) Accused Nos. 1 And 2 Were Tried In ... vs Unknown
2021 Latest Caselaw 4589 AP

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      THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

AND THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN

Criminal Appeal No. 241 of 2013

And

Criminal Appeal No. 333 of 2013

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

1) Accused Nos. 1 and 2 were tried in Sessions Case No. 681

of 2011 on the file of the XI Additional District and Sessions

Judge, Guntur at Tenali, for the offences punishable under

Sections 302 and 201 read with 34 of Indian Penal Code, 1860

['I.P.C.'] for causing the death of one Busi Nancharaiah

["deceased"] and thereafter made the incident appear as if it is a

case of suicide by hanging the body to a bamboo stick in the

house. By its Judgment, dated 11.02.2013, the learned Sessions

Judge convicted both the accused for the offences punishable

under Sections 302 and 201 read with 34 I.P.C., and sentenced

each one of them to suffer imprisonment for life and to pay fine

of Rs.1,000/- in default to suffer simple imprisonment for three

months. Accused Nos. 1 and 2 were further convicted for the

offence punishable under Section 201 I.P.C., and sentenced to

imprisonment for three years and to pay fine of Rs.500/- in

default to undergo simple imprisonment for one month. The

substantive sentences imposed against the appellants were

directed to run concurrently. Challenging the same, Accused

No.1 preferred Criminal Appeal No. 241 of 2013; while Accused

No. 2 preferred Criminal Appeal No. 333 of 2013. Both these

appeals are heard through Bluejeans video conferencing APP

and are disposed of by this common judgment.

2) The facts, as culled out from the prosecution witnesses,

are as under:

i) PW1 was blessed with three sons. The deceased was his

last son. A1 is her daughter-in-law, while A2 was known to

her. The deceased was blessed with two sons. PW6 is one

of the son of A1 and the deceased. All of them were living

in Addepalli Village; while parents of A1 were also living in

Addepalli Village. The house of A1 and the deceased was

separated by a distance of about 50 metres. It is said that,

A1 developed intimacy with A2. Though, PW1 claims to

know something about the illicit relationship, but, she did

not inform the same to the deceased thinking that their

family relationship may get affected.

ii) About four months prior to the death of the son [deceased]

of PW1, disputes arose between A1 and the deceased. It is

said that, a month prior to the incident, A1 went away to

her parent's house along with her two sons. Since then

PW1 was taking care of the deceased.

iii) While things stood thus, PW1 went to A1 and requested

her to join the deceased as he is facing problems at home.

But, she refused to join and stated that she will continue

her relationship with A2. Even though the elders

questioned her, there was no change in her attitude, but,

on the other hand, she conveyed that she will give divorce

to the deceased. However, two days prior to the incident,

A1 voluntarily came to deceased stating that she would

discontinue her relationship with A2 and be a faithful

housewife. Believing her, the deceased permitted A1 to join

her.

iv) On the fateful day, the deceased was sleeping on the mat,

while PW6 and A1 slept on a cot outside. At that time, A1

is said to have telephoned to A2 to come to the house. At

about 11.00 p.m., A2 took A1 into the hut. Both of them

talked for some time in the hut and, thereafter, both of

them came out, took the deceased by holding his hands

and legs into the hut. A1 caught hold of the legs while A2

caught hold of the hands of the deceased and closed his

mouth and nose. At about 5.00 a.m., PW6 claims to have

seen his father's death and, thereafter, went to the house

of his maternal grandmother [PW1] due to fear.

v) According to PW1, on 23.05.2011 at about 5.30 a.m., while

she was present in her house, she heard about deceased

hanging in the house. She went to the hut and found his

son [deceased] hanging with Navaru Patti [plastic tape]. A1

cried stating that her husband died. At that point of time,

the persons who gathered there, cut the plastic tape and

placed the body on the cot. By then, the deceased was

dead. Suspecting foul play by both the accused, PW1

lodged a report with PW11 - Sub-Inspector of Police, which

lead to registration of a case in Crime No. 53 of 2011 for

the offence punishable under Section 174 Cr.P.C. Ex.P11

is the First Information Report. After registering the crime,

PW11 left the police station and visited the scene of offence

and in the presence of PW10 prepared a panchanama of

the scene under Ex.P8. At the scene, he seized M.O.1

[plastic tape] and also prepared a rough sketch of the

scene, which is placed on record as Ex.P12. Thereafter, he

conducted inquest over the dead body. Ex.P9 is the

inquest report. At inquest, he recorded the statements of

PW1 to PW3. Photographs of the scene were also taken and

the same are placed on record as Ex.P13. Thereafter, the

body was sent for post-mortem examination.

