Andhra Pradesh High Court - Amravati
Shaik Valli vs State Of Ap., on 19 November, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, J. Uma Devi
THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HONOURABLE MS JUSTICE J.UMA DEVI
CRIMINAL APPEAL No.609 of 2013
JUDGMENT:- (Per Hon'ble Sri Justice C.Praveen Kumar) The sole accused in Sessions Case No.132 of 2009 on the file of the learned Sessions Judge, Mahila Court, Visakhapatnam, was tried for the offence punishable under Section 302 I.P.C. for causing the death of his wife by name Smt. Khadar Beebee (hereinafter, referred to as "the deceased") on 31.05.2009 at about 14.00 hours, at D.No.9-9-47/8, Opp. Tara Mosque, Mangapuram Colony, Visakhapatnam. Vide judgment, dated 12.03.2013, the learned Sessions Judge convicted the accused for the offence punishable under Section 302 I.P.C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for a period of one year. Aggrieved by the same, the present appeal is filed by the accused.
2. Briefly stated, the facts from the evidence of prosecution witnesses are as under: -
The accused is the husband of the deceased while P.Ws.1 and 2 are the parents of the deceased. P.W.5 is the son of the accused and the deceased. The marriage between the accused and the deceased took place on 28.02.2002 as per their caste customs in the presence of caste elders and friends. After marriage, the accused and the deceased lived at Atchiyyammapeta and later, at Shivajipeta. Out of their wedlock, they were blessed with a daughter and a son. After the birth of the children, the accused 2 CPK, J & JUD, J Crl.A.No.609 of 2013 started harassing his wife. It is stated that at the time of marriage, the accused was running a cycle repairing work shop. After the birth of the children, he stopped the cycle repairing works. It is said that when the deceased requested the accused to attend the cycle repairing work, he used to beat her during night time under the influence of alcohol, which was informed to P.W.1. P.W.1 approached the accused and requested him to treat his wife properly but the accused did not change his attitude and paid a deaf ear. P.W.1 took his daughter and the accused along with their children to their three storied building and put up the family of the accused in the second floor of their house, while P.W.1 along with his wife were residing in the third floor of their house.
According to him, they noticed the accused and his daughter quarrelling over petty issues. His wife used to inform the quarrel of the accused and his daughter after his return from his job. When he asked the accused not to quarrel with his wife and not to beat her, the accused used to threaten him stating that he would beat his wife and it is none of his business to question. As there was no change in the attitude of the accused, P.W.1 and other family members thought of lodging a report with the police against the accused but the neighbours advised him not to give any complaint and accordingly, he did not give any complaint to the police. While so, on 31.05.2009, at about 1:45 P.M., while P.W.1 was sleeping in the top floor of his house and his wife went to attend a marriage function, the accused and his wife and children alone were present in their second floor portion, the neighbours came and raised hue and cry stating that the accused killed his wife and absconded. Then, immediately, P.W.1 went to the portion 3 CPK, J & JUD, J Crl.A.No.609 of 2013 of his daughter and noticed dead body of his daughter underneath the sofa set. According to him, the children of the accused were not present in that place. He got down from that portion and noticed the children crying. On enquiry, the daughter and son of the accused informed him that the accused killed their mother by strangulating her neck with a chunny cloth and also threatened them not to disclose the same to anybody. In the meanwhile, the police came to the scene of offence at 6:00 P.M. to whom P.W.1 lodged a report. Ex.P-1 is the report. Basing on the same, P.W.10
- Inspector registered a case in Crime No.275 of 2009 under Section 174 Cr.P.C. and submitted the same to the concerned. Ex.P-5 is the original F.I.R. Thereafter, he proceeded to the scene of offence and in the presence of P.W.7 and others, conducted inquest over the dead body of the deceased in the house of P.W.1. Ex.P-3 is the inquest report. He examined P.Ws.1 to 5 at the scene. After conducting inquest, the body was sent to post mortem examination. It is further stated that P.W.10 also prepared rough sketch of the scene of offence under Ex.P-7 and also got photographed the scene of offence through P.W.8. On receipt of the post mortem examination report, the Inspector altered the section of law from Section 174 Cr.P.C. to 302 I.P.C. Ex.P-8 is the altered F.I.R. It is to be noted that the doctor who conducted post mortem was not examined but the post mortem report under Ex.P-9 came to be marked subject to proof and relevancy through the Investigating Officer. On 08.06.2009, P.W.6 and Peethala Lakshmi Venkata Narayana Murthy (L.W.7) produced the accused along with M.Os.1 and 2 - gold ornaments. On 08.06.2009, P.W.10 conducted test identification of the properties at Ryot Bazar 4 CPK, J & JUD, J Crl.A.No.609 of 2013 situated near III Town Police Station in which P.Ws.1 and 2 identified M.Os.1 and 2. After receipt of necessary documents and completion of investigation, a charge sheet came to be filed for the offence punishable under Section 302 I.P.C., which was taken on file against the accused under Section 302 I.P.C. by the learned IV Additional Chief Metropolitan Magistrate, Visakhapatnam.
