E.Sheshirekha vs State Of Ap
2021 Latest Caselaw 3120 AP

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        THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
                                      AND
        THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN

                             I.A. No. 1 of 2021

                                        In

                   Criminal Appeal No. 381 of 2019

Order:   (Per Hon'ble Sri Justice C.Praveen Kumar)



        Heard Sri. T. Pradhyumma Kumar Reddy, learned Senior

Counsel appearing on behalf of Sri. T.S. Anirudh Reddy, learned

Counsel for the Petitioner/Appellant/Accused No.1 and Public

Prosecutor for the State, through Blue Jeans video conferencing

APP and with their consent, the application is disposed of.


1)      The present application came to be filed by A1 seeking bail

on the ground that there is no material to connect her with the

crime. As seen from the record, originally A1 along with two

others were tried for the offences punishable under Sections

109, 120B, 302 and 201 Indian Penal Code ['I.P.C.']. The learned

Sessions Court while acquitting A2 and A3 of all the charges

levelled against them found A1 guilty of the offence punishable

under Section 302 I.P.C., and consequently directed her to

undergo imprisonment for life and also to pay a fine of Rs.500/-

in default to suffer simple imprisonment for a period of one

week.
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2)     The facts, in issue, are as under:


     a) A1 is said to have developed illicit intimacy with A2.

       Naveen Naidu ['deceased'], son of A1, was aged about 14

       years at the time of incident and studying in Saradha Bala

       Kuteer, Ongole, by staying in a hostel. A2 is said to have

       suggested   A1   to   do   away      with   the   deceased   by

       administering poison as he would be a hurdle in their

       relationship. As per the case of the prosecution, about 10

       days prior to 26.11.2011, A2 is said to have given whiter

       colour poison and bottle       of honey directing A1 to

       administer the poison along with honey to the deceased.


     b) On 27.11.2011 at about 10.30 A.M., A1 went to the school

       of the deceased and took him to the hostel room. As the

       room was locked, she asked the deceased to get it opened

       as she intends to use the toilet. On that, PW8 who was

       present there, requested A1 to use the open bathroom but

       the deceased requested PW8 to get the keys of the room.

       Accordingly, PW8 went and asked PW10 - mess in-charge

       about the arrival of A1. PW10 handed over the keys with

       instructions to return the same after the departure of A1.

       Thereafter, A1 and deceased entered into the room, talked

       together for some time and, thereafter, A1 left. About half

       an hour later, PW8, PW9, PW10 and others noticed the

       deceased lying on the floor. As such, they broke open the

       door and took him to the hospital where he was declared
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     dead. Then PW2 - father of the deceased presented a

     report. On receiving the same, PW21 -Sub-Inspector of

     Police, registered a case under Section 174 Cr.P.C. A

     panchanama of the scene was conducted from where he

     collected vomited substance under Ex.P12 and after

     altering the section of law to Section 302, 201, 120B I.P.C.,

     filed a charge-sheet.


3)   In support of its case, the prosecution examined PW1 to

PW26 and got marked Ex.P1 to Ex.P38.


4)   Sri. T. Pradhyumma Kumar Reddy, learned Senior Counsel

appearing for the Petitioner mainly submits that there is

absolutely no evidence to connect the accused with the crime.

According to him, no suspicion was entertained against the

Petitioner at any point of time. Long after the incident, the body

was exhumed and post-mortem was conducted which shows

that the death was due to cardio-respiratory failure. In view of

the above, he would submit that the Petitioner may be granted

bail pending disposal of the appeal.


5)   Learned Public Prosecutor opposed the same contending

that though there are no direct witnesses to the incident, but the

circumstances relied upon by the prosecution prima facie

establishes the involvement of the accused in the crime.
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6)   In order to appreciate the rival contentions, it would be

necessary to refer to the evidence of PW7, PW8, PW16, PW24,

PW9 and PW10, whose evidence establish the Petitioner being

'last seen' in the company of the deceased at 11.30 A.M. in the

hostel room, the body being found in the hostel room by 12.00

Noon.


