Telangana High Court
Daravath Saraiah, Karimnagar., vs State, Rep Pp Thrps.Godavarikhaniii ... on 7 July, 2022
Author: Shameem Akther
Bench: Shameem Akther, N.Tukaramji
* THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
* THE HON'BLE SRI JUSTICE N. TUKARAMJI
+ Criminal Appeal No.571 of 2014
% Date: 07.07.2022
Between
# Daravath Saraiah
... Appellant/Accused
AND
$ The State of Telangana,
Rep. by its Public Prosecutor,
High Court, Hyderabad.
... Respondent/Complainant
! Counsel for the Appellant : Sri R. Mahadevan
^ Counsel for the Respondent : Sri C. Pratap Reddy,
Public Prosecutor
> HEAD NOTE:
? Cases referred
1) AIR 1984 Supreme Court 1622
2 Dr.SA,J & NTR,J
Crl.A.No.571 of 2014
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
CRIMINAL APPEAL No.571 OF 2014
JUDGMENT:(Per Hon'ble Dr. Justice Shameem Akther) This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C'), is filed by the appellant/accused, aggrieved by the judgment, dated 01.05.2014, passed in S.C.No.583 of 2012 by the learned VI Additional Sessions Judge, Godhavarikhani, whereby, the Court below found the appellant/accused guilty of the offence punishable under Section 302 of I.P.C. and accordingly, convicted him of the said offence and sentenced him to undergo imprisonment for life and to pay a fine of Rs.500/-, in default, to undergo imprisonment for three months.
2. We have heard the submissions of the learned counsel for appellant/accused, the learned Public Prosecutor appearing for the respondent/State and perused the record.
3. The case of the prosecution, in brief, is as follows:
On 31.12.2011 at about 08:00 hours, PW.1-Banoth Jaipal lodged a complaint with police, Godavarikhani-II Town, stating 3 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 that he is a resident of Mamidigudem Village, Kasipeta Mandal, Adilabad District. He performed the marriage of his daughter Rajamani (the deceased) with one Azmeera Saraiah, resident of 8-incline colony, Godavarikhani, about 18 years prior to the date of alleged incident. They were blessed with one daughter and one son. On 30.12.2011, during evening hours, he received information over phone that his daughter-Rajamani died by hanging. Then he along with his wife (PW.2) went to the house of his daughter and came to know that his daughter hanged with lungi to iron pipes attached to the roof of her house. By the time he reached the house of his daughter, the dead body of his daughter is in front of her house. He further stated that his daughter was suffering with stomach ache for a long time and due to unbearable pain, she might have committed suicide. He as well as his family members have no suspicion on anybody regarding the suicidal death of his daughter and requested to conduct panchanama and investigate the case.
4. Basing on the report lodged by PW.1, PW.14-Sub Inspector of Police, Godavarikhani II Town Police Station, registered a case in Crime No.131 of 2011 under Section 174 Cr.P.C. and issued Ex.P11-FIR. On the same day, he conducted
4 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 inquest panchanama over the dead body of the deceased in the presence of PW.11-Bhukya Sarojana and LW.12-B.Bangyanaik. After receiving post-mortem examination report, he filed Section alteration memo before the Honourable Judicial Magistrate of First Class, Godavarikhani, altering the section of law from Section 174 Cr.P.C. to Section 302 I.P.C. Thereafter, he handed over the CD file to PW.15-Circle Inspector of Police, Godavarikhani, for further investigation. PW.15 examined PWs.1 to 10 and 12. On 07.04.2012, he arrested the accused (Daravath Saraiah) and secured the presence of LW.14-D. Rajagopal and one B. Odelu, in whose presence the accused said to have confessed about the commission of the alleged offence. Thereafter, the accused was produced before the learned Judicial Magistrate of First Class, Godavarikhani, for judicial custody. After completion of investigation, he filed charge sheet against the appellant/accused for the offence under Section 302 I.P.C.
5. The learned Magistrate had taken cognizance of the case and registered the same as P.R.C.No.24 of 2012 and committed the same to the Court of Session, since the case is exclusively triable by the Court of Session and the same was numbered as 5 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 S.C.No.583 of 2012 and made over to the Court below for trial and disposal, in accordance with law.
6. After hearing both sides, the Court below framed charge under Section 302 I.P.C. against the accused, read over and explained to him, for which, the accused pleaded not guilty and claimed to be tried.
7. To prove the guilt of the accused, the prosecution examined PWs.1 to 15 and got marked Exs.P1 to P12, besides case property, M.O.1.
