CRLA/918/2009 of Varikuppala Venkatesh, Vs The State of A.P., on 31 December 2013

HON'BLE SRI JUSTICE K.C.BHANUANDHON'BLE SMT JUSTICE ANISCRIMINAL APPEAL No.918 OF 2009

J U D G M E N T:- (per Hon’ble Sri Justice K.C.Bhanu)

This Criminal Appeal, under section 374(2) of the Code ofCriminal Procedure, 1973 (for short, "Cr.P.C."), is filed by theappellant/accused against the Judgment, dated 07.08.2009 inSessions Case No.275 of 2007 on the file of the IV AdditionalSessions Judge, Ranga Reddy District, whereunder and whereby,the appellant was found guilty of the offences punishable under-Sections 498A & 302 of the Indian Penal Code, 1860 (for short,“I.P.C.”) and accordingly, he was convicted and sentenced toundergo rigorous imprisonment for three years and to pay a fine of-Rs.5,000/, in default, to suffer simple imprisonment for one year;and to undergo imprisonment for life and to pay a fine of-Rs.10,000/, in default, to undergo simple imprisonment for two-years for the offences punishable under Sections 498A & 302I.P.C respectively.

2. The brief facts that are necessary for disposal of thepresent appeal may be stated as follows:

The accused is the resident of Moinabad village andMandal, Ranga Reddy District. Susheela @ Durgamma(hereinafter referred to as ‘the deceased’) is the daughter ofPWs.1 & 2, and about six years prior to the date of incident, hermarriage was performed with the accused. After the marriage,both of them lived happily and were blessed with two malechildren. Then, about one year prior to the date of incident, thedeceased along with her husband and children came to Moinabad,to eke out their livelihood and started working as stone cutters, by staying in a rented house. After hailing to Moinabad, the accusedaddicted to consume liquor and used to beat the deceased bydemanding the amount earned by her as coolie. Due to theharassment and ill-treatment made by the accused, the deceasedreturned to her parental house at Sahebnagar, and started livingthere. Thereafter, about 20 days prior to the date of incident, theaccused went to the house of the deceased and requested herparents to send the deceased back with him, upon which PW.1and others held a panchayat before the elders and in pursuance ofmediation, elders sent the deceased with the accused.

On 28.07.2006 in the evening hours, the accused returnedhome in a drunken state and demanded the deceased for theamount earned by her. When the deceased refused to give theamount, the accused picked up a quarrel with her and beat her.The altercation between them prolonged up to 03.00 hours of29.07.2006, and having failed to get money from the deceased andhaving infuriated with her attitude, the accused on that day atabout 03:00 hours, with an intention to eliminate her, picked up aniron rod, which is used to break stones and beat the deceased onher head. Further, the accused banged the head of the deceasedto a wall in the house, as a result of which she sustained severebleeding head injury and died instantaneously, and thereafter, theaccused fled away from the scene of occurrence.

PW.1 gave a complaint to PW.11-Sub Inspector of Police,who in turn, registered the same as a case in Cr.No.158 of 2006for the offences punishable under Sections 498-A & 302 I.P.C,issued First Information Report to all concerned, examined PW.1and recorded his statement. PW.12 took up further investigation,visited the scene of occurrence, examined the witnesses,recorded their statements, conducted a detailed scene of

occurrence observation report, and seized one iron pad (MO.1),blood stained wall piece, control wall piece and broken banglepieces (MO.2) under the cover of scene observation-cum-seizurepanchanama Ex.P6 in the presence of PW.8 and another. On therequisition given by PW.12, PW.9 visited the scene of occurrenceand held inquest over the dead body of the deceased in thepresence of the same witnesses. During the inquest, PW.12seized one pink colour blouse (MO.4), brinjal colour printed saree(MO.3), light black colour petty coat (MO.5), got photographed thescene of occurrence and the dead body through a privatephotographer and thereafter, shifted the dead body of thedeceased to autopsy and after autopsy, handed over the deadbody to its blood relatives for funerals. Thereafter, the CircleInspector of Police, assumed further investigation in this case, re-examined the witnesses and on 31.07.2006, he apprehended theaccused, who confessed his guilt in the presence of mediators. The Circle Inspector of Police arrested the accused, sent him tothe Court for judicial remand on 31.07.2006, sent the seizedmaterial objects to Forensic Science Laboratory, Hyderabad foranalysis and report and thereafter, after receipt of the post-mortemreport and Forensic Science Laboratory report, he filed the chargesheet into the Court.

