Andhra Pradesh High Court - Amravati
Movva Sambasivudu Sivudu, Guntur Dt., vs State Of Ap., Rep Pp. Hyd., on 6 January, 2022
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE DR.JUSTICE K.MANMADHA RAO
CRIMINAL APPEAL No.1376 OF 2014
JUDGMENT :
(per the Hon'ble Sri Justice C.Praveen Kumar)
1. Heard Smt. A.Gayatri Reddy, learned counsel for the appellant/accused and Sri K.Srinivasa Reddy, learned Public Prosecutor for the State of Andhra Pradesh.
2. Sole accused in Sessions Case No.463 of 2013 on the file of the XI Additional Sessions Judge, Guntur at Tenali was tried for the offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (IPC). Vide judgment dated 12.12.2014, the learned Sessions Judge convicted the accused for the said offences and sentenced him to suffer imprisonment for life and to pay fine of Rs.2,000/- in default to suffer rigorous imprisonment for a period three months for the offence punishable under Section 302 IPC and to suffer rigorous imprisonment for five years and to pay fine of Rs.1,000/- in default to suffer rigorous imprisonment for a period of three months for the offence punishable under Section 201 IPC,. The substantive sentences were ordered to run concurrently. Assailing the same, the present Criminal Appeal is filed. 2
3. Case of the prosecution, in brief, is as follows:
P.W.1 is the husband, P.Ws.2 and 3 are daughters, of the deceased Movva Mangamma. P.W.4 is mother of P.W.1. The accused and the prosecution witnesses hail from same village, but the accused shifted to Jaggadiguntapalem village of Tenali mandal about 10 years prior to the incident. About 10 days prior to 04.11.2012, P.W.2, who is daughter of P.W.1, came to their house along with her husband in connection with Atlathaddi festival to fulfil certain rituals. On the said day, P.W.1 and another left to Guntur to attend a function. On 04.11.2012 at 9.30 A.M., P.W.1 left for Kollipaka to attend his work. At that point of time, P.W.4, who is mother of P.W.1, and wife of P.W.1 were present in the house. At about 3.45 PM, P.W.1 returned home by cycle and on the way, when he reached Kothabomma-varipalem, the accused, along with one Anasuya (not examined) and Ramadevi (not examined), were coming in the auto of P.W.6 along with wife of P.W.1. On a signal made by the accused, P.W.1 stopped, and on enquiry about the condition of his wife, the accused stated that she attempted to commit suicide by hanging and also informed that to avoid delay they were bringing the injured to hospital by auto. On that, P.W.1 followed them to Nandivelugupalle bridge, and in the mean while, the Ambulance came. The staff of Ambulance examined the 3 wife of P.W.1 and declared her dead. Thereafter, she was brought to her house, but the accused was found missing. Suspecting foul play, P.W.1 examined the body of his wife and found swelling at the throat. The side rib portion was also found swelling. When enquired with his mother, it was informed that on that day, the accused came to the house at 1.00 PM and sat on cot, but the deceased asked him to leave and not to come again, as the family members are suspecting her. At that time, the son-in-law of P.W.1 (Anka Sambasiva Rao, not examined) and his daughter came out of the house and enquired the former about the same. It is stated that the accused was inside the house and the mother of P.W.1 was sitting under a neem tree by the side of the house. Some quarrel ensued between the deceased and the accused, which was noticed by P.W.8 and others, who came there.
Having regard to the information received, a report was lodged by P.W.1, vide Ex.P1, before P.W.13-Sub Inspector of Police, which led to registration of a case in crime No.95 of 2012 under Section 174 of the Code of Criminal Procedure,1973 (CrPC). Ex.P21 is the original F.I.R. He then took up investigation, proceeded to the scene of offence and found the dead body in a cooling box in front of her house. In the presence of P.Ws.9 and 10, he prepared an observation report vide Ex.P3 and a rough 4 sketch of the scene of offence (Ex.P22). Thereafter, he conducted inquest over the dead body of the deceased in the presence of P.Ws.9 and 10. Ex.P4 is the inquest report. During inquest, he examined P.Ws.1 to 7 and recorded their statements. Thereafter, he sent the dead body for postmortem examination.
P.W.11, Civil Assistant Surgeon, District Hospital, Tenali, conducted autopsy over the dead body of the deceased and issued Ex.P7-preliminary postmortem examination report. After receipt of F.S.L. report from the Forensic Science Laboratory, P.W.11 gave final opinion under Ex.P10, stating that the cause of death was due to mechanical asphyxia.
