Andhra Pradesh High Court - Amravati
Peram Subbarami Reddy, vs The State Of Andhra Pradesh, on 9 December, 2022
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI
CRIMINAL APPEAL No.1433 of 2017
JUDGMENT :(Per Hon'ble Sri Justice C. Praveen Kumar) The present appeal came to be filed challenging the conviction and sentence dated 02.11.2017 in Sessions Case No.66 of 2014 on the file of learned I Additional Sessions Judge, Nellore.
2. Originally, A.1 to A.3 were charged for the offences punishable under Section 498-A of Indian Penal Code, 1860 [for short, "I.P.C.] and against A.1 and A.2 for the offence under Section 302 r/w. Section 34 I.P.C, for causing the death of one Peram Prasanthi on 14.12.2012 at Gandhi Nagar, Buchireddypalem Village and Mandal, SPSR Nellore District.
3. By its judgment, dated 02.11.2017, the learned Sessions Judge while acquitting A.2 and A.3 of all the charges, convicted A.1 alone for the offence punishable under Section 302 r/w. Section 34 I.P.C. and sentenced 2 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 him to suffer Imprisonment for Life and to pay fine of Rs.2000/- in default to suffer Simple Imprisonment for two months. He was also convicted and sentenced to undergo Rigorous Imprisonment for one year for the offence punishable under Section 498-A I.P.C. and to pay fine of Rs.500/- in default to suffer Simple Imprisonment for fifteen days. The substantive sentences shall run concurrently.
4. The facts, as culled out from the evidence of prosecution witnesses, are as under:-
(a) The deceased Prasanthi was the wife of A.1. A.2 is the brother of A.1 while A.3 is the mother of A.1 and A.2.
A.4 who was originally shown as accused in the First Information Report [F.I.R.] is the wife of A.2. Later, A.4 was cited as a witness in the Charge Sheet as L.W.6 and examined as P.W.4. P.W.1 is the father, P.W.2 is the brother, P.Ws.3 and 6 are neighbours of the deceased. The marriage of A.1 with the deceased took place about nine years prior to the incident and they were blessed with a son, who was aged about six years at the time of incident. 3
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(b) At the time of marriage, P.W.1 gave Ac.1.00 cents of land, fourteen sovereigns of gold and cash of Rs.50,000/- to A.1. They were blessed with son, aged about six years at the time of incident. It is said that the deceased informed P.W.1 about A.1 harassing her on the instigation of A.2 and A.3, for a second marriage. But, however, P.W.1 was insisting the deceased to adjust her with A.1. It was stated that four months prior to the incident, A.1 tried to kill the deceased by electrocution. P.W.1 along with others went to Buchireddypalem Village and questioned him about the attitude of the accused towards the deceased and also advised him to mend his ways. Then, A.1 promised to look after the deceased properly.
(c) It is said that about fifteen days prior to the incident, A.1 and A.3 necked out the deceased from the house, which was informed by her to P.W.1, who along with others went to the house of the accused, to which A.1 promised to look after the deceased properly. It is said that on the fateful day, in the early hours, A.1 telephoned to one Gudala Sanjeeva Reddy and informed about the death 4 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 of the deceased. Pursuant to which, all of them went to Buchireddypalem at 8.00 a.m. and found the dead body of the deceased lying in the house. But the accused A.1 to A.3 were not in the house. They found injuries on the neck and also on her face. Their enquiries with the neighbours revealed that since two or three days, there were quarrels between the deceased and A.1. Accordingly, at about 2.00 p.m. P.W.1 went to Police Station and lodged a report with P.W.8-Assistant Sub-Inspector of Police, which lead to registration of a case in Crime No.182 of 2012 under Section 174 Cr.P.C. Ex.P6 is the F.I.R. Thereafter, P.W.8 visited the scene of offence and observed the same.