3. On appearance of the appellant/accused, the trialCourt framed the following charges against him:“Charge No.1: That you Venkatesh used toharass your wife Suseela @Durgamma to give the hardearnings of her to you to utiliseyour vices both physically andmentally and thereby you havecommitted the offencepunishable under Sec.498-AIPC and within my cognizance.

4. When the above charges were read over andexplained to the appellant/accused in Telugu, he pleaded not guiltyand claimed to be tried.

5. In order to bring home the guilt of the appellant/accused, the prosecution examined P.Ws.1 to 12 and got markedExs.P1 to P10, besides the case properties M.Os.1 to 5.

6. After closure of the prosecution evidence, theappellant/accused was examined under Section 313 Cr.P.C. withreference to the incriminating circumstances appearing againsthim in the evidence of prosecution witnesses. He denied thesame and reported no evidence either oral or documentary.

7. The trial Court after considering the oral anddocumentary evidence on record, found the appellant/ accusedguilty of the offences with which he was charged and accordingly,convicted and sentenced him as stated above. Challenging thesaid convictions and sentences, the present appeal has beenpreferred by the appellant/accused.

8. Now, the points that arise for determination are:

1. Whether the death of the deceased-Susheela @Durgamma is a homicidal one?Durgamma is a homicidal one?

2. Whether the prosecution has proved its case againstthe appellant/accused beyond all reasonable doubt forthe charges under Sections 498-A & 302 I.P.C?the appellant/accused beyond all reasonable doubt forthe charges under Sections 498-A & 302 I.P.C?

3. Whether the judgment of the trial Court is correct,legal and proper?”legal and proper?”

9. The learned counsel for the appellant/accusedcontended that there is absolutely no evidence to show that theappellant was present on the fateful day of the incident in thehouse, and that he had committed the murder of the deceased;that the prosecution failed to establish the motive for the offence;and that the neighbouring witnesses did not support the case ofthe prosecution and therefore, the prosecution failed to establishthat the appellant/accused committed the murder of the deceased. She also relied on some decisions, which will be referredhereafter at appropriate time.

10. On the other hand, the learned Additional PublicProsecutor contended that since the appellant/accused being thehusband, would naturally be present in the house during night timeand the explanation given by him to show that he went to hismother’s house is found to be false and there is no possibility forany other person to enter into the house to commit the murder forgain; and that the medical evidence would clearly go to show thatit is the case of homicidal death, and therefor he prays to dismissthe appeal.

11. POINTS: PW.9 is the Mandal Revenue Officer, whoconducted inquest on the dead body of the deceased. As perEx.P7 inquest report, in the presence of PW.8 and others, theinquest was conducted. The injuries sustained by the deceasedwere incorporated in Col.No.VII of Ex.P7. The opinion of the inquest mediators was incorporated in column No.XV of Ex.P7,which shows that it is the case of homicidal death as a result ofinjuries sustained by her.

12. PW.10 is the doctor, who conducted autopsy on thedead body of the deceased and found the following external ante-mortem injuries.

1. Obliquely placed laceration 5 X 1 X bone deep over the midfrontal region a right parietal region.frontal region a right parietal region.

2. Horizontally placed laceration of 1 X 0.5 muscle deep overthe pinna of right ear.the pinna of right ear.

3. Horizontally placed laceration 3 X 2 X bone deep over theright Mastoid area. 1 cm from right ear surrounded bycontusion.right Mastoid area. 1 cm from right ear surrounded bycontusion.

4. Obliquely placed laceration of 2 X 1 bone deep, over theupper part of the left neck. 5 cms from left ear.upper part of the left neck. 5 cms from left ear.

5. Obliquely placed laceration of 3 X 2 bone deep over the leftmastoid area 2 cms form left ear.mastoid area 2 cms form left ear.

6. Horizontally placed laceration 3 X 1 X muscle deep over theright check 3 cms below right eye.right check 3 cms below right eye.

7. Contused abrasion 0.5 X 0.5 over the middle of the lower lip.

8. Contused abrasion 0.25 X 0.25 cms over the right forehead. 6 cms above the right eye brow.6 cms above the right eye brow.

