Andhra Pradesh High Court - Amravati
Boya Badannagari Laxmanna, ... vs The State, Rep. By P.P., Hyderabad. on 14 December, 2022
1
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.345 OF 2010
JUDGMENT:-
This Criminal Appeal is filed by the Appellant against the judgment, dated 26.02.2010 in S.C.No.154 of 2009, on the file of the Principal Sessions Judge, Kurnool, challenging the judgment therein where under, the learned Principal Sessions Judge, Kurnool, as against the charge under Section 302 of Indian Penal Code ("I.P.C." for short) framed against the accused, found him guilty under Section 304 Part I of I.P.C. and sentenced him to suffer rigorous imprisonment for three years and to pay fine of Rs.2,000/- in default to suffer simple imprisonment for three months.
2) The appellant is the accused in the above Sessions Case, who faced charge under Section 302 of I.P.C.
3) The parties to this Criminal Appeal will hereinafter be referred as described before the trial Court for the sake of convenience.
4) The case of the prosecution, in brief, according to the charge sheet filed by the Inspector of Police, Dhone Police 2 Station in Crime No.132 of 2008 under Sections 498A and 302 of I.P.C. is as follows:
(i) The accused is resident of Siddanagattu Village. Boya Maddamma (hereinafter be referred to as "deceased") is native of Ketharam Village, Orvakal Mandal. She is the daughter of L.W.1-Boya Nagalaxmamma and LW.2-Boya Sreeramulu and L.W.3-Boya Chinna Maddaiah is paternal uncle of the deceased.
The marriage between the accused and deceased was performed six years back and they had also children. They lived happily for some time and after that disputes arose between them, as the accused suspected fidelity of the deceased. Accused used to beat the deceased indiscriminately. The defacto-complainant, the mother of the deceased (L.W.1) intervened and pacified the ill-feelings. But, there was no change in the attitude of the accused.
(ii) On 16.08.2008 at about 7-00 P.M. L.W.3-Boya Chinna Maddaiah, L.W.4-Boya Roshamma, L.W.5-Thimmaiah Gari Madhavaswamy, heard cries and galata of the accused and deceased. Then they went to the house of the accused and reprimanded them. By then, the accused was holding a mudguard of jeep in his hand. After reprimanding the accused, 3 they were returning to their home. They heard loud cry of the deceased. Then, they found that accused beaten the deceased on the head indiscriminately, as such, she fell down and dead. Accused left the place after the death of deceased. L.W.3 informed the death intimation to the L.W.1 by phone. L.W.1 presented a report to the police and Head Constable 825 registered it as a case in Crime No.132 of 2008 under Sections 498A and 302 of I.P.C. and issued F.I.R. L.W.13 intimated the incident to Inspector of Police, L.W.14. Then, L.W.14 reached the Veldurthy Police Station and received copy of F.I.R. and took up investigation. He reached the scene of offence, conducted inquest over the dead body of deceased in the presence of panchayatdars and thereafter, sent the dead body of deceased for postmortem examination. L.W.12-Dr. G. Visweswaraiah, Civil Assistant Surgeon, conducted postmortem over the dead body of the deceased and issued postmortem certificate stating that deceased appears to have died of due to severe head injury.
(iii) On 23.08.2008 at about 12-00 noon L.W.14 arrested the accused at V.S.S. Bus stage of Siddanagattu village, the road leading to Ramallakota-Kalvabugga road in the presence of 4 L.W.9-G.V. Rama Reddy, L.W.10-N. Bhagavanth Reddy, the mediators and prepared the arrest and confessional panchanama. In pursuance of the confession of the accused, on 23.08.2008 at 2-00 P.M. L.W.14 seized the jeep mudguard in the presence of mediators under the cover of seizure panchanama at the hayrick yard of accused. L.W.14 sent the blood stained clothes of the deceased to L.W.11 wherein he opined that human blood is detected. The cause of death of deceased was due to shock and hemorrhage due to severe head injuries, according to the postmortem examination. Hence, the charge sheet.
5) The Judicial Magistrate of First Class, Dhone, took cognizance under Sections 498A and 302 of I.P.C. and after appearance of the accused and after complying necessary formalities, under Section 209 of Criminal Procedure Code ("Cr.P.C." for short) committed the case to the Court of Sessions by virtue of committal order, dated 19.03.2009 and thereupon, it was assigned with Sessions Case Number.
