Andhra HC (Pre-Telangana)
Pothuri @ Koduri Pochamma vs The State Of A.P., Rep. By Public ... on 16 April, 2014
Bench: L. Narasimha Reddy, M.S.K.Jaiswal
THE HONBLE SRI JUSTICE L. NARASIMHA REDDY AND THE HONBLE SRI JUSTICE M.S.K.JAISWAL
CRL.A.Nos.381 of 2012 and batch
16-04-2014.
POTHURI @ KODURI POCHAMMA.... APPELLANT/ACCUSED No.10
THE STATE OF A.P., REP. BY PUBLIC PROSECUTOR, HIGH COURT OF A.P.,
HYDERABAD..RESPONDENT/ COMPLAINANT
Counsel for the petitioner: Sri K. Vasudeva Reddy
Counsel.
Counsel for the respondent: Public Prosecutor
<Gist:
>Head Note:
? CITATIONS:
THE HONBLE SRI JUSTICE L. NARASIMHA REDDY
AND
THE HONBLE SRI JUSTICE M.S.K.JAISWAL
CRIMINAL APPEAL Nos.381, 458 & 464 of 2012
COMMON JUDGMENT:(Per the Honble Sri Justice L. Narasimha Reddy) This is a rare case, in which, the efforts made by the wife of an elected representative, to protect her family boomeranged and resulted in imprisonment of herself, her relations and womenfolk that supported her. Fortunately for her, the record speaks for itself, and unfortunately for her, the trial Court has taken an erratic view.
A1 is the wife of PW.2, a member of Mandal Parishad Territorial Constituency of Manwada, Karimnagar District. The deceased, by name, Radha was married to one Mr Lyagala Balaiah. That gentleman is employed in Gulf countries. It was alleged that Radha developed illicit intimacy with a police constable at her-in- laws place, Ellanthakunta. Her mother-in-law and sister-in-law are said to have raised objection for this. The mother of Radha, PW.3, filed a complaint against those two women. The dispute is said to have been resolved in a panchayat, with the participation of PW.2. Radha was said to have been admonished.
A turn, comparable to the one, in The Helen of Troy, took place in the instant case. PW.2 brought Radha with him to Vemulawada, as a kept mistress and set up a family, by taking the premises of PW.1, on rent w.e.f 18.08.2009, even while the brother of Radha, PW.4 was in search of his sister for 4 or 5 days, and A1 was equally worried about the missing of her husband, for the same length of time. They ultimately came to know that Radha and PW.2 were living at Vemulawada. Thereupon, A1 and her relations, and friends A2 to A11 came to that place, and accosted Radha about her affair with PW.2. When the altercation was taking place, a local stringer became active with T.V.camera, and the incident was telecast, and on seeing that, the police arrived at the place.
Stating that, some injuries were received by Radha in abdomen, she was admitted in Amrutha Nursing Home at Vemulawada being run by PW.5. Curiously, enough, a complaint was submitted by the owner of the house of PW.1 narrating the incident. Crime No.204 of 2009 was registered by P.S. Vemulawada. The mother and brother of Radha, PWs.3 and 4 are also said to have visited her at the Hospital. PW.5 is said to have informed PW.2 that since the abdominal pain of Radha is subsiding, she must be shifted to hospital at Karimnagar or Warangal. However, his advice was not heeded to. Three days thereafter, the patient is said to have been shifted to M.G.Hospital, Warangal. There, she died on 30.08.2009.
The provision in the FIR was altered and procedural steps, such as, preparation of scene of offence panchanama, the inquest and causing postmortem, were taken by the prosecuting agency. A charge sheet was filed against A1 to A11, alleging the offences punishable under Section 302 r/w 149 IPC. All the accused pleaded not guilty. On behalf of the prosecution, PWs.1 to 26 were examined and Exs.P1 to P17 were filed. No Material Objects were recovered. Through its judgment, dated 11.04.2012, the trial Court acquitted A8 and A9, but convicted the rest of the accused for the offences alleged against them. Sentence of imprisonment for life and fine of Rs.200/- each, in default, to undergo Simple Imprisonment for one month, was imposed. Hence, these three appeals.
Sri Venkat Reddy Thipparthi, learned counsel for A1 to A7 and A11, Sri M. Ram Mohan Reddy, learned counsel for A4 and A11 and Sri A. VAsudeva Reddy, learned counsel for A10, submit that the judgment rendered by the trial Court, cannot be sustained either on facts or in law, since there is absolutely no evidence to prove the charges. They submit that the complainant, i.e., PW.1 was totally unrelated to the dispute, and he has ultimately turned hostile. It is also their case that the real culprit in the entire case was PW.2, who eloped with the deceased, and shamelessly, he admitted the illicit relation with the deceased, arranged for the treatment and took other steps, even at the cost of destroying his own family. Learned counsel further submit that though the deceased was alive almost for a week, no effort was made to ascertain her version, much less, to record any dying declaration. They contend that a perusal of the evidence of PW.5 discloses that the patient was complaining of abdominal pain and without even verifying as to whether the pain is referable to any acts or omissions on the part of the accused, the charge sheet was filed. They submit that the death of the deceased was solely on account of the negligence on the part of PW.2 and the police.
Learned Additional Public Prosecutor, on the other hand, submits that the attack made by the accused, on the deceased was video graphed and the trial Court took the same into account. She contends the mere fact that quite large number of witnesses including PW.1, turned hostile, does not make much of difference, as long as, video graphed version is available to the Court. She contends that even if, PW.2 has committed illegality in developing illicit relation by eloping with the deceased, A1 and others ought to have taken steps in accordance with law, than to take law into their hands.