vi) PW9 - the Deputy Civil Surgeon, Community Health

Centre, Repalle, conducted autopsy over the dead body

and issued Ex.P6 post-mortem report. According to her,

the cause of death was due to asphyxia due to throttling

and the approximate time of death was 10 to 20 hours

prior to her post-mortem examination, which commenced

on 23.05.2011 at 2.00 p.m.

vii) After collecting the post-mortem examination report, PW11

altered the section of law from 174 Cr.P.C., to Sections

302, 201 read with 34 I.P.C. and issued Ex. P14 - the

altered First Information Report. Thereafter, he handed

over the investigation to Inspector of Police, who was

examined as PW12.

viii) On 26.05.2011 at 7.45 p.m., PW12 received a copy of the

altered First Information Report, took up investigation and

visited Addepalli Village of Battiprolu Mandal. He secured

PW1 to PW8 and recorded their statements. On

27.05.2011, while he was present in the police station,

received information about the accused. Accordingly, he

secured the mediators and proceeded to the Railway

Station. On seeing them, one male and female person tried

to skulk away. On suspicion, they apprehended them. On

examination, they disclosed their identity as A1 and A2.

Both the accused were separated and their statements

were recorded. After completing all the formalities, a

charge-sheet came to be filed, which was taken on file as

P.R.C. No. 42 of 2011.

3) On appearance, copies of documents as required under

Section 207 Cr.P.C., came to be furnished. Since the case is

triable by Court of Sessions, the matter was committed to the

Sessions Court under Section 209 Cr.P.C. Basing on the

material available on record, charges as referred to above came

to be framed, read over and explained to the accused, to which,

the accused pleaded not guilty and claimed to be tried.

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

PW12 and got marked Ex.P1 to Ex.P14, beside marking M.O.1.

After completion of prosecution evidence, the accused were

examined under Section 313 Cr.P.C. with reference to the

incriminating circumstances appearing against them in the

evidence of prosecution witnesses, to which they denied. Though

no defence evidence was adduced but the accused got marked

Ex.D1.

5) Relying upon the circumstances of accused being 'last

seen' in the company of the deceased, recovery of the dead body

from the house of A1 and the oral evidence of PW6, the learned

Sessions Judge convicted A1 and A2, as stated supra.

Challenging the same, the present Criminal Appeals are filed.

6) Sri. Raja Reddy Koneti and Sri. Sreekanth Reddy Ambati,

learned counsel appearing for the Accused/Appellant No. 1 and

2, respectively, mainly submit that there are no eye witnesses to

the case on hand and only after receiving the opinion of the

doctor, PW6 [son of A1 and deceased] was introduced as an eye

witness to the incident. It is further urged that PW6 is a child

witness and there are clear indication to show that his version

was a tutored one. The learned counsel further submits that the

Trial Court did not consider the issue as to whether it is a case

of suicide or homicide. According to them, the medical evidence

clearly belies the case of the prosecution that it was a case of

throttling. Though there is no evidence to prove that it was a

case of throttling, the Trial Court erred in coming to a

conclusion that the death was due to throttling. In other words,

in the absence of any scratch or injury on the neck and when

the evidence of PW9 [doctor] does not indicate the same, the trial

court on a premise held that it was a case of throttling. Merely

because the dead body was found in the house hanging to a

ceiling, that does not by itself lead to a conclusion that the death

was due to the act of the accused.

7) On the other hand, learned Public Prosecutor opposed the

same contending that in the absence of any explanation by A1

as to the presence of dead body in the house, a presumption

under Section 106 of the Evidence Act has to be drawn to

connect her with the crime. He further submits that, the medical

evidence clearly establish that it was a case of throttling.

According to him, it is always not necessary to have marks of

injury on the neck when there is throttling. Having regard to the

above, the learned Public Prosecutor would submit that the

conviction and sentence imposed by the Trial Court warrants no

interference.

8) The point that arises for consideration is, whether the

prosecution was able to bring home the guilt of the accused

beyond reasonable doubt?

