CRLA/907/2009 of Shaik Chinna Moulali, Vs The State of A.P., on 31 December 2013

THE HON'BLE SRI JUSTICE K.C.BHANUANDTHE HON’BLE MRS JUSTICE ANIS

CRIMINAL APPEAL No.907 OF 2009

JUDGMENT:- (per Hon’ble Sri Justice K.C.Bhanu)

This Criminal Appeal, under Section 374(2) of the Code of""Criminal Procedure, 1973 (for short, Cr.P.C.), is directed against thejudgment, dated 25.05.2009, in Sessions Case No.474 of 2008 on the fileof the Principal Sessions Judge, Kurnool, whereunder and whereby,appellant herein/Accused was found guilty of the offence punishableunder Section 302 of the Indian Penal Code, 1860 (for short, “I.P.C.”) andaccordingly, he was convicted and sentenced to undergo imprisonment-for life and to pay a fine of Rs.2,000/, in default, to undergo imprisonmentfor a period of six months.

2. The brief facts that are necessary for disposal of the present appealmay be stated as follows:

Accused is husband of one Shaik Razia Bee (hereinafter referredto as, ‘the deceased’). P.W.2 is their daughter. Five days prior to thedate of incident, the deceased took an amount of Rs.3,000/- from aFinance Corporation to meet her family necessities as the accused didnot evince any interest with the welfare of the deceased and P.W.2; thaton coming to know about borrowing the amount, accused startedharassing her to give money and if she did not give money, she would bedone to death; that on 18.06.2008 at about 3.00 PM, as the deceasedrefused to give money to him for consuming arrack, the accused with anintention to kill the deceased, who was sleeping on a cot, tied a coconutrope around her neck and pulled it with his hands; that on seeing thesame, P.W.2, daughter of the deceased and accused, rushed to thehouse of P.W.1 and informed about the acts of the accused; that thenP.W.1 accompanied by P.Ws.2 to 4 and L.W.5 (Chakali Seshamma) wentto the house of the accused by raising shouts and saw the accused tying the coconut rope around the neck of the deceased; that on seeing them,accused ran away from the scene of occurrence leaving the rope. On18.06.2008, P.W.7 recorded the statement of P.W.1 and registered acase as in Ex.P.6 and that on the same day at about 11.30 AM, P.W.8seized coconut rope containing hairs of a woman (used by the accusedin causing the death of the deceased) at the scene of occurrence andobserved the scene of occurrence in the presence of P.Ws.5 and 6. On20.06.2008, the accused was arrested and remanded to judicial custody. After completion of investigation, police filed charge sheet.

3. The trial Court framed the following charge against the accused.

“That you accused herein on 18.06.2008 atabout 3.00 pm at Kotapeta, BethamcherlaVillage and Mandal, Kurnool District, throttledthe neck of your wife Shaik Razia Bee bymeans of coconut rope and committed murderby intentionally or knowingly causing herdeath and thereby committed an offencepunishable under Section 302 IPC and withinmy cognisance.”

4. When the above charge was read over and explained to theaccused in Telugu, he pleaded not guilty and claimed to be tried.

5. To substantiate the charge, the prosecution examined P.Ws.1 to 9and got marked Exs.P-1 to P-8 besides case properties – M.Os.1 to 4.

6. After closure of prosecution evidence, accused was examinedunder Section 313 Cr.P.C., for which he denied the incriminatingcircumstances appearing against him in the evidence of prosecutionwitnesses. No oral or documentary evidence was adduced on behalf ofaccused.

7. The trial Court, basing on the evidence available on record, foundthe appellant/accused guilty of the charge levelled against him andaccordingly, convicted and sentenced him, as stated supra. Challengingthe conviction and sentence, the present appeal is filed by the appellant/accused.

8. The points for determination are:

Whether the prosecution proved its case beyond allreasonable doubt against the appellant/accused of theoffence punishable under Section 302 I.P.C. andwhether the judgment of the trial Court is correct, legaland proper or not?

