Andhra HC (Pre-Telangana)
Public Prosecutor, High Court Of A.P. vs Dasari Siva Prasad Reddy on 15 July, 2003
Equivalent citations: 2003(2)ALD(CRI)347, II(2003)DMC765
Author: K.C. Bhanu
Bench: Bilal Nazki, K.C. Bhanu
JUDGMENT K.C. Bhanu, J.
1. The State of Andhra Pradesh filed this appeal aggrieved by the judgment, dated 27.3.1998, passed by the learned Sessions Judge, Cuddapah, whereby the learned Sessions Judge acquitted the respondent-accused of the charges levelled against him.
2. The facts leading to the filing of the appeal in brief are as follows. Sri Gangireddi, who was examined as P.W. 1 lodged a report, which was later marked as Ex. Fl, with Pulivendla Police Station, alleging that he gave his daughter-Lakshmi Devi in marriage to Dasari Siva Prasad Reddy, the accused in this case, five years before. There used to be altercations between the couple with regard to their family matters. Though P.W. 1 invited his daughter and son-in-law for Ugadi festival in the year 1996, neither the accused paid a visit to his house nor did he allow Lakshmi Devi to go to her parents' house. On 20.4.1996 at about 7 a.m., somebody came in a jeep from Pulivendla and informed him that his daughter had died in her house. He along with his relations went to the house of his daughter. He found her lying dead on a cot. He suspected that his son-in-law killed his daughter. P.W. 8 the Head Constable of Pulivendla Police Station at the relevant time registered a case Under Section 174, Cr. PC. on the basis of Ex. PI. He examined PWs. 1 to 5 and recorded their statements. On his request, P.W. 7 Mandal Revenue Officer conducted inquest over the dead body of the deceased. Ex. P2 is the inquest report. P.W. 8 sent the dead body for post-mortem examination. P.W. 9 Civil Assistant Surgeon conducted autopsy and opined that the deceased had died due of asphyxia due to strangulation. Ex. P8 is the postmortem certificate. P.W. 8 altered the section of law to 302, IPC and issued the altered F.I.R. to all concerned. P.W. 10 Inspector of Police took up investigation and examined P.Ws. 4 and 6 and recorded their statements. On completion of investigation, P.W. 10 filed a charge sheet. The case was then committed to the Court of Sessions, Cuddapah. The learned Sessions Judge framed two charges-one Under Section 498-A, IPC and the other Under Section 302, IPC against the accused. Accused denied his guilt and claimed to be tried. In support of its case, prosecution examined ten witnesses, exhibited ten documents and marked five material objects. Defence examined three witnesses and exhibited two documents. On appreciation of the evidence on record, the learned Sessions Judge came to the conclusion that the prosecution failed to prove beyond reasonable doubt that the accused killed his wife and therefore by his judgment, dated 27.3.1998, acquitted the accused of the charges levelled against him. Against the said judgment, the State preferred the present appeal.
3. Heard the learned Public Prosecutor and the learned Senior Counsel appearing for the respondent-accused.
4. P.W. 7 conducted inquest on a requisition made by P.W. 8 in the presnce of the latter. Ex. P2 is the inquest report. The Inquest Panchayatdars opined that the deceased died, as her neck was tightened, with rope. P.W. 9, along with Dr. Swathantra Sarala Devi, conducted autopsy over the dead body of the deceased. P.W. 9 stated that they found one external injury - constusion of 11/2 cm. size width around the neck encircling at about the middle of the neck. He stated that they were of the opinion that the deceased had died of asphyxia due to strangulation and the approximate time of death was 48 hours before they conducted post-mortem examination. Ex. P8 is the post-mortem certificate. The evidence of P.Ws. 7 to 9 and the recitals in Exs. P2 and P8 remain unshattered in the cross-examination. Therefore, we hold that the death of the deceased was homicidal.