3. On appearance, copies of the documents were supplied to the accused under Section 207 Cr.P.C. Since the offence punishable under Section 302 I.P.C. is triable by a Court of Sessions, the matter was committed to the Court of the Sessions at Visakhapatnam under Section 209 Cr.P.C. and same was made over to the Court of the learned Sessions Judge, Mahila Court, Visakhapatnam for trial and disposal in accordance with law.
4. Basing on the material available on record, charge under Section 302 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.
5. To substantiate its case, the prosecution examined P.Ws.1 to 10 and got marked Exs.P-1 to P-9 and exhibited M.Os.1 to 4.
6. After completion of the entire 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 evidence was adduced on behalf of the accused but Ex.D-1 - omission in 161 Cr.P.C. statement of P.W.1 was got marked on his behalf.
5 CPK, J & JUD, J Crl.A.No.609 of 2013
7. Relying upon the evidence of P.Ws.1, 2 and 6, the trial Court convicted the accused as stated supra. Challenging the same, the present appeal came to be filed by the accused.
8. Learned counsel for the appellant/accused would contend that though the prosecution has projected P.W.5 as an eye witness to the incident, there are number of circumstances to show that he is speaking false. It is further stated that if really the children of the accused informed P.W.1 about the incident when he came down from the scene of offence, he would not have missed mentioning the same to the police and the police could not have registered a case under Section 174 Cr.P.C. and alter to Section 302 I.P.C. after receipt of the post mortem report. Apart from that, it is pleaded that the evidence of P.Ws.1 and 2 is a complete improvement from what they have stated before the Investigating Officer under Section 161 Cr.P.C.
9. On the other hand, learned Public Prosecutor opposes the same contending that there are no reasons to disbelieve the evidence of P.Ws.1, 2 and 5. He further pleads that the evidence of P.W.5 is corroborated by the evidence of P.W.3 who saw the accused coming down from his portion and from there, again into his portion of the house in a hurried manner repeatedly and also questioned him as to why he is in a disturbed mood. In view of the above, he pleads that non-examination of the doctor who conducted post mortem is not fatal to the prosecution case.
10. The short point that arises for consideration is:
"Whether the trial Court was justified in convicting the accused under Section 302 I.P.C.?"
6 CPK, J & JUD, J Crl.A.No.609 of 2013
11. POINT:-
It is to be noted here that P.Ws.1 and 2 are the parents of the deceased while P.W.3 is the neighbour of P.Ws.1 and 2. On the date of incident, at about 1:45 P.M., while P.W.1 was sleeping in the top floor of their house and his wife went to attend a marriage function, he was informed by neighbours that his daughter was killed by the accused. Immediately, he got down and noticed the children of the accused crying. When questioned, both of them seemed to have informed that the accused killed the deceased by strangulating her with chunny cloth. In the meanwhile, police came to the scene of offence at 6:00 P.M., to whom P.W.1 lodged a report. If the contents of Ex.P-1 lodged by P.W.1 are seen, it throws any amount of doubt with regard to his version. As observed earlier, the information about the incident in question was furnished to P.W.1 by his grandchildren. According to him, his grandchildren informed about the incident but Ex.P-1 report, which was given at the scene of offence at 6:00 P.M., is silent on this aspect. On the other hand, it shows that F.I.R. was received at 4:00 P.M., giving a different version. It states that after marriage, the accused used to beat and scold the deceased, as he has no occupation and income for his livelihood. As there was danger to his daughter, P.W.1 kept his daughter in his house. On 31.05.2009, they went to attend a marriage function of their relatives. The deceased and his son-in-law stayed in the house. An argument ensued between them and at about 2:00 P.M., while P.W.1 was going to upstairs, he noticed the doors of the house of his daughter closed. Thereafter, someone informed him through 7 CPK, J & JUD, J Crl.A.No.609 of 2013 phone that the deceased died. On that, he rushed down followed by neighbours. They suspected that her death was due to application of pressure on the neck by her husband. Hence, lodged the present report. Basing on the contents of the said report, the police registered a case under Section 174 Cr.P.C.
