HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
HON'BLE SRI JUSTICE A.SANTHOSH REDDY
CRIMINAL APPEAL No.177 OF 2014
JUDGMENT:-
1. The judgment of the Court of III Additional District &
Sessions Judge, Gadwal, in S.C.No.20 of 2013, dated
31.01.2014, resulted in the present appeal.
2. Heard Smt.Katta Sravya, learned counsel for the
appellants as well as the learned Additional Public
Prosecutor who represented the Respondent-State.
3. Having found the Appellant Nos.1 & 2 guilty of the offence punishable under Section 302 IPC, the Sessions Court convicted them and sentenced them to undergo imprisonment for life and to pay fine of Rs.2,000/- each. Projecting that the appellants have not committed any offence, whatsoever, learned counsel for the appellants contended that the evidence of PWs 1 to 17 is neither convincing nor cogent and therefore, the trial Court erred in convicting the appellants. Learned counsel also stated that though PWs 5 to 7 did not witness any incident, they were figured as eye witnesses and were planted. But the 2 Dr.CSL,J & ASR,J Crl.A.No.177of 2014 same was not perceived by the trial Court. Learned counsel also submitted that the appellants were implicated falsely in this case by PW3, who is none other than the husband of the 1st appellant in order to escape from giving any share in his property either to Appellant No.1 or to her children. Learned counsel also submitted that even to take the evidence of PWs1 to 3 into consideration, they are all interested witnesses. The evidence of PWs 1 & 2, being the parents and PW3, being the husband of the deceased woman, ought not to have helped the prosecuting agency in establishing its case. Learned counsel further submitted that the deceased woman attempted to commit suicide and it is not a case of strangulation. But the same is not observed by the trial Court. Learned counsel also submitted that it is for the prosecution to establish the motive for commission of offence. But the said motive is not established at least to the remotest extent and hence, convicting the appellants is undesirable. By submitting thus, learned counsel for the appellants seeks to set-aside the judgment of the trial Court and thereby to acquit the appellants.
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4. Vehemently opposing the submission thus made, learned Additional Public Prosecutor contended that the victim woman was pregnant by the date of incident. Learned Additional Public Prosecutor contended that the appellant No.1 herein is the first wife of PW3 and the deceased woman is the second wife of PW3. Learned Additional Public Prosecutor stated that after marrying the deceased woman, PW3 kept her in the same house where the appellants were residing, but in a different portion and as the deceased woman married her husband, the first appellant bore grudge and when the deceased woman became pregnant, the appellants apprehended that PW3 would give his property to the child of the deceased woman and therefore planned to eliminate her before the date of delivery and executed the said plan. Learned Additional Public Prosecutor also stated that the appellants might have killed the deceased woman then and there itself by strangulating her. But when the neighbours witnessed and in the meantime PW3 came to the house, they left the victim woman and fled away through another way. But the deceased woman succumbed soon. Learned Additional Public Prosecutor also stated that the eye witnesses spoke 4 Dr.CSL,J & ASR,J Crl.A.No.177of 2014 in clear terms that it is the appellants who committed such a heinous act and further, the cause of death was well established and therefore, the trial Court rightly convicted the appellants. In the light of the submissions thus made, the points that arise for consideration are:-
1. Whether the prosecution established beyond all reasonable doubt that the appellants have committed offence punishable under Section 302 IPC?
2. Whether there exists any infirmity in the judgment of the trial Court as projected by the appellants?
5. POINT No.1:-
Whether the prosecution established beyond all reasonable doubt that the appellants have committed offence punishable under Section 302 IPC?
The crux of the case as projected in the charge sheet is that the deceased Nagaveni (hereinafter be referred as 'the deceased' for brevity) was given in marriage to her own maternal uncle. However, as differences arose between them, they took divorce as per their caste customs. Subsequently, the deceased started residing with her parents. While she was attending agricultural works, she got acquaintance with PW3 and fell in love with him. They 5 Dr.CSL,J & ASR,J Crl.A.No.177of 2014 both got married without the knowledge of the first wife of PW3 i.e. the first appellant herein and his mother i.e. the second appellant herein. After marriage, PW3 brought the deceased and kept her in a portion of his house and started leading conjugal life with her. The deceased became pregnant. The appellants 1 & 2 could not tolerate the same and they developed grudge against her. Disputes arose between the deceased and appellant No.1. Therefore, both the appellants decided to eliminate the deceased and were waiting for an opportunity. On 14.08.2012, PW3 left the house at about 8.00 PM. The deceased started taking food. She was carrying pregnancy of eight months at that time. Taking advantage of the situation, both the appellants, along with the son of the 1st appellant i.e. Juvenile in conflict with law, approached the deceased with a plastic rope and closed the doors. Both the appellants tied the rope around the neck of the deceased from backside and pulled the same, while the Juvenile in conflict with law was holding the hands of the deceased. The deceased, who was unable to save her life, raised cries. PW5, PW6 and LW6-Narsimulu, who heard the voice of the deceased, went there and knocked the door of the house. 6
Dr.CSL,J & ASR,J Crl.A.No.177of 2014 There was no response. They witnessed the offence through the window and left the place due to fear. In the meantime, PW3 returned home on his motor cycle and on hearing the sound, appellants and the Juvenile in conflict with law escaped through the rear door. The persons who witnessed the incident informed the same to PW3. PW3 shifted the deceased to Area Hospital in a Car for treatment. Subsequently, she was shifted to Government General Hospital, Kurnool, but she breathed her last there while undergoing treatment.
