Andhra Pradesh High Court - Amravati
Erla Nageswara Rao vs The State Of A.P., on 6 December, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, J. Uma Devi
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THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE MS. JUSTICE J. UMA DEVI
Criminal Appeal No. 922 of 2015
JUDGMENT :(per Hon'ble Sri Justice C.Praveen Kumar)
1) The sole accused in Sessions Case No.22 of 2012 on the file of the Principal Sessions Judge, Nellore, is the Appellant herein. He was tried for an offence punishable under Section 302 Indian Penal Code [for short 'IPC'] for causing death of his wife Erla Vijayamma, W/o Nageswararao [the 'Deceased'] on 12.07.2011 at 5:00 P.M. in his house at Appasamudram village of Udayagiri Mandal. By its Judgment, dated 20.01.2015, the learned Principal Sessions Judge, Nellore, convicted the accused for the offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.500/- in default, to suffer Simple Imprisonment for one month.
2) Against the said conviction and sentence, the present appeal came to be filed.
3) The facts, as culled out from the evidence of the prosecution witnesses, are as under:
i. PW1 is mother-in-law of the deceased. The accused, who is the son of PW1, is the husband of the deceased. PW2 is the son of the accused and the deceased. PW3 is 2 the brother of the deceased and PW4 is the resident of Appasamudram Village.
ii. It is said that after the marriage of the accused and the deceased both of them stayed in Bangalore for a period of four years and thereafter, the deceased stayed in her parents' house at Nallagandala village of Vinjamur Mandal. For about a year, while the deceased stayed at her parents' house, the accused continued to stay in Bangalore. After the death of the husband of PW1, the deceased came to Appasamudram village and started living with the accused who are migrated to the said village. Since then, both of them were living together. The deceased used to attend coolie work in the village, while the accused used to remain in the house without doing any work. The house was maintained with the earnings of the deceased. It is said that the accused used to demand his wife to give money and whenever she refused, he used to beat her. The accused used to come home in a drunken condition and beat the deceased. On the date of incident, at about 5:00 P.M., while PW2 was playing at his house, the accused came home in drunken condition and demanded the deceased to provide money to which she refused. Immediately, he took a pestle which was lying there and beat on her head, as a result of which, the deceased sustained bleeding injury and fell down. Thereafter, PW2 informed 3 the same to PW.1, who is his paternal grandmother, PW1 rushed to the house of the deceased and saw the deceased lying with bleeding injuries. Ambulance was called and the injured was taken to Government Hospital, Udayagiri, and later to Narayana Hospital, Nellore, where she succumbed to the injuries. iii. The information about the incident was given by PW1 to the Police at Narayana Hospital, Nellore. Ex.P1 is the statement of PW1 containing her thumb impression. PW10 the Inspector is said to have been recorded the statement of PW1 and after recording the same, he forwarded the report to PW.12, who got it registered a case in crime No.45 of 2011 of Udayagiri Police Station for the offence under Section 307 of I.P.C. Ex.P7 is the hospital intimation received by PW12 and Ex.P8 is the endorsement of the duty doctor at Narayana General Hospital, Nellore. Ex.P11 is the FIR. After coming to know about the death of the injured, PW12 proceeded to the hospital and collected Ex.P9/death intimation and altered the Section of law from Section 307 to 302 I.P.C under Ex.P.12 and informed the same to PW.13. Ex.P12 is the altered FIR. After intimation about registering of the crime under Section 307 IPC and its alteration to Section 302 IPC, PW.13- the Inspector of Police instructed the probationary Sub Inspector of Udayagiri Police Station and staff to secure mediators for 4 conducting panchanama. Accordingly, PW.13 visited Appasamudram village on 13.07.2011 and prepared a panchanama of the scene of offence in the presence of PW6 and others. He also got prepared a rough sketch of the scene, which is marked as Ex.P13. He examined PWs.1 and 2 at the scene of offence and recorded their statements. He left Appasamudram village and visited Narayana Hospital, Nellore, where he conducted inquest over the dead-body in the presence of PW7 and others. Ex.P5 is the inquest report. After conducting the inquest, he sent the dead body to Government Hospital for postmortem examination. PW8/Civil Assistant Surgeon in DSR Government Headquarters Hospital, Nellore, conducted autopsy over the dead-body on 14.07.2011 and issued Ex.P6/postmortem certificate.