P.W.15-the then Inspector of Police, Tenali Rural Circle took up further investigation after receipt of altered FIR, and on receipt of information from P.W.14 about surrender of the accused before P.W.10-V.R.O., he proceeded to police station, perused the report of P.W.10 and also the confessional statement of accused recorded by P.W.10 under Exs.P5 and P6. He examined P.W.10 and recorded his statement. Thereafter, he arrested the accused and sent him to remand. After completion of investigation, charge sheet came to be filed, which was 5 taken on file as P.R.C.No.27 of 2013 on the file of the II Additional Judicial Magistrate of First Class, Tenali.
4. On appearance of the accused, copies of case documents, as required under Section 207 Cr.P.C., were furnished to the accused, and thereafter, the case was committed to the Court of Session. On committal, the same came to be numbered as S.C.No.463 of 2013.
5. Charges under Sections 302 and 201 IPC were framed, read over and explained to the accused in Telugu, to which he pleaded not guilty and claimed to be tried.
6. In support of its case, the prosecution examined P.Ws.1 to 14 and marked Exs.P1 to P15 and M.Os.1 to 23. After completion 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 evidence was adduced on behalf of the accused in support of his defence. Ex.D1-relevant portion of Section 161 Cr.P.C. statement was marked on behalf of defence.
7. Relying upon three circumstances viz. extra judicial confession, the accused being last seen in the company of the deceased and the medical evidence, being 6 consistent with the version of the prosecution, coupled with the evidence of P.Ws.2, 3, 4, 6 and 8, the learned Sessions Judge convicted the accused and sentenced the accused as stated supra. Challenging the same, the present Criminal Appeal is filed.
8. Smt. A.Gayatri Reddy, learned counsel for the appellant/accused would contend that there is absolutely no legal evidence on record to connect the accused with the crime; merely because the accused was seen in the house of P.W.1 by P.W.4 (mother of P.W.1), it does not by itself lead to an irresistible conclusion that it was the accused alone, who is responsible for the death of the deceased. She further contends that there are circumstances to indicate that the extra judicial confession made before P.W.10 was brought into existence at the instance of the police. In view of the above, she submits that it is a fit case where the accused is entitled for benefit of doubt.
9. On the other hand, Sri K.Srinivasa Reddy, learned Public Prosecutor submits that though there are no eye-witnesses to the incident, but nothing has been suggested to P.W.10 to disbelieve the extra judicial confession made before him by the accused. He would contend that there is evidence on record to show that it was the accused who is responsible for the incident. He took us 7 through the evidence of P.Ws.2, 3, 4, 6 and 8 to establish that accused alone was responsible for the incident.
10. The point that arises for consideration in the present appeal is whether the prosecution established the guilt of the appellant/accused beyond reasonable doubt?
11. It is no doubt true that there are no eye- witnesses to the incident and the case rests solely on circumstantial evidence. Law regarding circumstantial evidence is well settled. In a plethora of judgments, the Hon'ble Apex Court has held that, when the conviction is based on circumstantial evidence, "then there should not be any snap in the chain of circumstances. If there is a snap in the chain, the accused is entitled to benefit of doubt". [Bhim Singh v. State of Uttarakhand1]. As regards, the question of any reasonable hypothesis, the Hon'ble Apex Court has held that, "if some of the circumstances in the chain can be explained by any other reasonable hypothesis, then the accused is entitled to benefit of doubt".
(a) In Sharad Birdhichand Sardar v. State of Maharashtra2, the Hon'ble Supreme Court has laid down the following principles:
"The circumstances from which the
conclusion of guilt is to be drawn must or
1
[2015] 4 SCC 281
2
(1984) 4 SCC 116
8
should be and not merely "may be" fully
established.
The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty.
The circumstances should be of conclusive nature and tendency.
They should exclude every possible hypothesis except the one to be proved and, There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
(b) In Madhu v. State of Kerala3, the Hon'ble Supreme Court held that, "the care and caution with which circumstantial evidence has to be evaluated stands recognized by judicial precedent. Only circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. In a case resting on circumstantial evidence, the prosecution must establish a complete unbroken chain of events leading to the determination that the inference being drawn from the evidence is the only inescapable conclusion".
(c) In Sujit Biswas Vs. State of Assam4 and Raja alias Rajinder Vs. State of Haryana5, it has been propounded that "while scrutinising the circumstantial 3 [2012] 2 SCC 399 4 [2014] 1 SCC [Cri] 677 5 [2015] 4 SCC [Cri] 267 9 evidence, the Court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused".
(d) In R.Damodaran v. The State Rep. By The Inspector Of Police6, the Apex Court after referring to the judgment of a three Judge Bench in Padala Veera Reddy Vs. State of Andhra Pradesh and Ors7, held that, in a case which rests on circumstantial evidence such evidence must satisfy the following tests:
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 guilt of the accused;
6
AIR (2021) SC 1173 7 1989 Supp (2) SCC 706 10
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 and none else; and
4. 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. (See Gambhir v. State of Maharastra8) Keeping in view the law laid down by the Apex Court in the judgments referred to above, it is now to be seen whether the circumstances relied upon by the prosecution are proved and if proved, whether they form a chain of events connecting the accused with the crime leading to an inescapable conclusion, the guilt of the accused.
