Md.Javeed v. The State Of Ap.,Rep.Byits Public Prosecutor,

THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE T.AMARNATH GOUD CRIMINAL APPEAL No.880 OF 2011 JUDGMENT: (per Hon'ble Sri Justice C.Praveen Kumar) A.1 and A.2 in Sessions Case No.573 of 2010 on the file of III Additional District and Sessions Judge (Fast Track Court), Gadwal, are the appellants herein. They were tried for the offences punishable under Sections 302 and 498-A IPC. Both accused were found guilty for two charges and were sentenced to suffer Imprisonment for life for the offence punishable under Section 302 IPC and also to suffer rigorous imprisonment for a period of two years for the offence punishable under Section 498-A IPC, apart from directing them to pay fine of Rs.500/- and Rs.300/- each respectively, in default, simple imprisonment for one month. Both the sentences were directed to run concurrently.

2.

The facts of the case, as culled out from the evidence, are as under:

P.W.6 is the uncle of the accused. The deceased Smt. Mahabub Beebi (hereinafter referred to, as 'the deceased') is the wife of A.1. P.W.6, deceased, A.1 and A.2 were staying in one house.

P.W.1 is elder brother of P.W.3, while the deceased is their younger sister. The evidence on record discloses that A.1 used to consume alcohol and quarrel with the deceased. A.1 also used to abuse the neighbours. On the fateful date, P.W.6 saw both the accused strangulating the deceased with a chunni and thereafter, throwing the body of the deceased into 'kandakam' through the window of the house of the accused. After the incident, both the accused left the house. Immediately, thereafter, P.W.6 came out of the house and informed the neighbours, about the incident. The record discloses that on the intervening night at about 3:00 A.M., P.W.6 went to the house of P.W.2 and informed about the incident, who in turn went to the house of P.W.1 and informed the same. When P.Ws.1 and 2 returned to the house of accused, P.W.

6 informed them that the accused threatened him not to disclose about the incident to anybody. P.W.6 reiterated the entire incident again to P.Ws.1 and 2 and others. Though they searched for body in darkness, but could not trace it out. At about, 6:00 A.M., the body was traced. The evidence on record discloses that about four or five months prior to death of the deceased, the deceased informed P.W.1 about the harassment in the hands of A.1, but he advised the deceased to adjust with him. On 03.07.2010 at about 7:10 AM., while P.W.8-Sub Inspector of Police was in the police station, P.W.1 came to the police station and submitted Ex.P.

in Crime No.130 of 2010 came to be registered. Ex.P.8 is FIR. P.W.9 is the Inspector of Police, who took up further investigation. He visited the scene of offence, examined P.Ws.1 to 3 and P.W.6, and Khaja Hussain (L.W.2) and recorded their statements. Thereafter, he held inquest over the dead body of the deceased in the presence of P.W.5 and Shameen (L.W.7). Ex.P.4 is the inquest report. During inquest, he seized M.O.1-chunni and M.O.2-rope. Thereafter, he prepared a rough sketch of the scene, which is marked as Ex.P.5. P.W.7 the Assistant Civil Surgeon, Area Hospital, Gadwal, conducted autopsy over the body of the deceased and issued Ex.P.7-Postmortem Certificate. According to him, the cause of death was due to 'asphyxia due to strangulation'. After arresting the accused and collecting the material, a charge sheet came to be filed.

3.

Learned Judicial Magistrate of First Class, Gadwal, took the case on file as P.R.C.No.82 of 2010 for the offences punishable under Sections 498-A and 302 read with 34 IPC. After furnishing the documents to the accused and by following the procedure laid down under Section 209 Cr.P.C., the case was committed to the Court of Sessions, Gadwal, wherein, it came to be numbered as Sessions Case No.573 of 2010.

4.

On production of the accused, and on consideration of material placed on record, charges under Sections 498-A and

302 IPC were framed against the accused, read over and explained to them, to which they pleaded not guilty and claimed to be tried.

5.

In support of its case, prosecution examined PWs.1 to 9 and got marked Exs.P.1 to P.8 and M.Os.1 and 2. 6.

After the closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C., explaining the incriminating material, which appeared against them in the evidence of prosecution witnesses and the same was denied by them. No oral evidence was adduced by the accused in support of their evidence.

7.

After considering the material available on record, the trial Court by its judgment, dated 15.06.2011 in S.C.No.573 of 2011 recorded the conviction, as stated above. Challenging the same, the present appeal came to be filed. 8.

