Andhra Pradesh High Court - Amravati
Vaddipuri Vadlapuri Sunil Kumr Naidu, ... vs State Of A.P.,R Ep. By P.P., Hyd on 5 May, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, B Krishna Mohan
THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HONOURABLE SRI JUSTICE B.KRISHNA MOHAN
CRIMINAL APPEAL No.1405 of 2014
JUDGMENT:- (Per Hon'ble Sri Justice C.Praveen Kumar) Heard through Video Conference (Blue Jeans App).
2. Originally, A-1 to A-3 in Sessions Case No.289 of 2013 on the file of the learned II Additional District and Sessions Judge, Madanapalle were tried on several charges. The first charge against A-1 was for the offence punishable under Section 304-B I.P.C. or in the alternative, for the offence punishable under Section 302 I.P.C. The second charge against A-2 and A-3, who are the mother and brother of A-1, was for the offence punishable under Section 304-B read with 34 I.P.C. or in the alternative, for the offence punishable under Section 302 read with 34 I.P.C. A-1 to A-3 were further charged for the offences punishable under Section 498-A I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act, 1961. Lastly, A-1 was charged for the offence punishable under Section 309 I.P.C.
3. Vide judgment, dated 23.12.2014, the learned Sessions Judge, while acquitting A-2 and A-3 of all the charges, convicted A-1 for the offence punishable under Sections 302 and 309 I.P.C., and accordingly, sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.3,000/-, in default, to undergo simple imprisonment for a period of three months for the offence punishable under Section 302 I.P.C. A-1 was further sentenced to undergo rigorous imprisonment for a period of six months and to 2 CPK, J & BKM, J Crl.A.No.1405 of 2014 pay a fine of Rs.1,000/-, in default of payment of fine, to undergo simple imprisonment for one month for the offence punishable under Section 309 I.P.C. Both the sentences were directed to run concurrently.
4. The substance of the charge against A-1 is that on 30.8.2011, in room No.224, Sri Vijaya Lakshmi Deluxe A/C lodge, Madanapalle, A-1 is said to have caused the death of his wife - V.Hemalatha (hereinafter, referred to as "the deceased") by cutting her throat with a knife within seven years of her marriage. It is also said that on the same time and place, A-1 also attempted to commit suicide and accordingly, cut his throat after cutting the throat of his wife.
5. Since all the material witnesses turned hostile, we feel that to understand the case of the prosecution, it would be useful to refer to the contents of the charge sheet.
6. A-1 and A-3 are the sons of A-2. The deceased is the wife of A-1 and their marriage took place on 14.3.2008 in the house of one D.Munirathnam Naidu (P.W.2) in Rayapativaripalle Village of Chinnagottigallu Mandal. It is said that at the time of marriage, cash of Rs.3,00,000/- and 16 sovereigns of gold was given by P.W.2 to the deceased and five sovereigns of gold jewels to A-1 as dowry. After marriage, the deceased came to the house of the accused to lead a marital life. Both of them lived in the native village of the accused for about one month. Later, A-1 along with A-2 and deceased shifted the family to his own house situated in Yogivemana Street, Madanapalle. It is said that A-1 was running a cement shop under the name and style of "Nikitha Traders" at 3 CPK, J & BKM, J Crl.A.No.1405 of 2014 Neerugattuvaripalle, Madanapalle Town with the dowry amount given by P.W.2 at the time of marriage. It is said that A-2 and A-3 instigated and forced A-1 to harass the deceased to get additional dowry of Rs.2,00,000/-. The elder brother of the deceased used to come to the house of the accused and the deceased used to inform him the harassment caused by the accused. A panchayat was also conducted wherein the elders advised A-1 to A-3 not to harass the deceased but it is said that there was no change in the attitude of the accused. In the year 2010, the deceased got Government job and was working as a Teacher in M.P.P. School at Thungavaripalle. Since then, A-1 suspected the fidelity of the deceased and used to harass her and beat her. Subsequently, when the deceased became pregnant, P.W.2 came to the house of accused and took her to delivery where she gave birth to a female child. A-1 developed grudge and accordingy, decided to eliminate her.