9) It is to be noted here that, out of 12 witnesses examined by

the prosecution, PW2, PW4, PW5 and PW7 did not support the

prosecution case and were treated hostile by the prosecution.

But, however, the evidence of these hostile witnesses establish

that about 10 days prior to the incident, A1 left the house of

deceased because of quarrel and two days prior to the incident

she joined the deceased. As stated earlier, the main witnesses to

the prosecution case are PW1 and PW6. The evidence of PW1

coupled with the evidence of PW7 [hostile] show existence of

disputes between them. The evidence of PW7 clearly indicate

that A1 and her husband [deceased] used to quarrel frequently

due to illegal intimacy of A1 with A2. Several times, A1

approached her stating that she does not want to lead conjugal

life with the deceased, but the deceased was not leaving her.

When PW7 told A1 to do what she likes, she left to her mother's

house. Though, the deceased took PW7 to the house of A1 for

negotiations, but A1 did not mend her ways to join the deceased.

10) The evidence of PW1 also shows that A1 and the deceased

were living separately in a hut situated at a distance of 50

metres from her house. Her evidence also discloses the illicit

relationship between A1 and A2 and frequent quarrels between

A1 and the deceased and A1 leaving the house. According to her,

one month prior to the incident, A1 went to her parents' house

along with her children. Though, the elders in the village tried to

persuade her to come over, she refused to join the deceased and

informed that she will continue her relationship with A2.

However, two days prior to the date of incident, A1 voluntarily

approached the deceased and expressed her intention to live

with the deceased and she would discontinue her relationship

with A2. Believing her version, the deceased allowed her and

started living in the hut. The fact that A1 and deceased were

living together on the fateful day also gets corroboration from the

evidence of other witnesses.

11) It is now to be seen, whether the accused are responsible

for the death of the deceased?

12) PW6, the son of A1 and the deceased is now projected as

an eye witness to the incident. According to him, A2 used to visit

their house daily in the afternoon in the absence of his father

[deceased]. He further speaks about the altercations between A1

and the deceased. According to him, on the fateful day, his

father [deceased] was sleeping on a mat, while himself and A1

was sleeping on a cot outside. At that time, A1 telephoned to A2,

pursuant to which, he came at 11.00 p.m., and took A1 into the

hut. Later, both of them came out, caught hold of the hands and

legs of the deceased by closing his mouth and nose and took

him inside the hut. PW6 claims to have seen the same, but, due

to fear, he slept on the cot. Later at about 5.00 a.m., he noticed

his father dead. According to him, whenever A1 quarrelled with

the deceased, she used to go to her mother's house. He further

speaks about his mother returning to his father's hut a month

prior to the incident.

13) In the cross-examination PW6 admits that, the incident

occurred during summer vacation and he was examined by the

police on four occasions i.e., 23.05.2011, and again after four

days. He admits that, he did not state to the police about A1

calling A2 on that night. He further admits that he did not state

to the police about A1 and A2 taking his father inside by

catching hold of the hands and legs. According to him, since, the

incident occurred in summer, all the people generally sleep

outside the hut. But, however, he denied the suggestion that he

did not witness A1 catching hold of his father's legs and A2

catching hold of hands and closing mouth and nose. According

to him, since, one year he has been living with PW1.

14) It is now to be seen, whether PW6 is really speaking the

truth?

15) According to PW6, at about 5.00 a.m., after noticing the

body of his father, he went to the house of PW1 out of fear. It

will be useful to extract the same, which reads as under:

"At about 5-00 a.m., I found my father dead, and the same was stated by all. I went to the house of my maternal grandmother out of fear. PW1 is my paternal grandmother".

16) But, the evidence of PW1 is something different. She never

deposed about PW6 coming to her house or PW6 informing her

as to what happened in the hut of A1. On the other hand, her

evidence is to the affect that, on 23.05.2011 while she was

present in the house, she overheard the death of the deceased

by hanging in the house. She went to the house and found the

deceased hanging with Navaru Patti [plastic tape]. Her evidence

nowhere indicates either the presence of PW6 in the house or

PW6 informing her about the manner in which the incident took

place or about noticing the dead body of the deceased.