5. Whether the accused was responsible for the death of his wife or not is the question to be determined ?
6. Learned Public Prosecutor contended that the accused used to harass his wife for additional dowry, but he could not get any amount, and, therefore, he decided to do away with the life of the deceased and that was the motive for the accused. The learned Sessions Judge found that the prosecution failed to prove motive. We would first assess the evidence on record to find out whether there was motive for the accused to resort to the killing of his wife.
7. Motive for doing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. In some cases it may be difficult to establish motive through direct evidence while in some cases, inference from circumstances may help in discerning the mental propensity of the person concerned. Though motive established is a weak one, it does not mean that it is by itself sufficient lead to any inference against the prosecution.
8. RWs. 1 to 4 speak about the motive. According to P.W. 1, accused used to harass the deceased that the dowry given to him was insufficient and there used to be quarrels between the couple in that regard. P.W. 1 admitted that he did not state about such harassment in his report - Ex. PI. P.W. 2 stated that the accused and the deceased were not on cordial terms and the accused used to demand the deceased to bring more money. She admitted in her cross-examination that in her presence accused never demanded additional dowry, but he demanded three years prior to the death of the deceased. P.W. 3 -brother of the deceased stated that the accused used to harass the deceased and suspect her. He did not state to P.W. 7 about the harassment when the latter examined him. P.W. 4 aneighbourer of the accused stated that the accused used to insist the deceased on getting more dowry and on one occasion the accused even beat the deceased on this count. But P.W. 4 did not say as to how long before the incident or on what date accused harassed the deceased for dowry or beat her for refusing to bring more dowry. The evidence of the above witnesses does not establish the motive suggested by the prosecution. Therefore, we hold that the prosecution failed to prove immediate motive for the accused to kill his wife, and we agree with the finding of the learned Sessions Judge on this aspect.
9. Admittedly, there are no eye-witnesses to the incident. The entire case rests upon the circumstantial evidence. The circumstances relied upon by the prosecution are : (1) the accused was in the company of the deceased on the date of incident; (2) the death of the deceased was homicidal; (3) nobody other than the couple was present in the house at the relevant time; (4) the next day accused went to the house of P.W. 3 and asked him to come to his house to see the condition of the deceased; and (5) the conduct and behaviour of the accused after the incident.
10. The law which is now well settled about circumstantial evidence is that the circumstantial evidence should be such as to point only to the guilt of the accused and the evidence should exclude all other hypothesis except that of the guilt of the accused. When a case rests upon circumstantial evidence, such evidence must satisfy the Court on the following aspects-(i) the circumstances from which an inference of guilt is bought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) 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 and none else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
11. We are conscious of the fact that in an appeal against acquittal, jurisdiction of the Appellate Court is circumscribed by the limitation that no interference has to be made with the order unless the approach made by the Trial Court to the consideration of evidence is vitiated by some manifest illegality or the conclusion recorded by it is such which could not have been possibly arrived at by any Court acting reasonably and judicially and is liable, therefore, to b.e characterized as perverse. It is also well settled that where two views are possible and the view taken by the Court below is plausible, Appellate Court may interfere with the order of acquittal even if it is of the opinion that a different view than the view taken by the Trial Court.
12. Bearing the above principles of law in mind, we shall scrutinise the evidence on record with a great deal of circumspection. It is not in dispute that at the relevant time accused and deceased were living in the house bearing No. 1-1052 at Ankalamma Street, Pulivendla, as testified by P.Ws. 4 and 5. The marriage between the couple took place five years before the incident. By the date of the marriage accused was working as a teacher at Cuddapah. After the marriage/he was transferred to Thallaproddatur and later to Besthavaripalli. Accused initially set up his family at Guntha Bazar in Pulivendla and later shifted to the above said house. P.W. 4 stated that on 19.4.1996 at about 8.30 p.m. while the deceased was at her house along with neighbours' children accused came there. Then accused and deceased went inside their house. At about 10 p.m., there was some quarrel between them. He was observing the house of the accused till 10.30 p.m. Upto that time nobody else was there in the house of the accused, except the couple. The house of this witness is separated by four houses from that of the accused.