According to him, the cause of death of the deceased was due to hemorrhage and shock due to head injury. PW14/Inspector of Police took up further investigation, secured the presence of PWs. 4 and 5 and recorded their statements. On 20.07.2011, while he was in office, PW.12/ Head Constable of Udaygiri Police Station informed him that the accused came to Police Station along with pestle. PW14 rushed to Udaygiri Police Station and after confirming the identity of the accused, arrested the accused and recorded his confession. Ex.P4 is the admissible portion of the said confession. 5
Pursuant thereto, he seized M.O.1 from the accused and sent him for remand. PW15 took up further investigation and after completion of investigation, he filed the charge sheet, which was taken on file as P.R.C.No.25 of 2011 on the file of the Judicial Magistrate of First Class, Udayagiri. On appearance, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by the Court of Sessions, the matter was committed to the Court of Sessions under Section 209 Cr.P.C. Basing on the material available on record, charge as referred to above came to be framed, read over and explained to the accused, to which, he pleaded not guilty and claimed to be tried.
4) To substantiate its case, the prosecution examined P.Ws.1 to 15 and got marked Exs.P.1 to P.14. After completion of the prosecution evidence, the accused was examined under section 313 Cr.P.C with reference to the incriminating material appearing against him in the evidence of prosecution witnesses, to which, he denied, but did not adduce any evidence in support of his plea.
5) Relying upon the evidence, learned Principal Sessions Judge, Nellore, convicted the accused. Challenging the same, the present appeal came to be filed by the accused. 6
6) Sri N.Parameswara Reddy, learned counsel for the appellant as Legal Aid counsel, contends that entire case rests on the evidence of P.W.2, who is a child witness. He pleads that in order to believe the evidence of P.W.2, more particularly, when he is aged about 8 years, studying 3rd class, there should be some corroboration. In the absence of the same, the learned counsel would submit that the evidence of child witness cannot be made the basis to convict the accused. He further submits that since P.W.1, who lodged a report, did not speak to the contents of the FIR, the First Information report goes, and as such the entire case of the prosecution has to collapse. Hence, pleads that the accused is entitled for the benefit of doubt.
7) On the other hand, learned Public Prosecutor would contend that the evidence of child witness, if it inspires confidence, can be made the basis to connect the accused with the crime. It is his case that when the presence of P.W.2 in the house is natural and when there are no suggestions to show that his evidence is an outcome of tutoring, there is no justification to disbelieve his evidence. In other words, his plea is that the evidence of child witness is trustworthy and the same can be believed. Coming to the discrepancies noticed in the inquest report and the oral evidence of PW.2, the learned counsel pleads that the same would not go to the root of the matter so as to throw out the entire prosecution case as false.
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8) The point that arises for consideration is "whether the evidence available on record is sufficient to convict the accused?
9) It is to be noted here that P.W.1, who is the mother of the deceased, set the law into motion by lodging the FIR. But, in court, she gives a go-bye to the said version and was declared hostile at a later point of time. However, we intend to refer to the evidence of P.W.1, which is as under:-
i. In the earlier part of the evidence, she deposed that the accused and deceased stayed at Banglore for about 4 years and thereafter, the deceased stayed at the house of her parents at Nallagandla of Vinjamur Mandal. While the deceased was staying at her parents' house, the accused stayed at Appasamudram village. After the death of the husband of P.W.1, the deceased came back to the village and started staying with the accused. According to her, the deceased used to go to coolie work, while the accused remained in the house without going to work. According to her, about three years ago at about 6.00 p.m., while she was returning to her house after fetching hay, one boy came and informed that the deceased fell down in her house. She rushed there and saw the deceased lying with bleeding injuries on the back side of her head and she was in unconscious condition. Later, an ambulance was called 8 and the deceased was shifted to hospital. She further admits that the police came to Narayana Hospital and recorded her statement on which she put her thumb mark on the said statement. However, she stated that she does not remember whether the said statement was read over and explained to her before she subscribed her thumb impression on Ex.P1. At that stage, the witness was declared as hostile. She was cross examined not only by the Public Prosecutor, but also by the defence counsel. All the suggestions put by the Public Prosecutor were denied by her.