9. Learned counsel appearing for the appellant/accused contendedthat except the evidence of child witness-P.W.2, there is no otherevidence to show that accused is assailant of the deceased; that from thebeginning, P.W.2 is disliking the accused, as he was addicted to drinkingand used to beat the deceased; that there are lot of discrepancies in theevidence of prosecution witnesses; that some witnesses stated thatdeceased was dragged by the accused to some extent, but no externalinjuries were found on the deceased; that if really manual strangulationalleged to have been committed by the accused, haematoma would havebeen present around the ligature mark near the neck of the deceased;that the brother of the deceased is a crucial witness, but he was notexamined; that in the absence of any corroboration, it is not safe to placean implicit reliance on the evidence of P.W.2 and hence, she prays toacquit the accused.

10. On the other hand, learned Additional Public Prosecutor appearingfor the State, contended that there is no possibility for any third person tocommit murder of the deceased; that it is not a case of suicidal hangingas ligature mark was found around the neck of the deceased; that P.W.2is a natural witness to be present at the scene of occurrence and shewould not have implicated her own father, if really the accused has notstrangulated the deceased; that on seeing the incident, P.W.2 rushed tothe house of P.W.1 and informed about the incident; that thereafter P.W.1and others rushed to the scene of occurrence and saw the deceasedlying on the ground and the accused was running away from the scene ofoccurrence; that the ocular testimony is completely in corroboration withmedical evidence; that the trial Court after elaborate consideration of evidence on record, rightly convicted the accused and there are nogrounds to interfere with the impugned judgment.

11. The deceased is no other than wife of the accused. They wereresiding at Kotapeta Street, Bethamcherla Village. P.W.2 is a childwitness, aged about 11 years by the date of her examination. Thelearned Sessions Judge after putting some preliminary questions to knowcapacity of child witness and after satisfying with the rational answersthat were given by the child witness, recorded her evidence.

12. There cannot be any dispute that the evidence of a child witnesshas to be appreciated like that of evidence of any other witness and afterevaluating and appreciating the evidence of a child witness, if it is foundto be true and trustworthy, it can be acted upon without any corroboration.The testimony of child witness should only be accepted after the greatestcaution and circumspection. The rationale of this is that it is commonexperience that a child witness is most susceptible to tutoring. On thisaspect, it is pertinent to refer to a decision reported in DATTURAMARAO SAKHARE AND OTHERS V. STATE OF

MAHARASHTRA[[1]],wherein it is held at para 5 as under:

“The entire prosecution case rested uponthe evidence of Sarubai (PW2) a child witnessaged about 10 years. It is, therefore, necessary tofind out as to whether her evidence iscorroborated from other evidence on record. Achild witness if found competent to depose to thefacts and reliable one such evidence could be thebasis of conviction. In other words even in theabsence of oath the evidence of a child witnesscan be considered under Section 118 of theEvidence Act provided that such witness is ableto understand the questions and able to giverational answers thereof. The evidence of a childwitness and credibility thereof would depend uponthe circumstances of each case. The onlyprecaution which the court should bear in mindwhile assessing the evidence of a child witness isthat the witness must be a reliable one and his/herdemeanour must be like any other competent witness and there is no likelihood of beingtutored. There is no rule of practice that in everycase the evidence of such a witness becorroborated before a conviction can be allowedto stand but, however as a rule of prudence thecourt always finds it desirable to have thecorroboration to such evidence from otherdependable evidence on record. In the light of thiswell-settled principle we may proceed to considerthe evidence of Sarubai (PW2).”

13. P.W.2 is daughter of the accused and the deceased. It is in herevidence that on the date of incident she was going to school; that herschool timings were 9.00 AM to 3.00 PM; that the incident had takenplace at about 3.00 PM; that it would take half-an-hour time to cover thedistance between her house and the school by walk. She categoricallystated that on the date of incident, she did not attend the school. She is anatural witness to be present at the time of incident. She further statedthat on the date of incident, herself and the deceased were present in thehouse and at about 2.00 PM, accused came to the house; that theaccused and the deceased used to quarrel with each other; that on thedate of incident the deceased refused to give money to the accused; thatthe accused beat her and killed her with a coconut rope by hanging; thatthen she rushed to the house of P.W.1 and informed the acts of theaccused to her; that by the time herself and P.W.1 came to the house,accused ran away from the scene of occurrence. After the incident inquestion, she was under the care and custody of Rameswara Reddy ofBethamcherla Village, who is providing food and clothes to her; and thatthe said Rameswara Reddy did not come to the Court. It is not the caseof the accused that he had some grouse or enmity against RameswaraReddy. Therefore, after the incident, when she was under the care andcustody of a third person and the third person has no enmity against theaccused, possibility of tutoring P.W.2 by Rameswara Reddy to deposeagainst the accused can be ruled out. The acts which are exclusivelywithin the knowledge of P.W.2 have been testified by her. She withstoodthe testofcross-examination. Mere suggestion in cross-examination,

