Andhra Pradesh High Court - Amravati
Unknown vs M Bhagyasri on 8 August, 2024
Author: K.Sreenivasa Reddy
Bench: K Suresh Reddy
APHC010447262017
IN THE HIGH COURT OF ANDHRA
PRADESH AT AMARAVATI [3486]
(Special Original Jurisdiction)
THURSDAY ,THE EIGHTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE K SURESH REDDY
and
THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY
CRIMINAL APPEAL NO: 154/2017
Between:
...APELLANT
Harijana R. Manjunath
AND
...RESPODENT
The State Of A P
Counsel for the Appellant:
1. M BHAGYASRI
2. LEGAL AID
Counsel for the Respondent:
1. PUBLIC PROSECUTOR (AP)
The Court made the following:
Page 2 of 17
THE HONOURABLE SRI JUSTICE K.SURESH REDDY
AND
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CRIMINAL APPEAL No.154 OF 2017
JUDGMENT :
(Per the Hon'ble Sri Justice K.Sreenivasa Reddy)
Sole accused in Sessions Case No.305 of 2015 on the
file of the Additional Sessions Judge, Hindupur is the
appellant herein. He was tried for the offences punishable
under Sections 302 and 201 of the Indian Penal Code,
1860 (for short, 'IPC') by the learned Sessions Judge.
2. Vide judgment dated 27.01.2016 in the
aforesaid Sessions Case, the appellant was convicted of the
offences punishable under Sections 302 and 201 IPC and
sentenced to undergo rigorous imprisonment for life and to
pay fine of Rs.5,000/- in default to suffer simple
imprisonment for a period of six months for the offence
punishable under Section 302 IPC and to undergo rigorous
imprisonment for a period of three years and to pay a fine
of Rs.2,000/- in default to suffer simple imprisonment for
a period of three months for the offence punishable under
Section 201 IPC. The sentence imposed for the offence
punishable under Section 201 IPC was directed to run
concurrently with the life imprisonment imposed for the
offence punishable under Section 302 IPC.
3. The substance of charges as against the
accused is that on 31.12.2012 at about 5.00 PM, the
accused, being husband of one Harijana Rathnamma
(hereinafter referred to, as 'the deceased'), having bore
grudge against her as she addicted to vices and indulging
in prostitution activities, having intention to murder her,
and while the accused and the deceased proceeded to
Mopurugundu by walk near the fields of Golla
Thammanna, the accused picked a quarrel with the
deceased, beat her with hands and strangulated her with
saree and caused her death intentionally and thereby
committed an offence punishable under Section 302 IPC,
and after committing her murder, the accused did cause
certain evidence of the said offence to disappear, turned
the saree of the deceased around her neck and legs,
dragged and laid the dead body in bushes to screen
evidence and thereby committed an offence punishable
under Section 201 IPC.
4. Case of the prosecution, in brief, is that all the
material prosecution witnesses are residents of
Mopurugundu village, Gudibanda mandal, Anantapur
district. The deceased was also residing in Mopurugundu
village. P.W.1 is brother of the deceased. P.W.2 is sister of
the deceased. P.W.3 is niece of the deceased. Accused is
husband of the deceased. Marriage of the deceased with
the accused was performed about 10 years prior to the
incident. After the marriage, the couple led their marital
life at Alukuru village. They were blessed with two male
children. Thereafter, the accused started suspecting
fidelity of the deceased and used to beat her. The same
was informed by the deceased to P.W.1. Unable to bear
the beating and harassment by the accused, she went to
her parents' house and was living there. Thereafter, the
accused married another woman. The two male children
were living along with the accused. The accused left
second wife also, as he was habituated to drinking, liquor
and playing cards. The accused slowly started coming to
the deceased and tried to meet her. The accused was
insisting the deceased to come along with him, for which
the deceased denied stating that unless parents and
brothers of the deceased consent for the same, she would
not come with him. In connection with that, a dispute
arose between the accused and the deceased.
On 31.12.2012 at about 5.00 PM, the accused went
to house of the deceased and took her and P.W.3 to
Jammalabanda for buying new clothes on the eve of new
year 2013. The deceased and P.W.3 accompanied the
accused to Jammalabanda. The accused purchased a new
saree to the deceased and one pair of dress to P.W.3, and
thereafter, they started coming back to their village. While
they were coming back, the accused slapped on the cheek
of the deceased, pushed down the deceased and tightened
her neck with her saree and dragged. Mean while, P.W.4
and L.W.5-Nagesh switched on a torch light to see what
was happening. The accused abused them in filthy
language, and on that, the said persons went away from
that place. Afraid of the same, P.W.3 ran towards her
home in a hurried manner and informed about the
incident on the road near Golla Thammanna fields. On
hearing the same, P.W.2 rushed to their house. P.W.1 and
L.W.1-Harijana Pathappa went in search of the deceased
and searched for one hour, but it was of no use. On the
next day morning, they and P.W.2 found dead body of the
deceased in Golla Thimmanna fields.