While so, on 28.8.2011, at about 6:45 P.M., A-1 came to Sri Vijaya Lakshmi Deluxe A/C Lodge, Madanapalle, where P.W.1 was working as a Manager, paid an amount of Rs.500/- and took a room bearing No.224 and continued in occupation up to 30.8.2011. On 30.8.2011, at about 11:00 A.M., on hearing the cries, P.W.1 along with the room boy, went there and found the throat of A-1 cut leading to a bleeding injury and the throat of the deceased was also cut. As A-1 was struggling for life, he informed Madanapalle II Town Police about the incident. On receiving information about the incident, P.W.16 - Inspector of Police rushed to the lodge and found the dead body of the deceased in room No.224. He also noticed A-1 with an injury on his throat and struggling for life. Immediately, he sent A-1 to Government Area 4 CPK, J & BKM, J Crl.A.No.1405 of 2014 Hospital, Madanapalle for treatment. On that day, at about 12:45 P.M., P.W.15 - Sub Inspector of Police received a written report from P.W.1 basing on which, he registered a case in Crime No.150 of 2011 for the offences punishable under Sections 302 and 309 I.P.C. Ex.P-17 is the F.I.R.
On receipt of a copy of the F.I.R. from P.W.15, P.W.16 examined P.Ws.1 and 2 and recorded their statements. According to him, the statement of P.W.2 reveals harassment by A-2 and A-3 for additional dowry along with A-1. As such, he added Sections 498-A and 304-B read with 34 I.P.C., and Sections 3 and 4 of the Dowry Prohibition Act. He then sent a requisition to the Tahsildar, Madanapalle to conduct inquest over the dead body of the deceased.
P.W.14 - Tahsildar, Madanapalle, basing on the requisition from the Station House Officer, conducted inquest over the dead body of the deceased in the presence of inquest panchayatdars. Ex.P-16 is the Inquest Report. During inquest, he examined P.Ws.1 to 6, who opined that A-1 was responsible for the death of the deceased.
P.W.16 continued with the investigation. While examining the scene of offence, he got prepared a rough sketch of the scene under Ex.P-20. At the scene, he seized M.O.1 - knife, M.O.2 - blood stained tile and its control, M.O.3 - blood stained bed cover, M.O.4 - blood stained pillow cover and M.O.5 - blood stained towel. Thereafter, he sent the body for post mortem examination.
P.W.13 - Civil Assistant Surgeon, Government Area Hospital, Madanapalle conducted autopsy over the dead body of the 5 CPK, J & BKM, J Crl.A.No.1405 of 2014 deceased on 31.8.2011 at 3:45 P.M. and issued Ex.P-15 - Post Mortem Certificate. According to him, the deceased appeared to have died due to excessive blood loss and shock. At this stage, it is to be noted that on 30.8.2011, at 12:10 P.M., P.W.17 - Civil Assistant Surgeon, Area Hospital, Madanapalle examined A-1 and issued Ex.P-21 - Wound Certificate. He noticed an injury on the front of the neck which according to him, is possible with a knife. P.W.18, who took over the investigation from P.W.16, arrested the accused on 18.9.2011 at 8:00 A.M. pursuant to the confession statement. Ex.P-22 is the confession statement of the accused pursuant to which, they seized blood stained material objects. After obtaining necessary documents and completing the investigation, P.W.18 filed the charge sheet, which was taken on file as P.R.C.No.32 of 2012 on the file of the learned II Additional Judicial Magistrate of First Class, Madanapalle for the offences punishable Sections 302 and 309 I.P.C. against A-1 and under Sections 498-A and 304-B read with 34 I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act against A-1 to A-3.
7. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to them. As the offences are triable by a Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned II Additional District and Sessions Judge, Madanapalle for trial and disposal in accordance with law.
8. Basing on the material available on record, charges as referred to earlier came to be framed, read over and explained to 6 CPK, J & BKM, J Crl.A.No.1405 of 2014 the accused in Telugu to which, they pleaded not guilty and claimed to be tried.
9. To substantiate its case, the prosecution examined P.Ws.1 to 18 and got marked Exs.P-1 to P-23 and M.Os.1 to 6. Out of the eighteen witnesses examined by the prosecution, P.Ws.2 to 12 did not support the prosecution case and were treated hostile by the prosecution. After the closure of the 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. No oral or documentary evidence was adduced on behalf of the accused.
10. Basing on the evidence of P.Ws.1 and 13 to 17, the trial Court came to a conclusion that their evidence is consistent, coherent and corroborating to conclude that A-1 alone is responsible for causing the death of his wife and he also attempted to end his life by committing suicide. Challenging the same, the present appeal came to be filed by A-1.
11. Sri P.Nagendra Reddy, learned counsel for the appellant/ A-1, would contend that there is absolutely no legal evidence on record to connect the accused with the crime. According to him, all the material witnesses turned hostile and did not support the prosecution case and insofar as the evidence of official witnesses is concerned, he would contend that their evidence, at the most, may establish the presence of the dead body of the deceased and that of A-1 with an injury in room No.224 of the said lodge. He further pleads that if really A-1 wanted to kill the deceased, he would have 7 CPK, J & BKM, J Crl.A.No.1405 of 2014 locked the room and committed the offence, which is not the case herein. Hence, pleads that the conviction awarded by the trial Court is illegal and improper.
12. The same is opposed by the learned Public Prosecutor contending that though all the witnesses turned hostile, still the evidence available on record establishes the involvement of A-1 in the commission of the offence. He took us through the evidence of P.Ws.1 and 13 to 18, which according to him, show that A-1 alone is responsible for the incident.
13. The point that arises for consideration is:
"Whether the prosecution is able to prove the guilt of A-1 for the offences punishable under Sections 302 and 309 I.P.C. beyond all reasonable doubt?"
14. POINT:-
In order to appreciate the same, it would be useful to refer to the evidence of the witnesses. As stated earlier, out of the 18 witnesses examined by the prosecution, P.Ws.1 to 12 did not support the prosecution case. It is also observed by us earlier that the trial Court relied upon the evidence of P.Ws.1 and 13 to 18 to base a conviction. Therefore, it would be appropriate to refer to the evidence of P.W.1 since the evidence of the said witness came to be believed by the trial Court for basing a conviction and for holding that both of them were in the room together.
15. P.W.1 is a resident of Madanapalle and working as a Manager in Sri Vijaya Lakshmi Deluxe Lodge since ten years. According to him, he knows A-1. It is said that on 28.8.2011, at about 6:45 P.M., A-1 came to their lodge, paid Rs.500/- and took a 8 CPK, J & BKM, J Crl.A.No.1405 of 2014 room bearing No.224. It is said that he continued in occupation of the room up to 30.8.2011. On 30.8.2011, at about 11:00 A.M., while he was present in the reception counter and giving cash to the customer who vacated the room in their lodge, some unknown persons got down from the lodge in a hurried mode. At the same time, he heard cries. Then, he along with his room boy went there and found the throat of A-1 cut causing bleeding injury, while the wife of the accused died due to cut injury to the throat. According to him, A-1 was struggling for life. Immediately, he informed to Madanapalle II Town Police Station about the incident. A-1 was shifted to Government Area Hospital, Madanapalle for treatment. According to him, he does not know further facts of the case. Ex.P-1 is his signature on the report. It is said that he does not know the contents of the report. He speaks about Ex.P-2 - Lodge Visitors Register, which was taken by the police after registration of the case. At that stage, P.W.1 was treated hostile by the prosecution. In the cross examination, the suggestion given by the learned Additional Public Prosecutor with regard to his statement under Section 161 Cr.P.C. was denied by him. Learned counsel for the accused also cross examined and was able to elicit that there are 25 rooms in the said lodge. Reception counter was situated on the first floor. There are three rooms in the third floor and there is open space behind the three rooms, which has accessibility for anybody to come from the open place.