9. Contused abrasion of 1 X 0.5 cms over the left foreheadabove the left eye brow.above the left eye brow.

10. Horizontally placed laceration of 1 X 0.25 cms muscle deepover the upper part of the chin 0.5 cms below the lower lip.over the upper part of the chin 0.5 cms below the lower lip.

11. Multiple contused abrasion of over the area of 10 X 5 cms ofvarying sizes from 0.25 X 0.25 cms to 0.5 X 0.25 cms overthe front and sides of the neck.varying sizes from 0.25 X 0.25 cms to 0.5 X 0.25 cms overthe front and sides of the neck.

12. Contused abrasion of 0.5 X 0.5 cms over the chin.

13. Skull - diffuse scalp contusion of 5 X 3 cm over the rightfrontal parietal region.Brain diffuse sub dural & Sub-Arachinoid hemorrhage over theleft cerebral hemisphere.frontal parietal region.Brain diffuse sub dural & Sub-Arachinoid hemorrhage over theleft cerebral hemisphere.

14. Contusion of neck muscles & under lying neck structuresReddish blue in colour.Reddish blue in colour.

15. Fracture dislocation of C2 & C3 vertebrae & surrounded thediffuse contusion.diffuse contusion.

16. Hyoid cartilage & Thyroid cartilage are intact and nothingparticular.particular.

PW.10 opined that the above injuries are fresh and the cause of the death is due to the head injury associated withcervical vertebral injury. Ex.P8 is the postmortem report. Thus,the evidence of PW.10, and recitals in Ex.P8 remainedunchallenged and the medical evidence leaves no room toconclude that the death of the deceased is homicidal.

13. The accused is no other than the husband of thedeceased. After the marriage, the accused and the deceasedstarted living happily in Leninnagar. Some time later, they shiftedtheir residence to Moinabad in order to eke out their livelihood. Even at Moinabad, they lived happily. The scene of occurrence isnot in dispute. PW.8 is one of the mediators, who was presentwhen PW.12 observed the scene of occurrence as in Ex.P6. It isthe house of PW.6. One room was given on lease to theaccused. Even the accused is not disputing about taking place ofthe death of the deceased in the room, in which he and his wifewere living.

14. There is no direct evidence to show that theaccused is the assailant of the deceased. The case rests uponthe circumstantial evidence. When a case rests uponcircumstantial evidence, law is well settled that all thecircumstances must firmly and unerringly point out the guilttowards the accused and all the circumstances if takencumulatively, form a chain so complete that within all humanprobability, the crime was committed by the accused and noneelse. When a case rests upon circumstantial evidence, thefollowing circumstances have to be proved by the prosecution inview of the decision reported in Sharad Biridhichand Sarda v.State of Maharashtra [[1]].

(1) the circumstances from which the conclusion of guilt isto be drawn should be fully established. The circumstances concerned 'must or should' and not 'maybe' established.

(2) the facts so established should be consistent only withthe hypothesis of the guilt of the accused, that is to say,they should not be explainable on any other hypothesisexcept that the accused is guilty.

(3) the circumstances should be of a conclusive natureand tendency.

(4) they should exclude every possible hypothesis exceptthe one to be proved, and

(5) there must be a chain of evidence so complete as notto leave any reasonable ground for the conclusionconsistent with the innocence of the accused and mustshow that in all human probability the act must have beendone by the accused.

Bearing the above principles in mind, it has to be seenwhether the prosecution is able to establish the guilt of theaccused beyond all reasonable doubt.

15. PWs.1 to 3 are the father, mother and sister of thedecease respectively. Admittedly, all these persons are theresidents of Sahebnagar, Vanasthalipuram, Ranga Reddy District. They were not present at the time of the incident. On coming toknow about the death of the deceased, on the information given bythe brother of the accused, they rushed to the scene of occurrenceand saw the dead body of the deceased in the room. They did notspeak any motive for the accused to commit the murder except apetty incident that took place about one month prior to theincident. It is alleged that the accused beat the deceased on herhead and sutures were made. The reason for beating was that atthat time, the accused was in a drunken state. Therefore, theevidence of these witnesses is not helpful for the case ofprosecution to show that the accused was present in the house onthe fateful day of the incident.