On 01.01.2013 at about 12.00 noon, L.W.1-Harijana
Pathappa gave information to police. Basing on the same,
a case in crime No.1 of 2013 of Gudibanda police station
was registered for the offence punishable under Section
302 IPC under Ex.P9-FIR. On receipt of express FIR from
P.W.12, P.W.11, who was Inspector of Police, Madakasira
police station, secured mediators and conducted inquest
on the dead body of the deceased. During inquest, M.Os.1
to 5 were seized. He examined and recorded statements
of witnesses during inquest. The inquestdars
unanimously opined that cause of death of the deceased
was due to strangulation with a saree.
P.W.9, who worked as Civil Assistant Surgeon,
Madakasira, conducted autopsy on the dead body of the
deceased. Ex.P6 is the post mortem examination report.
According to the doctor, the deceased appears to have died
of asphyxia due to strangulation. On 02.01.2013, P.W.11
took up further investigation, examined the witnesses and
recorded their statements. On 21.03.2015, while he was
present in his office at about 1.00 PM, P.W.7-Village
Revenue Officer, presented a report, along with the
accused, with Ex.P4-extra judicial confession made by the
accused. P.W.11 secured presence of P.W.10 and another
and in their presence, he examined the accused person.
In pursuance of the confessional statement made by the
accused, they proceeded to the scene of offence and
reconstructed the scene of occurrence. On 21.03.2015 at
about 4.15 PM, P.W.1 arrested the accused. After
receiving post mortem examination report and other
relevant documents, P.W.11 filed the charge sheet.
5. In support of its case, prosecution examined
P.Ws.1 to 12 and got marked Exs.P1 to P14, besides case
properties M.Os.1 to 8. After completion of prosecution
side evidence, the accused was examined under Section
313 CrPC to explain the incriminating circumstances
appearing against him in the evidence of prosecution
witnesses. The accused denied the same. The learned
Sessions Judge, after appreciation of the evidence on
record, convicted and sentenced the appellant/sole
accused, as stated supra. Challenging the same, the
present Criminal Appeal is preferred.
6. Heard the learned counsel for the appellant and
the learned Assistant Public Prosecutor for the State.
7. Learned counsel for the appellant submits that
there is no direct evidence to connect the appellant/ sole
accused with the offence alleged, except the evidence of
child witness who is examined as P.W.3; that the evidence
of P.W.3 does not inspire confidence since she was a
tutored witness; that the extra judicial confession Ex.P4 is
a weak piece of evidence and is inadmissible in evidence
and conviction cannot be based on the same, and the
learned Sessions Judge has not appreciated the evidence
on record in right perspective and erred in convicting and
sentencing the appellant. Hence, he prays to set aside the
impugned judgment.
8. On the other hand, learned Assistant Public
Prosecutor appearing for respondent-State contended that
there is direct evidence of P.W.3, who is a child witness,
which is convincing, trustworthy and inspires confidence;
that from the evidence of P.W.3, coupled with Ex.P4-extra
judicial confession and evidence of P.W.7, the guilt of the
appellant/sole accused is established beyond reasonable
doubt; that the learned Sessions Judge rightly appreciated
the evidence on record and convicted and sentenced the
appellant/sole accused and there are no grounds to
interfere with the impugned judgment.
9. Now, the point that arises for determination is
whether the prosecution is able to bring home the guilt of
the appellant/sole accused for the charges levelled against
him, beyond reasonable doubt ?
10. P.Ws.1 and 2, who are brother and sister
respectively of the deceased, did not witness the incident
in question and their evidence is only a hear-say evidence.
The entire case rests on the evidence of P.W.3, who is a
child witness. She is daughter of P.W.2 and was studying
7th class. According to her evidence, the deceased is her
maternal aunt and the accused is her maternal uncle.
According to her, on the date of the incident, at about 6.00
PM, the accused invited the deceased and P.W.3 stating
that he would buy new clothes to them at Jammalabanda;
she and the deceased accompanied the accused to
Jammalabanda, and the accused purchased new saree to
the deceased and one pair of dress to her, and thereafter
they started going back to their village; while they were
going to their home, a quarrel ensued between the
deceased and the accused, and the accused slapped on the
cheek of the deceased; that accused pushed down the
deceased and tightened her neck with her saree and
dragged. She further deposed that mean while, two
persons (P.W.4 and another) went there and switched on a
torch light to see what was happening. The accused
abused them in filthy language and on that, those two
persons went away from the place; that afraid of the same,
P.W.3 too ran towards her house and informed the same to
everybody.
11. P.W.4 did not support the prosecution case.
He was treated hostile by the prosecution.