8. PW.1-Banoth Jaipal (de facto complainant) and PW.2- Banoth Yakamma are the father and mother of the deceased, respectively. PW.3-A. Saraiah is the husband of the deceased. PW.4-Ajmeera Sravan is the son the deceased and PW.3. PW.5- Banoth Ramulu is the distant relative of PW.3. PW.6-Chennuri Anil Kumar is the photographer, who took the photographs of the dead body of the deceased and the interior of the house. PW.7-Badavat Bheema is residing opposite to the house of PW.3. PW.8-Badavat Rajamani is residing near to the house of PW.3. PW.9-Banoth Manga and PW.10-Banoth Sammaiah are residents of the same locality, who turned hostile. PW.11- 6 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 Bhukya Sarojana is the panch witness to the inquest panchanama. PW.12-Burra Muthyalu is the person before whom the accused is said to have made extra judicial confession with regard to the commission of the alleged offence, but turned hostile. PW.13-Dr.D. Mahesh is the doctor, who conducted post- mortem examination over the dead body of the deceased. PW.14-Mohd.Fasiuddin is the Sub-Inspector of Police, who issued Ex.P11-F.I.R. PW.15-R.Prakash is the Circle Inspector of Police, who completed investigation and filed charge sheet before the learned Magistrate. Ex.P1 is the report given by PW.1. Ex.P2 is the photographs. Ex.P3 is the C.D. Ex.P4 is the statement of PW.9 recorded under Section 161 Cr.P.C. Ex.P5 is the statement of PW.10 recorded under Section 161 Cr.P.C. Ex.P6 is the inquest report. Ex.P7 is the crime detail form. Ex.P8 is the statement of PW.12 recorded under Section 161 Cr.P.C. Ex.P9 is the post-mortem examination report. Ex.P10 is the report of answer to the question of injury. Ex.P11 is the F.I.R. Ex.P12 is the Section Alteration Memo. M.O.1 is the cotton lungi.
9. When the accused was confronted with the incriminating material appearing against him and was examined under Section 7 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 313 of Cr.P.C., he denied the evidence of prosecution witnesses. On behalf of the accused, no oral evidence was adduced, but Exs.D1 to D6 were marked.
10. Ex.D1 is the portion of statement of PW.1 recorded under Section 161 Cr.P.C. Ex.s.D2 to D6 are the relevant portions of statements of PWs.3, 4, 7 and 8 recorded under Section 161 Cr.P.C.
11. The trial Court, having considered the submissions made and the evidence available on record, vide the impugned judgment, dated 01.05.2014, convicted the accused of the offence under Section 302 I.P.C. and sentenced him as stated above. Aggrieved by the same, the accused preferred the present appeal.
12. Learned counsel for the appellant/accused would contend that the whole case of the prosecution is based on circumstantial evidence. There are no direct witnesses to the alleged incident. The prosecution failed to establish the links in the chain of circumstances to form a complete chain as to draw an irresistible inference that it is the accused, who caused the subject death of deceased. PW.4, son of the deceased, did not 8 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 state before the police that on the date of alleged incident, he saw the accused coming out of his house holding chappals in his hands. PWs.7 and 8 were examined by the police three months after the subject death of the deceased. PWs.1 to 3, who are the parents and husband of the deceased, stated that the deceased committed suicide by hanging. The F.I.R. was issued in the subject case under Section 174 Cr.P.C. There is no cogent and convincing evidence to substantiate the accusations levelled against the accused. There is no medical evidence to substantiate that the subject death is homicidal. The injury spoken by PW.13-Doctor and mentioned in Ex.P9-post-mortem examination report is possible by a fall on the hard surface also. PW.13-Doctor had clearly admitted the same in his cross- examination. There are material contradictions and improvements in the evidence of prosecution witnesses. There is no motive or intention on the part of the accused to cause the subject death. Without there being any substantial evidence on record connecting the accused to the subject death of the deceased, the Court below erroneously convicted and sentenced the accused of the offence under Section 302 I.P.C. and ultimately, prayed to set aside the conviction and sentence 9 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 recorded against the accused of the offence under Section 302 I.P.C. and allow the appeal, as prayed for.
13. On the other hand, the learned Public Prosecutor would submit that there is evidence of PW.4, who saw the accused running out of the house of the deceased on the date of alleged incident. There is also substantial evidence of PWs.7 and 8 and PW.13-Doctor. The evidence of PW.4 is cogent, consistent and inspires confidence to act upon. There are no material contradictions or improvements, as alleged. There is no reason for PW.4 to depose false, so as to implicate the accused in a case of this nature. There is illicit relationship between the accused and the deceased and on coming to know that the deceased is having illegal contacts with others also, he caused the subject death. There is other evidence on record to connect the accused to the subject death of the deceased. Though the case of prosecution is based on circumstantial evidence, the circumstances, taken cumulatively, 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. The Court below having analyzed the entire evidence on record in right perspective arrived at a just conclusion. There 10 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 is no merit in the appeal to vary the conviction and sentence recorded against the accused of the offence under Section 302 I.P.C. and ultimately, prayed to dismiss the appeal by confirming the conviction and sentence recorded against the accused vide the impugned judgment.