16. PWs.4 & 5, who are the neighbouring residents of thelocality, who can speak about the presence of the accused at thetime of incident, did not support the case of the prosecution. Theyhave given a complete go-bye to their earlier statements made tothe police. Except marking their statements recorded underSection 161(3) Cr.P.C, nothing has been elicited in their cross-examination to prove the charges leveled against the accused.

17. PW.6, who is the owner of the room, is admittedlyresiding in Maharajpet, Shankarpalli. Upon coming to know aboutthe incident, he came to the scene of occurrence and theneighbouring residents informed him that the accused killed hiswife. His evidence is hearsay and therefore, it is not admissibleunder law. PW.7, who is said to be the mediator present at thetime of execution of Ex.P2 undertaking said to have been given bythe accused, did not support the case of prosecution.

18. PW.11 is the Sub-Inspector of Police. After receipt ofEx.P1 report from PW.1, he registered a case in Cr.No.158 of2006. PW.12 is the Investigating Officer. He simply conductedthe investigation by giving a requisition to the Mandal RevenueOfficer to conduct inquest, sent the dead body to the GovernmentHospital for postmortem examination and arrested the accused. Even after the arrest of the accused, no incriminating facts havebeen discovered in pursuance of his confessional statement. Though he stated that as per his investigation, only the accusedand the deceased were living in the room, that cannot be taken asthe evidence to convict the accused. Though he collected theevidence to show that the accused was in the house on that night,he has not produced that evidence.

19. Learned counsel for the appellant/accused relied upona decision reported in Dasari Siva Prasad Reddy v. The Public Prosecutor, High Court of A.P[[2]], wherein it is held as follows:

“24. A strong suspicion, no doubt, existsagainst the appellant but such suspicion cannot be thebasis of conviction, going by the standard of proofrequired in a criminal case. The distance between'may be true' and 'must be true' shall be fully coveredby reliable evidence adduced by the prosecution. But,that has not been done in the instant case. If, coupledwith the circumstance unfolded by the evidence ofPW3, the evidence of PW4 had been believed, it wouldhave gone a long way in substantiating the prosecutioncase. But, in the instant case, apart from the fact thatthe appellant was at his house on the morning of 20thApril, 1996, there is no other circumstance whatsoeverwhich connects the accused to the crime, thoughserious suspicion looms large about his involvement.The view taken by the trial Court that the prosecutioncould not establish the complete chain ofcircumstances incriminating the accused is areasonably possible view and the High Court shouldnot have disturbed the same. Having regard to thestate of available evidence, the benefit of doubt givento the accused by the trial Court warranted nointerference by the High Court.”

Further, the learned counsel also placed reliance on thedecision reported in Malleshappa vs State of Karnataka[[3]],wherein it is held as follows:

“23. In the light of the evidence available onrecord, can it be said that the circumstances of lastseen together by itself and necessarily lead to theinference that it was the appellant who committed thecrime? The High Court took the view that accusedNos. 6 and 7 are entitled to the benefit of doubt though,P.W.10 stated in her evidence that the appellant,accused Nos. 6 and 7 took her son Yankanna on thefateful day. No motive was shown with regard toaccused Nos. 6 and 7 for their involvement in thecrime. It is under those circumstances, the High Courtsaid that the burden shifts to the appellant to show asto what happened to the deceased-Yankanna. In ourconsidered opinion, the High Court committed seriouserror in arriving at such conclusion. The first information report lodged by P.W.10 itself is highlydoubtful. P.W.10's evidence itself does not reveal anycircumstances to hold that the prosecution hasestablished the charge against the appellant. Theappellant's failure to offer any explanation in hisstatement under Section 313 Cr.P.C. is not acircumstance to hold appellant guilty of the charge.The prosecution has failed to establish as to when thedeath of Yankanna took place, it could be at any timebetween 12[th] July, 2001 to 21[st] July, 2001. There isnothing on record to show as to what transpiredbetween 12[th] July, 2001 to 21[st] July, 2001. Mere non-explanation on the part of the appellant, in ourconsidered opinion, by itself cannot lead to proof ofguilt against the appellant. Learned Counsel for theState relied upon the decision in Mohibur Rahman andAnr. v. State of Assam(2002) 6 SCC 715 which in factis in support of the defence and nor the prosecution.