12. In common parlance, in case of a child witness,
her evidence has to be scrutinized with much care and
caution, and unless and until there is corroborative
evidence to the evidence of a child witness, the same
cannot be relied upon. At the same time, if the evidence of
a child witness is not unreliable and nothing has been
elicited in cross-examination so as to tilt the case of the
prosecution, the evidence of the child witness can be relied
upon. In the case on hand, P.W.3 categorically deposed
with regard to the incident that had taken place right in
front of her. In cross-examination, Court put a question to
the child witness under Section 165 of the Indian Evidence
Act, 1872, as to whether anybody, more particularly her
mother and uncle, tutored her to give the evidence. To
that, P.W.3 gave answer stating -"I am giving evidence
what I have seen at the scene of offence not as tutored by
my mother and my uncle.". The evidence of the child
witness P.W.3 is consistent and nothing has been elicited
during her cross-examination so as to discredit her
testimony.
13. Apart from the same, it is the evidence of
P.Ws.1 and 2, who are none other than brother and sister
of the deceased, that the accused was coming to their
house now and then, and on the date of the incident, the
accused visited their house and took the deceased and
P.W.3 in order to buy clothes to them at Jammalabanda.
That fact is established by virtue of evidence of P.Ws.1 and
2. The evidence of P.W.3, on that aspect, is corroborated
by the evidence of P.Ws.1 and 2. Therefore, presence of
P.W.3 at the time of the incident is quite natural and
probable. On the date of the incident, when P.W.3
returned her house by crying, P.Ws.1 and 2 and their
father questioned P.W.3 as to what had transpired. To
that, P.W.3 answered that the accused slapped the
deceased and dragged her by putting saree around her
neck. Thereafter, both P.Ws.1 and 2 and father of the
deceased searched for the deceased, but they could not
find the deceased. On the next day, they could trace dead
body of the deceased and thereafter, father of the deceased
gave information to police at 12.00 noon on 01.01.2013.
14. A perusal of Ex.P9-FIR, it has been categorically
mentioned in the earliest point of time that on the fateful
day, it is the accused, who visited house of the deceased
and took the deceased, who is his wife, and P.W.3 in order
to buy clothes on the eve of new year. Though father of
the deceased (LW1) was not examined by the prosecution,
it would not in any way tilt the case of the prosecution.
When police receive information with regard to commission
of a cognizable offence, they are empowered to set the
criminal law into motion by registering FIR.
15. P.W.7, Village Revenue Officer of Valasa and in-
charge of Amarapuram, deposed that the accused made
extra judicial confession before him stating on 21.03.2015
stating inter alia that while coming back from Jammula-
banda after buying clothes to his wife and P.W.3, he killed
his wife in between Jammulabanda and Mopurugunta
road for having extra marital relation, and the same has
been recorded by P.W.7, which is marked as Ex.P4.
16. Learned counsel for the appellant relied on a
decision in 2000 (1) ALD (Cri) 508 (SC), wherein the
Hon'ble Apex Court held that the evidence of a child
witness examined after two days of the incident cannot be
believed and that the High Court is justified in acquitting
the accused. In the said case, the occurrence of the
incident took place on 08.08.1982 but her statement
under Section 161 CrPC was recorded on 10.08.1982,
though after the occurrence, she was residing with her
uncle at a stone throw distance from the house.
17. In the present case, police registered FIR on
01.01.2013 and P.W.3 was examined on 02.01.2013. The
statement of P.W.3 was recorded immediately on the next
day. In common parlance, it is settled that evidence of a
child witness has to be evaluated with care and caution for
the reason that the child witness would be susceptible for
tutoring. In such circumstances, the evidence of a child
witness requires corroboration, before accepting it.
Irrespective of the fact, it is settled that if the evidence of a
child witness inspires confidence of the Court, without
there being any embellishments or improvements, in such
a case, the Court can rely upon the evidence of the child
witness. In the case on hand, when the learned Sessions
Judge questioned the child witness P.W.3, in no
unambiguous terms, the witness stated that she was
deposing what she had seen at the scene of offence and
not as tutored by her mother or uncle. In view of the
aforesaid reasons, this Court relies upon the evidence of
P.W.3. The learned Sessions Judge, upon proper
appreciation of the evidence on record, rightly convicted
and sentenced the appellant/sole accused, and this Court
is of the opinion that the judgment passed by the learned
Sessions Judge is well reasoned and calls for no
interference by this Court.
18. Accordingly, the Criminal Appeal is dismissed,
confirming the judgment dated 27.01.2016 in Sessions
Case No.305 of 2015 on the file of the Additional Sessions
Judge, Hindupur.
As a sequel, pending miscellaneous petitions, if any,
shall stand closed.
JUSTICE K. SURESH REDDY
JUSTICE K. SREENIVASA REDDY
08.08.2024.
DRK
THE HONOURABLE SRI JUSTICE K.SURESH REDDY
AND
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
JUDGMENT IN
CRIMINAL APPEAL No.154 OF 2017
(Per the Hon'ble Sri Justice K.Sreenivasa Reddy)
08.08.2024
DRK
