closed from outside with a latch. According to him, P.W.1 came to his house and reported about seeing the dead body of the deceased lying on the floor in the house. On the said information, himself, P.W.1 and other relatives once again visited the house of the deceased and in their presence, P.W.1 opened the house door and all of them entered the house and saw the dead body of the deceased with bleeding head injury. In the cross examination, it has been elicited that the police did not examine him in connection with the death of the deceased.
17. From the evidence of P.W.2, it is clear that he has last seen the accused and the deceased together about two days prior to her death at Anjaneyaswamy Temple in Ananthapuramu Town. Apart from this, it is also to be noticed that his evidence is inconsistent with the evidence of P.W.1 with regard to P.W.1 seeing the dead body and raising the cries attracting the attention of the neighbours and then lodging the report. On the other hand, the evidence of P.W.2 reveals that P.W.1 came to his house, informed 9 CPK, J & DEV, J Crl.A.No.1114 of 2015 about the dead body lying on the floor and he along with P.W.1 and others going to the said house, removing the latch and then, noticing the body lying on the ground with injuries. One fact which requires consideration is that in the cross examination of P.W.2, it has been elicited that police did not examine him in connection with the death of the deceased. Even otherwise, the evidence of this witness may not be much helpful to the prosecution since his evidence at the most establishes witnessing the accused and the deceased at Anjaneyaswamy Temple in connection with Ayyappaswamy deeksha function hosted by P.W.1 and her husband, two days prior.
18. P.W.3 is a neighbour to the deceased, who speaks about raising cries by P.W.1 and the information furnished by her about seeing the body of the deceased in her house. According to her, as she was not feeling well at that time, she did not enter the house of the deceased and saw her dead body. She categorically says that she is not aware about the family affairs of the deceased and the accused. At that stage, she was declared hostile.
19. P.W.4 is a resident of Rangaswamy Nagar, Ananthapuramu Town. In his evidence, he deposed that he was not present in the house at the time of death of the deceased as he was held up in some business in Ananthapuramu Town. According to him, he has not seen the body of the deceased as her body was shifted by the police by the time he came there. He further states that the accused and the children were not present when the police came to their house in connection with the murder of the deceased. According to him, the accused has taken a portion of his house on rent about a month prior to the incident. According to him, he has 10 CPK, J & DEV, J Crl.A.No.1114 of 2015 seen the accused with his family about three days prior to the incident. Therefore, even the evidence of P.W.4, who is the house owner, only establishes seeing the accused and his family members three days prior to the incident.
20. P.Ws.6, 7, 8 and 10 did not support the prosecution case and they were treated hostile by the prosecution. P.W.5 is the Doctor, who conducted post mortem examination over the dead body of the deceased. P.W.9 is the inquest panch and P.W.11 is the Investigating Officer. From the evidence adduced by the prosecution, it only stands established that the accused was seen with his family members about three days prior to the incident but strangely, if we see the 313 Cr.P.C. examination of the accused, this circumstance, which came to be elicited through the evidence of P.Ws.1 to 4, was not put to the accused. The questions put to the accused were from the evidence of P.Ws.5, 9 and 11. No explanation is forthcoming from the prosecution as to why the circumstance of last seen was not put to the accused. This circumstance is fatal to the prosecution case as it goes to the root of the matter. It has been held by the Apex Court, time and again, that all the incriminating circumstances appearing against the accused should be put to him in his examination under Section 313 Cr.P.C. Failure to do so will lead to denying a valuable right to the accused to explain his defence.
21. Having regard to the above and particularly, in the absence of any other evidence, we feel that the prosecution has failed to prove the circumstances relied upon and the incriminating circumstances of last seen was not put to the accused in his 313 Cr.P.C. examination. Hence, the conviction of the accused for the 11 CPK, J & DEV, J Crl.A.No.1114 of 2015 offences punishable under Sections 302 and 201 I.P.C. are liable to be set aside.
22. In the result, the conviction and sentence recorded by the learned Sessions Judge, Ananthapuramu vide judgment, dated 02.09.2015, in Sessions Case No.180 of 2014 against the appellant/accused for the offences punishable under Sections 302 and 201 I.P.C. are set aside. The appellant/accused shall be released forthwith if he is not required to be detained in any other crime. Fine amount, if any, paid by the appellant/accused shall be refunded to him.
22. Accordingly, the Criminal Appeal is allowed.
Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR _____________________________ JUSTICE BATTU DEVANAND Date : 4.3.2020 AMD 12 CPK, J & DEV, J Crl.A.No.1114 of 2015 156 THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE BATTU DEVANAND CRIMINAL APPEAL No.1114 of 2015 Date : 4.3.2020 AMD