7)   PW7 in his evidence deposed as under:

        "On 27.11.2011, after completion of breakfast to all the
        students, I have taken them to the school's ground for
        games. At about 12 noon, A1- Sasi Rekha came and
        asked my permission to take her son Naveen Naidu for
        outing. Accordingly, I permitted her, she took the boy
        from the playground.

              Half an hour later, the mess-in-charge by name
        Venkata Ramanaiah informed me by phone that he
        observed the Naveen Naidu in semi unconscious state
        with vomiting in the hostel room. Immediately I rushed
        to the room, noticed the Naveen Naidu and then taken
        him to Nalluri Ramana Nursing Home, Ongole, there the
        doctor attended and declared that the boy was brought
        dead. Immediately we informed the incident to our
        Correspondent - Ramesh Babu, on his instructions we

informed the same to PW2. Ex.P11 is my report given to the police, II Town PS, Ongole, dated 27.11.2011 at 2.00 P.M. police inquired me and recorded my statement. Subsequently, the police inquired me i.e., after exhumation of the dead body of the deceased. Mother of the deceased is sole responsible for the death of the deceased, since the incident occurred within half an hour, after taking the boy from my control. We used to allow the parents of the children to the hostel rooms."

8) PW8 who was a roommate of the deceased deposed as

under:

"On 27.11.2011 on Sunday after completion of breakfast, I have attended the social class, after a small break, there will be English exam and I attended, completed it by 10.30 A.M. The students are playing games in the playground, but I have not attended due to my injury my teeth. I was in habit of collecting interesting facts in the newspapers and used to paste the cut pieces of papers in a notebook. Revanth is my friend and he is day scholar. After purchasing the newspaper, the said Revanth dropped me at the hostel and he went back on his bicycle.

As the hostel was found locked, I sat on pail and started reading the newspaper which I purchased on the day. My room and the room in which Naveen Naidu staying are locked. There is only one grill door lock for both the rooms. The key will be with the mess in-charge Kamineni Venkata Ramanaiah. At about 10-45 a.m. Naveen Naidu and his mother came to the room and his mother asked me "where is the bathroom", accordingly, I have showed it. Naveen Naidu asked me to bring the keys from the mess in-charge. Accordingly, I went and brought the keys. I have opened the grill door and went to my room. Naveen Naidu and his mother [A1] went to his room. The other students Bellam Srikanth and Medagam Srikanth Reddy came to my room, out of these two one is the roommate of Naveen Naidu. In order to provide privacy to the mother and child [A1 and Naveen Naidu] his roommate came to my room. After sometime both of them went outside the room to watch, whether his mother left the room or not. They returned and told me that mother is staying still in the room and went back i.e., at about 11.30 A.M. At about 12-15 noon I noticed some galata outside the rooms. I noticed the warden [PW7] and others are trying to open the doors of the room as Naveen Naidu was found in unconscious in

the room, the doors are bolted from inside, by using force, PW7 and others got opened the doors, we noticed Naveen Naidu found lying on the mat, touching the stomach and face with vomiting around him. I tested his pulse and breathing and found negative. I sent a student available there to bring the hostel's van, but vehicle is not available, we shifted Naveen Naidu in a private auto to Nalluri Nursing Home, Ongole, got him admitted in causality ward. Then PW7 instructed me to go to the hostel. Accordingly, I went back and learnt that Naveen Naidu died. Police inquired me."

9) PW16 in his evidence deposed as under:

"At about 11.00 A.M., on the day, he went to the hostel room for changing the dress, PW24 also followed him, they noticed PW8 sitting at the room doing work [i.e., collecting newspaper items], in the meanwhile PW8 - Akhil asked PW24 [Srikanth Reddy] to go and see whether mother of the deceased is still in the room or not, accordingly, PW24 went, returned and informed that they are still in the room."

10) PW24 in his evidence deposed as under:

"At about 11.00 A.M., on the day, he and Srikanth [PW16] went to the hostel for changing their dress, noticed PW8 - G. Akhil who was saving the newspaper items in a note book, as usual."