6) On appearance of the accused before the Court below and after following the procedure under Section 228 of Cr.P.C., charges under Sections 498A and 302 of I.P.C. were 5 framed and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried. During the course of trial, on behalf of the prosecution, P.Ws.1 to 10 were examined and Exs.P.1 to P.17 were marked. Further M.Os.1 to 6 were marked. After evidence of prosecution was completed, accused was examined under Section 313 of Cr.P.C., for which he denied the incriminating circumstances and stated that he has no defence witnesses.
7) The learned Principal Sessions Judge, Kurnool, on hearing both sides and on considering the oral as well as documentary evidence on record, found the accused guilty of the offence under Section 304 Part I of I.P.C. instead of Section 302 of I.P.C. and accordingly, convicted him and sentenced him as above. Aggrieved by the unsuccessful accused filed the present Criminal Appeal challenging the conviction. As against the order of acquittal under Section 302 of I.P.C., the State did not prefer any appeal.
8) Now, in deciding this Criminal Appeal, the point that arise for consideration is whether the prosecution has proved before the Court below that accused committed the offence of 6 culpable homicide not amounting to murder, beyond reasonable doubt?
9) To bring home the guilt against the accused, the prosecution examined, as pointed out, as many as ten witnesses. Turning to the evidence of P.W.1, who is the defacto-complainant, she did not support the case of the prosecution. P.Ws.2 and 3 did not support the case of the prosecution. P.W.4 did not support the case of the prosecution. P.W.5 did not support the case of the prosecution.
10) The evidence of P.W.1 is that the marriage of her daughter i.e., deceased was performed with the accused. They were blessed with two children. Accused and deceased lived together happily at Siddanagattu Village till the death of her daughter Maddamma. The accused did not suspect the fidelity of deceased at any time. Somebody informed her about the death of her daughter. Nobody informed her about the cause and manner of death of her daughter. She did not lodge complaint to the police. At the request of police, she affixed her thumb mark on the complaint. Ex.P.1 is the thumb mark. Police did not examine her and record her statement. Prosecution has got declared her as hostile and during the cross 7 examination she denied that she stated before the police that the accused suspected the fidelity of the deceased and that he beat her daughter with jeep mudguard and caused death and that she died, as in Ex.P.2 and that she is deposing false.
11) P.W.2 deposed that accused and deceased lived together happily. He is the father of the deceased. Accused did not suspect the fidelity of deceased during her life time. His daughter did not state anything to him against the accused. He saw the dead body of his daughter at Siddanagattu Village. Nobody told him about the manner and cause of death of his daughter. Police did not examine him and record his statement. Prosecution has got declared him as hostile and during the cross examination he denied that he stated before the police as in Ex.P.3.
12) Coming to the evidence of P.W.3 accused and deceased lived together happily. Accused did not suspect the fidelity of the deceased. He does not know the cause and manner of death of deceased, as he was not in the village on that day. Prosecution has got declared him as hostile and during the cross examination he denied that he stated before the police as in Ex.P.4.
8
13) Coming to the evidence of P.W.4 accused and deceased lived together happily. Accused did not suspect the fidelity of the deceased. Deceased died by falling from the building. Police did not examine him. Prosecution has got declared her as hostile and during the cross examination she denied that she stated before the police as in Ex.P.5.
14) Turning to the evidence of P.W.5, accused and deceased lived together during the life time of the deceased. He does not know the cause and manner of death of Maddamma and he does not anything about the case. Prosecution has got declared him as hostile and during the cross examination he denied that he stated before the police as in Ex.P.6.
15) P.W.6 is the mediator and according to him, he is Village Revenue Officer of Siddanagattu Village and he acted as panchayatdar at the time of inquest over the dead body of deceased. Police examined him and recorded the statements of parents and relatives of the deceased. He found injury on the head of the deceased at the time of inquest. Police seized M.O.3, M.O.4, M.O.5, M.O.1 and M.O.2. Ex.P.7 is the inquest report.
16) P.W.7 is the Civil Assistant Surgeon, who conducted autopsy over the dead body of the deceased. He spoken as 9 many as 10 injuries over the dead body of the deceased and he opined that the cause of death is shock and hemorrhage due to severe blood injury. Ex.P.8 is the postmortem certificate. The nature of injuries found on the deceased are of lacerated and contusions and abrasions.
