Tadiparthi Durga Rao v. The State Of A.P.

HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND HON'BLE SRI JUSTICE N.BALAYOGI CRIMINAL APPEAL No.1331 of 2011 JUDGMENT : (per Hon'ble Sri Justice C.Praveen Kumar) 1) The sole accused in S.C.No.131 of 2011 on the file of the Principal Sessions Judge, West Godavari Division at Eluru, is the appellant herein. He was tried for an offence punishable under Section 302 IPC for causing the death of his wife by name Thadiparthi Gouramma @ Bujji on 15.10.2010 at 11.00 p.m., in Jatlapalem village of Pentapadu Mandal, by stabbing her on the head with a knife, used to cut the date-tree leaves stems. 2) The facts as culled out from the evidence adduced are as under:- P.W.1 is the brother of the deceased, while P.W.2 is the sisterin-law of the deceased. The deceased was married to one Venkanna and out of their wedlock, two male children were born to them.

About four years prior to the incident, the said Venkanna died. Since then the deceased was residing with P.W.1. It is said that the accused, who is a native of Pippara village, settled down in their village by purchasing a house. After the death of his wife, the accused and deceased used to live together as wife and husband. Out of the said relationship, one male issue was also born but he died subsequently.

It is said that the accused used to quarrel with the deceased suspecting her fidelity and also used to beat her. As such the matter was placed before the elders, who advised the accused to live amicably and not to repeat such incidents. On the date of incident i.e., on 15.10.2010 at about 11.00 p.m., while P.W.1 and his wife were in their house, they heard cries from the house of the accused stating that the deceased was being beaten. Then P.W.1 rushed to the house of the accused and noticed the accused hacking the deceased on the left side of her head, middle of the head and below the right eye. After hacking, the accused ran away from the scene along with the knife used in the commission of the offence (M.O.1). It is further deposed that before hacking the deceased, the accused beat her with date leave stems (M.O.2). Then P.W.

1 sent a word to his elder brother by name Nakka Ramudu, who was residing in Chilakampadu village. P.W.2 in her evidence deposed that on the date of incident at about 12.00 midnight, they heard cries of deceased from the house of the accused, due to which she sent P.W.1 and later she followed him. By the time she went there, she noticed the accused running away with a knife and her sister-in-law lying with injuries over the head and face. The evidence of P.Ws.1 and 2 would disclose that after the arrival of Nakka Ramudu they got the report drafted through one Sateeshbabu (P.W.5) and thereafter proceeded to the police station and lodged a report with the police at 9.00 a.m., on the next day. P.W.9 received the report-Ex.

Crime No.176 of 2010 for the offence punishable under Section 302 IPC. Ex.P-9 is the FIR. Further investigation was taken up by P.W.10. On receipt of First Information Report, P.W.10 proceeded to the scene of offence and inspected the same in the presence of P.W.7 and another. Ex.P-5 is the observation report of the scene. He also seized M.Os.2 to 8 from the scene of offence. Thereafter, he prepared a rough sketch of the scene which is placed on record as Ex.P-10. After getting the scene of offence photographed through P.W.6, he conducted inquest over the deadbody of the deceased in the presence of P.W.7 and others. Ex.P-6 is the inquest report. During inquest he examined P.Ws.1 to 3, 5 and 6. Thereafter, the deadbody was sent for postmortem examination. P.W.

8 the Deputy Civil Surgeon, Government Area Hospital, Tadepalligudem conducted autopsy over the deadbody and issued Ex.P-8- the post mortem certificate. According to him, the cause of death was "due to fracture base of the skull and cerebral hemorrhage". P.W.10 continued with the investigation, arrested the accused and pursuant to the confession made, he is said to have recovered M.Os.1 and 9 under Ex.P-7. After obtaining FSL report, he filed charge-sheet, which was taken on file as P.R.C.No.5 of 2011 on the file of the I Additional Judicial Magistrate of First Class at Tadepalligudem, who in turn committed the case to the Court of Sessions under Section 209 Cr.P.C. and the same came to be numbered as S.C.No.131 of 2011.

3) A charge under Section 302 IPC was framed, read over and explained to the accused, to which he pleaded not guilty and claimed to be tried.