11) Similarly, PW9 who was a classmate of the deceased at

that relevant point of time deposed as under:

"At about 11.40 A.M. I was returning from the medical check up at Kothapatnam bus stand, Ongole, to our hostel. In between the bus stand and the hostel there is water tank, there A1 came to my opposite direction and wished me casually about my studies. From there I went to the mess and then to the room. The grills of the

rooms are opened, but my room was found closed [bolted from inside]. I peeped into the room through the window, as the tube light and fan are switched on. I noticed Naveen Naidu found lying on the mat, touching stomach and face towards floor and with vomiting around his head. I called him repeated to wake him, but he did not respond. Immediately, I went towards the mess in-charge and informed him. He too came to the hostel room, called Naveen Naidu, but no response. Then we called the hostel warden [PW7] on his arrival, we all got opened the doors, by using force from outside. The mess in-charge and warden shifted Naveen Naidu to Nalluri Nursing Home, Ongole, got him admitted. Later, I came to know that Naveen Naidu died. Police inquired me."

12) PW10 is the Mess In-charge, who speaks about handing

over keys to PW8 on the ground that the mother of the deceased

visited the hostel premises; wanted to use the washroom and

talk with the deceased. It would be appropriate to extract the

evidence-in-chief of PW10, which is as under:

"On 27.11.2011 on Sunday, after completion of breakfast of all the students, I went to vegetables market and returned to the hostel by 10.30 A.M. while I was at my residence allotted to me in the compound at about 11.15 A.M. PW8 -Akhil came and asked me to handed over the keys stating that A1 and Naveen came. I informed him to obtain permission from the Correspondent, but he asked me again to hand over the keys stating that Naveen and mother intends to go to the toilets, accordingly, I handed over the keys.

As PW8 did not turn up to return the keys, I started to proceed towards the room, in the meanwhile a student by name Suresh [PW9] told me that the room in which Naveen staying was bolted from inside. Immediately, I

rushed to the room, noticed that the doors are closed, found the Naveen Naidu lying on the floor, touching his stomach and face towards ground, did not respond to my calls. Then I poured water on him to the window, but in vain. Then I informed the incident to Narayana Reddy [PW7] and others, he came and opened the doors by using force. Then we all shifted the Naveen to Nalluri Nursing Home, Ongole, the doctor tested the pulse and declared as brought dead. We tried to inform A1, but she did not answer the phone call. Though, the phone was ringing. Later, PW7 gave report to the police."

13) From the evidence of these four witnesses, prima facie it is

clear that A1 went to the hostel of the deceased and spent time

with him in his room at 11.30 A.M. and within half-an-hour i.e.,

by 12.00 to 12.15 noon, the Warden [PW7] and others broken

open the door of the room of the deceased as he was found in

unconscious in the room. As the door was bolted from inside,

PW7 and others got opened the door by force and noticed the

deceased lying on the mat, touching the stomach and face with

vomited substance around him. Further, there is no evidence on

record to show third person entering the hostel room between

the time the Petitioner left the room and the time when the

classmates and the warden reached the room of the deceased.

14) As urged by the learned Counsel for the Petitioner, 'last

seen' by itself may not be a ground to convict, but there are two

other circumstances that are necessary to be referred to i.e., the

evidence of post-mortem doctor and the extra-judicial confession

before PW17.

15) The case of the prosecution is that the deceased was

administered poison, which lead to instantaneous death. The

argument of the learned counsel for the Petitioner is that the

stomach and the viscera does not contain any poison substance

and, as such, the case of the prosecution that death was due to

poison is incorrect. But, prima facie, we feel that this aspect

requires consideration at length at the time of hearing of the

appeal, more so, having regard to the cause of death. It is not a

case, as urged by the accused that, deceased died due to cardio-

respiratory failure, but the death was due to cardio respiratory

failure as a complication of septic myo-cardities of heart.

Referring to Modi's book of Toxicology, the Doctor [PW20] in his

evidence states as under:

"It is true Section 2 deals with of Toxicology, relating to study of poison. It is true cyanide is a salt or easter of hydrocyanic acid, containing the ion CN or the group-CN, sodium or potassium cyanide used as a poison or in the extraction of gold or silver Potassium cyanide is highly toxic. The salt may be easily dissolved in any liquid. Cyanide will have a peculiar or victim.

