Unknown vs State Of Tamil Nadu1
2022 Latest Caselaw 53 AP

                                     1




       THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
                                   AND

       THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

               Criminal Appeal No. 1075 of 2014

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


1)     The sole accused in Sessions Case No. 403 of 2013 on the

file of Sessions Judge, Guntur, is the appellant herein. He was

tried for an offence punishable under Section 302 of Indian

Penal Code ['I.P.C.'], for causing the death of one Tanikonda

Venkayamma ['Deceased'] with a pestle on her head on

15.02.2012

. By its Judgment, dated 28.03.2014, the learned

Sessions Judge convicted the accused and sentenced him to

suffer imprisonment for life for the offence punishable under

Section 302 I.P.C.

2) The facts, as culled out from the evidence of the

prosecution witnesses, are as under:

i) The accused is the husband, PW1 and PW2 are the

daughters, and PW3 is the son, of the deceased, PW4 is the

brother-in-law of the accused, PW5 is the sister of the

deceased, and PW6 is a resident of the same area.

ii) The marriage between the accused and deceased took

place about 25 years ago. The accused was working as

Lorry Cleaner. PW1 and PW2 along with family members

used to live in Tadepalli. It is said that during the said

period, the accused used to consume alcohol and demand

money from the deceased apart from beating and abusing

her. About eight years ago, the deceased along with her

children came back to Guntur, but, the accused did not

join them. However, three years later, the accused also

joined them in Guntur and all of them were residing in the

house of their paternal aunt, by name, Sundaramma

[PW5]. It is said that the accused was suspecting the

character of his wife [deceased] and as such there were

quarrels between them. It is to be noted that, at the time of

incident, the deceased was residing in a portion of the

house of PW5 as tenant.

iii) On the date of incident, the deceased requested PW5 to

lend some money. PW5 replied stating that, she has no

money, on which, the deceased went back and slept in her

portion of the house. On the next day morning, the

deceased came with injuries over head and her right eye.

When enquired as to how she received injuries, she

informed PW5 that during night time, the accused

demanded money for consuming alcohol and when she

said she has no money, the accused assaulted her with a

pestle. Immediately, PW5, PW4 and PW1 [daughter of

deceased] took the deceased to Government Hospital,

Guntur, for treatment. On 10.04.2012 PW1 informed PW2

requesting her to come to hospital as her mother

[deceased] sustained injuries.

iv) On receipt of the admission of the injured in the hospital,

the Head Constable proceeded to the hospital and recorded

the statement of the injured, who was undergoing

treatment. He then came back to the Police Station and

registered a case in Crime No. 59 of 2012 for the offence

punishable under Section 324 I.P.C. Ex.P6 is the original

First Information Report, while Ex.P5 is the statement of

the injured [deceased].

v) PW9 - the Inspector of Police identified the signature of the

Head Constable on Ex.P5 and also identified the First

Information Report [Ex.P6] issued by the Head Constable

basing on the signature of the Head Constable. On receipt

of a copy of Ex.P6, PW9 took up investigation on the same

day i.e., 10.02.2019 at 9.00 p.m. and visited Government

General Hospital, Guntur, where he examined the injured

and recorded her statement. The deceased is said to have

stated that her husband is Peturu and she is working in

Municipal Corporation. She has two daughters and one

Son. According to her, her husband [accused] used to

suspect her character and beat her. Ex.P7 is the statement

of the deceased said to have been recorded by PW9. He

also recorded the statement of PW1 on the same day in

hospital.

vi) From there, PW9 went to the scene of offence, which is the

house of deceased and prepared an observation report in

the presence of PW7, which is marked as Ex.P1. He also

prepared a rough sketch of the scene prepared, which is

marked as Ex.P8. At the scene, he examined PW4 to PW6.

While taking treatment, the deceased died on 15.02.2012.

On receipt of the death intimation [Ex.P9], he altered the

Section of Law to one under 302 I.P.C. and issued altered

First Information Report, which is marked as Ex.P10. He

then proceeded to the mortuary at Government General

Hospital, Guntur, and conducted inquest over the dead

body in the presence of PW7. Ex.P2 is the inquest report.

