Andhra HC (Pre-Telangana)
Bala Subbarayudu vs State Of Andhra Pradesh on 18 November, 1993
Equivalent citations: 1994(1)ALT181, 1994(2)ALT(CRI)371, 1994CRILJ1484
JUDGMENT M.N. Rao, J.
1. The sole accused in S.C. No. 73 of 1992 on the file of the learned II Additional Sessions Judge, Cuddapah, is the appellant. He was convicted by the learned Judge under section 302 I.P.C. and sentenced to suffer imprisonment for life for committing the murder of his wife - Shantamma - by throttling her on 10-11-1991 at his house situated in Harijanawada of Kamalapuram village, .........
2. In brief, the case of the prosecution is as follows :
The deceased - Shantamma was the wife of the accused. PW 2, Gangamma, is the mother of the deceased. One month prior to the incident in question, the accused had criminally assaulted his wife (the deceased) and in connection with that, a criminal case under Section 307 IPC was filed against him. The accused was arrested in connection with that case and about two days prior to the incident in question, he was released on bail. On the date of the incident, the accused came to the house of PW 2 and took the deceased with him to Kamalapuram village, which is at a distance of two furlongs from Ramachandrapuram - the village where PW 2 was residing. The next morning, Chennaiah, PW 1, - a villager - found the dead body of the deceased in the house of the accused on a cot in the Harijanwada of Kamalapuram. Forth and blood were oozing from the mouth of the deceased and no one was present in the house. The complaint, Ex. P1, given by PW 1 was registered by PW 6, the Sub-Inspector of Police, Kamalapuram as Crime No. 105/91 under section 174 Cr.P.C. and issued Ex. P3, FIR. He conducted inquest over the dead body and at the inquest, he examined PW 2, the mother of the deceased, and others. The body was sent for post-mortem examination and after receiving the post-mortem certificate, he altered the section of law from Section 174 Cr.P.C. to Section 302 IPC; Ex. P4 is the altered FIR. The post-mortem certificate, Ex. P5, was filed by PW 6, the Sub-Inspector of Police. The evidence of PW 3, the daughter of the deceased aged about 10 years, was to the effect that on the date of the incident, in the evening, her father (the accused) came and took away her mother (the deceased) to his house and when she wanted to accompany, the accused did not allow her to accompany them. At that time, she was residing with her grand-mother, PW 2, at Ramachandrapuram. The plea of the accused was one total denial. The learned Additional Sessions Judge considering the circumstantial evidence found the accused guilty of the offence under Section 302 IPC and sentenced him to suffer imprisonment for life.
3. Smt. Bhaskara Lakshmi, learned counsel for the appellant, contends that the circumstantial evidence available on record is not sufficient to connect the accused with the crime in question. No one had seen the deceased in the house of the accused on the fateful night. The motive aspect, which assumes great relevance in cases resting on circumstantial evidence, the prosecution has failed to prove in this case. When the accused was released from jail, two days prior to the incident, it is difficult to believe that PW 2 had agreed to send her daughter, the deceased, along with the accused to the house of the latter in a different village and that too, without anybody accompanying her.
4. Controverting these contentions, the learned Public Prosecutor says that a formal lapse had crept in when the prosecution has adduced evidence in the case; the doctor, who conducted post-mortem examination on the body of the deceased was not examined and, therefore, this court, in the exercise of its powers under Section 391 Cr.P.C. may examine the doctor in the interests of justice. If the contents of the post-mortem certificate, ex. P5, are brought on record, he says, the cause of the death will be established and coupled with the circumstantial evidence which is already on record, the view taken by the learned Additional Sessions Judge cannot be faulted.
5. The first question to be considered concerns the cause of the death of the deceased.
6. In order to decide this question, the most crucial evidence is that of the doctor who conducted autopsy on the body of the deceased. The Public Prosecutor, who conducted the prosecution in the trial court, has filed a memo on 26-10-1992 in that court stating that the prosecution was giving up the evidence of the doctor and another witness although they both were cited as list of witnesses. Under Section 391 of the Code of Criminal Procedure, the appellate court has power to take further evidence if it thinks that additional evidence "is necessary" or it may direct a Magistrate or a court of Session to take such evidence. The power under Section 391 of the Code of Criminal Procedure cannot be exercised if the prosecution had ample opportunity to examine a witness but refrained from doing so, especially when a memo was filed giving up a witness.
7. In Bir Singh v. State of U.P., it was observed (Para 11) :
"It is well settled that though an appellate court has power to take additional evidence in a suitable case, yet the discretion should not be exercised to fill up gaps or lacunae in the prosecution evidence. If the prosecution was serious about this matter, there was no reason why Ejaz Hussain could not be examined before the Sessions Court. The prosecution therefore, appears to have accepted the plea of the Investigating Officer and left it at that. In these circumstances, the High Court was not correct in exercising its discretion in examining Ejaz Hussain in its appellate jurisdiction".
The ruling relied upon by the learned Public Prosecutor - Raghunandan v. State of U.P., has no application to the facts of the instant case. In the case before the Supreme Court, the doctor was examined at the trial but certain relevant questions were not put by the prosecution, and the trial court also did not ask those questions. The Supreme Court, therefore, held (Para 9) :
"If the trial court had failed to consider their importance, the High Court could have and should have taken further evidence on this matter under section 540 Cr.P.C. In a criminal case, the fate of the proceedings cannot always be left entirely in the hands of the parties. The court has also a duty to see that essential questions are not, so far as reasonably possible, left unanswered."
The aforesaid statement of law, we think, has no application to a case where the prosecution had deliberately given up the evidence of the doctor by filing a memo to that effect. It is settled law that the power under section 391 of the Code of Criminal Procedure cannot be exercised for the purpose of filling up the gaps in the case of the prosecution.
8. The effect of the non-examination of the doctor, who conducted the post-mortem examination of the deceased, is that there is no evidence on record as to the cause of death of the deceased. It cannot, therefore, be said that the deceased had met with homicidal death at the hands of the accused.
9. Even otherwise, we are of the view that the prosecution case is unworthy of credence. One month prior to the incident in question, it is the admittd case of the prosecution, the accused was arrested for the offence of attempting to commit the murder of his wife, the deceased. He was in jail and released on bail only two days prior to the incident. No mother, in such a situation, would agree to send her daughter with her husband, who had attempted to do away with her by indulging in a murderous attack only thirty days back. We are, therefore, unable to accept the testimony of PW 3, the daughter of the deceased. According to the prosecution, the motive for the commission of the offence is that the accused was suspecting his wife of marital infidelity. On this, there is no evidence. Viewed in this background, the evidence PW 3, the child witness, that her mother went with the accused on the fateful night to kamalapuram, cannot be given credence.
10. It is settled law that in a case in which the prosecution has relied upon circumstantial evidence, it is its bounden duty to establish every link in the chain of evidence. In the instant case, there are several missing links, as pointed out above.
11. The criminal appeal is, therefore, allowed; the conviction recorded and the sentence awarded by the learned Additional Sessions Judge are set aside and the accused is directed to be set at liberty forthwith, if not required in any other case.
12. Appeal allowed.