Doppalapudi Nagaraja Kumari vs State Of Andhra Pradesh
2021 Latest Caselaw 3640 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 2020

                                        In

                   Criminal Appeal No. 131 of 2020

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



     Heard Sri. V. Pattabhi, learned Counsel appearing for the

Appellant/Accused          No.7      and      Sri.   S.Dushyanth   Reddy,

Additional 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 A7 seeking bail

on the ground that there is absolutely no evidence on record to

connect the accused with the crime. The learned Counsel took

us through the evidence to show that A7 is innocent of the

offences alleged against her.


2)   As seen from the record, originally seven accused were

tried in Sessions Case No. 160 of 2016 for the offence

punishable under Sections 498-A and 302 read with 34 and 201

I.P.C. By its Judgment, dated 27.12.2019, the learned Sessions

Judge, convicted A1 to A5 for the offence punishable under

Section 498A I.P.C. and sentenced each of them to suffer

rigorous imprisonment for a period of three years and to pay fine

of Rs.1,000/- in default to suffer simple imprisonment for two
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months; A1 and A7 were convicted for the offence punishable

under Section 302 read with 34 I.P.C. and sentenced to undergo

imprisonment for life and to pay a fine of Rs.1,000/- in default

to suffer simple imprisonment for two months; the accused were

also convicted for the offence punishable under Section 201

I.P.C. and each of them was sentenced to undergo rigorous

imprisonment for a period of three years and to pay a fine of

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

months.


3)     The facts, in issue, as per the averments in the charge-

sheet, are as under:


     a) Muddana Krishna Kumari ['deceased'] was given in

       marriage to A1 about 15 years prior to the date of incident.

       They were blessed with a daughter, by name, Tanuja, who

       was examined as PW4. In the year 2000, the deceased and

       A1   worked     in   Vahini       Stores   of   PW5   and   one

       Satyanarayana. They lived in Hyderabad for two years and,

       thereafter, moved to Nadikudi Village to start their own

       business. It is said that, PW5 and Satyanarayana gave

       Rs.1,00,000/- to the deceased and her husband [A1] and

       sent them to Nadikudi Village, where A1 joined in FCI

       Godown of Gamaladu Village. Subsequently, A1 is said to

       have developed illicit contact with Nagaraja Kumari [A7] of

       Palaparthi Village and since then he used to come home

       late in drunken condition and beat the deceased. The acts
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  of harassment were informed by the deceased to the

  relatives and other friends.


b) One day, A1 beat the deceased and demanded that he

  would bring A7 to the house and further directed the

  deceased go to her parent's house and bring additional

  dowry. On seeing the same, PW4 - Tanuja informed one

  Mandapati Srinivasa Rao, Advocate [PW13]. Immediately,

  PW13 telephoned to PW2 and asked them to take back the

  deceased, as A1 was harassing the deceased mentally and

  physically without any reason. Then, PW2 came to the

  house of the deceased at Nadikudi and requested A1 not to

  harass the deceased. However, PW2 took the deceased and

  PW4 to her house and kept them for 10 days and later sent

  to the house of A1. But, there was no change in the

  attitude of the accused.


c) On 23.02.2014 at about 3:00 hours PW2 made a telephone

  call to the deceased, and noticed the deceased talking in

  low voice and that her conversation in phone was not

  normal. On enquiry, it was informed that A1 went to

  Srisailam and that she will call later. On the same day at

  about 21:30 hours, PW4 made a call to PW5 stating that

  the deceased was missing. Immediately, PW5 called A1 and

  enquired about the deceased, but there was no reply. On

  the same day night at about 11.00 P.M., Satyanarayana

  also made telephonic calls to A1 and asked him to give a
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       report to police about missing of the deceased, but A1

       failed to do so.


     d) On 24.02.2014, when PW2 phoned the deceased, PW4

       answered her call and informed that A1 asked her not to

       reveal to anybody about the missing of the deceased and,

       accordingly, put off the phone. Thereafter, a news item

       appeared about a dead body lying in a quarry and,

       thereafter, the law was set into motion. This in substance

       is the case of the prosecution.