1. General weakness, vomiting, confusion, bizarre behaviour, excessive sleepiness, coma, shortness of breath, headache, dizziness, loss of consciousness / passing out, seizures [fits], then cardiac arrest.

It is true whenever a patient is referred with history of consumption or administrating of cyanide poison, the duty of doctor is to concentrate on respiratory support

and cardio vascular, sometimes the patient will survive.

The Modi's jurisprudence would say about the symptoms of the patient, if consumed or was administered with poison. I have noted in Ex.P19 about the common symptoms, but not specifically about the cyanide. Even after Ex.P21 the police have not furnished any questionnaire."

16) From the evidence of the doctor, prima facie, it appears

that septic cardio-respiratory failure was due to taking of some

poisonous substance. The petitioner was the last person who

met the deceased who according to prosecution came there to do

away with the deceased.

17) PW17 is the Village Revenue Officer before whom the

accused is said to have made the extra-judicial confession on

07.07.2012. According to him, on 07.07.2012 at 6.00 A.M.,

while he was in Office, the accused came to him and stated that

she intends to disclose aspects regarding the death of her son.

Ex.P15 is the said statement. Thereafter, he took her to Ongole I

Town Police Station and produced her before the Circle

Inspector of Police along with Ex.P16. In view of the above

circumstances, namely, motive, last seen, evidence of post-

mortem doctor coupled with the extra-judicial confession, which

prima facie discloses involvement of the accused, we are not

inclined to grant bail to the petitioner.

18) In Preet Pal Singh v. State of Uttar Pradesh and

Another1 the Hon'ble Supreme Court in paragraph no. 24

framed an issue as to whether "the High Court was justified in

directing release of the Respondent No.2 on bail, during the

pendency of his appeal before the High Court". In paragraph no.

26 of the said judgment, the court held as under:

"As the discretion under Section 389(1) is to be exercised judicially, the Appellate Court is obliged to consider whether any cogent ground has been disclosed, giving rise to substantial doubts about the validity of the conviction and whether there is likelihood of unreasonable delay in disposal of the appeal, as held by this Court in Kashmira Singh v. State of Punjab and Babu Singh and Ors. v. State of U.P."

In paragraph 35, the Hon'ble Supreme Court held as

under:

"There is a difference between grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under Section 389 of the CrPC and grant of bail, post conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. and Anr2. However, in case of post conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is

(2020) 7 Supreme Court Cases 645

(2018) 3 SCC 22

conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the Cr.P.C."

Similarly, in paragraph no. 38 and 40, the Hon'ble

Supreme Court held as under:

"38. In considering an application for suspension of sentence, the Appellate Court is only to examine if there is such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. Where there is evidence that has been considered by the Trial Court, it is not open to a Court considering application under Section 389 to re-assess and/or re-analyze the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail.

40. It is difficult to appreciate how the High Court could casually have suspended the execution of the sentence and granted bail to the Respondent No.2 without recording any reasons, with the casual observation of force in the argument made on behalf of the Appellant before the High Court, that is, the Respondent No.2 herein. In effect, at the stage of an application under Section 389 of the CrPC, the High Court found merit in the submission that the brother of the victim not having been examined, the contention of the Respondent No.2, being the Appellant before the High Court, that the amount of Rs.2,50,000/- was taken as a loan was not refuted, ignoring the evidence relied upon by the Sessions Court, including the oral evidence of the victim's parents."

19) For the aforesaid reasons, we see no ground to grant bail

and accordingly, the I.A. is dismissed. However, the Registry to

comply with the order passed earlier in listing the matter for

final hearing, if booklet is ready.

_______________________________ JUSTICE C. PRAVEEN KUMAR

______________________________ JUSTICE B. KRISHNA MOHAN Date: 23/08/2021 S.M...

THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN

I.A. No. 1 of 2021

In

Criminal Appeal No. 381 of 2019 (Per Hon'ble Sri Justice C.Praveen Kumar)

Date: 23/08/2021

S.M.