(d) P.W.11-Inspector of Police, who took up investigation, went to the house of the accused, secured the presence of V.R.O, examined the scene of offence which is marked as Ex.P4. He also got prepared a rough sketch of the same which is marked as Ex.P9. He then held inquest over the dead body of the deceased on 16.12.2012 and issued Ex.P5-inquest report. During the inquest, he examined P.Ws.1 and 2 and others and recorded their statements. After completing the inquest, he sent the body 5 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 for Post Mortem examination. P.W.9-Medical Officer, U.P. Graded Primary Health Centre, Buchireddypalem, conducted Post Mortem examination on the dead body of the deceased and issued Ex.P8-Post Mortem Certificate. According to him, the cause of death was due to Asphyxia due to throttling. Having regard to the suspicious circumstances, in which death took place, P.W.8 altered the section of law to one Section 302 r/w. Section 34 I.P.C. on 18.12.2012. Ex.P7 is the altered F.I.R. P.W.11- Inspector of Police who continued with the investigation, arrested A.1 to A.3 on 20.12.2012.
5. After collecting all the necessary documents, PW.11 filed a charge sheet, which was taken on file as P.R.C.No.31 of 2013 on the file of the learned Additional Judicial Magistrate of First Class, Kovur for the offences punishable under Section 498-A, 302 r/w. Section 34 I.P.C.
6. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C. were supplied to them. As the case is triable by Court of 6 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 Sessions, the same was committed to the Court of Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned I Additional Sessions Judge, Nellore for trial and disposal in accordance with law.
7. Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, they pleaded not guilty and claimed to be tried.
8. To substantiate its case, the prosecution examined P.Ws.1 to 11 and got marked Exs.P1 to P16 and M.O.1 to M.O.8.
9. After the closure of Prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses, to which, they denied. However, they did not adduce any evidence except marking Ex.D1-Portion of Section 161 Cr.P.C. statement of P.W.1 in support of their plea. Relying upon the evidence of P.W.1 to 3 and 6 and in the absence of any explanation 7 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 by the accused, the learned Sessions Judge while acquitting A.2 and A.3, convicted A.1 alone for the offence punishable under Sections 498-A and 302 r/w. Section 34 I.P.C. It is against the said conviction and sentence, the present appeal came to be filed by appellant/A.1.
10. Sri H. Prahalada Reddy, learned counsel for the appellant/A.1 mainly submits that there is no legal evidence to connect the accused with the crime. According to him, when two other inmates of the house were acquitted, the trial Court erred in convicting A.1 alone by invoking Section 106 of the Indian Evidence Act, 1872. He further submits that before invoking Section 106 of the Indian Evidence Act, the prosecution has to prove its case and thereafter the burden shifts on to the accused to explain the circumstances, under which, the death took place. Since the prosecution has failed to discharge its initial burden, the trial Court erred in invoking Section 106 of the Indian Evidence Act to convict A.1.
11. Sri Soora Venkata Sainath, learned Additional Public Prosecutor, for the Respondent/State would submit that 8 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 the evidence on record establish beyond reasonable doubt the involvement of the A.1 in the crime. He would submit that when the death took place in his house and when it is an unnatural death, the burden is on the accused to explain as to how the death took place. In the absence of any explanation from the accused as to how the deceased died in his house, the trial Court was right in convicting the appellant/A.1.
12. The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt?
13. Before proceeding further, it is to be noted here that one Peram Venkta Ramanamma, who is the wife of A.2, was initially shown as A.4 in the F.I.R. Subsequently, she turned as an approver and her Section 164 Cr.P.C. statement was recorded, which is placed on record as Ex.P2. When examined in Court as P.W.4, she resiled from her earlier statements and did not support the prosecution case. But, however, she stated that her statement was recorded by Magistrate under Section 164 Cr.P.C. 9
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14. As seen from the evidence available on record, there are no eye witnesses to the incident and the case rests on circumstantial evidence. In a case arising out of circumstantial evidence, the prosecution has to prove each of the circumstance relied upon by them and the circumstances so proved should form a chain of events to connect the accused with the crime.
15. It is now to be seen, whether the circumstances relied upon by the prosecution are proved and whether the trial Court was right in invoking Section 106 of the Indian Evidence Act, 1872?