17) P.W.8 is the Village Revenue Officer, who was present at the time of arrest of accused and Ex.P.9 is the panchanama at the time of arrest of the accused. In pursuance of the confession, C.I. of Police seized M.O.6 under the cover of panchanama. Ex.P.10 is the same.
18) P.W.9 is the Head Constable, who recorded the statement of P.W.1 and Ex.P.11 is the statement of P.W.1 and basing on it, he registered F.I.R. under Ex.P.12.
19) P.W.10 is the investigating officer, who spoken about the investigation conducted by him.
20) The learned counsel appearing for the appellant would contend that without any basis whatsoever and especially when the so-called direct witnesses to the occurrence including the defacto-complainant turned hostile to the case of the prosecution, the conviction of the accused basing on presumptions and assumptions is not sustainable. Totally, the 10 learned Principal Sessions Judge recorded conviction against the accused by assumptions and presumptions. The learned Judge failed to took into consideration that all the material witnesses turned hostile. Basing on recovery of so-called weapon, conviction cannot be based. The prosecution did not prove the presence of the accused at the time of death of deceased. The trial Judge failed to look into that P.W.6 is a planted witness for the mahazarnama. There are contradictions with regard to M.O.6. Basing on Section 313 of Cr.P.C. examination of the accused that by the time he came to the house, the deceased was with injuries, accused cannot be convicted. Basing on the suspicion, however, grave it may be conviction of the accused is totally unsustainable under law and facts and nothing is there to record an order of conviction against the accused, as such, the appeal is liable to allowed.
21) Sri Y. Jagadeeswara Rao, learned counsel, representing the learned Public Prosecutor, contended that for obvious reasons material witnesses turned hostile to the case of the prosecution. On account of the pressure exerted by the accused, kith and kin of the relatives did not support the case of the prosecution. The learned Judge basing on the recovery of 11 M.O.1 and as the accused failed to explain the circumstances, in which deceased was found with injuries, recorded an order of conviction, as such, he sought to support the judgment of the learned Principal Sessions Court, Kurnool.
22) P.W.1, the mother of the deceased, even according to the case of the prosecution, was not a witness to the occurrence. She came to know about the so-called murder of the deceased through somebody. Though, it is the case of the prosecution that she gave a statement, which was recorded by P.W.9, about the offence in question, she did not support the case of the prosecution. Ex.P.1 is her thumb impression on Ex.P.11 and Ex.P.11 was marked through P.W.9, who recorded the statement from P.W.2. The prosecution cross examined P.W.1 after getting declared as hostile and during cross examination, she denied the case of the prosecution. P.Ws.2, 3, 4 and 5, the so-called direct witnesses to the occurrence, did not support the case of the prosecution. According to them, they do not know how the deceased died and accused never suspected the fidelity of the deceased. During their cross examination, they denied that they stated before police as in Exs.P.3 to P.6. It is no doubt true by virtue of the evidence of the investigating 12 officer i.e., P.W.10 that it is clear that P.Ws.1 to 5 did not support the case of the prosecution.
23) Apart from this, it is the evidence of P.W.4 that the deceased died by falling from the building. Admittedly, the learned Principal Sessions Judge, Kurnool, in the judgment gave finding that the evidence of P.Ws.1 to 5 is not useful to the case of the prosecution. But, certain observations are made by the learned Principal Sessions Judge, Kurnool, basing on the evidence of P.W.9, who claimed to have recorded the statement of P.W.1. This Court can understand a situation that it was within the province of learned Principal Sessions Judge, Kurnool, to comment against P.Ws.1 to 5, in view of the fact that they stated before police as in Exs.P.2 to 6 and obvious reasons they did not support the case of the prosecution. But, while dealing with the evidence of P.W.9, the learned Sessions Judge made an observation that there is no enmity between the accused and P.W.9 and he has no reason to foist a false case against the accused. Further the learned Sessions Judge dealt with the contention of the accused that the deceased died and gave finding that had really the deceased died by slipping from the staircase and falling on the ground, certainly, the accused being 13 husband of the deceased would have complained the same to the police and there are no such a circumstances. This Court is of the considered view that while dealing with the evidence of P.Ws.1 to 5, who exhibited hostility to the case of the prosecution, such stray observations cannot be made that too while appreciating the evidence of P.Ws.1 to 5.