6. To decide the points that are taken up for discussion, the crucial facts to be addressed are :-
(i) Whether the prosecution has established the relationship between the deceased and PW3?
(ii) Whether the prosecution has established that the deceased and the appellants used to reside under one roof, however, in different portions?
(iii) Whether the alleged incident is witnessed by any of the prosecution witnesses and if so, whether their evidence can be relied upon?
(iv) Cause of death of the deceased?
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(v) Whether non-recording of dying declaration of
the deceased is fatal to the case of the
prosecution?
(i) Whether the prosecution has established the
relationship between the deceased and PW3?
Going further in the discussion, taking point No.(i), it is incumbent on the part of the prosecution to primarily establish that the deceased is the wife of PW3. During the course of submission, learned counsel for the appellants contended that PW3 never married the deceased. However, there is overwhelming evidence on record to establish that the deceased was married to PW3. The parents of the deceased, i.e. PWs 1 & 2, stated in one voice that the deceased was first given in marriage to one of their relatives and it ended in divorce before their caste elders and thereafter, the marriage of the deceased was performed with PW3. PW3 himself deposed that after the deceased separated with her husband, he married her. During the course of cross-examination of PW1, the learned counsel for the appellants had put a suggestion that PW3 registered a site in the name of the deceased for marrying her. That apart, the scene of offence is located at the house of PW3. 8
Dr.CSL,J & ASR,J Crl.A.No.177of 2014 Therefore, it is clear that the prosecution, by all the evidence it is produced, has established the relationship between the deceased and PW3.
(ii) Whether the prosecution has established that the deceased and the appellants used to reside under one roof, however, in different portions?
As indicated in the foregoing discussion, the scene of offence is located at the house of PW3. It is not the case of the appellants that they are residing elsewhere. Apart from PWs 1 & 2, who are the parents of the deceased, PW3, who is the husband of the deceased as well as the 1st appellant, PWs 5 to 8 also stated that the incident occurred at the house of PW3 where the deceased and the appellants were residing in different portions. Also, nothing is elicited from the cross-examination of those witnesses to take a different view. Therefore, it can be safely inferred that the deceased and the appellants were residing at one house, but in different portions.
(iii) Whether the alleged incident is witnessed by any of the prosecution witnesses and if so, whether their evidence can be relied upon? 9
Dr.CSL,J & ASR,J Crl.A.No.177of 2014 As per the version of the prosecution, PWs 5 to 7, LW6- Narsimulu and LW9-Manyamma, are the ocular witnesses to the incident. The evidence of PW5 is that the appellants are her neighbours. On the date of occurrence at about 9.00 P.M, while herself, PW6, PW7, LW6-Narsimulu and LW9-Manyamma, were present in front of their respective houses and were sitting, they heard groaning from the house of the deceased and as she was pregnant, they were under an impression that she was getting pains and they went to the house and knocked the door. But the deceased did not open the door and they peeped into the room through window and they noticed the Juvenile in conflict with law holding the hands of the deceased and both the appellants tightened plastic rope to the neck of the deceased. On enquiry, the appellants informed her that they are taking care of her as she was getting pains. Without suspecting anything, they left the house and meanwhile, the husband of the deceased came on a bike. By the time of his arrival, all of them left the house of the deceased. PW5 further stated that herself and PW6 first went to the house of the deceased and subsequently, PW7 10 Dr.CSL,J & ASR,J Crl.A.No.177of 2014 & LW9-Manyamma went to the house and later, LW6- Narsimulu went there. PW6 & PW7 corroborated the testimony of PW5 in toto. Though those three witnesses were put to extensive cross-examination, noting could be elicited through them to discredit their testimony. Further, the evidence of PW8 is that on the night of occurrence between 9.00 P.M and 10.00 P.M, while he was sitting at his house, he heard hue and cry of women folk of his locality and on that, he came out and saw PW3 bringing out the deceased from his house and she was in an unconscious state and her tongue was protruded from the mouth and there was injury to her neck. Immediately, he helped him in shifting her to hospital in his car. Thus, the testimony of PW8 corroborates the testimony of PWs 5 to 7.