“The circumstance of last seen together doesnot by itself and necessarily lead to theinference that it was the accused whocommitted the crime. There must besomething more establishing connectivitybetween the accused and the crime. Theremay be cases where on account of closeproximity of place and time between the eventof the accused having been last seen with thedeceased and the factum of death a rationalmind may be persuaded to reach anirresistible conclusion that either the accusedshould explain how and in whatcircumstances the victim suffered the deathor should own the liability for the homicide. Inthe present case there is no such proximity oftime and place. As already noted the deathbody has been recovered about 14 days afterthe date on which the deceased was last seenin the company of the accused. The distancebetween the two places is about 30-40 kms.The event of the two accused persons havingdeparted with the deceased and thus lastseen together (by Lilima Rajbongshi, P.W.6)does not bear such close proximity with thedeath of victim by reference to time or place.According to Dr. Ratan Ch. Das the deathoccurred 5 to 10 days before 9.2.1991. Themedical evidence does not establish, andthere is no other evidence available to hold,that the deceased had died on 24.1.1991 orsoon thereafter. So far as the accusedMohibur Rahman is concerned this is the singular piece of circumstantial evidenceavailable against him. We have alreadydiscussed the evidence as to recovery andheld that he cannot be connected with anyrecovery. Merely because he was last seenwith the deceased a few unascertainablenumber of days before his death, he cannotbe held liable for the offence of having causedthe death of the deceased. So far as theoffence under Section 201 IPC is concernedthere is no evidence worth the name availableagainst him. He is entitled to an acquittal.””

From the above decisions, it is clear that suspicion howeverstrong, cannot take the place of legal proof.

20. In this case, there is no evidence to show that prior tothe time of incident, the accused was present in the room, so as todraw inference that he might be responsible for causing the deathof the deceased. Except proving that the death of the deceased ishomicidal in nature, the prosecution has not established thefactum of the presence of the accused in the house on the fatefulday of the incident. One of the reasons given by the learnedSessions Judge to convict the accused is that an inference can bedrawn that the accused has committed the offence as he wasabsconding from the date of incident and he did not attend the lastceremonies and obsequies of his wife. Mere absconding, and nonpresence, of the accused at the time of last rituals cannot lead todraw an inference that the crime must have been committed by theaccused. Though the accused pleaded alibi that he was notpresent in the house, the plea ofalibi has been disbelieved by thetrial Court. In any view of the matter, it is for the prosecution toestablish that the accused was present in the house on the fatefulday of the incident. Such evidence is lacking. Therefore, thefindings of the trial Court are not based on proper appreciation ofevidence and hence the judgment of the trial Court is liable to beinferred with.

21. There is absolute no evidence to show that thedeceased was treated with cruelty, within the meaning of Section498-A I.P.C. Cruelty means, any willful conduct which is of such anature as is likely to drive the woman to commit suicide or tocause grave injury or danger to life, limb or health whether mentalor physical of a woman, or harassment of the woman where suchharassment is with a view to coercing her or any person related toher to meet any unlawful demand for any property or valuablesecurity or is on account of failure by or, any person related to herto meet such demand. PWs.1 & 2 did speak about cruelty metedout to the deceased. Hence, prosecution failed to establish thenecessary ingredients for the offence punishable under Section498-A I.P.C.

22. Thus, in view of the above discussion, we are of theview that the prosecution failed to establish the guilt of theappellant/accused beyond all reasonable doubt for the offencespunishable under Sections 498-A & 302 I.P.C and therefore, theconvictions and sentences recorded by the trial Court areunsustainable and the appellant/accused is entitled for acquittal.

23. Accordingly, the Criminal Appeal is allowed settingaside the convictions and sentences recorded by the IV Additional Sessions Judge, Ranga Reddy District, videJudgment, dated 07.08.2009, in Sessions Case No.275 of 2007against the appellant/accused for the offences punishable underSections 498-A & 302 I.P.C. The appellant/accused is found notguilty of the above offences and accordingly, he is acquitted of thesame. The appellant/accused shall be released forthwith, if he isnot required to be detained in any other case. Fine amount, if any,paid by him shall be refunded to him. Miscellaneous petitions,pending if any in this criminal appeal shall stand closed.

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Date: 31.12.2013sr

[1]AIR 1984 SC 1622[2]2004 (2) ALD (CRL.) 677 (SC)[3]2008 (1) ALT (CRL) 19 (SC)

______________________JUSTICE K.C.BHANU

JUSTICE ANIS