12. It may not be necessary for us to refer to the evidence of all the witnesses. Suffice, if we refer to the evidence of P.W.4, who is mother of P.W.1 and mother-in- law of the deceased, and the evidence of P.Ws.6 and 8, to establish the presence of the accused with the deceased prior to the incident.
13. P.W.4 in her evidence deposed that on the date of the incident, the accused came to their house at 1.00 P.M. At that time, herself, P.W.2, her husband and the 8 (1982) 2 SCC 351 11 deceased were at the house. P.W.1 left for vegetable market at Kollipara to attend his work, while P.W.4 was sitting under a neem tree in front of their house. At that time, the accused entered the house and talked with P.W.2 before she and her husband left to Guntur. P.W.4 heard some altercation, but could not hear clearly due to deafness. Thereafter, the accused informed P.W.4 that the deceased was not able to talk and left for getting an auto. Later, the accused shifted the deceased/injured with the help of Anasuya and Ramadevi to the Hospital. Within one hour, they returned as the deceased was declared dead by the staff of the Ambulance. She noticed swelling injury at the throat of the deceased. When she wanted to question the accused, the accused was not available.
14. Though P.W.4 was cross-examined at length, nothing useful came to be elicited to discredit her testimony. Though the learned counsel for the appellant tried to rely upon the admission elicited in her cross- examination wherein she stated that for the first time, she disclosed everything to police, but as seen from the record, the same does not in any way demolish her version, for the reason that she was examined by police immediately after the incident in question i.e. after registration of the F.I.R. Therefore, the admission that "she disclosed for the first time to the police" does not in any way indicate that she 12 failed to disclose the incident to persons assembled there till the arrival of police.
15. Coming to the evidence of P.W.8, according to him, on the fateful day, at about 2.45 P.M., he along with others went to the house of P.W.1 to find out the availability of the cattle in which he was dealing, but he noticed an auto stationed in front of house of P.W.1. After the auto left, the deceased entered the house. P.W.8 also entered the house of P.W.1, while others who came along with him were waiting outside. He noticed altercation between the accused and the deceased, and the deceased was questioning the accused about he visiting their house. She asked the accused not to come to the house as her husband was suspecting her. His evidence also shows about the deceased enquiring him the purpose of his visit, for which he informed that he came there for P.W.1. Thereafter, he left along with two other persons, who came with him. On the same day night, he came to know about the incident. Nothing has been elicited in his cross- examination to discredit his testimony.
16. P.W.2, who is none other than daughter of the deceased, deposed stating that on 04.11.2012, in the morning, her father went to attend work in Banana market at Kollipara, and she along with her husband were getting 13 ready to go to Guntur to attend a function. At about 1.30 PM, the accused came to the house, as he used to come now and then, and talked with the deceased very intimately. On that day, the deceased asked the accused not to come to her house and not to talk with her on the ground that P.W.1 was suspecting her and that it would spoil her marital life. Her evidence also shows that the accused also talked with them on that day.
17. At this stage, it would also be appropriate to refer to the evidence of P.W.3, who is daughter of the deceased. Though she was residing in the house, but her evidence would show that a false information was given by the accused with regard to the manner in which the deceased died. According to her, on 04.11.2012 at about 5.30 PM, the accused came to her house and informed that her mother committed suicide by hanging. She informed the same to her brother-in-law who went to Guntur along with P.W.2. She was also informed by the accused that he shifted the deceased along with Anasuya in an auto and that her father joined them on the way to the hospital. On receiving the death intimation, she went to the house and noticed injury below the chin, at the throat and the swelling at the rib. P.W.4 is said to have informed about the manner in which the incident in question took place. Though P.Ws.2 and 3 were cross-examined at length, 14 nothing has been elicited to discredit trustworthiness of their evidence.
18. From the evidence of these four witnesses, it stands established beyond doubt that just prior to the incident in question, the accused was present in the house of P.W.1 along with the deceased. The evidence of P.W.4 also establishes that there was a quarrel between the accused and the deceased and immediately thereafter the accused went out to bring an auto to take the deceased, (who was injured then), to hospital. P.W.4 and other witnesses also noticed injury on the neck of the deceased.