Learned Senior Counsel appearing for the accused vehemently contended that no reliance should be placed on the evidence of P.W. 4, inasmuch as he was examined by the police nearly three months after the incident.
13. P.W. 4 was initially examined by P.W. 8 the Head Constable and later by P.W. 10 Circle Inspector of Police. When P.W. 8 examined P.W. 4 the case was registered Under Section 174, Cr. P.C. Therefore, the investigation made by P.W. 8 appears to be formal. There was nothing extraordinary when P.W. 4 stated that he saw the accused and deceased in their house in the night of the incident, because there is nothing wrong or unusual for a husband to be with his wife or to enter into his house with his wife. P.W. 4 had no enmity with the accused. He had no relationship with the deceased either. He was a retired Assistant in the Social Welfare Department and his house was very closely situated to that of the deceased. There was every possibility for this witness to witness the accused and deceased being together in their house. He could give the movements of the other neighbors also on the date of the incident. There was no reason for him to speak false against the accused.
14. The house of P.W. 5 was situated opposite to the house of the accused. P.W. 5 stated that there were quarrels between accused and deceased. On 19.4.1996 at about 8 p.m. when he was giving tuitions to his children, accused reached his house and on seeing him his children who were playing under the street light till then went inside the house. P.W. 5 was examined by P.W. 8 on 20.4.1996 itself. P.W. 8 stated that P.W. 5 did not state about the accused being present on 19.4.1996 in his house. Therefore, the statement made by P.W. 5 in Court appears to be an improvement. Even if it so, still, as we have already held above, there was nothing odd or strange for the accused being in his house with his wife.
15. In the present case, accused and deceased were, living together in the same house. Accused pleaded alibi. We would now proceed to decide the genuineness and reliability of the plea.
16. There cannot be any dispute that the burden of proof of the plea of alibi is on the person pleading it. In this case, it is for the accused to establish his plea. The plea of alibi postulates the physical impossibility of the accused at the scene of occurrence by reason of his presence at some other place. Accused must be so far away at the relevant time that he could not be present at the place where the crime was committed. . .
17. To substantiate his plea of alibi, accused examined D.Ws. 1 to 3. D.Ws 2 and 3 stated that the accused stayed at Nossam for two days from before the date on which somebody came in a jeep to Nossam to inform the parents of the accused about the death of the deceased, and in the same jeep they and the parents of the accused proceeded to Pulivendla. D.Ws. 2 and 3 could not give the month in, date on, and the time at, which the jeep came to the house of the parents of the accused. They admitted that they did not disclose the fact of accused staying at Nossam to anybody till the date of their examination in the Court. Therefore, the Trial Court rightly disbelieved the evidence of D.Ws. 2 and 3.
18. D.W. 1 was the Head Teacher of the school where accused was working at the relevant time. He stated that the accused had applied for leave on 18.4.1996 and 19.4.1996, as per Ex. Dl, on the ground that he wanted to see his ailing mother. He too admitted that he did not disclose that fact to anybody till his examination in the Court. Even if the accused was on leave on 18.4.1996 and 19.4.1996, it does not mean that he was not present in his house at Pulivendla on the night of 19.4.1996, that his mother was really ill, and that he actually went to Nossam to see his ailing mother. Even assuming for a moment that the accused was really at Nossam on 19.4.1996, there is no evidence on record to show the distance between Nossam and Pulivendla so as to come to the conclusion that it was impossible for him to be at Nossam on 19.4.1996 and return to Pulivendla by night on the same day. The Trial Court also rightly disbelieved the evidence of D.Ws. 2 and 3 that they saw the accused leaving Nossam on 20.4.1996 in the early morning on the ground that it was not natural for them to closely monitor the time of arrival and departure of the accused to and from Nossam. Therefore, the Trial Court rightly rejected the plea of alibi put forward by the accused.