(suspicious death).
12. The F.I.R. is silent as to the information furnished by the neighbours and also by his grand children about the involvement of the accused in the commission of the offence or the presence of the accused in the house. Apart from that, a reading of the contents of F.I.R. would show that all of them, in fact, went to attend a marriage function of their relatives. Therefore, his presence and sleeping in the top floor may not be correct, as the two versions are inconsistent with each other. Even otherwise, the question of somebody telephoning and informing P.W.1 on phone about the death of his daughter is improbable. If really he was present in the house, the residents or neighbours would have come to him and informed instead of calling him on telephone.
13. Coming to the evidence, though P.Ws.1 and 2, in their evidence in chief, deposed about the harassment caused by the accused, shifting of the accused and the deceased to the building where P.Ws.1 and 2 were residing and also about the incident on 31.05.2009 at 1:45 P.M., their version appears to be a complete improvement from what they have stated in the earlier statements before the police during the course of investigation. It would be useful to refer to the relevant portion in the evidence of P.W.10, the Investigating Officer, which is as under:
8 CPK, J & JUD, J Crl.A.No.609 of 2013 ".... It is true that either in Ex.P1 or 161 Cr.P.C. statement P.W.1 did not state before me that at the time of marriage the deceased was presented two gold chains and that after the birth of the children the accused started harassing his wife and stopped running his cycle shop and that his daughter informed the same to him and on that he approached and requested the accused to look his daughter properly and that his wife used to informed him about quarrel between his deceased daughter and the accused after he has come from his job and that he asked the accused not to quarrel and not to beat her and upon that the accused grew wild and stated that it is none of your business questioned him and it is his right beat his wife and that on the date of the incident the accused his wife and their children were alone present in the house and neighbours came to woke up them and informed him that the accused killed to his daughter and absconded from his house and he went when he has to see dead body he found the same underneath the sofa set and the children was not present in the bed room and then he got down and found the children somewhere from the room and on enquiry they informed him that the accused killed her mother by strangulated her neck with the chunni and the accused also threatened them not to disclose the same to any one and created the scene as if the deceased daughter committed suicide and the accused removed gold ornaments and body of the deceased and kept her body underneath the sofa set and while the accused escaping from scene of offence L.Ws.3 and 4 have seen the accused and on their inquiry the accused informed them that his wife committed suicide by hanging and after the accused rank from that place himself, neighbours the scene of offence and some blood is coming out from the nose of the deceased and lips were swallon and the belly also of the deceased and also found some injuries and they also observed that the accused took away two gold chains i.e., MOs.1 and 2 and in which one carry a locket which were present by him at the time of marriage.
P.W.1 stated before as in Ex.D1. It is true as per Ex.P3 except legislature mark there were no dead body was marked performed. It is true P.W.2 did not state before me in her 161 Cr.P.C. statement she found dead body of the deceased underneath the sofa set and she also found several injuries over her body. It is true P.W.3 also did not state before me that he found the accused a liking and getting down from the steps hurrily saying his wife on her enquiry and on such she went inside the and found dead body of the deceased underneath the 9 CPK, J & JUD, J Crl.A.No.609 of 2013 sofa set. It is true P.W.4 did not state before me she that at the time of marriage the accused and deceased an amount of Rs.1,000/- I was presented the accused towards dowry and ¼ tulas of gold ring and half tula chain and on the date of incident she noticed the accused show me around the scene of offence drove me with swetting. It is true PW5 stated only 3 lines recorded by me by 161 Cr.P.C. statement and except that he did not say anything......."