24) So, while dealing with the evidence of P.Ws.1 to 5, the ultimate conclusion of the learned Principal Sessions Judge, Kurnool, was that because they did not support the case of the prosecution, the Court has to look into whether there are any other circumstances to connect the accused with the alleged offence.
25) Admittedly, it is a case that P.W.6, V.R.O., spoken to the fact that he was present at the time of inquest over the dead body of the deceased and Ex.P.7 is the inquest report. The inquest report was held to be proved. Admittedly, considering the evidence of the investigating officer and P.W.6 coupled with Ex.P.7, what the police was able to prove that the inquest was conducted at the place where the dead body was lying. This Court would like to make it clear that the opinion expressed by the inquest panchayatdars in column No.15 that the accused 14 committed murder of the deceased cannot be read in substantive evidence for the reason that P.Ws.1 to 5 did not support the case of the prosecution. Even as held by the learned Principal Sessions Judge, Kurnool, the opinion in column No.15 cannot be taken into account.
26) It is to be noticed that first the prosecution had to prove before the trial Court that the death of the deceased was of homicidal. The learned Principal Sessions Judge, Kurnool, referred the evidence of P.W.7, the medical officer and his noting ten injuries which are in the nature of lacerations on the head and contusions on the eye and further contusions on the part of the upper limbs of the body. According to the evidence of P.W.7 coupled with Ex.P.8, the injuries are sufficient to cause the death of a person in the ordinary course of time. Though, there was no cross examination done on behalf of the accused, but the prosecution did not elicit anything as to whether the so- called injuries, which were found on the body of the deceased, could have been possible with M.O.6.
27) It is to be noticed that P.W.10, the investigating officer, during the course of cross examination dealing with the defence theory that the deceased died by falling from the 15 staircase, deposed in cross examination that there was a sky ventilator to the house of the deceased and accused at Siddanagattu Village. It is true that the projected stones were being used as steps to go to the stairs to the house. So, it was not a regular staircase constructed with due plan. But the projected stones were being used as steps to go to the stairs of the house. Already, the P.W.4 exhibited hostile attitude to the case of the prosecution by deposing that the deceased died by falling from the building. It is no doubt true that P.W.7 in the evidence did not disclose with what weapon those injuries could have been caused to the deceased. There was no opinion at all how the injuries could be caused to the deceased. Even the postmortem report does not disclose the same. The case of the prosecution is that the investigating officer recovered M.O.6. So, during the course of evidence of P.W.7, prosecution did not elicit anything by showing M.O.6 whether the injuries found on the dead body of the deceased could have been caused with M.O.6. When that is not so, the comments made by the learned Principal Sessions Judge, Kurnool that accused did not elicit from P.W.7 whether the death could be possible by falling from the building, deserves no merits. Under the circumstances, the 16 evidence of P.W.7 coupled with Ex.P.8 is benefit of necessary details to show that the death was of a homicidal.
28) Even assuming for a moment, for the reason sake without admitting but it can be taken as death of homicidal one, now the Court has to see that whether there is any other legally admissible evidence to connect the death of the deceased with that of alleged act of the accused.
29) Coming to the evidence of P.W.8, he was the panchayatdar for the so-called arrest of the accused and further the panchanama under Ex.P.9 for arrest of the accused and further to the panchanama for Ex.P.10 for so-called recovery of M.O.6. The only evidence that was available before the Court below is the so-called recovery of M.O.6 at the instance of the accused and it is basing on which the learned Principal Sessions Judge, Kurnool, connected the accused with that of the death of the deceased by giving finding that accused was responsible for the death.
30) At this juncture, a look at the judgment of the learned Principal Sessions Judge, Kurnool, shows that while dealing with the evidence of P.W.7, the learned Sessions Judge believed the confession of the accused which as voluntarily 17 basing on which M.O.6 weapon of attack was discovered. The learned Principal Sessions Judge, Kurnool, made comment that how the accused could sign Ex.P.9 knowing fully contents, if really he was an innocent of the offence. This comment made by the learned Principal Sessions Judge, Kurnool, is not at all warranted. The confession that was made by the accused is hit under the provisions of the Indian Evidence Act. The learned Principal Sessions Judge, Kurnool, failed to note that while the police could obtain the signature of accused on Ex.P.9, the so- called confession leading to recovery, but they miserably failed to get the signature of the accused on Ex.P.10, the recovery panchanama, which appears to be a crucial document on which the Court below relied upon to convict the accused.