Learned counsel for the appellants would submit that except the evidence of P.W.6, there is no other evidence to connect the accused with the said offences. Though P.W.6 claims to have seen the incident, he never informed about the incident immediately to others. The information about death of deceased came to be given to P.W.2 for the first time at 3:00 AM. His case is that there is no explanation as to why P.W.6 took such a long time to give information about the incident, when he has really seen the incident at about

2:00 AM. Apart from that, the appellant would contend that absolutely there is no material against A.2, who is brother of A.1, to connect with the said crime. In view of above, learned counsel for the appellants submits that at least, benefit may be extended to A.2.

9.

On the other hand, learned Additional Public Prosecutor opposed the same contending that in the absence of any suggestions being given to the witnesses about the presence and participation of A.2, the request of appellants to give benefit to A.2, cannot be accepted. He further contends that when the evidence of P.W.6 remained unimpeach and when cross examination is silent with regard to his presence on the date of incident, there is no reason why his reason should not be accepted.

10.

As seen from the record, the entire case rests on the evidence of P.W.6, who is related to the accused. According to him, the accused are sons of his elder sister. The evidence of P.W.6 shows that himself, deceased and accused were staying in one house at the time of incident. In chiefexamination, P.W.6 has categorically stated that on the date of incident, the accused killed the deceased by strangulating her with chunni and then threw the body into Kandakam (trench) through the window of the house and thereafter, left the house. The said incident was said to have taken place at about 2:00 A.M. Immediately, thereafter, he came out of the

house and informed about the incident to P.W.2, who in turn went and informed P.W.1 by 3:00 A.M. From the above, the argument of the learned counsel for the appellant that there was delay in P.W.6 giving information, cannot be accepted. Though P.W.6 was cross-examined, no suggestion was put to him evidencing any enmity with the accused, except suggesting that he is speaking falsehood by taking money from P.W.2. It was suggested to P.W.6 that there was any reason for him to speak false against the accused which was denied. On the other hand, the evidence on record shows that P.W.6, deceased and accused were living together in one house. Therefore, we feel that there is no reason to disbelieve the evidence of P.W.6, which remained unimpeached. Coming to the motive part, the evidence of P.W.1 would show that the accused used to harass the deceased for money. It would be appropriate to extract the relevant portion in the evidence of P.W.l, which is as under:

"From the beginning the accused used to harass the deceased for money for their bad habits like drinking. About six months to the incident the deceased came to my house due to the harassment of the accused. After that on the advise of the mediators I sent the deceased to the house of the accused. In spite of that the accused continued their harassment and subjected the deceased to physical cruelty. 4 or 5 days prior to the incident the deceased informed me that the accused had continued to harass the deceased. I advised the deceased to adjust with the

accused. Due to harassment of the accused the wife of A.2 left the accused No.1."

Though P.Ws.1 and 2 were cross-examined at length, nothing useful was elicited to discredit their testimony. On the other hand, it was suggested to P.W.1 that the deceased was suffering with Moorcharogam (Hysteria) and because of which she must have died. The suggestion given to P.Ws.1 and 2 with regard to the ailment with which the deceased was suffering remained a suggestion, without any evidence being adduced in support thereof. Apart from that, it was also suggested to P.W.1 that the deceased was in the habit of walking in the night time and she herself must have fallen in the trench and died. The said suggestion was denied by P.W.1. In the absence of any evidence to that effect, the plea taken by the accused that the deceased herself fell into the Kandakam cannot be accepted. On the other hand, if really the plea of the accused appears to be correct, there is no reason for the accused to leave the house after the incident. The evidence of P.W.6, P.Ws.1 and 2 show that the accused were not available in the house, when P.Ws.1 and 2 reached the house at 3:00 A.M.

11.

Having regard to the evidence available on record, we are of the opinion that the evidence on record amply establish the guilt of the accused. Though the learned counsel for the appellants would contend that no specific overt act has been

attributed to A.2 with regard to the incident proper, we are unable to accept his plea, in the light of evidence of P.W.6, which clearly shows that both the accused strangulated and thereafter threw the body of the deceased into Kandakam. If really the plea of A.2 is correct, then at least there should have been a suggestion, to P.W.6 denying the presence and participation of A.2 in the commission of offence. In the absence of any suggestion to any of the witnesses and when the evidence of P.W.6 is reliable and inspires confidence with regard to participation of A.1 and A.2 in the commission of offence, we are of the opinion that both the accused are liable to be punished for the offences with which they are charged. Hence, the appeal is liable to be dismissed.

12.

Accordingly, the Criminal Appeal is dismissed confirming the Judgment, dated 15.06.2011, passed in Sessions Case No.573 of 2010 by the III Additional District and Sessions Judge (Fast Track Court), Gadwal. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.

_______________________________ JUSTICE C.PRAVEEN KUMAR ______________________________ JUSTICE T.AMARNATH GOUD OCTOBER 30, 2017 YVL

THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE T.AMARNATH GOUD CRIMINAL APPEAL No.880 OF 2011 Date:30.10.2017 YVL