19. The learned Public Prosecutor would submit that the evidence of P.Ws.2, 3, 4 and 8 gets corroboration from the evidence of P.W.10, Village Revenue Officer, before whom the accused said to have made an extra judicial confession on 20.04.2013. It is no doubt true that extra judicial confession is a weak piece of evidence and the same cannot be acted upon unless it is corroborated on material particulars. In the instant case, the accused went to the office of Village Revenue Officer, Davuluru and stated to him about the illicit intimacy with wife of P.W.1 for the last 10 years and as she was not responding him over phone, he proceeded to her house on 04.11.2012 at 1.30 PM. He further confessed that when the deceased was resisting him 15 as her husband was suspecting her, there was an altercation between both of them in which he pressed her throat and killed her. He also narrates the manner in which he escaped. His statement was reduced into writing. P.W.10 prepared a report and submitted the same to police along with the accused. Though P.W.10 was cross-examined at length, the only thing which could be established was that he was working as Village Revenue Officer at a different place which is at a distance of 3 KMs from Duvvulur. A suggestion that Ex.P5-statement was drafted by him to the dictation of Inspector, was denied.
20. As stated earlier, learned counsel for the appellant vehemently submits that the statement made before the Village Revenue Officer cannot be accepted since there is no reason for the accused to go and make a statement before the Village Revenue Officer of a different village. But, in the absence of any suggestions to the contrary in the cross-examination of P.W.10, we see no reason to disbelieve the same, more so, when it is corroborated by the oral evidence of P.Ws.2, 3, 4, 6 and 8 coupled with the medical evidence, which shows an injury on the neck. In view of the foregoing discussion, presence and participation of the accused in commission of the offences alleged is established.
16
21. It is now to be seen whether the accused can be convicted for the offence punishable under Section 302 IPC or is it a case of culpable homicide not amounting to murder. Where the culpable homicide falls under any one of the four clauses of Section 300 IPC and none of the exceptions applies, the culpable homicide is murder and is punishable under Section 302 IPC. Exception 4 of Section 300 IPC can apply if all the four conditions laid down are satisfied viz. (1) absence of pre-meditation; (2) there must be a sudden fight; (3) the killing must be in the heat of passion upon a sudden quarrel; (4) the offender should not have taken undue advantage or acted in a cruel or unusual manner.
22. Admittedly, the accused was coming to the house of P.W.1 regularly and was talking to the deceased very intimately. The same is reflected in the evidence of P.Ws.2 and 4. Even on the day of the incident, the accused came to their house and was talking very intimately with the deceased. However, the deceased was objecting to his visit as her husband was suspecting her. At that point of time, an altercation took place between them, which is spoken to, by P.W.4, who was sitting outside the house under a neem tree, and in the process, the accused pressed the neck of the deceased, which lead to deceased becoming unconscious. At this stage, the conduct of the accused 17 also requires to be noticed. On seeing the deceased becoming unconscious, he went out, brought an auto, requested the neighbours to assist him and with their assistance, took the deceased, to hospital in the auto, as there was some delay in the arrival of Ambulance. However, on the way, P.W.1 met them and joined them in taking the deceased to hospital. But, on the way, the deceased succumbed to the injuries. Having regard to the recitals in extra judicial confession Ex.P5 that there was an altercation prior to the incident, coupled with the evidence of P.W.4, which establishes a quarrel taking place prior to the incident, in the absence of any enmity or motive for the accused to cause death of the deceased, except resistance by the deceased on that day; as it is not a pre-planned attack and as the accused has not taken any undue advantage of the situation, in our considered opinion, there was no intention on the part of the appellant/accused to kill the deceased. But, the accused must be having a knowledge that his act would likely to cause death of the deceased. Therefore, the act committed by the appellant/ accused squarely falls under exception 4 of Section 300 IPC. So, the appellant/accused is liable to be convicted for the offence punishable under Section 304 Part II I.P.C.
23. In the result, the conviction and sentence recorded in the judgment dated 12.12.2014 in Sessions 18 Case No.463 of 2013 on the file of the XI Additional Sessions Judge, Guntur at Tenali against the appellant/accused for the offence punishable under Section 302 IPC are set aside. However, the appellant/accused is found guilty of the offence punishable under Section 304 Part-II IPC, accordingly, he is convicted of the said offence and sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.2,000/- in default to suffer rigorous imprisonment for a period three months. The conviction recorded by the trial court against the appellant/accused for the offence punishable under Section 201 IPC and sentence to suffer rigorous imprisonment for five years and to pay fine of Rs.1,000/- in default to suffer rigorous imprisonment for a period of three months for the said offence are confirmed. Both the substantive sentences are ordered to run concurrently. The appellant/accused shall be released, if he has served the sentence imposed (including remission) and if not required in any other case.
24. Accordingly, the Criminal Appeal is allowed in part.
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Miscellaneous petitions pending, if any, in the Criminal Appeal stand disposed of.
______________________________ JUSTICE C.PRAVEEN KUMAR __________________________________ Dr.JUSTICE K.MANMADHA RAO 6.1.2022 DRK 20 THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HON'BLE DR.JUSTICE K.MANMADHA RAO JUDGMENT in CRIMINAL APPEAL No.1376 OF 2014 (per Hon'ble Sri Justice C.Praveen Kumar) 6.1.2022