PW8, during the course of cross-examination, stated that PW3 approached him and requested for his car to shift the deceased to hospital. There is no reason for these witnesses to give false evidence. Further, it is not the case of the defence that they have got any enmity with the appellants herein or have any relationship either with the deceased or PW3. They being neighbours, are natural 11 Dr.CSL,J & ASR,J Crl.A.No.177of 2014 witnesses. Therefore, this Court has no hesitation to take into consideration their testimony. Thus, it is clear that the prosecution has submitted convincing ocular testimony in support of its case.
(iv) Cause of death of the deceased?
The testimony of eye witnesses goes to show that the deceased was attempted to be strangulated through a rope. The evidence of PW13 in this regard is that on 25.08.2012, on the request of police, he conducted post mortem examination over the dead body of the deceased and found antemortem external injuries i.e. healed pressure abrasion as a hypo pigmented skin tissue present over front and sides of neck, Tracheostomy opening over front of neck and cut injuries over left hand. PW13 further stated that he is of the opinion that the cause of death is due to asphyxia due to pressure around the neck and its complications.
PW13, during the course of cross-examination, stated that in case of suicidal attempt, the injuries would be consistent and the injuries of the victim were inconsistent and the possibility of suicide of the victim was ruled out. 12
Dr.CSL,J & ASR,J Crl.A.No.177of 2014 He voluntarily stated that the injury noted on the neck was horizontal. In case of suicide, there would be ligature mark in upwards/backwards. Thus, the prosecution has clearly established that the deceased died due to asphyxia and the said asphyxia is due to pressure applied around the neck and its complications. Admittedly, the deceased died around eleven days after the date of incident.
The evidence of PW15 is that he is working as Assistant Professor of Medicine at Kurnool Medical College and he attended the deceased from 15.08.2012 throughout the treatment till her death. He also stated that as the deceased was pregnant, he consulted Genology Department, who also attended her, took care of spontaneous delivery of a dead foetus when she was in unconscious stage on 23.08.2012. He also stated that she was unconscious throughout from the date of admission till her death. He further stated that he noticed a strangulation mark on her neck. All the evidence thus produced establishes the cause for death of the deceased supporting the version of prosecuting agency. 13
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(v) Whether non-recording of dying declaration of the deceased is fatal to the case of the prosecution?
Though, during the course of submissions that were projected by the learned counsel for the appellants it was argued that the concerned Doctors ought to have taken steps for recording the declaration of the deceased and absence of such a dying declaration is fatal to the case of the prosecution, this Court is not inclined to appreciate the stand. Though, as rightly projected, dying declaration was not recorded, yet, the case is established by the prosecution through the testimony of ocular witnesses. Therefore, absence of any dying declaration is not at all fatal to the case of the prosecution. Likewise, though it is projected that a complaint was not given to police immediately, as the crucial witnesses clearly deposed that they were attending the deceased and as the issue is between the family, they did not give complaint immediately, this Court is of the view that the delay in giving complaint to police cannot aid the appellants. 14
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7. POINT NO.2:-
Whether there exists any infirmity in the judgment of the trial Court as projected by the appellants? When the judgment of the trial Court is gone through, considering all the factors, the points that are raised by the appellants and all the factual aspects of the case, the Court came to a just conclusion that the prosecution established the guilt of the appellants beyond all reasonable doubt.
8. This Court, thus, does not find any grounds to interfere. The judgment rendered is well reasoned and further, the evidence produced is cogent and convincing. Therefore, the ultimate conclusion of this Court is the appeal lacks merits and deserves dismissal.
9. Resultantly, the Criminal Appeal stands dismissed confirming the judgment that is rendered by the Court of III Additional District & Sessions Judge, Gadwal, in S.C.No.20 of 2013, dated 31.01.2014.
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10. Miscellaneous petitions, if any pending, shall stand closed.
________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA ________________________________ JUSTICE A.SANTHOSH REDDY Dt.23.12.2022 ysk 16 Dr.CSL,J & ASR,J Crl.A.No.177of 2014 HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA HON'BLE SRI JUSTICE A.SANTHOSH REDDY CRIMINAL APPEAL No.177 OF 2014 Dt.23.12.2022 ysk