4) In support of their case, the prosecution examined PWs.1 to 10 and got marked Exs.P-1 to P-12 and M.Os.1 to 9. Out of the 10 witnesses, P.Ws.3 and 4 did not support the case of prosecution and they were treated as hostile. After the closure of evidence, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, to which he denied. No oral or documentary evidence was adduced, in support of his defence. 5) Taking into consideration the evidence of P.Ws.1, 2 and 5 to 10 and the circumstances relied upon by the prosecution to connect the accused with the crime, the Sessions Judge convicted the accused for the above mentioned charge. Challenging the same, the present appeal came to be filed.

6) The learned counsel appearing for the appellant mainly submits that the circumstances relied upon by the prosecution do not form a chain of events so as to connect the accused with the crime. He further submits that the evidence of P.Ws.1 and 2 cannot be relied upon as they admit in cross-examination that they could not have heard the cries, made at the house of the deceased. He would further submit that the trial court erred in convicting the accused

based on the 161 Cr.P.C. statements. He would further submit that in the absence of any evidence to show that the accused was present in the house along with the deceased at the time of the incident and having regard to the manner in which the deadbody was lying at the scene of offence, the manner in which the incident happened, appears to be doubtful.

7) On the other hand, the learned Public Prosecutor mainly relied upon Ex.P-7-the scene of offence panchanama to show that in the absence of any explanation by the accused as to how the deceased died, the conviction imposed by the trial court warrants no interference.

8) As seen from the record, the prosecution examined P.W.1 as an eyewitness to the incident and also P.W.2 to speak about the accused leaving the house with a weapon at the time when they reached there. In the chief-examination P.W.1 deposed as under:- "About 8 months back when myself and my wife were in my house and at about 11.00 p.m. we heard the cries from the house of accused. Deceased raised such cries that she was being beaten. Then I rushed to the house of accused. AT that time the accused hacked the deceased on the left side of her head, middle of the head and below the right eye. Again the witness says that he can not say under which eye of the deceased accused hacked. I can identify the above knife which will be used to cut the "Date" leaves if it is shown to me. After hacking, the accused ran away from the scene along with the above knife. Then the deceased fell down and died. M.O.1 is the said knife used by the accused to hack the deceased. Before hacking the deceased the accused beat her with

'Date leaves stems'. M.O.2 is such date leave stems (two in number). L.W.2 Sattemma also accompanied me to the house of accused at that time. Later neighbours also came there. Then I sent a word to my elder brother by name Nakka Ramudu residing in Chilakampadu village, who too came there."

9) Similarly, P.W.2 in the chief-examination deposed as under:- "On that day myself and P.W.1 were in our house. At about 12.00 mid night on that day we heard the cries of deceased from the house of accused due to which I sent P.W.1. Later I followed him. By the time I went there accused was found running with a knife. I observed injuries over head and face of deceased. Then myself and P.W.1 laid the dead body of the deceased outside the door steps. Neighbours also came at that time."

10) From the evidence of P.Ws.1 and 2, it is clear that on hearing the cries of the deceased from the house of the accused, that she was beaten, P.W.1 rushed to the scene followed by P.W.2. At the scene P.W.1 claims to have seen the attack by the accused on the deceased.

11) The question now is, "Whether PWs.1 and 2 could have heard the cries?"

12) Though in chief-examination, P.W.1 claims that his house is at a distance of 10 feet from the house of the accused, but in the crossexamination he admits that the distance between his house and the house of the accused would be about half kilometer. It would be useful to extract the relevant portion of the admission made, which is as under:-

"The distance between my house and the house of accused may be 1⁄2 km."

13) Similarly P.W.2 in her cross-examination admits as under:- "The distance between my house and the house of accused is about 1⁄2 km." 14) From the admissions made by P.Ws.1 and 2, it is clear that the distance between their house and the house of the accused is about half a kilometer. Though the learned Public Prosecutor tried to contend that they being the villagers may not be knowing the actual distance, but P.W.5 the village servant, who has prepared Ex.P-1report and gave it to P.W.1, admits in cross-examination that the distance between the house of P.W.1 and the accused is about half a kilometer. It would be useful to extract the relevant portion. "I know the house of accused in Jetlapalem so also the house of P.W.1. House of P.W.1 is located in the beginning of the village. House of accused is located at the end of the village.