16. P.W.1 is the father of the deceased. He in his evidence deposed about the marriage between A.1 and the deceased taking place about nine years prior to the incident and giving Ac.1.00 cents of land, fourteen sovereigns of gold and Rs.50,000/- cash to A.1. He, also speaks about A.1 harassing the deceased on the instigation of A.2 and A.3 for second marriage of A.1 and on one occasion, A.1 tried to kill the deceased by electrocution. His evidence also refers to A.1 to A.3 necking out the 10 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 deceased from the house about fifteen days prior to the incident. Ultimately, the information about the death of the deceased was said to have been furnished by one Gudala Sanjeeva Reddy. Pursuant to which, all of them went to the house of A.1 at Buchireddypalem Village and found the deceased lying in the house.
17. In the cross-examination of P.W.1, various suggestions were given with regard to A.1 to A.3 necking out the deceased from the house; harassment by A.1 to A.3 for the purpose of second marriage of A.1; enquires with neighbours with regard to a quarrel that took place between A.1 and the deceased two or three days prior to the incident. But, all these suggestions were denied. However, when the same were put to P.W.11-Investigating Officer, he stated as under:-
"P.W.1 in Ex.P1 stated that he has suspecting A.4 as involved in the commission of the offence. It is true that P.W.1 did not state before me that Accused No.1 and Accused No.3 necked out the deceased from the matrimonial house 15 days prior to the incident and the same was informed to me by the deceased over phone.
It is true that P.W.1 did not state before me or Ex.P1 that he enquired from the neighbours, who informed him, 11 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 that since two or three days there were quarrels between deceased and accused No.1 and pressing her to take her to Mamuduru Village."
From the evidence of P.W.11 is very much clear that the averments in the evidence of P.W.1 that A.1 and A.3 necked out the deceased out of the house fifteen days prior to the incident and the enquiries made by P.W.1 from the neighbours, which revealed that, A.1 and the deceased were quarrelling three days prior to the incident, were never mentioned when P.W.1 was examined under Section 161 Cr.P.C. and in Ex.P1 report. Apart from that, in the F.I.R, A.4 was suspected as the person responsible for the commission of the offence. However, one fact which stands established from the evidence of P.W.1 and Ex.P2 is that there were four persons in the house at the time of incident. Out of four, one [A.4] was examined as P.W.4.
18. Coming to the evidence of P.W.2, he is the son of P.W.1. His evidence toes in line with the evidence of P.W.1 in all aspects. Similar suggestions given to P.W.1 were also given to P.W.2, but he denied the same. When the same 12 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 were put to Investigating Officer [P.W.11], he stated as under:-
"It is true that P.W.2 did not state before me that he along with Accused No.1, Accused No.3 and her husband were also living.
It is true that P.W.2 did not state before me that he came to Buchireddypalem from Hyderabad on the date of incident.
It is true that P.W.2 did not state before me that when they enquired from the neighbours, who informed them that since two or three days there were quarrel between deceased and accused No.1."
19. At this stage, it is also to be noted that P.W.2 in his cross-examination stated that he has stated before Police that he is suspecting L.W.6 also for the death of the deceased. Further, the evidence of P.W.11 also establish the allegations of harassment which was alleged to have been meted out to the deceased, prior to the incident and the enquiries made by P.W.2 revealed quarrels between the accused and the deceased since two or three days, were never mentioned by him in his earlier statement. But, however, the evidence of P.W.2 shows presence of four persons in the house. The evidence of P.Ws.1 and 2 also 13 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 gets corroboration from the evidence of Investigating Officer and other witnesses with regard to the presence of four persons in the house.
20. P.W.3 is a neighbour, whose house is situated opposite to the house of the deceased Prasanthi. It is her version that the deceased used to inform her about her husband having illegal contact with another lady and harassing her daily. She also speaks about the act of the accused in trying to kill her by electrocution. On coming to know about the death of the injured, she went to the house and found the body lying in the hall of the house.
21. P.W.3 was cross-examined at length wherein she admits her Section 161 Cr.P.C. statement was recorded in the Police Station, nearly a week or ten days after the death of the deceased. Therefore, much reliance cannot be placed on the evidence of P.W.3, as no explanation is forthcoming as to why it took such a long time for the Police to record her Section 161 Cr.P.C. statement, when she is none other than the neighbour of the deceased and accused.