16. Since the trial Court relied upon the evidence of P.W.1 to connect A-1 with the commission of the crime, we are forced to extract the evidence of P.W.1. A perusal of the evidence would show that on 28.8.2011, at about 6:45 P.M., A-1 came to their 9 CPK, J & BKM, J Crl.A.No.1405 of 2014 lodge, paid Rs.500/- and took a room bearing No.224 and continued occupation up to 30.8.2011. No where in the evidence of P.W.1, he speaks about A-1 bringing the deceased. Be that as it may, on 30.8.2011, at about 11:00 A.M., while P.W.1 was in the reception counter and giving cash to the customer, who vacated the room in their lodge, noticed some unknown persons getting down from the lodge in a hurried manner and at that time, he heard cries which made him go and see the dead body of the deceased lying in the room. From the evidence of this witness, it is to be seen whether the involvement of A-1 in the commission of the offence is established.
17. It is to be noted here that in the judgments reported in Govindappa v. State of Karnataka1 and Rajendra v. State of U.P.2, the Apex Court observed that merely because a witness deviates from his statement made in the F.I.R., his evidence cannot be held to be totally unreliable. It has been observed that the deposition of a hostile witness can be relied upon at least up to the extent he supported the case of the prosecution. It is no doubt true that the evidence of P.W.1 supports the prosecution case to the extent that A-1 took the room on 28.8.2011 and stayed there till 30.8.2011 but nowhere the evidence of P.W.1 speaks about either A-1 and the deceased going into the room or A-1 or the deceased staying there and if so, the period for which they stayed. Neither the evidence of P.W.1 nor the evidence of P.Ws.2 to 12 show as to when the deceased came to the lodge and at whose instance, she came into the lodge. But, it is not doubt true that the evidence of P.W.1 can be relied upon by the prosecution to the extent that it 1 (2010) 6 SCC 533 2 (2009) 13 SCC 480 10 CPK, J & BKM, J Crl.A.No.1405 of 2014 supported the case of the prosecution but in the instant case, even if the version of P.W.1 in part is accepted, it only speaks about A-1 taking a room on 28.8.2011 and paying Rs.500/- but there is no evidence on record as to what happened on 30.8.2011 i.e., whether it was A-1 who was responsible for the death of the deceased or there was any third person present at the time of the incident.
18. In the cross examination, P.W.1 categorically speaks about entrance into the 3rd floor from the terrace. Therefore, doubt arises as to whether really it was A-1 who was responsible for the death of the deceased. Merely because A-1 has taken a room and the dead body of the deceased and A-1 were found with injuries in the room, does not, by itself, lead to an irresistible conclusion that it was A-1 responsible for the death of the deceased. If really A-1 intended to cause the death of the deceased, he would not have kept the doors of his room open. Definitely, he would have closed the doors and then, committed the offence and tried to kill himself if he intends to do so. Therefore, the finding of the trial Court that the evidence of P.W.1 connects A-1 with the crime cannot be accepted.
19. As stated by us earlier, P.Ws.2 to 12 turned hostile and did not support the prosecution case. Even the trial Court did not accept their evidence.
20. Coming to the evidence of P.W.13, he is none other than the doctor, who conducted post mortem examination over the dead body of the deceased. At the most, his evidence may establish that the death was homicidal and that the deceased died due to cut injuries on the neck.