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

PW18 and got marked Ex.P1 to Ex.P33, beside marking M.O.1 to

M.O.4.


5)     Sri. V. Pattabhi, learned Counsel, mainly submits that

even accepting the entire case of the prosecution to be true, no

offence under Section 302 I.P.C., is made out against the

Petitioner. According to him, not even an iota of evidence is there

to connect the petitioner with the crime. He further submits that

merely because there was some illegal intimacy between A1 and

the petitioner herein, the same does not by itself lead to an

inference that the petitioner contributed her might for the

murder of the deceased. According to him, except the findings

in paragraph no. 34 of the judgment, there is nothing against

the petitioner to connect her with the crime.
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6)         Sri. S.Dushyanth Reddy, the learned Additional Public

Prosecutor opposed the same contending that hearing of a bail

application pending disposal of the appeal amounts to hearing of

the appeal itself and the practice of hearing a bail application

pending appeal was commented by the Hon'ble Supreme Court

in Kashmira Singh v. The State Of Punjab1 case and also in

Preet Pal Singh v. State of Uttar Pradesh and Another2.


7)         In Preet Pal Singh's case, [cited 2nd supra], 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."

8) 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,

(1977) 4 SCC 291

(2020) 7 Supreme Court Cases 645

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 Anr3. 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 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."

9) 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

(2018) 3 SCC 22

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."

10) Keeping in view the broad principles laid down by the

Hon'ble Supreme Court, it is now to be seen whether the

petitioner is entitled for bail.

11) Sri. V. Pattabhi, learned Counsel appearing for the

petitioner/A7, submits that though the petitioner/A7 has no

relationship with A1, she is being portrayed as a concubine of

A1. According to him, even accepting the entire case of the

prosecution to be true, there is absolutely no legal evidence

connecting the petitioner with the crime. According to him, even

accepting the evidence of PW4, there is nothing to indicate the

involvement of the petitioner in the crime. Merely because she

happens to visit the house of A1 number of times and that the

death was unnatural, does not lead to a conclusion that the

petitioner has a role in killing the deceased. He took us through

paragraph no. 33 and 34 of the judgment to show that the

findings arrived at by the learned Sessions Judge are without

basis and even accepting the said finding, there is nothing to

fasten the petitioner/A7 with any culpability.

12) Sri. S. Dushyanth Reddy, learned Additional Public

Prosecutor, would submit that the practice of hearing the bail

application pending appeal after conviction by the trial court has

been deprecated in two judgments referred to above. According

to him, substantial amount of time will be taken away in

deciding the bail application. Therefore, he submits that there

should be strong compelling reasons to grant bail,

notwithstanding an order of conviction and the strong and

compelling reason have to be recorded by the court while

granting bail, as mandated in Section 389(1) of the Cr.P.C.

13) From a perusal of the evidence on record, it is clear that

A1, who is the husband of the deceased, harassed the deceased

not only for dowry but also wanted the deceased to accept his

request of petitioner/A7 living with them.