14. In view of the submissions made by both sides, the following points arise for determination in this appeal:
"1. Whether the death of the deceased-Rajamani is homicidal?
2. Whether the appellant/accused had caused the subject death of the deceased on 30.12.2011 at about 05:00 PM at her house situated at 8-Incline Colony, Rajeevnagarthanda, Godavarikhani?
3. Whether the prosecution was able to prove the guilt of the appellant/accused beyond all reasonable doubt?
4. Whether the Court below is justified in convicting and sentencing the appellant/accused of the offence punishable under Section 302 IPC vide impugned judgment, dated 01.05.2014, passed in S.C.No.583 of 2012?"
POINTS:
15. There is no dispute that the whole prosecution case is based on circumstantial evidence. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn 11 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 should be fully proved, and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. The question whether chain of circumstances unerringly established the guilt of the accused needs careful consideration. The proof of a case based on circumstantial evidence, which is usually called 'five golden principles', have been stated by the Honourable Apex Court in Sharad Birdhi Chand Sarda Vs. State of Maharashtra1, which reads as follows:-
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established. (2) 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. (3) The circumstances should be of a conclusive nature and tendency;
(4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must 1 AIR 1984 Supreme Court 1622
12 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 show that in all human probability the act must have been done by the accused.
16. Keeping the above principles in mind, we would now venture to analyse the evidence on record. The case of the prosecution is that the deceased is the daughter of PWs.1 and 2. On 30.12.2011 at about 06:00 PM, the deceased was found dead in her house situated at 8-Incline Colony, Godavarikhani. PW.1 came to know about the death of his daughter through PW.4, son of the deceased. PW.1, who is a resident of Adilabad District, came to the house of the deceased and saw the dead body of the deceased kept in front of her house. He gave a report to the police under Ex.P1 stating that his daughter committed suicide by hanging, due to unbearable stomach ache. The said report was registered as Crime No.131 of 2011 of Godavarikhani II-Town Police Station, under Section 174 Cr.P.C. On 31.12.2011 at about 09:00 hours, inquest was held over the dead body of the deceased by PW.14. Thereafter, the dead body of the deceased was sent for postmortem examination. PW.13-Doctor, who conducted autopsy over the dead body of the deceased, on a questionnaire by PW.14, opined that the subject death is homicidal. Thereafter, PW.14 filed Section Alteration Memo before the Honourable Judicial Magistrate of 13 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 First Class, Godavarikhani, altering the section of law from Section 174 Cr.P.C. to Section 302 I.P.C. In the light of the opinion given by PW.13-Doctor, PW.15 took up further investigation. He examined PWs.1 to 10 and 12. The investigation conducted by PW.15 revealed that the accused and the deceased had illegal intimacy and since the accused suspected that the deceased was entertaining others also, he caused the subject death of the deceased. Thereafter, PW.15 filed charge sheet against the accused of the offence under Section 302 I.P.C.
17. According to PW.1-de facto complainant, on 30.12.2011, he received a phone call from PW.4 that his daughter (deceased) died. Then he came to Godavarikhani and found the dead body of his daughter lying on the floor. Then he gave report to the Inspector of Police, Godavarikhani II-Town. Ex.P1 is the report given by him. The post-mortem examination revealed that the deceased did not commit suicide and was killed.
18. PW.2, mother of the deceased, deposed that PW.1 received a phone call from PW.4 that their daughter died. Then 14 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 herself and PW.1 went to Godavarikhani to the house of their daughter. They found the dead body of the deceased lying on the ground. The deceased was suffering from stomach pain and they thought that she committed suicide due to the ailment. After the post-mortem examination, they suspected the involvement of the accused because the accused used to visit the house of her daughter. In the cross-examination, she admitted that she did not state before the police that she suspected the accused.
19. PW.3, husband of the deceased, deposed that accused is his friend. He used to visit his house frequently. On the date of alleged incident, he went to Medak to join his daughter in a hostel in Medak. While returning, he received a phone call that his wife died by hanging. He reached Godavarikhani by 07:00 PM. He observed that his wife's dead body was lying on the floor. His son (PW.4) was there and he stated that he saw the accused running away from the house when he came back from his school and that when he entered into the house, his mother was hanging and her neck was attached to a pipe of the roof with a lungi. The lungi shown to him was not the lungi which was used for hanging his mother (deceased).