At the time of inquest, he examined PW1 to PW5 and

recorded their statements. After completing the inquest

proceedings, the dead body was sent for post-mortem

examination.

vii) PW8 - Assistant Professor in Department of Forensic

Science, Guntur, conducted autopsy over the dead body

and issued Ex.P4 [post-mortem certificate]. According to

him, the cause of death was due to head injury and the

approximate time of death is 6 to 10 hours prior to post-

mortem examination.

viii) PW9, who continued with the investigation, arrested the

accused on 08.04.2012 at 4.00 p.m., in the presence of

PW7. The accused is said to have confessed about the

commission of offence and disclosed that he will show the

weapon used in the offence, which is in vehicle shed of

Municipal Corporation. The accused went into the shed

and brought chutney pounder [pestle], which was used in

the assault and he seized the same under Ex.P3. After

completing the investigation and collecting all the

necessary documents, a charge-sheet came to be filed,

which was taken on file as P.R.C. No. 23 of 2012 on the file

of V Additional Judicial Magistrate of First Class, Guntur.

3) On appearance of the accused, 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, charge 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

PW9 and got marked Ex.P1 to Ex.P12, beside marking M.Os.1.

After completion of prosecution evidence, the accused was

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

incriminating circumstances appearing against him in the

evidence of prosecution witnesses, to which he denied, however,

no evidence was adduced in support of his plea.

5) Believing the oral dying declaration and the two dying

declarations, which are placed as Ex.P5 and Ex.P7, the learned

Sessions Judge convicted the accused. Challenging the same,

the present appeal came to be filed.

6) Smt. Ammaji Nettem, learned Counsel for the Appellant

mainly submits that, except the oral dying declaration and the

two statements said to have been recorded by the police, there is

no other material connecting the accused with the crime. Since,

the evidence relied upon by the prosecution is weak type of

evidence, she submits that the same cannot be made the basis

to convict the accused. It is further stated by her that the

evidence of post-mortem doctor falsifies the case of the

prosecution, as the doctor in his evidence categorically states

that the injuries 2 to 4 could not have been caused with M.O.1.

i.e., pestle used in the commission of the offence. She further

submits that even accepting the entire case of the prosecution to

be true, the deceased died nearly five days after the incident and

the death was only because of the negligence on the part of the

doctor.

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

the same contending that the evidence of the doctor is only an

opinion evidence and same cannot be given due weight when

there are two dying declarations recorded by the police. He

further submits that, apart from the two written dying

declarations, there are two oral declarations made before PW1

and PW2. Having regard to the above, he 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 doubt?

9) It is to be noted here that, PW1 and PW2 are the

daughters, while PW3 is the son, of the deceased. It is the case

of the prosecution that, PW3 was staying along with deceased in

the house at Guntur. But, however, on the date of incident, he

was in his in-laws village and was informed about the incident

by PW1. According to him, he returned to Guntur, on the night

of incident; went to the Government Hospital and saw his

mother [deceased] in the hospital. When enquired as to what

happened, his mother [deceased] told him that his father

[accused] demanded the money to purchase liquor and when

she refused, he quarrelled stating that she has money to give to

her paramour but not to him and so saying assaulted her with

chutney pounder and went away. He was cross-examined, but

nothing useful is elicited.

10) At this stage, it would be appropriate to refer to the

evidence of PW5 and PW4.

11) PW5 is the sister of the deceased. According to her, the

deceased along with her husband [accused], PW3 and daughter-

-in-law, were staying in a portion of the house of PW5, as

tenants. According to her, on the date of incident, the deceased

came and asked her some money and when she replied stating

that she has no money, the deceased went back and slept in her

portion of the house. On the next day morning, she noticed

injuries on the deceased. When enquired as to how she

sustained injuries, she informed her about the accused

demanding money for consuming alcohol and when she

negative, the accused is said to have assaulted her with a pestle.

Thereafter, she along with others took the deceased to

Government Hospital.