however, ingenious are of no evidentiary value unless accepted bywitness or proved by other evidence. Even after lengthy cross-examination, nothing has been elicited to discredit the testimony ofP.W.2. Even it is not suggested to her that she was testifying falsely atthe instance of Rameswara Reddy, under whose custody she wasresiding after the incident. Except suggesting that she did not witness theincident and deposing false at the instance of police, nothing has beenelicited to doubt her presence at the time of incident. When there is noelement of tutoring and the presence of P.W.2 is probable at the relevantpoint of time of the incident, the evidence of P.W.2 can be put in thecategory of wholly reliable. If really, P.W.2 was not present at the time ofincident, there would not gone to the house of P.W.1 and narrate theincident.

14. It is in the evidence of P.W.1, who lodged a report within two hoursafter the incident, that after she came to know about the incident fromP.W.2, she rushed to the house of the deceased and found the deceasedlying on the ground and saw the accused running away from that place. So the earliest version would clearly go to show that P.W.2 was presentat the time of incident. When she was present, there was every possibilityfor her to witness what had transpired inside the house.

15. House of the deceased and the accused consists of only one room.There is no scope or possibility to any third person to commit murder ofthe deceased because it is not a case of murder for gain. No doubt, inthe cross-examination P.W.2 admitted that she does not like her father ashe was accustomed to drinking and used to beat her mother. But on thatground it cannot be said that she was bent against her to give falseevidence upon her own father. Therefore, practically, evidence of P.W.2even after lengthy cross-examination, remained unchallenged. It wouldbe unsafe to discard the evidence of P.W.2 whose presence at the time ofincident is natural and probable.

16. P.Ws.3 and 4 are neighbours of the deceased and their evidence is relevant to the extent that they saw the accused running away from thescene of occurrence. On the date of incident, they rushed to the scene ofoccurrence. It is in the evidence of P.W.3 that on the date of incidentP.W.2 came to her house and informed that her father tied coconut ropearound the neck of her mother and was beating her; that thenimmediately herself, P.Ws.2 and 4 rushed to the house of the accusedand requested him not to kill her, but he ran away; that they have seenrope around the neck of the deceased; that by the time they reached thehouse, deceased died. In the cross-examination she admitted that P.W.1used to sit in her shop; that on the date of incident she came to the housefor lunch; that herself and P.W.1 tried to catch hold the accused, but heescaped from the scene of occurrence. Her presence at the time of theincident is established for the reason that she used to go to the fields atabout 6.00 AM for collection of firewood and come back at about 1.00PM. So such is the case, there was every possibility for her to be presentat the house at the time of incident. It is suggested to her that at theinstance of P.W.1 she was deposing false against the accused. There isno need for her to tutor P.W.1 to speak false against the accused. EvenP.W.1 does not have any grouse or enmity against the accused so as toimplicate him in a case of this nature.

17. Evidence of P.W.4 would go to show that on the date of incidentP.W.2 came to his house and informed about the incident; that by thetime he rushed to the scene of occurrence, deceased was found lying ona cot and the accused was running away from the house; that but hedoes not know that accused tied a rope around the neck of the deceased;that one house is intervening between his house and the house of theaccused; that at the time of the incident, accused was residing as atenant in the house of Boya people; that he was agriculturist doing cooliework; that on the date of incident he came to the house at about 1.00 PM;that he had seen the accused at his house and that by the time hereached the house of the accused, doors were kept open and he saw thedeceased lying on a cot. It is suggested to him that the deceased committed suicide due to financial problem and false case has beenfoisted against the accused at the instance of P.W.1, but he denied thesame. The presence of P.W.4 at the relevant point of time of incident hasnot been specifically denied or disputed. When he went to the house ofthe accused, accused was running away from the scene of occurrenceand the same has not been denied or disputed in the cross-examination. Therefore, from the evidence of P.W.4, it is clear that accused wasrunning away from the scene of occurrence. If really accused is not theassailant of the deceased and some other person committed the murderof the deceased, there is no need for the accused to run away from thescene of occurrence.