17) Further, PW6 failed to mention certain crucial aspects

when he was examined by the police during the course of

investigation. PW12 [Inspector of Police] in his cross-

examination admitted that PW6 was examined for the first time

on 26.05.2011. Even at that belated stage, PW6 did not state

about A1 making a telephone call to A2 on the night. In the

cross-examination of PW12, it has been elicited that "as per the

statement of PW1, PW6 did not state to PW1 that he witnessed A1

and A2 tying the deceased with M.O.1 and hanging him" and that

"when she went to see the deceased, PW6 was not present

there".

18) Apart from that, it is difficult to believe that the deceased

would remain motionless when he was being shifted from

outside into the hut by A1 and A2. Things would have been

different had he seen the dead by then, but, that is not the case

of the prosecution. Further, PW6 claims to have seen A1

catching hold the legs of his father's, while A2 catching hold of

hands and closing mouth and nose, meaning thereby that the

death was due to smothering but not asphyxia due to throttling,

as disclosed in the evidence of the post-mortem doctor.

19) The admission of PW6 show that he was examined on four

occasions; the first investigating officer, who registered the crime

and examined PW6, was examined as PW11. He in his evidence

never speaks about examining PW6. The evidence of PW6 shows

as if he was examined on 23.05.2011 by PW11, but the evidence

of PW11 is silent on this aspect. On the other hand, he admits

that he did not make any effort to examine PW6 and only after

investigation was handed over to PW12 on 26.05.2011, PW6 was

examined. If really PW6 was present in the house and was an

eye witness to the incident, the prosecution would have grabbed

the opportunity by examining him at the earliest point of time or

get his 164 Cr.P.C. statement recorded at the earliest. No

explanation is forthcoming as to why the statement of this

witness was not recorded till 26th though the incident occurred

on the intervening night of 22nd and 23 May 2011.

20) In view of the above and having regard to the omissions in

the evidence of PW1 vis-à-vis PW6, a doubt arises as to whether

PW6 was really present in the house and witnessed the incident.

When once the evidence of PW6 is excluded from consideration,

there is no evidence on record to show that A2 visited the house

of A1 on that day.

21) It is also to be noted here that the medical evidence

falsifies the version of PW6, for the reason that, if it is a case of

hanging either by suicidal or homicidal, there will be a ligature

mark in the neck region. But, if it is a case where the death was

due to smothering, as deposed by PW6, there will not be any

ligature mark around the neck. The said fact is evident from the

answers elicited in the evidence of PW6. Therefore, the version

which is now projected through PW6 is incorrect and this

circumstance can also be taken as a ground to disbelieve his

presence/witnessing the incident. When once a doubt arises

with regard to the version of PW6 and in the absence of any

other evidence to show the presence of A2, we feel that benefit of

doubt can be extended to A2.

22) The question now is, whether it is a case of suicidal or a

homicide at the instance of A1?

23) PW9 is the Doctor, who was examined to speak about the

cause of death. According to her, on 23.05.2011, she conducted

post-mortem examination at 2.00 p.m., pursuant to a

requisition received from the Sub-Inspector of Police, Bhattiprole

Police Station. She noticed the following external injuries, which

are as under:

"Rigor mortis present in upper limbs.

External injuries:

Ligature mark of 8 inches x 1 inch size is present extending from thyroid cartilage to left neck below left ear and also to right neck region. Congestion is present in neck region. Hyoid bone and its surrounding tissues are preserved for chemical examination at Guntur Medical College, Guntur.

Oesophagus congested. Trachea bronchia congested. Lungs: Normal in size. Cut section shows congestion. Heart: Pale. Liver cut section congested. Stomach: contained 100 grams of undigested rice. Spleen: Normal. Kidneys: Normal in size, cut section congested. Bladder: empty. Genital organs: Normal.

The approximate time of death was 10 - 20 hours prior to my post-mortem examination. Ex.P6 is the post-mortem examination report issued by me.

Received expert opinion from Guntur Medical College, Guntur by Dr. G.B. Raj Kumar, Inward compression fracture of tip of greater cornu of hyoid bone on right side present. Diffused contusion of surrounding soft tissues of hyoid bone. Red in colour. Ante-mortem in nature, suggestive of throttling. Ex.P7 is expert opinion given by Dr. G.B. Raj Kumar.

According to above opinion, I gave my final opinion that the death was due to asphyxia due to throttling."