19. Relying on Chanda v. State of A.P., 1996 Crl. LJ 2670, learned Senior Counsel for the accused contended that even if the defence of the accused is held false, the prosecution has to prove its case by evidence so as to connect the accused with the crime beyond reasonable doubt. There is no dispute about the law laid down in the above case. In that case, the plea of the accused therein was that some strangers entered into the house and murdered his wife. In the present case, the plea of the accused was alibi. The ratio laid down therein does not apply to a case where the accused takes, the plea of alibi, and so has naturally no application to the facts of the case as well, because alibi was the plea of the accused in the present case. ,
20. At this stage a decision cited by the learned Public Prosecutor is relevant to be referred to. In Prabhakar v. Sate of Maharasthra, the Apex Court has made the following observation :
"The other circumstances listed had also been finally established. Once circumstance (a) is established, then, taken in conjunction with the other circumstances, particularly the undisputed fact that at or about the time of Malti's death, no third person excepting the accused and the deceased, was present in the house, it will inescapably lead to the conclusion that in all human probability, it was the accused-appellant and none else, who had murdered the deceased by strangulating her to death.
21. Another decision, also cited by the learned Public Prosecutor, is pertinent to be mentioned here. In Godabarish Mishra v. Kuntla Mishra, 1997 SCC (Crl) 18,the Supreme Court held in paragraph 23 as below :
"In our view, the case of committing suicide by self-strangulation by the deceased must be ruled out. Both in Modi's Medical Jurisprudence and Toxicology and in Taloyr's Principles and Practice of Medical Jurisprudence, to which our attention was drawn by Mr. Ranjit Kumar, it has been clearly indicated that suicide by self-strangulation is very rare. For committing suicide by self-strangutation, the person committing suicide must take aid of a contrivance so as to ensure application of sufficient force until death by strangulation. Without such contrivance, sufficient force cannot be applied because initially with the application of force, insensitivity will develop for which the hands pulling the ends of the string must get loosened. In the instant case, no contrivance was noticed either by P.W. 6 and P.W. 7 who had come to examine the deceased on hearing the alarm. The accused has also not seen any contrivance at the place of incident and in her statement Under Section 313, Criminal Procedure Code, she has not disclosed any fact, which was within her special knowledge, in support of a case of suicide by self-strangulation."
22. In Mandhari v. State of Chhattisgarh, II (2002) CCR 255 (SC)-III (2002) SLT 708=2002 SCC (Crl. ) 798, the accused therein did not raise hue and cry on seeing his wife hanging by neck. He all alone brought down the body. He did not report the matter immediately. In those circumstances, the Apex Court held that the above facts coupled with the circumstances that the accused and the deceased therein were not leading a congenial marital life and the unnatural conduct of the accused subsequent to the incident led to one irresistible conclusion that the accused was the author of the crime.
23. In the case on hand, according to the accused, by the time he came back from Nossam on 20.4.1996'at about 7 or 7.30 a.m., several people gathered at his house. P.W. 3 stated that at 6.30 a.m., accused came to his house and took him to his house to see the condition of the deceased. P.W. 4 stated that after coming to know about the death of the deceased in the morning, he went to the house of the deceased and found the accused present there but later escaped from there. This version appears to be correct, because though P.W. 7 conducted inquest at 12 noon the name of the accused was not found in Ex. P2 inquest report. Had the accused been present at his house at the time of the inquest, P.W, 7 would have examined him and noted his presence in Ex. P2. Thus, it appears that after informing P.W. 3 about the death of the deceased, accused went away from the place of occurrence. But the plea of the accused in his examination Under Section 313, Cr. P.C. was that by the time he returned from Nossam several: persons had already gathered at his house. It does not appear to be so, because it was not possible for several people to come to know about the death of the deceased which took place inside the house. It appears that only after the arrival of P.W. 3 at the place of occurrence on being informed by the accused, other persons came to know of the incident. The immediate and natural conduct of the accused was to give to lodge a report with the police that his wife was found dead in his house. He is not a layman. He is a teacher. It was expected of him to lodge report with the police. Instead, he went to P.W. 3, informed him and escaped from the place of occurrence.