12) PW4 is the brother-in-law of the accused, who married the

elder sister of the deceased. According to him, initially, the

accused and deceased were staying at Tadepalli and as the

accused was harassing and beating for money and alcohol, they

advised her to join them in Guntur. Accordingly, the deceased

along with her children shifted to Guntur and started staying in

a portion of the house of PW5 as tenants. Sometime later, the

accused also joined them. It is said that, accused used to beat

the deceased suspecting her character. According to him, on the

night of 10th, the deceased informed him about the harassment

by the accused on that day. But, PW4 kept quiet as the quarrels

were usual in the house. However, after the incident, she was

taken to the hospital by him along with PW1 and others. PW1

and PW2, who came to the hospital on receipt of information

also speak about the oral dying declaration made by the

deceased informing them about the assault made by the

deceased when she refused to part with the money for purchase

of money by her husband.

13) From the oral dying declarations made, it is clear that,

quarrels were going on regularly between the accused and the

deceased, as he was suspecting her character. But, on the date

of incident, the accused demanded her to give money for

purchasing liquor as she has been giving money to her

paramour; but when she refused, the accused is said to have

beat her with a pestle on the head. Though, the incident took

place in the midnight or late night of 9th February, the deceased

stayed in the house even after the accused left the place, after

the assault. Only on the next day morning, PW5 is said to have

seen her with injuries and then with the help of others took her

to hospital.

14) In the hospital, two statements were recorded by the

police. No effort was made by the prosecution to get the

statement of the deceased recorded by a Magistrate. No

explanation is forthcoming as to why the statement of deceased

was not recorded by a Magistrate. The Head Constable who

recorded the statement and registered the F.I.R., could not be

examined as he was no more by then. However, PW9 who

identifies the signature of the Head Constable, proceeded to the

hospital and recorded the statement of the injured, which is

placed on record as Ex.P7. It is also to be noted here that, both

the statements do not contain any endorsement of the doctor

either with regard to the health condition of the injured or with

regard to the ability of the deceased to make the statement.

15) The first statement recorded by the Head Constable, which

is placed on record as Ex.P5, which contains the signature of the

deceased, reads as under:

"Statement of Taniko0nda Venkayamma, w/o. Peturu, age 40 years, Caste: Mala, 1st lane, Bongaralabeedu, Guntur. Statement recorded at G.G.H., NST 221 Ward, Guntur, on 10.02.2012 at 7.00 P.M.

My name is Tanikonda Venkayamma. Pethuru is my husband. I used to work as Sweeper in Municipality. My husband works as Lorry Cleaner. We got two daughters and a son. All are married. We both are living in the house of my elder sister Mariamma as tenants. Daily my husband comes to the house in drunken state and used to beat me asking to give money. On 9.2.2012 during night at 9 O' clock he came in drunken state and picked up quarrel with me asking to give money and slept. I also slept. During midnight at 12 O' clock he woke up me, picked up quarrel asking money for liquor. He beat me on my head with Chutney pounder, kept there. I sustained bleeding injury. He fisted me with his hand on my right eye. On that as it is midnight I stayed at the house itself. In the morning with the assistance of my daughter Pidatala Adilakshmi, I came to Government Hospital, Guntur and I was admitted there. The doctor is treating me. On the arrival of the police and having been enquired by them, I gave a statement for the events that occurred. Police read over the statement to me. My statement was written as it is as stated by me.

Tanikonda Venkayamma [Thumb Mark]

Sri,

Statement recorded by me, read over to the deponent and admitted by her to be correct. Statement concluded at 8.30 P.M. on 10.02.2012."

16) Ex.P7 does not contain the signature of the deceased, as it

is a statement recorded under Section 161 Cr.P.C. The same

reads as under:

"161 Cr.P.C. statement of Tanikonda Venkayamma w/o.

Peturu, Bongaralabeedu, Guntur [deceased].

My name is Tanikonda Venkayamma. Pethuru is my husband. My husband works as Lorry Cleaner. I am eking out my livelihood by working as Sweeper in the Municipality. We were blessed with two daughters and a son. The name of my elder daughter is Pidatala Adilakshmi and she is married. She is residing in 23rd lane of Sarada Colony. The name of my second daughter is Iriki Mariyamma. She is married and residing in Tadepalli. The name of my son is anikonda Daveedu. His marriage was performed last year on 24th July with Vasundara, the daughter of Ravuri Venkateswarlu, resident of Pullalacheruvu of Prakasam District. I am residing in the house of my elder sister Dupati Sundaramma. My son and daughter-in-law are residing with me. Daily my husband comes in drunken state, picks up quarrel with m, suspecting my fidelity and used to beat me. Unable to bear the tortures of my husband, I came to Guntur with my children from Tadepalli and residing in the house of my relative on hire, in 1st lane of Bongaralabeedu. I maintained them and performed their marriages. My husband came to me and living with me since last 3 years. As my children are grown up and thinking that my husband will mend his way at any time, I am living along with my husband. But, there is no change in the attitude of my husband. Daily he is coming in drunken state and asking me money for his drinking, used to pick up quarrel with me and beating me suspecting me. My son went to his mother-in- law's house with his wife. On 9.2.2012 during night at about