15 Dr.SA,J & NTR,J Crl.A.No.571 of 2014
20. PW.4, son of the deceased and PW.3, deposed that on the date of alleged incident, he returned from school at about 04:00 PM. He saw the accused running out of his house holding his chappals in his hand and he was heavily sweating. When he entered into the house, he found his mother hanging from the roof. He shouted for help. Neighbours gathered. He admitted in the cross-examination that he did not state before the police that he saw the accused running out of his house with chappals in his hands and heavily sweating.
21. PW.5, a distant relative of the deceased and PW.3, deposed that on the date of alleged incident, he heard shouts from the house of PW.3 at about 05:00 PM and went there. By then, PW.4 was shouting that his mother died by hanging. He saw the dead body of the deceased hanging from the roof. With the hope that Rajamani (deceased) was alive, they got her down on to the floor. In the cross-examination he stated that he did not observe the accused at that place.
22. PW.6 is the photographer, who took the photographs of the deceased and the interior of the house. Ex.P2 are the photos and Ex.P3 is the CD of the photos.
16 Dr.SA,J & NTR,J Crl.A.No.571 of 2014
23. PW.7, who is residing near to the house of the deceased, deposed that the deceased and the accused used to prepare gudumba and sell it. He observed the deceased and the accused travelling on a two wheeler at about 02:30 PM on the date of alleged incident. He saw them coming towards the house of PW.3. Police examined him three months after the date of alleged incident.
24. PW.8, who is also residing near the house of the deceased, deposed that on the date of alleged incident, she saw the accused running out of the house of PW.3 at about 03:00 PM. The accused was heavily sweating at that time and he went away on his scooter. When the accused was coming out of the house of PW.3, PW.4 went into the house. PW.4 saw his mother hanging from the roof and informed the same to her. Then she went to the house of PW.3 and saw the deceased hanging from the roof. In the cross-examination, she stated that police examined her three months after the date of alleged incident. [
25. PWs.9 and 10 did not support the case of the prosecution and turned hostile. PW.11 is a panch witness for the inquest.
17 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 She did not state anything about the subject death of the deceased.
26. PW.12 is the person before whom the accused is said to have made extra judicial confession, but he did not support the case of the prosecution and turned hostile.
27. PW.13 is the Doctor, who conducted autopsy over the dead body of the deceased. He conducted post-mortem examination over the dead body of the deceased on 31.12.2011 between 01:00 PM and 03:00 PM. He found the following ante- mortem external injuries:
"1. Abrasion on the front of the neck.
2. subluxation of cervical spine at C5 level."
He did not find any ligature mark. He opined that the cause of death was due to cardio-respiratory failure due to subluxation of cervical spine. Time of death was approximately 20 to 25 hours prior to his examination. He issued Ex.P9-post-mortem examination report. In the cross examination, he admitted that by falling on hard surface with head down, the injury No.2 noted in Ex.P9-post-mortem examination report is possible. He 18 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 further stated that in the event of hanging, there would be ligature marks over the neck.
28. In the instant case, Ex.P1-report was lodged by PW.1 on 31.12.2011 at about 08:00 hours. Basing on the said report, Crime No.131 of 2011 was registered under Section 174 Cr.P.C. In Ex.P1-report, it is mentioned that the deceased might have committed suicide by hanging, as she was suffering from stomach ache since long time. There is no mention that the accused caused the subject death of the deceased. Though PWs.4, 5 and 8, the material witnesses, have stated that the deceased was found hanging, Ex.P6-inquest report, Ex.P2- photographs and the evidence of PWs.1 to 3, do not reveal that the deceased was found hanging. There is no panchanama to show that the deceased was hanging from the roof. The deceased was found lying on the floor. There is no material evidence to arrive at a conclusion that the deceased was hanged to death. Furthermore, no ligature mark was found over the neck of the deceased. As admitted by PW.13-Doctor, there would be a ligature mark around the neck in the event of hanging. The evidence of PW.13-Doctor contradicts the statement of PWs.4, 5 and 8 that the deceased was found 19 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 hanging from the roof. Absolutely, there is no evidence to hold that the deceased was found hanging.