10) From the evidence of P.W1, it is clear that she disowns the contents of Ex.P1, though she contends that her statement was recorded by the police, while she was in Narayana Hospital. She also admits scribing of her thumb impression on the statement, but she states that she does not remember as to whether the said statement was read over to her before taking the thumb impression. Therefore, the First Information report which came to be registered at the instance of P.W.1 loses its significance. One other fact, which is to be noted, is that in the First Information Report, it was categorically stated that P.W.2 came and informed her about the incident, pursuant to which, she went there. But while giving evidence, she states that one boy came and informed that the deceased fell down in her house.9
11) Coming to the evidence of P.W.2, he deposed that by the date of incident, he was residing in Appasamudram village and at present, he is residing at his grandparents' house at Nallagandla village. At the time of incident, he was studying third class. According to him, his father, who is the accused in this case, was habituated to alcohol and used to demand money from his mother. When she refused to pay the amount, he used to beat her to give money, since he was not doing any work. According to him, on the date of incident at about 5-00 p.m., while he was playing in the house, the accused came home in a drunken condition and demanded the deceased to give money and when she refused to give money, the accused beat her on the back side of her head, as a result of which, the deceased fell down and received injuries. Thereafter, P.W.2 went out to inform about the incident to PW1 but on the way, he found PW.1 and informed her about the incident. At that time, the accused left the house taking the said pestle. P.W.1 came to the house and noticed the deceased lying with the injuries. Later, an ambulance was called and the injured was taken to the hospital. P.W.2 was cross examined at length. In the cross-
examination, it was elicited that it will take five minutes time to go to the house of P.W.1 from the house of the accused and that it will take three minutes to go to school by running and five minutes by walk. The son of the senior paternal uncle by name Nagaraju was with him on the date of the incident. 10 Witness voluntarily address that he came there after his father beat his mother. He further admits that his neighbour Subba Rayudu did not come to the school along with him on that day and Nagaraju also did not come to the school on that day. Only he and his brother Nithin went to the school on that day. To a suggestion that they were playing at the school till late in the evening was denied by him. He further admits that his father and mother used to go work when they resided in Banglore and when his mother was going to coolie work, his uncle used to look after him and his brother. He further admits that three days after the death of his mother, he along with his brother-Nithin went to his maternal grandmother's house. Later, he came back to his house on the date of death ceremony. A suggestion that he is speaking false at the instance of the police, was denied by him.
12) PW3 is a resident of Nallagondla village who knows PW1 and PW2 and the deceased who is his younger sister. According to him, the accused was addicted to drinking and used to beat the deceased. He was not regular in going to the work. Disputes arose between the accused and the deceased due to that reason. He used to pacify them. According to him, both of them lived in Bangalore for four years and out of wedlock two children were born to them. As there was no change in the attitude of the accused, he brought the deceased and her children to his house. Later, the father of PW3 came to Bangalore and took the deceased and her 11 children to Nallagondla village. According to him, when they went to attend a funeral ceremony of the family of the accused, the accused informed that he changed his attitude and that he will take care of the deceased well and asked them to send the deceased with him. Thereupon, they sent the deceased to the accused along with children to Appasamudram village. But, however, there was no change in the attitude of the accused.
13) On 12.07.2011 at 6.00 PM, a villager of Appasamudram called PW3 and informed that accused came home in drunken condition and disputed with the deceased demanding for money and when she refused, the accused beat her with a pestle on the back of her head. The deceased fell down unconsciously. By the time, PW3 went to the said house, he was informed that the deceased was shifted to Narayana General Hospital, Nellore. Though, he was cross- examined at length, nothing useful came to be elicited to discredit the same. All the suggestions given with regard to the innocence of the accused were denied.
14) PW4 who is a resident of Appasamudram village states that, he noticed gathering of people at the house of the accused and when he went there, he found the deceased in unconscious condition with bleeding injury on her head. He further state that, the people gathered there were uttering that accused was responsible for the death. Thereafter, a 12 ambulance came in which the injured was shifted to Government Hospital, Udayagiri. PW4 along with M. Krishna accompanied the injured to the hospital.
15) PW5 is also a resident of Appasamudram village. He in his evidence deposed that, on the date of incident at about 5.00 PM while he was returning with goats and by the time he came towards the entrance of the village, he noticed the accused armed with a pestle coming from the village side. PW5 claims to have questioned the accused, but accused went away without giving any answers. On coming to know about the incident, PW5 went to the house of the accused to see the injured, but was informed that she was taken to hospital.
16) PW6 was working as Village Revenue Oficer, Appasamudram village from 29.05.2010 to 23.07.2012. He was a panch for the scene observation report [Ex.P3].
17) PW7 acted as panch for the inquest proceedings.
18) The rest of the witnesses are all official witnesses.
19) From the evidence adduced before the court, it is very clear that the PW1 who set the law into motion turned to hostile. PW3, PW4 and PW5 are not eye witness to the incident. The evidence of PW3 is relevant only to the extent of harassment by the accused, while, the evidence of PW5 would establish the accused leaving the village armed with pestle. 13 Therefore, the entire case now revolves around the evidence of PW2.