All those houses are huts located by the side of the road. Brandy shop is there at a distance of about 1⁄2 k.m. from the house of P.W.1. Lands are located on either side of the road in Jetlapalem i.e., on either side of above houses. The distance between the houses of P.W.1 and accused is about 1⁄2 km. I have been working as village servant of Jatlapalem village for the last six years."

15) From these admissions made, a doubt arises as to "whether really P.Ws.1 and 2 could have heard the cries of deceased?" 16) Further, from the answers elicited from P.Ws.1 to 5, it is clear that the house of P.W.1 was at the beginning of the village and that of the accused was at the end of the village. Since the distance

between the houses of P.W.1 and the deceased being nearly half a kilometer and number of houses are situated, it would be very difficult to believe that P.Ws.1 and 2 could have gone to the house of the accused after hearing the cries.

17) One other circumstance, which throws a doubt with regard to P.W.1, deposing about himself and his elder brother going to Advocate of his village by name Mr.Yesupadam and from there going to see the deadbody. No explanation is forthcoming as to why P.W.1 and his brother went to the house of an Advocate by name Yesupadam before lodging the report. The record also discloses that the report was drafted through P.W.5 and only thereafter they lodged the report. If really P.Ws.1 and 2 have heard the cries; gone to the house of the deceased and witnessed the incident, there was no reason for them to meet an Advocate and then prepare a report with the help of P.W.5. The delay of nearly 10 hours in lodging the report must be only to get the involvement of some legal brain in drafting the report and set the law into motion.

18) The other circumstance, which is mainly relied upon by the prosecution is that there was no explanation from the accused as to why the deadbody of the deceased came into his hut. The learned Public Prosecutor mainly relied upon Ex.P-5-the scene observation report to show that the burden is on the accused to explain how the deadbody was in his hut.

and deceased were living together, but at the same time it is to be noted here that the incident was happened around 10.00 to 11.00 p.m. and there is no evidence on record to show that the accused was with the deceased at the time of the incident. Apart from that the photographs, which are placed on record, show that there are no cloths on the upper portion of the body of the deceased and some cloths were in pell-mell condition in the hut. That being the position, a doubt arises as to whether the prosecution is really coming forward with a true version of how the incident has occurred. It may be true that there are number of injuries on the body of the deceased, but the question that remains unanswered is as to how the deceased sustained those injuries. The evidence of P.Ws.

1 and 2, which is pressed into service to prove the same, throws an amount of doubt since they could not have heard the cries as their house is situated nearly half a kilometer to the scene of offence and if really they have gone there and witnessed the incident there was no reason for them to consult an Advocate by name Yesupadam and take the help of MPTC member in drafting the report. Further, as observed earlier, none of the witnesses speak about the accused being seen in the company of the deceased prior to the incident. It may be true that both of them, who are having illicit intimacy, are living together, but there is no evidence to show that at the time of the incident or prior to the incident the accused was in the house along with the deceased.

which the deadobdy was lying. When the photographs are seen, we noticed that there were no cloths on the upper portion of the body of the deceased. Though the learned Public Prosecutor tried to rely upon Ex.P-5-scene observation report, but in our view the same cannot be treated as substantive piece of evidence to connect the accused with the crime in the absence of any other evidence, more so, when the photographs which are placed on record reveal that the incident must have happened in a different manner. 19) In the result, the Criminal Appeal is allowed. The Conviction and sentence recorded against the appellant/accused in the judgment dated 19.07.2011 in S.C.No.131 of 2011 on the file of the Principal Sessions Judge, West Godavari Division at Eluru, for an offence punishable under Section 302 IPC, are set aside. Consequently, the accused shall be set at liberty forthwith, if he is not required in any other case or crime.

20) Consequently, miscellaneous petitions, if any, pending shall stand closed.

_______________________ JUSTICE C.PRAVEEN KUMAR ___________________ JUSTICE N.BALAYOGI Dt:04.12.2017 GM