29. Further, PW.4-son of the deceased deposed that when he returned home at about 04:00 PM on the date of alleged incident, he saw the accused running out of his house holding chappals in his hand and was heavily sweating. In the cross- examination, he admitted that he did not make such a statement before the police. For the first time, PW.4, in his chief examination, introduced that he saw the accused running away out of his house on the date of alleged incident. PW.8 deposed before the Court that on the date of alleged incident, she saw the accused running out of the house of PW.3 at about 03:00 PM and the accused was heavily sweating and he went away on his scooter. It is to be noted that her statement was recorded three months after the subject death. PW.7 deposed that the accused and the deceased used to prepare gudumba and sell it and he saw the accused and the deceased travelling on a two wheeler at about 02:30 PM and they were going towards the house of PW.3 on the date of alleged incident. His statement was also recorded three months after the date of alleged incident. Further, he had not seen the accused entering into the house of 20 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 PW.3. In Ex.P1-report, which was given on the next day of the alleged incident, there is no mention that the accused caused the subject death of the deceased, but it is mentioned that the deceased might have committed suicide by hanging, due to stomach ache. After post-mortem examination only, PW.1 suspected that the subject death is not suicide. PW.2, who is the mother of the deceased, also deposed that after postmortem examination, she suspected the involvement of the accused. PW.3, husband of the deceased, deposed that the accused is his friend and he used to visit his house. On the date of incident, he went to Medak to join his daughter in a hostel. On his arrival to his house, he found the dead body of his wife lying on the floor. Furthermore, none of the witnesses have seen the accused entering into the house of the deceased. None of the witnesses heard any galata made by the deceased before her death. Even before Ex.P1 is lodged with the police, PW.4 did not state to PWs.1 to 3 that he saw the accused coming out of his house holding chappals and heavily sweating. Even PW.4 did not state the same to police in the course of recording his statement under Section 161 Cr.P.C. The statements of PWs.7 and 8 were recorded after three months of the alleged incident.
21 Dr.SA,J & NTR,J Crl.A.No.571 of 2014
30. It is also pertinent to state that there is material omission in the evidence of PW.4, as indicated above. Furthermore, the Court below opined that the subject death is homicidal. As seen from the evidence of PW.13-Doctor, the injury No.2, which is vital in nature and is sufficient to cause death, is also possible by falling on a hard surface in head down position. In all cases of hanging, there should be a ligature mark, particularly around the neck and since it is absent in the instant case, it falsifies the evidence of PW.4 and other circumstantial witnesses. There is no documentary evidence, except the oral evidence, to prove that the deceased was hanging to the roof. In view of the evidence of PW.13-Doctor, the oral evidence of PWs.4, 5 and 8 was discarded. Merely because the accused was frequently going to the house of the deceased and merely because the accused and the deceased were seen together on the date of alleged incident, it is not appropriate to arrive at a conclusion and hold that the accused had caused the subject death of the deceased. Further, the evidence placed on record by the prosecution is not cogent and convincing to establish that the accused had any illicit relation with the deceased or motive to enter into the house of the deceased and cause the subject 22 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 death. In view of the evidence on record, it is not proper to hold that the subject death is homicidal.
31. The circumstantial evidence taken cumulatively do not form a chain so complete to establish that in all human probability the subject death was caused by the accused and none else. As held by the Honourable Apex Court in Sharad Birdhi Chand Sarda'case (supra), in order to sustain conviction, the chain of evidence must be complete and incapable of explanation of any other hypothesis, except that the accused is guilty and that should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. There is no such evidence on record to arrive at a conclusion, which is consistent with the guilt of the accused. The circumstances do not establish that the accused is the person who entered into the house of the deceased and caused the subject death. It is unsafe to place reliance over the testimony of PW.4-son of the deceased and PWs.7 and 8- neighbours of the deceased, as their evidence does not inspire confidence. The Court below erred in holding that the accused is guilty of the subject death of the deceased by placing reliance over the evidence of PWs.4, 7 and 8. In view of the above 23 Dr.SA,J & NTR,J Crl.A.No.571 of 2014 findings and the discussion, the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. The Court below ought not have convicted and sentenced the accused of the offence under Section 302 I.P.C.
32. In the result, this Criminal Appeal is allowed and the conviction and sentence recorded against the appellant/accused of the offence under Section 302 I.P.C. vide judgment, dated 01.05.2014, passed in S.C.No.583 of 2012 by the learned VI Additional Sessions Judge, Godavarikhani, is set aside. Consequently, the appellant/accused is acquitted of the offence under Section 302 I.P.C. The fine amount, if any, paid by the appellant/accused shall be refunded to him. The appellant/ accused shall be released forthwith, if he is not required in any other case.
Miscellaneous Petitions, if any, pending in this Criminal Appeal, shall stand closed.
______________________ Dr. SHAMEEM AKTHER, J ______________________ N. TUKARAMJI, J Date: 07-07-2022 Note: Mark L.R. Copy (b/o) MD/BVV