The root cause for the case on hand, is the illicit relation, which, the deceased was maintaining with one person or the other. She was married to one Balaiah, who was employed in Gulf countries. Even from the evidence of PW.3, the mother of the deceased, it is evident that the deceased faced allegations from her mother-in-law and sister-in-law to the effect that she is maintaining illicit relation with others and a case was filed in relation thereto. Curious part of it is that PW.2, who figured as panchayatdar in the dispute, admonished the deceased about her conduct, has himself developed illicit intimacy with her, to the extent of setting up family with her, at Vemulawada.
Normally, in matters of this nature, there would be only allegations, and many a time, adequate proof would not be available. In the instant case, however, PW.2 has the brazenness and audacity to admit that he brought Radha i.e., the deceased with him and started living at Vemulawada by taking a house owned by PW.1 on rent. It is also important to note that PW.2 is an elected representative. Naturally his wife and other family members get enraged when he has stooped down to such low levels and resorted to shameful acts. A1 and others have come to Vemulawada, basically to question PW.2. At that time, he was said to be taking bath. Discussion was undertaken with Radha, and in the meanwhile, an enthusiastic stringer of a TV channel landed there.
Except that there was some altercation and expression of outrage, over the shameful and brazen acts of PW.2 and the deceased, no criminal act has taken place. From a perusal of the deposition of PWs.2 and 5, it becomes clear that admitting the deceased in the hospital was more with a view to protect her from the further on slaught or public gaze. PW.5 stated that the deceased was complaining of abdominal pain, and though he informed PW.2 to take her to a different hospital, the latter kept the deceased in the same hospital, for some days together. The relevant portion of evidence of PW.5, reads as under :
.The said woman was with injuries by the time she was brought to hospital, she complained she suffering from abdominal pain and she was beaten by somebody. She also stated that she was living with one person as kept mistress, his wife and her relatives beat her. There is no relief from the abdominal pain the person who brought the said woman was advised to take her to a hospital at Karimnagar. In spite of it she was there in my house for two days as there were nobody to look after her except another woman. The patient was treated in my hospital for two days. I issued wound certificate in the name of the injured Radha (wound certificate not filed in the Court). I was not examined by the police When ultimately she was taken to the Government Hospital on 29.08.2009, she died one day thereafter.
Any sensible police officer in the place of PWs.24 and 25 would have arranged for the recording of dying declaration of the deceased. The following was elicited from PW.25:
.I did not collect the copy of medical requisition given to the duty doctor Amrutha Nursing home. It is true that PW.5 stated before me that the patient received injuries on her stomach and advised to take the patient to Karimnagar for better treatment. A1 to A7 were remanded to judicial custody by JMFC Vemulawada. It is true that as per investigation the deceased Radha was in Amrutha Nursing home for two days. I did not make any efforts to get the dying declaration of Radha was recorded through Magistrate while she was in Amrutha Nursing Home or in Devishetty Hosptial or she was in MGM Hospital, Warangal. PW.2 did not state before me that A4 and A5 are caught hold of him at the time of incident..
He has also stated that he did not make any G.D entry before he admitted the Radha into a private nursing home. There is a serious doubt about timing of the death of the deceased also. Requisition of Postmortem was received by PW.21, on 01-09-2009. According to the prosecution, the deceased died on 30.08.2009. PW.21 opined that the death has taken place 36 hours prior to the postmortem. The prosecution failed to explain the time gap.
PW.1 is the complainant and he did not support the case of the prosecution. None of the relatives of the deceased submitted a complaint nor did they depose anything serious against the accused. PW.2, the real culprit did not hesitate to depose as a witness and shamelessly he stated that he was living with the deceased by taking premises of PW.1 on lease. PWs.7 to 13 turned hostile. The remaining witnesses are mostly officials or persons like cameraman or panchayatdar witnesses.
This is a rare case in which, not a single material object was recovered or marked. Assuming that the abdominal pain to the deceased occurred as a result of the altercation that took place when A1 to A11 came to Vemulawada, to question the conduct of PW.2, it cannot be said that they had an intention to cause harm to the deceased, much less to kill her. The C.D which was made part of record as Ex.P11 and P12, at the most, would depict the altercation in the house, where PW.2 and the deceased were staying. There is every justification for the accused to become restive, and to question the conduct of PW.2 and the deceased. The record does not disclose that any of the accused has caused any specific injuries, much less any specific over tacts were attributed to them. The very fact that the deceased was otherwise, alright and the police did not feel the necessity get dying declaration recorded shows the non-seriousness of the incident. The judgment of the trial Court cannot be sustained in law or on facts.
In the result, the Criminal Appeals are allowed. The conviction and sentence ordered in S.C.No.181 of 2010 on the file of the III Additional Sessions Judge, Karimnagar, dated 11.04.2012, against the appellants-A1 to A7, A10 and A11, are set aside. The appellants-A1 to A7, A10 and A11 shall be set at liberty forthwith, unless their detention is needed in any other case. The fine amount, if any, paid by the appellants-A1 to A7, A10 and A11 shall be refunded to them. We direct the Superintendent of Police, Karimnagar, to consider the feasibility of initiating proceedings in accordance with law, against Lyagala Balaiah, PW.2 for the illegal acts resorted to by him.
__________________________ L.NARASIMHA REDDY, J.
__________________________ M.S.K. JAISWAL, J.
Date : 16.04.2014