Therefore, from the above, it is very clear that what the witness more particularly, P.W.1 has stated in the Court is a complete improvement from what he has stated in the earlier statement. Apart from that, it is to be noted here that P.W.2 was not present in the house on that day and she came later. It would also be useful to extract the admissions elicited in the cross examination of P.W.2, which are as under:
"It is true prior to marriage my name of the deceased daughter Khader biby and subsequently her name of change as Shameem. Our house consisting of 8 portions it is 3 stored building. All the 8 portions of our house are occupied. Police recorded my statement in the evening at 4.00 P.M. on the date of incident. My son came from Army 10 days after the incident, on one occasion I have gone to police station along with constable for identifying gold ornaments. L.W.5 is already present at our house by the time to came to back to our house for function. It is true LW5 is my relative and he is assisting my husband in Andhra University as mess boy. It is true on the date of incident the tonsure ceremony of the son of younger brother-in-law of accused. The time of interrgating in the police station the accused informed the police that earlier on one occasion the deceased tried to commit suicide and that she was rescue by her sister and brother-in-law and we denied the same as it is false......."
" ...... It is true I did not state before the police in my statement that an amount of Rs.1,00,000/- towards dowry pair of gold ear studs one tula gold chain two pairs of silver anclets and other saree samans were presented to the accused at the time of marriage. It is true after the marriage the accused
10 CPK, J & JUD, J Crl.A.No.609 of 2013 performed the reception at Pydithalli Kalyanamandapam near Muncipal Corporation Area....."
"........It is true the accused had given a loan of Rs.1,60,000/- to one Farid who is relative to us......."
"It is true the police made the accused to given undertake to the effect that he should not enter the premises of my house. It is true we are taken an amount of Rs.1,00,000/- from the accused to join in our house as tenant on no interest and no rent basis. Witness voluntaries that the amount was taken as loan as they fell short of amount at the time of constructing our house...."
14. Coming to the evidence of P.W.2, a doubt arises as to whether the accused has harassed the deceased for money as deposed by the witnesses. A whole reading of the evidence of P.W.2 would show that the information of the incident was furnished by her husband (P.W.1), but as noticed earlier, the evidence of P.W.2 is a complete improvement from what she has stated. In fact, even in Ex.P-1 report, which was given at 6:00 P.M., only a suspicion was entertained against the accused. If really the information was furnished to them by their grand children as deposed, the same should have been reflected in the F.I.R. itself.
15. Coming to the evidence of P.W.3., according to her, on the date of incident, at about 2:00 P.M., while she was washing the house, she observed the accused getting down from his portion in a hurried manner repeatedly. When she questioned the accused, he told him as "his wife". Except that, he did not say anything to the enquiry made by P.W.3. Immediately, P.W.3 and another lady went inside the house of the accused and noticed the deceased lying dead beneath the sofa set of the portion. However, the 11 CPK, J & JUD, J Crl.A.No.609 of 2013 evidence of the Investigating Officer shows that P.W.3 did not state before him that she found the accused getting down from the stairs hurriedly saying as "his wife" and on such, she went inside the house of the accused and found the dead body of the deceased underneath the sofa set.
16. Similarly, P.W.4 was examined to speak about the demand for dowry and also about the incident. He deposed that on the date of incident, at about 5:00 P.M., a neighbour came to him and informed that the wife of the accused died at her parents' house. Immediately, he went there and found the accused sweating. When questioned him about the incident, he informed him that while she was sleeping in the house, she committed suicide by hanging. He also observed that the accused was moving around the house of P.Ws.1 and 2. He suspected the accused in commission of the offence. But in his earlier statement, he did not state before the Investigating Officer that at the time of marriage, an amount of Rs.1,00,000/- was presented as dowry and on the date of incident, he noticed the accused moving around the scene of offence sweating. Even the evidence of P.W.4 may not be much help to the prosecution to establish the guilt of the accused and on the other hand, his evidence goes contra to the evidence of P.Ws.1 and 2, who speak about the accused escaping from the scene of offence after the incident, while the evidence of P.W.4 shows that he was present in the house even at 5:00 P.M.
17. Coming to the evidence of P.W.5, the eye witness to the incident, he is the son of the accused and the deceased. After putting some preliminary questions and on being satisfied about 12 CPK, J & JUD, J Crl.A.No.609 of 2013 his mental condition, he was examined by the Court below. According to him, on the date of incident, while himself, his father and mother and elder sister were sleeping in the house, his father strangulated the neck of his mother with chunny and wire and killed her. Thereafter, he kept the dead body underneath the sofa set. According to him, the accused threatened him with dire consequences if he disclose the same to others. The accused also threatened him to kill him by applying chilly powder on his eyes if he disclose the incident to anybody. However, the admissions elicited in the cross examination draws any amount of doubt about his evidence. In the cross examination, he admits that what he stated in the chief examination in the Court on that day is a version which he is saying for the first time and that he never disclosed about the same to anyone earlier. He further admits that P.W.1 threatened that he will not provide food to him and that he will join him in a hostel if he fails to give evidence against his father. He further states that P.W.1 informed him and told him that he has to come and depose in the Court.