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21. P.W.14 is the Tahsildar, who conducted inquest over the dead body of the deceased. Though he claims to have examined the eye witnesses at the time of inquest, to speak about the incident, all the witnesses, who spoke about the incident at the time of inquest, did not support the prosecution case. Therefore, his evidence, at the most, may establish holding of inquest over the dead body. As observed by the Apex Court in many cases, Inquest Report is not a substantive piece of evidence which cannot be made the basis to convict the accused, more so, in a case of this nature, where the persons who spoke at the time of inquest, resiled thereafter.
22. P.W.15 is the Sub Inspector of Police, who registered the crime and P.W.16 is the Investigating Officer, who investigated into the crime and filed the charge sheet. Though both these witnesses deposed about examination of eye witnesses and arrest of A-1, in our view, the same does not in any way connect A-1 with the crime. There is no other evidence showing the involvement of A-1.
23. The evidence of P.W.17 is somewhat relevant. He is a Civil Assistant Surgeon, Area Hospital, Madanapalle, who examined A-1 at 12:10 P.M. Ex.P-21 is the Wound Certificate issued by him. He noticed an injury of 8 x ½ x ½ inches cut over front of the neck. The case of the prosecution is that after causing the death of his wife, A-1 cut his own neck and attempted to commit suicide. In the cross examination, P.W.17 admits that the injury on the front of the neck in general differs if a person inflicts such an injury with a right hand or vice-versa i.e., using a left hand. To a suggestion that if a person inflicts self injury with a right hand, the injury will be 12 CPK, J & BKM, J Crl.A.No.1405 of 2014 necessarily on the left side of the neck and the direction of the injury will be oblique was denied by him. However, the answer categorically shows that the injury on A-1, which was on the front portion of the neck, could not have been suicidal or a self inflicted injury. It would be useful to extract the entire cross examination of P.W.17, which reads as under:
"I observed injury on the front of the neck. The injury in general differs if a person inflicts such injury with a right hand or vice-versa in case of using left hand. It is incorrect to suggest that if a right hand person inflicts self injury the injury will be necessarily on the left side of the neck and the direction of the injury is in oblique. It is incorrect to suggest that the injury observed on the injured A.1 is only homicidal but not self inflicted injury."
From the evidence of this witness, it stands established that it could not have been a self inflicted injury and if really A-1 wanted to kill his wife and then commit suicide, probably, he would have done it in a different way by closing the door. On the other hand, the evidence of P.W.1 speaks about the strangers coming down from the lodge in a hurried manner. No doubt, there is no evidence to show as to why these strangers entered the lodge and left in a hurried manner but one cannot conclusively say that A-1 had inflicted the said injury on himself after killing his wife.
24. At this stage, it is to be seen as to whether the injury found on the neck of A-1 is self inflicted injury or homicidal one. There was one injury on the front portion of the neck of A-1. P.W.17 - Doctor, in his cross examination, categorically admits that the injuries found on A-1 differs from the injuries caused by a person while self inflicting the said injury. Therefore, benefit of doubt is given to A-1.
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25. Therefore, the prosecution failed to prove its case beyond all reasonable doubt against the appellant/A-1 for the offences punishable under Sections 302 and 309 I.P.C., and the judgment of the trial Court is liable to be set aside.
26. In the result, the conviction and sentence recorded by the learned II Additional District and Sessions Judge, Madanapalle vide judgment, dated 23.12.2014, in Sessions Case No.289 of 2013 against the appellant/A-1 for the offences punishable under Sections 302 and 309 I.P.C. are set aside. The appellant/A-1 shall be released forthwith if he is not required to be detained in any other crime. Fine amount, if any, paid by the appellant/A-1 shall be refunded to him.
27. Accordingly, the Criminal Appeal is allowed.
Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR _____________________________ JUSTICE B.KRISHNA MOHAN Date : 05.05.2020 AMD 14 CPK, J & BKM, J Crl.A.No.1405 of 2014 2 THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE B.KRISHNA MOHAN CRIMINAL APPEAL No.1405 of 2014 Date : 05.05.2020 AMD