9 O' clock, he picked up quarrel with me, asking money. I said that I have no money. On that he slept. I also went to sleep. During night at about 12 O' clock he woke up me. "I already told you that I had no money. What is this nuisance in the midnight". On that he said, you have no respect towards me. You are giving money to your paramour. If I kill you, I will get rid of the trouble. So saying with a view to kill me, he took the chutney pounder kept in the house and beat me on my head with it, due to which I sustained bleeding injury and he fisted me with his hand on my right eye. My right eye is swollen. On that my husband fled away from the house. As it is night time and my son and daughter-in-law are not available in the house, unable to go to the hospital alone, I stayed in the house itself and on this day, i.e., on 10.2.2-12 in the morning I sent word to my daughter - Pidatala Adilakshmi, my elder sister - Dupati Sundaramma and my younger brother - Mariadasu. With their assistance I admitted in the Government Hospital, Guntur. The doctor is giving treatment to me. Today, having been examined by the police, I stated the facts that occurred."

17) From a reading of the two dying declarations, we do not

find any inconsistency in the two statements. Both the

statements state that the accused beat her with chutney

pounder when the deceased refused to give money to him and,

thereafter, fisted her before the right eye and, thereafter, he fled

away from the house. These two statements, coupled with the

oral dying declarations categorically establish that it was the

accused, who was responsible for the incident. In fact, nothing

has been suggested, or established by adducing evidence, to

show that a false case has been foisted against the accused. On

the other hand, the evidence of the children who were examined

as PW1 to PW3 and PW5 [sister of the deceased], categorically

show that there were regular quarrels between the accused and

the deceased, because of which they shifted from Tadepalli to

Guntur. While staying in Guntur, the accused joined them, but,

continued to harass. Therefore, there cannot be any doubt as to

the involvement of the accused in the crime.

18) At this stage, the learned counsel for the Appellant tried to

contend that, since, the death took place five days after the

incident, there is every possibility of deceased dying due to

negligence of the doctors, more so, when she was normal

immediately after the incident, meaning thereby, that, though,

the incident took place in the midnight, she only informed

others on the next day morning, which made her daughter and

others take her to hospital. But, nothing has been suggested to

the doctor [PW8] to establish negligence in treatment. The

evidence of the doctor [PW8] show that, (1) there was a diffused

contusion of right eye with contusion of right eyeball present; (2)

three sutured lacerated would of 5 cms., in length present over

right parietal region of the scalp; (3) diffused subscalpular

contusion present right parietal region; (4) diffused subdural

haemorrhage present at left parietal region of the brain; and, (5)

diffused subarachnoid haemorrhage present all over the brain.

According to doctor, the cause of death was due to head injury.

The Doctor [PW8] further states that injury No. 1 is possible if

one is fisted on the eye, while injury nos. 2 to 5 could not have

been caused with chutney pounder.

19) But, two things are required to be noted here; firstly -

M.O.1 alleged to have been used in the commission of offence

was recovered at the instance of accused. PW7 is a panch

witness who speaks about the same. Though, PW7 was cross-

examined at length, nothing incriminating has been elicited to

disbelieve the alleged recovery. Except a suggestion that the

recovery is false, which was denied by him. Secondly - the

opinion of the doctor [PW8] is only an opinion evidence.

20) In Palani V. State of Tamil Nadu1, the Hon'ble Supreme

Court held as under:

"14. As per the alleged variance between the medical and ocular evidence concerned, it is well-settled that oral evidence has to get primacy and the medical evidence is basically opinionative and that the medical evidence states that the injury could have been caused in the manner alleged and nothing more. The testimony of the eye witness cannot be thrown out on the ground of inconsistency. In State of Haryana v. Bhagirath and others2, it was held as under:-

"15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation........."