20) One of the argument advanced by the learned counsel for the petitioner is that, PW2 being a child witness aged about 8 years studying 3rd class at the time of the incident cannot be accepted, as his version is an outcome of tutoring by the family members with whom he is staying. The learned counsel for the Petitioner further contends that PW2 being a child witness to the incident, failed to explain as to why he was not examined at the time of the inquest. In support of his pleading, he placed reliance on the Judgment of the Division Bench of this court in Pochammala Yellappa v. State of Andhra Pradesh1. The said Judgment, in our view, may not be of any help to the Appellant/Accused, since, in the said case there was a clear admission by the child witness that the police constable told him to speak as stated in Court that day and two other times previously. Apart from that, his evidence does not give full particulars regarding what happened on fateful night except stating that deceased was hit by stone and appellant had tied neck of deceased and killed her. Therefore, the Division Bench disbelieved the evidence of the child witness and in the absence of any tangible evidence, corroborating the same, acquitted the accused. 1 1995(2)ALD29 14
21) Situation is different. PW2 was studying 3rd class on the date of the incident. According to him, on that day, at about 5.00 PM, while he was playing, the appellant/accused came home in drunken condition and asked his mother to give money. When his mother replied that she is not having any money, he beat her on back side of her head with a pestle, as such the deceased sustained bleeding injury and fell down. Thereafter, he proceeded to the house of PW1 to inform her, but, on the way he found her and informed about the incident. He further states that the accused left the house after the incident with the pestle. His evidence shows that there were no cordial terms between the accused and deceased. According to him, he stayed in the house of his maternal grandfather for about one year as the accused was disputing with the deceased. When the paternal grandfather died, they returned to the house of the accused in Appasamudram village and started residing therein. During the said period, the accused used to come home in drunken condition daily and beat the deceased demanding her to give money. After the incident, they started staying in the house of their maternal grandfather at Nallagandla. The evidence of PW2 came to be recorded after being satisfied about his capacity to give answers.
22) It is a well established principle of law that, child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaked and moulded, but it is 15 also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.
23) Though, the learned counsel for the petitioner tried to contend that the version of PW2 is an outcome of tutoring by the family member, since, he was staying with them right from the date of the incident, but, strangely, no suggestion to the effect was given to the witness. On the other hand, the suggestion was that, at the instance of the police, he was deposing false against the accused.
24) From the manner, in which, the cross-examination was done and the answers elicited, it is evident that he was aged about 7 years at the time of the incident. Apart from that, the answers given indicate that he was present at the scene and capable of understanding the things that have occurred.
25) Though, PW2 was not examined at the time of the inquest, but the evidence of investigation officer shows that, after reaching the scene, PW2 and his brother Nithin were present at the scene, where he examined them. Non- examining of PW2 cannot be said to be fatal since one cannot expect the family member to allow the boy to stay at the scene of offence, as after the ghastly incident. Even otherwise, inquest is conducted only to know the cause of death, for which, examination of all may not be necessary. 16
26) Apart from that, the evidence of PW2 clearly indicates that, immediately after the incident, he went out to inform his maternal grandmother and when he met her on the way, he informed her about the incident. Immediately, thereafter, she came to the house and saw the injured lying with injuries. However, in the court, she tries to say that one boy informed her about the incident. This evidence of PW1 may not be of any help, but, it establishes that she was informed about the incident and immediately she went there and saw the injured/deceased lying with the injuries. This version of PW2 with regard to the manner in which the incident took place, more particularly, with regard to the accused coming home in drunken condition and beating the deceased gets corroboration from the evidence of PW3, who is no other than the brother of the deceased and PW4.
27) It is also to be noted that the plea of the accused is that, the deceased fell down on a cot due to ill-health and sustained injuries. But, such a version was never put-forth to the Doctor who conducted post-mortem examination. Apart from that, if really the deceased died due to a fall on the cot, as pleaded, the conduct of the accused would be different. His conduct of leaving the house armed with pestle, which was noticed by PW5 proves otherwise. Moreover, to a suggestion that, the lacerated wounds over the occipital region of each size 5 x 2 cm would have been sustained due to fall, the doctor denied the same.
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28) Further, there is no evidence on record to show that the evidence of PW2 was an outcome of tutoring. As stated by us earlier, no suggestion was given to PW2 that he was tutored to speak in such manner. To a suggestion that the police tutored PW2 to speak false was denied and the suggestion remained a suggestion. Further, there is no reason for the police to make the child speak false. As observed earlier, the other evidence on record establishes the acts of the accused in beating the accused daily which corroborates the evidence of PW2 in all material aspects. Hence, it cannot be said that the accused was not responsible for the incident in question.
29) In the result, the Criminal Appeal is dismissed confirming the conviction and sentence in Sessions Case No. 22 of 2012 passed by the Principal Sessions Judge, Nellore, vide judgment dated 20.01.2015, finding the accused- appellant guilty for the offence punishable under Section 302 I.P.C. and sentencing him to imprisonment for life and to pay an amount of Rs.500/- as fine, in default, to suffer simple imprisonment for one month. Consequently, miscellaneous petitions pending, if any, shall stand closed.
________________________________ JUSTICE C. PRAVEEN KUMAR _______________________ JUSTICE J. UMA DEVI Date: 06.12.2019 MP/SM.
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THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HON'BLE MS. JUSTICE J. UMA DEVI Criminal Appeal No. 922 of 2015 (Per the Hon'ble Sri Justice C.Praveen Kumar) Date: 06.12.2019 SM.