24. As regards the time of the death, the Trial Court after referring to some passages in a medical text book came to the conclusion that the time of the death of the deceased was around 2 p.m. on 19.4.1996, as P.W. 9, who commenced postmortem examination at 2 p.m. on 21.4.1996, stated that the deceased would appear to have died about 48 hours prior to the post-mortem examination. P.W. 9 also stated that the features found on the dead body could not rule out the time of death to be 38 to 40 hours prior to the post-mortem examination, considering the fact that the death occurred during summer. Generally the evidence of an expert is only his opinion based on his experience and skill. Such evidence cannot be conclusive. Even otherwise, since he did not rule out the possibility of the time of death to be 38 to 40 hours prior to the post-mortem examination, the death could have occurred after 10 p.m. on 19.4.1996. Therefore, the finding of the Trial Court with regard to the time of the death cannot be said to be correct. .
25. Since the plea of alibi is found to be false, it can be inferred that the accused was present at his house in the night of 19.4.1996, also drawing support to such inference from the observations made by the Apex Court in Prabhakar (supra). Only the accused and deceased were in the house at the relevant time. There was no possibility for others to enter into the house. However, the Trial Court disbelieved the evidence of P.Ws. 4 and 5 that the deceased was last seen alive with the accused in the night of 19.4.1996, on the ground there was a recital in Ex. P2 inquest report that P.W. 3 was the person who last saw the deceased alive at 5 p.m. on 19.4.1996 and, therefore, the evidence of P.Ws. 4 and 5 throws any amount of suspicion. The recital in Ex. P2 must have been recorded basing on the information given by the witnesses. It is not the case of P.W. 3 that he had seen the deceased at 5 p.m. on 19.4.1996. The purpose of inquest is to ascertain the cause of death. It is alien to an inquest report to contain the details as to who caused injuries, how and what manner, and as to in whose company the deceased was last seen. By disbelieving the evidence of P.Ws. 4 and 5 on the basis of such inadmissible portion of the inquest report, the Trial Court committed manifest illegality. As observed by the Trial Court, P.W. 4 might have been examined three months after the incident by the Inspector of Police, but a technical error committed by the police in conducting investigation cannot be a sole ground to disbelieve the evidence of those witnesses, which is otherwise reliable and trustworthy.
26. If some unknown persons committed murder of the deceased, the investigating officer would have certainly noticed some marks of altercation or the wearing apparel of the deceased disarrayed and disorganised. The scene of observation report does not reveal any such distinct features. Furthermore, it is not the case of the accused that some person committed the murder of the deceased.
27. In view of the above discussion, the circumstantial evidence to support the prosecution case can be said to be conclusive with complete and unbroken chain of circumstances leading irresistible and unmistakabe conclusion that it is the accused, and he alone, who committed this crime. Thus, we find the accused guilty of the offence Under Section 302, IPC. Therefore, the order of acquittal is liable to be set aside.
28. Under Clause (a) of Section 498-A, IPC, in order to constitute cruelty, it is not enough that the conduct of the accused is wilful and is offensively unjust to a woman, but is further necessary that the degree of intenstity of such unjust conduct on the part of the accused is such as is likely to drive the woman to commit suicide or such conduct is likely to cause grave injury or danger to limb or to her mental or physical health, and under Clause (b) the harassment of the woman must be with a view to coercing her to meet any unlawful demand.
29. Though P.Ws. 1 to 5 stated that the accused was demanding the deceased to bring additional dowry, there is no whisper in Ex. PI about such demand. This aspect of the case has not been proved beyond all reasonable doubt. Hence, the order of acquittal of the accused Under Section 498-A, IPC has to be confirmed.
30. In the result, the order of acquittal of the accused Under Section 498-A, IPC is confirmed and Under Section 302, IPC is set aside. The accused is convicted Under Section 302, IPC and sentenced to undergo imprisonment for life. The remand period, if any, shall be given set off. The accused shall surrender himself forthwith to serve the sentence.
31. Appeal is thus allowed in part.