(2020) 16 SCC 401

(1999) 5 SCC 96

When the opinion given is not inconsistent with the probability of the case, the court cannot discard the credible direct evidence otherwise the administration of justice is to depend on the opinionative evidence of medical expert. The medical jurisprudence is not an exact science with precision; but merely opinionative. In the case in hand, the contradictions pointed out between the oral and medical evidence are not so grave in nature that can prove fatal to the prosecution case.

20. Where the case of the prosecution is based on the evidence of eye witnesses, the existence or non-existence of motive, sufficiency or insufficiency of motive will not play such a major role as in the case which is based on circumstantial evidence. If the prosecution is able to prove its case or motive, it will be a corroborative piece of evidence; but if the prosecution had not been able to prove its case or motive or the motive suggested is too slender, that will not be a ground to doubt the prosecution case. When other evidence against the accused is clear and cogent as in the present case, absence of motive or insufficiency of motive is of no importance."

21) In State of Haryana v. Bhagirath & Ors.,3 the Hon'ble

Apex Court has held that, where the medical evidence is at

variance with ocular evidence, it has to be noted that it would be

erroneous to accord undue primacy to the hypothetical answers

of medical witnesses to exclude the eyewitnesses' account which

had to be tested independently and not treated as the "variable"

keeping the medical evidence as the "constant". Where the

eyewitnesses' account is found credible and trustworthy, a

medical opinion pointing to alternative possibilities cannot

(1999) 5 SCC 96

be accepted as conclusive. The eyewitnesses' account requires

a careful independent assessment and evaluation for its

credibility, which should not be adversely prejudged on the basis

of any other evidence, including medical evidence, as the sole

touchstone for the test of such credibility. The evidence must be

tested for its inherent consistency and the inherent probability

of the story; consistency with the account of other witnesses

held to be creditworthy; consistency with the undisputed facts,

the "credit" of the witnesses; their performance in the witness

box; their power of observation etc. Then the probative value of

such evidence becomes eligible to be put into the scales for a

cumulative evaluation.

22) In Solanki Chimanbhai Ukabhai v. State of Gujarat4,

the Hon'ble Supreme Court observed, "Ordinarily, the value of

medical evidence is only corroborative. It proves that the injuries

could have been caused in the manner alleged and nothing

more. The use which the defence can make of the medical

evidence is to prove that the injuries could not possibly have

been caused in the manner alleged and thereby discredit the

eye-witnesses. Unless, however the medical evidence in its

turn goes so far that it completely rules out all possibilities

whatsoever of injuries taking place in the manner alleged

by eyewitnesses, the testimony of the eye-witnesses cannot

AIR 1983 SC 484

be thrown out on the ground of alleged inconsistency

between it and the medical evidence."

23) In State of U.P. v. Hari Chand5, the Hon'ble Apex Court

reiterated the aforementioned position of law and stated that, "In

any event unless the oral evidence is totally irreconcilable

with the medical evidence, it has primacy."

24) Even, in the instant case, the fact that the cause of death

was due to head injury is not in dispute. There are three oral

dying declarations, coupled with the evidence of PW5 who

noticed injuries on the body of the deceased and the two dying

declarations recorded by the police, which are placed on record

as Ex.P5 and Ex.P7, which speak of accused causing the death

of the deceased by beating her with a pestle.

25) For the aforesaid reasons, we are of the opinion that the

prosecution succeeded in establishing the guilt of the appellant/

accused beyond reasonable doubt and the trial court rightly

convicted the appellant.

26) In the result the appeal fails and it is accordingly

dismissed confirming the conviction and sentence recorded

against the appellant/accused in the judgment, dated

28.03.2014, in S.C.No.403 of 2013, on the file of Sessions

Judge, Guntur, for the offence punishable under Section 302

IPC.

(2009) 13 SCC 542

27) Consequently, miscellaneous petitions, if any, pending

shall stand closed.

______________________________ JUSTICE C.PRAVEEN KUMAR

_______________________________ JUSTICE RAVI NATH TILHARI Date: 06.01.2022 S.M./

THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

Criminal Appeal No. 1075 of 2014 (Per Hon'ble Sri Justice C.Praveen Kumar)

Date: 06.01.2022

S.M.