24) In the cross-examination of PW9, it has been elicited as

under:

"In any hanging ligature mark may be present. It is true, the ligature mark is not around the neck, it is only in front of the neck. According to K.S. Narayana Reddy, in suicidal hanging fracture of hyoid bone is more common, whereas in homicidal hanging fracture is less common. According to Narayana Reddy, fracture of Thyroid cortrelege in suicidal hanging is less common whereas in homicidal hanging is more common. According to Narayana Reddy, fracture of larynx and trachea is rare in suicidal hanging, whereas in homicidal hanging it is more common. In any asphyxia, the internal organs become congested. It is true, in the case of smothering no ligature mark or fracture of hyoid bone may be absent. The professor has specifically stated that diffused contusion of surrounding soft tissues around hyoid bone red in colour ante mortem in nature. It may be possible that in suicidal hanging diffused contusion of surrounding soft tissues may be present. I did not find any external injuries, nail marks, finger marks or any type of struggle marks on the dead body. I was supplied with inquest report. Usually in suicidal

or homicidal hanging i.e., due to application of pressure on the neck, faecal matter and semen, blood from genital may be present. I have not taken X-ray of hyoid bone. Bleeding might be present in smothering, due to pressure. In this case, no bleeding was present from mouth or nose. It is not true to suggest that I did not give a correct opinion and that I was won over by police. It is not true to suggest that even though it is a suicidal hanging, I gave my opinion as asphyxia due to throttling".

25) In the further chief-examination of PW9, it has been stated

as under:

"In the case of throttling, with fingers, the marks of fingers may not be present on the neck soft tissues.

26) In the further cross-examination of PW9, it has been

elicited as under:

"It is not true to suggest that in the case of throttling, with fingers, the marks of fingers may be present on the neck soft tissues.

27) When once the presence of A2 is doubtful and gets

excluded, it is difficult to believe that A1 alone would have killed

the deceased in the manner suggested by the prosecution.

Though, the expert opinion suggests throttling as the cause of

death, but that does not appear to be the case of the prosecution

as elicited through PW6. Be that as it may, the expert based his

opinion stating that on account of inward compression fracture

of tip of greater cornua of hyoid bone on right side with diffused

contusion of surrounding tissue of hyoid bone being red in

colour is suggestive of throttling. In the cross-examination, PW9

admits that diffused contusion of surrounding soft tissue

around hyoid bone may be possible in suicidal hanging.

28) Further, there are no nail marks, finger marks or any type

of struggle marks on the body as admitted by the doctor. Even

assuming that presence of nail marks are not always necessary

on soft tissue, but at-least there would have been a struggle

when the deceased was alleged to have been throttled. Further,

the inward compression of tip of the settled structure of hyoid

bone could be due to the pressure of "navara tape" [which would

be broad in width] used in commission of suicide. Therefore, the

case of the prosecution that it was a case of homicidal death has

to be viewed with suspicion. Further, things would have been

clear had X-ray of hyoid bone was taken, since, fracture of hyoid

bone is more common in suicidal hanging and less common in

homicidal hanging. Therefore, the conclusion arrived at by the

Trial Court that it was a case of homicidal death cannot be

accepted.

29) In view of the findings arrived at, wherein, the evidence of

PW6 is found to be doubtful and as he cannot be categorized as

a wholly reliable witness, coupled with the medical evidence,

which do not conclusively establish that it was a case of

homicidal death, the conviction and sentence imposed by the

trial court warrants interference and, accordingly, the appeals

are liable to be allowed.

30) In the result, the Criminal Appeals are allowed. The

conviction and sentence recorded against the Appellants in the

Judgment, dated 11.02.2013, in Sessions Case No. 681 of 2011

on the file of the XI Additional District and Sessions Judge,

Guntur at Tenali, for the offences punishable under Sections

302 and 201 read with 34 of Indian Penal Code, 1860, is set-

aside and they are acquitted for the said offences.

Consequently, the Appellants shall be set at liberty forthwith, if

they are not required in any other case or crime. Fine amount, if

any, paid by the Appellants/accused shall be refunded to them.

31) Consequently, miscellaneous petitions, if any, pending

shall stand closed.

_______________________________ JUSTICE C. PRAVEEN KUMAR

_______________________________ JUSTICE B. KRISHNA MOHAN Date: 12/11/2021.

S.M...

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

Criminal Appeal No. 241 of 2013

And Criminal Appeal No. 333 of 2013 (Per Hon'ble Sri Justice C.Praveen Kumar)

Date: /11/2021

SM.