14) PW4 who is the daughter of the deceased is the most

natural witness to speak to all these facts. She in her evidence

categorically deposed about the illicit intimacy between A1 and

A7 and the harassment by A1 in insisting the deceased to accept

A7 to reside along with him. Further, PW4 in her evidence

deposed about the conduct of A1 in returning home and beating

the deceased, demanding the deceased to bring money etc. She

further deposed that on 23.02.2014 in the morning A7 came to

the house, spoke with the deceased and left the house. In the

afternoon, the deceased served food to PW4 and A1 and,

thereafter, A1 sent PW4 out of the house on the pretext of

getting mehindi at the house of one Madhuri. PW4 returned

home by 5.30 P.M., by which time a car was stationed outside

the house. When PW4 enquired A1 about the deceased, A1

stated that deceased will return home and not to inform

anybody or make any enquiries about her mother. When PW4

was about to make a phone call to PW2, A1 forcibly took the

phone and brought her to Gurazala. On the way to Gurazala, A1

informed PW4 that her mother is no more. After reaching

Gurazala, A4 and A3 asked PW4 not to inform police or anybody

since already the deceased is no more and also threatened PW4

with dire consequences if she goes to the house of PW2 after

they reach Gurazala. After reaching Gurazala, PW4 observed the

dead body of her mother and raised suspicion against A1 in

killing the deceased in order to maintain his illegal intimacy in

the company of A7.

15) Apart from the evidence of PW4, the evidence of PW8 -

Village Revenue Officer, Pedagarlapadu Village, assumes lot of

importance. According to him, on 20.07.2015, A1 came to him

while he was in Mandal Revenue Office, Dachepalli, and

confessed about the commission of the offence. He also

confessed about his illicit intimacy with the petitioner/A7 and

beating the deceased with the stick leading to her death. The

said statement was reduced into writing vide Ex.P7, and,

thereafter, the signature of A1 was taken on the said statement.

PW8 took A1 along with the statement [Ex.P7] to the police

station and handed over the statement, his report and the

accused to police.

16) It has been held by the Hon'ble Supreme Court in Siva

Kumar v. State By Inspector of Police4, that extra-judicial

confession made before the Village Revenue Officer is acceptable

in evidence, provided the same inspires confidence. It is no

doubt true that that the extra-judicial confession is weak piece

of evidence, but if it is credible, can be taken as one of the

circumstance in the chain of events.

17) PW17 - is the Village Revenue Officer of Madinapadu

Village, Dacehpalli Mandal. According to him, on 22.07.2015, at

the request of Inspector of Police, he went to the Police Station

and, thereafter, along with one Benjamin [V.R.O], proceeded to

the house of A7, wherein, she stated that she is a native of

Pedanandipadu Village and after the death of her husband, she

developed intimacy with A1, because of which, A1 developed

disputes with the deceased, killed her and threw the body in the

quarry, by taking it in a car and that A1 sent the car to

Hyderabad, to get it cleaned. She brought the car from

Hyderabad after getting it cleaned. Though, this statement of A7

was said to have been made before PW17, when he went to the

house along with another Village Revenue Officer, by name,

Benjamin, the trial court relied upon the said statement to show

as to how the petitioner/A7 aided A1 in commission of the

offence. The validity of the said statement has to be evaluated

and tested at the time of hearing of the Appeal.

(2006) 1 Supreme Court Cases 714; (2006) 1 Supreme Court Cases (Cri) 470

18) The evidence of PW2, who is mother of the deceased, also

establishes the illicit intimacy between A1 and A7. According to

her, A7 used to visit the house of A1 frequently and on one

occasion when PW2 was present at Narayanapuram Village, the

petitioner/A7 beat the deceased, which act was encouraged by

A1. Therefore, at this stage, it cannot be said that the finding

given by the trial court showing complexity of the accused in the

commission of the offence, is perverse or that there was patent

infirmity in the order of conviction making the order prima facie

erroneous. Only after appreciation of the entire evidence on

record, the court has come to a conclusion with regard to the

involvement of the accused in the crime. Hence, we are of the

view that it is not a case to grant bail.

19) Accordingly, the I.A. is dismissed. However, the Registry

to comply with the order passed earlier in listing the matter for

final hearing immediately after Dussehra Vacation 2021, if

booklet is ready.

_______________________________ JUSTICE C. PRAVEEN KUMAR

_______________________________ JUSTICE B. KRISHNA MOHAN Date: 21/09/2021 S.M...

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

I.A. No. 1 of 2020

In

Criminal Appeal No. 131 of 2020 (Per Hon'ble Sri Justice C.Praveen Kumar)

Date: 21/09/2021

S.M.