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22. Apart from that, it is also to be noted that though P.W.3 claims that the deceased was informing, about A.1 having illicit contact with another lady and he wanted to marry, the same is not spoken to by P.Ws.1 and 2
23. Be that as it may, the evidence of Investigating Officer would reveal that there are no eye witnesses to the incident except P.W.4 and the basis for showing A.1 to A.3 as accused in this case, is the statement of P.W.4. It would be appropriate to extract that portion of the evidence of P.W.11-Investigating Officer, which is as under:-
"I have examined the witnesses in and around the house of A.1. It is true that that none of the witnesses examined by me stated that they have seen deceased Prasanthi alive in the company of A.1 to A.3 and P.W.4 either in the house of A.1, outside or at any place. A.1 to A.4 alone are the suspects in both Ex.P6 and Ex.P7. There are no eye witnesses to the occurrence except P.W.4. The basis for showing the accused Nos.1 to 3 as accused in this case is the statement of P.W.4."
24. From the evidence collected by the Investigating agency, P.W.4 [A.4] was projected as eye witness to the incident and even Section 164 Cr.P.C. statement was recorded, but she did not support the prosecution case and 15 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 was treated as hostile to the prosecution case. Therefore, Section 164 Cr.P.C. Statement of this witness though speaks about involvement of A.1 and other accused including her husband A.2 in one form or other, but the same cannot be treated as substantive evidence. It is well established principle of law that the said statement recorded under Section 164 Cr.P.C. statement can only be used to contradict the maker. Therefore, from the evidence available on record, it is very much evident that there is no direct evidence to connect the accused with the crime.
25. At this stage, learned Additional Public Prosecutor tried to contend that since the dead body is found in the house, the burden is on the appellant/accused to explain. But, as held by us earlier, there were four persons including P.W.4, in the house at the time of incident and two of them were tried for the offence under Section 302 r/w. Section 34 I.P.C. Such being the position, when other accused is acquitted of major offence, it is difficult to come to a conclusion that A.1 alone would be liable for the said offence.
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26. For invoking Section 106 of Indian Evidence Act, the Hon'ble Supreme Court in Satye Singh and another vs. State of Uttarakhand1 in Paras 15 and 16 of the said judgment, held as under:-
"15.Applying the said principles to the facts of the present case, the Court is of the opinion that the prosecution had miserably failed to prove the entire chain of circumstances which would unerringly conclude that alleged act was committed by the accused only and none else. Reliance placed by learned advocate Mr. Mishra for the State on Section 106 of the Evidence Act is also misplaced, inasmuch as Section 106 is not intended to relieve the prosecution from discharging its duty to prove the guilt of the accused. In Shambu Nath Mehra vs. State of Ajmer, AIR (1956) SC 404, this Court had aptly explained the scope of Section 106 of the Evidence Act in criminal trial. It was held in para 9:
"9. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relive it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word 1 2022 LiveLaw (SC) 169 17 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show are Attygalle v. Emperor [AIR 1936 PC 169] and Senevitratne v. R. [(1936) 3 ALL ER 36, 49]".
16. In the case on hand, the prosecution having failed to prove the basic facts as alleged against the accused, the burden could not be shifted on the accused by pressing into service the provisions contained in Section 106 of the Evidence Act. There being no cogent evidence adduced by the prosecution to prove the entire chain of circumstances which may compel the court to arrive at the conclusion that the accused only had committed the alleged crime, the Court has no hesitation in holding that the Trial Court and the High Court had committed gross error of law in convicting the accused for the alleged crime, merely on the basis of the suspicion, conjectures and surmises."
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27. Similarly, in Joydeb Patra and others vs. State of West Bengal2 , it was held as under:-
"10. xxxxx This Court has repeatedly held that the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged that the accused could prove any fact within his special knowledge under Section 106 of the Evidence Act to establish that he was not guilty. In Sucha Singh v. State of Punjab [(2001) 4 SCC 375 : 2001 SCC (Cri) 717] this Court held: (SCC p. 381, para 19) "19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference."
Similarly, in Vikramjit Singh v. State of Punjab [(2006) 12 SCC 306 : (2007) 1 SCC (Cri) 732] this Court reiterated:
(SCC p. 313, para 14) "14. Section 106 of the Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved 2 AIR 2013 SC 2878 19 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule e.g. where burden of proof may be imposed upon the accused by reason of a statute."