18. Having regard to the above, a doubt arises as to whether really P.W.5 is speaking the truth. As seen from the above, P.W.5 admits that the version given by him in the Court now is being spoken to by him for the first time on that day and that he never disclosed the same to anybody earlier. In fact, the Investigating Officer, in his cross examination, admits that P.W.5 stated only three lines at the time when he recorded his statement.
19. At this stage, it is also to be noted that the prosecution failed to examine the doctor who conducted post mortem examination.
13 CPK, J & JUD, J Crl.A.No.609 of 2013 The post mortem certificate came to be marked was through the Investigating Officer subject to its relevancy and admissibility. In this case, as urged by the learned counsel for the appellant, the plea of the accused is one of suicide while the case of the prosecution is that it is a case of homicide. Only one injury was noticed on the neck of the deceased in the form of ligature. The prosecution tried to prove the same through P.W.5. As observed by us earlier, the same cannot be accepted because the said version came on record for the first time during trial and he never disclosed the same to anybody earlier. Even the version of P.W.1 with regard to the information furnished by P.W.5 and another/neighbours with regard to the involvement of the accused is found to be incorrect since the same was not reflected in the F.I.R., which was lodged at 4:00 P.M.
20. Under these circumstances, we feel that the accused is merely prejudiced due to non-examination of the doctor. Had the doctor been examined, probably, he would have established that it was a case of suicide, which is the consistent plea taken by the accused all through the trial.
21. Coming to recoveries made and the extra judicial confession made before P.W.6, it is to be noted that on 08.06.2009, in the afternoon, the accused surrendered before him and informed that he want him to be produced before the police. The accused also informed that there are two gold ornaments belonging to his wife and requested to produce him so as to enable him to produce the gold ornaments to the police as he suspects fear in their hands. Basing on the information furnished by the accused, a report came 14 CPK, J & JUD, J Crl.A.No.609 of 2013 to be prepared. Ex.P-2 is the said report which contains the signature of P.W.6. Thereafter, he was produced before the Investigating Officer along with M.Os.1 and 2 - gold ornaments. But it is to be noted that the statement of the accused was never reduced into writing. Further, in the cross examination, P.W.6 admits that the police did not record his statement in the police station. He further admits that underneath the signature in Ex.P-2, no date was mentioned. Things would have been different had at least signature of the accused was taken on Ex.P-2. The same is absent. Therefore, a doubt arises with regard to the accused making the extra judicial confession before a stranger, who is a water supplier of the municipality.
22. Insofar as the identification of M.Os.1 and 2 is concerned, it is to be noted that the test identification parade was conducted in the police station, where P.Ws.1 and 2 claimed to have identified. The identification of the properties does not appear to be in consonance with Rule 35 of the Criminal Rules of Practice. The witnesses examined do not speak about mixing similar articles along with M.Os.1 and 2. Apart from that, Rule 35 of the Criminal Rules of Practice clearly contemplates that identification of the property should be done in Court and not in the police station. Viewed from any angle, we hold that the prosecution failed to prove its case beyond all reasonable doubt.
23. In the result, the conviction and sentence recorded by the learned Sessions Judge, Mahila Court, Visakhapatnam vide judgment, dated 12.03.2013, in Sessions Case No.132 of 2009 against the appellant/accused for the offence punishable under 15 CPK, J & JUD, J Crl.A.No.609 of 2013 Section 302 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. M.Os.1 and 2 shall be returned to the appellant/accused, if claimed. Fine amount, if any, paid by the appellant/accused shall be refunded to him.
24. Accordingly, the Criminal Appeal is allowed.
Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR _______________________ JUSTICE J.UMA DEVI Date : 19.11.2019 AMD 16 CPK, J & JUD, J Crl.A.No.609 of 2013 182 THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE MS JUSTICE J.UMA DEVI CRIMINAL APPEAL No.609 of 2013 Date : 19.11.2019 AMD