18. P.W.5 did not support the case of the prosecution. P.W.6 is one ofthe inquest mediators, who was present when the Inspector of Policeheld inquest on the dead body of the deceased. Police also seizedclothes of the deceased under M.Os.1 to 3 and M.O.4 coconut rope,which was used in commission of the offence. Their evidence with regardto holding of inquest and opinion expressed by the inquest mediatorsremained unchallenged. It is also not in dispute about the scene ofoccurrence. Scene of occurrence is only one room in which accused,deceased and P.W.2 were residing. Ex.P.7 is rough sketch of the sceneof occurrence.

19. There are some inconsistencies in the evidence of prosecutionwitnesses. P.W.2 stated that her mother fell on the ground and her fatherbolted the door from outside. P.Ws.3 and 4 stated that by the time theyreached the house, the doors were found open. P.W.4 stated that thedeceased was found on a cot. Discrepancies or inconsistencies do notgo to the root of the prosecution case and shake the basic version of thewitnesses, cannot be annexed with, undue importance. It is one of thecontentions of the learned advocate for the accused that brother of thedeceased is an important witness but he was not examined on behalf ofprosecution and an adverse inference can be drawn for his non-examination. Brother of deceased is not an eyewitness to the incident.

There are no circumstances to indicate that he was present at the time ofincident. Non-examination of brother of the deceased is not fatal to thecase of prosecution.

20. P.W.9 is the Doctor, who conducted autopsy over the dead body ofthe deceased and found rope mark present around the neck of thedeceased; Skull –Cerebrum congested and normal; Neck structures arenormal and congested; Hyoid bone fracture; Thorax-lungs are congestedand normal; Heart empty and normal; Abdomen: Stomach contains partlydigested food particles; Liver, kidney congested and normal; Bladderempty and normal.

He opined that the deceased died of throttling with mechanicalobstruction and approximate time of death is about 20 to 30 hours prior tohis post-mortem examination and that the injuries stated by him aresufficient to cause death of a person in the ordinary course of nature. Healso stated that encircle of rope mark is complete in case of throttling andencircle of rope mark is not complete in case of hanging. He stated thathe found complete encircle of rope mark on the neck of the deceased. Heissued Ex.P.8-post-mortem certificate. According to him, he did not findany antemortem external injuries on the body of the deceased except onthe neck i.e., ligature mark. A specific suggestion was given that thedeceased died of hanging, but the same was denied. He opined that thedeceased died due to throttling in view of ligature mark around the neckand signs of asphyxia at the edge of the mark. He did not observehematoma around the ligature mark and the ligature mark is transverse. Practically, the evidence of P.W.9 and the recitals in Ex.P.8 remainedunchallenged. In view of the fact that ligature mark was found over theentire neck of the deceased, it can safely be concluded that it is a case ofmanual strangulation and suicidal hanging can be ruled out. As per themedical evidence, suicidal hanging can only be possible when ligaturemark would not encircle the complete neck. So, medical evidence iscompletely in corroboration with ocular testimony of P.W.2.

21. P.Ws.3 and 4, who are disinterested witnesses, rushed to thescene of occurrence on coming to know to about the incident. From theevidence of P.W.2 it can be said that accused hanged the deceased witha coconut rope around her neck. Similarly, there is no possibility to anythird person to commit murder of the deceased. If any third personcommitted murder of the deceased, certainly the accused would haveobjected and intervened for the same and he would have raised the criesdrawing attention of the neighbours. Therefore, from the prosecutionevidence, it is clearly established beyond doubt that accused is assailantof the deceased and he caused the death of the deceased by throttling. Therefore, considering the evidence on record in right perspective, thelearned Sessions Judge rightly convicted the accused and there are nogrounds to interfere with the impugned judgment.

22. Accordingly, the Criminal Appeal is dismissed confirming thejudgment,dated 25.05.2009, in Sessions Case No.474 of 2008 on the fileof the Principal Sessions Judge, Kurnool. Miscellaneous Petitionspending, if any, in this Criminal Appeal shall stand closed.

______________

(K.C.BHANU,J)

________

(ANIS,J)

DECEMBER 31, 2013YVL

THE HON'BLE SRI JUSTICE K.C.BHANUAND

THE HON’BLE MRS JUSTICE ANIS

YVL

CRIMINAL APPEAL No.907 OF 2009

Dated: 31.12.2013

[1](1997) 5 SCC 341