28. From the two judgments referred to above, it is very much clear that before invoking Section 106 of Indian Evidence Act, 1872, the initial burden is on the prosecution to prove its case and thereafter the onus shifts to the accused for explaining the same. As stated earlier, in the instant case, the prosecution failed to discharge its initial burden of proving its case beyond doubt.
29. Further, as there are more than one person in the house at the time of incident and as all of them were acquitted except the appellant, it cannot be pointed out with certainty that A.1 alone would be responsible for the death of the deceased. The situation identical to the case on hand came up for consideration before the Hon'ble Supreme Court in Baul and another vs. The State of Uttar Predesh3. In the said case, two accused were 3 AIR 1968 SC 728 20 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 convicted by the Sessions Court under Section 302 r/w. Section 34 I.P.C. and one of them alone was convicted under Section 302 I.P.C. by the High Court in appeal. The Hon'ble Supreme Court held that the other accused cannot be convicted under Section 302 simpliciter in the absence of proof of exact nature of injuries caused by each of the accused and it was held that it is safe to convict the accused under Section 325 I.P.C. instead of Section 302 I.P.C. The situation is somewhat identical in the case on hand as well.
30. As stated by us earlier, the facts in the judgment referred to above, is somewhat identical to the case on hand, therefore, we feel that it may not be safe to convict the accused either under Section 302 simpliciter or Section 302 r/w. Section 34 I.P.C. by invoking Section 106 of Indian Evidence Act. At this stage, learned Additional Public Prosecutor tried to contend that the evidence of P.W.6, who is a neighbour, would reveal that there was a quarrel between the deceased and A.1. The deceased informed P.W.6 about four months prior to the incident that the accused tried to kill her by electrocution and 21 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 pursuant to a mediation held, the accused brought back the deceased and thereafter the incident in question took place. It may be true that P.W.6 in her evidence in chief deposed about the harassment by the accused and the quarrel which ensured between them. But, one fact which requires to be noted that merely because there was an attempt to kill the deceased by A.1 about four months prior to the incident, one cannot draw an inference that it would be A.1 alone who could have caused the death on 15.12.2012. At the most, the said evidence may establish the allegations of cruelty by A.1.
31. Having regard to the evidence of Investigating Officer referred to above, wherein he admits that the entire case is based on the statement of P.W.4 [A.4], who did not support the prosecution case] coupled with the fact that none of the witnesses stated about they have seeing the deceased alive in the company of A.1 to A.3, either in the house of A.1 or outside the house; since the evidence of P.Ws.1 to 3 is a complete improvement from what they have stated in their earlier statements with regard to harassment which took place fifteen days prior to the incident and also the quarrel 22 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 between the accused and the deceased two or three days prior to the incident; and since four persons including P.W.4 who were present in the house, out of whom one was acquitted even in respect of a major charge, we feel that it is not safe to convict A.1 for the offence under Section 302 I.P.C. But, the nature of averments in the evidence of prosecution witnesses, would clearly establish an offence under Section 498-A I.P.C.
32. Accordingly, the Criminal Appeal is allowed in part. The conviction and sentence recorded against the appellant/A.1 in the Judgment dated 02.11.2017 in Sessions Case No.66 of 2014 on the file I Additional Sessions Judge, Nellore for the offence punishable under Section 302 r/w. Section 34 I.P.C, is set aside and the appellant/A.1 is acquitted for the offence under Section 302 r/w. Section 34 I.P.C. However, the conviction and sentence recorded against the appellant/A.1 for the offence punishable under Section 498-A I.P.C. is hereby confirmed. Consequently, the appellant/accused shall be set at liberty forthwith, if he is not required in any other 23 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 case or crime. The fine amount, if any, paid by the appellant/A.1 shall be refunded to him.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR ___________________________________ JUSTICE B.V.L.N. CHAKRAVARTHI Date: 09.12.2022 MS 24 CPK, J & BVLNC, J Crl.A.No.1433 of 2017 THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI CRIMINAL APPEAL NO.1433 OF 2017 (Per Hon'ble Sri Justice C. Praveen Kumar) DATE:09.12.2022 MS