31) There are no circumstances, as to how the investigating officer failed to get the signature of the accused on Ex.P.10. Even assuming for the reason sake without admitting that the recovery is true, but it is the bounden duty of the prosecution to connect M.O.6 with that of the injuries found on the dead body of the deceased. So, in the absence of establishing such a recovery, the case of the prosecution that the accused caused the death of deceased with M.O.6 is not 18 acceptable. The learned Principal Sessions Judge, Kurnool, commented that according to the medical analysis report, human blood was found on M.O.6 which the accused failed to explain. It is not for the accused to explain as to how human blood was detected on M.O.6. First the prosecution should prove that M.O.6 was recovered at the instance of the accused and thereafter, should prove that with M.O.6 injuries on the deceased could be possible. In my considered view, failure on the part of the investigating officer to get the signature of the accused on Ex.P.10 throws a doubt about the case of the prosecution especially when the material witnesses turned hostile to the case of the prosecution.
32) It is to be noticed that the learned Principal Sessions Judge, Kurnool, looked into the version of the accused during the cross examination under Section 313 of Cr.P.C. examination that the accused stated that one Maddilety, who is his uncle's son came and informed that the deceased slipped from the stairs and fell down while he was in the fields and by that time he came to his house, his wife was found dead. The Court below drawn adverse inference against the accused on the ground that Maddilety was not examined by him. It is to be 19 noticed that none of the prosecution witnesses testified the presence of the accused in his house along with the deceased at the time of offence in question. The learned Principal Sessions Judge, Kurnool, commented that accused did not lodge any report with police. It is to be noticed that when the version of the accused was that by the time he came to his house, the deceased died by falling from the staircase, it cannot be held that an adverse inference is to be drawn for not giving police report.
33) Absolutely, before the Court below, the prosecution sought to prove the guilt against the accused by relying upon the evidence of P.Ws.2 to 5, who claimed to be direct witnesses. It is not a case of circumstantial evidence. The prosecution did not plead any circumstances to prove the guilt against the accused. On the other hand, without there being any evidence as to the presence of the accused in the house at the time of the death of the deceased, especially when the material witnesses turned hostile, convicting the accused basing on the assumptions and presumptions by the learned Principal Sessions Judge, Kurnool, is totally erroneous. The recovery theory of M.O.6 is also not convincing as pointed out. Even if recovery of 20 M.O.6 is true, it would not point out the guilt against the accused in the manner as alleged by the prosecution.
34) Absolutely, the learned Principal Sessions Judge, Kurnool, did not look into the fact that there was no evidence at all to prove that accused in a heat of passion or due to sudden, grave and provocation attacked the deceased. Hence, even the findings of the learned Principal Sessions Judge, Kurnool, that the offence was occurred in the above circumstances are baseless.
35) In the light of the above reasons, this Court is of the considered view that without there being any legally admissible evidence, the learned Principal Sessions Judge, Kurnool, basing on assumptions, presumptions and imaginations, convicted the accused. It is well settled that the suspicion, however, grave it be, it cannot be taken as substitute for proof. There is no evidence at all to show that accused did not participate in the funerals and later was found absconding. In the light of the above, it is clearly apparent from the record that the learned Principal Sessions Judge, Kurnool, erroneously convicted the accused without there being legally admissible and convincing evidence instead of acquitting the accused, as such, the 21 prosecution has miserably failed to prove that the accused committed culpable homicide not amounting to murder of the deceased in the manner as alleged. Hence, the judgment of the learned Principal Sessions Judge, Kurnool, is not at all sustainable under law and facts, as such, it is liable to be set aside.
36) In the result, the Criminal Appeal is allowed setting aside the judgment, dated 26.02.2010 in Sessions Case No.154 of 2009, on the file of the Principal Sessions Judge, Kurnool, thereby acquitting the accused under Section 235(1) of Cr.P.C. The accused is entitled for recovery of fine of Rs.3,000/-, if paid already after appeal time is over. M.Os.1 and 2 are ordered to be confiscated to State to the State of Andhra Pradesh and M.Os.3 to 6 shall be destroyed after appeal time is over.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt. 14.12.2022.
PGR 22 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU CRL. APPEAL NO.345 OF 2010 Date: 14.12.2022 PGR