Smt.B.Telugu Jayamma, ... vs State Of Ap. Rep. By Pp.,
2022 Latest Caselaw 6945 Tel

     HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
      HON'BLE SRI JUSTICE A.SANTHOSH REDDY

           CRIMINAL APPEAL No.177 OF 2014

JUDGMENT:-

1.    The judgment of the Court of III Additional District &

Sessions Judge, Gadwal, in S.C.No.20 of 2013, dated

31.01.2014, resulted in the present appeal.


2.    Heard Smt.Katta Sravya, learned counsel for the

appellants as well as the learned Additional Public

Prosecutor who represented the Respondent-State.

3. Having found the Appellant Nos.1 & 2 guilty of the

offence punishable under Section 302 IPC, the Sessions

Court convicted them and sentenced them to undergo

imprisonment for life and to pay fine of Rs.2,000/- each.

Projecting that the appellants have not committed any

offence, whatsoever, learned counsel for the appellants

contended that the evidence of PWs 1 to 17 is neither

convincing nor cogent and therefore, the trial Court erred

in convicting the appellants. Learned counsel also stated

that though PWs 5 to 7 did not witness any incident, they

were figured as eye witnesses and were planted. But the

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same was not perceived by the trial Court. Learned

counsel also submitted that the appellants were implicated

falsely in this case by PW3, who is none other than the

husband of the 1st appellant in order to escape from giving

any share in his property either to Appellant No.1 or to her

children. Learned counsel also submitted that even to take

the evidence of PWs1 to 3 into consideration, they are all

interested witnesses. The evidence of PWs 1 & 2, being the

parents and PW3, being the husband of the deceased

woman, ought not to have helped the prosecuting agency

in establishing its case. Learned counsel further submitted

that the deceased woman attempted to commit suicide and

it is not a case of strangulation. But the same is not

observed by the trial Court. Learned counsel also

submitted that it is for the prosecution to establish the

motive for commission of offence. But the said motive is

not established at least to the remotest extent and hence,

convicting the appellants is undesirable. By submitting

thus, learned counsel for the appellants seeks to set-aside

the judgment of the trial Court and thereby to acquit the

appellants.

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4. Vehemently opposing the submission thus made,

learned Additional Public Prosecutor contended that the

victim woman was pregnant by the date of incident.

Learned Additional Public Prosecutor contended that the

appellant No.1 herein is the first wife of PW3 and the

deceased woman is the second wife of PW3. Learned

Additional Public Prosecutor stated that after marrying the

deceased woman, PW3 kept her in the same house where

the appellants were residing, but in a different portion and

as the deceased woman married her husband, the first

appellant bore grudge and when the deceased woman

became pregnant, the appellants apprehended that PW3

would give his property to the child of the deceased woman

and therefore planned to eliminate her before the date of

delivery and executed the said plan. Learned Additional

Public Prosecutor also stated that the appellants might

have killed the deceased woman then and there itself by

strangulating her. But when the neighbours witnessed and

in the meantime PW3 came to the house, they left the

victim woman and fled away through another way. But the

deceased woman succumbed soon. Learned Additional

Public Prosecutor also stated that the eye witnesses spoke

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in clear terms that it is the appellants who committed such

a heinous act and further, the cause of death was well

established and therefore, the trial Court rightly convicted

the appellants. In the light of the submissions thus made,

the points that arise for consideration are:-

1. Whether the prosecution established beyond all reasonable doubt that the appellants have committed offence punishable under Section 302 IPC?

2. Whether there exists any infirmity in the judgment of the trial Court as projected by the appellants?

5. POINT No.1:-

Whether the prosecution established beyond all reasonable doubt that the appellants have committed offence punishable under Section 302 IPC?

The crux of the case as projected in the charge sheet is that

the deceased Nagaveni (hereinafter be referred as 'the

deceased' for brevity) was given in marriage to her own

maternal uncle. However, as differences arose between

them, they took divorce as per their caste customs.

Subsequently, the deceased started residing with her

parents. While she was attending agricultural works, she

got acquaintance with PW3 and fell in love with him. They

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both got married without the knowledge of the first wife of

PW3 i.e. the first appellant herein and his mother i.e. the

second appellant herein. After marriage, PW3 brought the

deceased and kept her in a portion of his house and

started leading conjugal life with her. The deceased

became pregnant. The appellants 1 & 2 could not tolerate

the same and they developed grudge against her. Disputes

arose between the deceased and appellant No.1. Therefore,

both the appellants decided to eliminate the deceased and

were waiting for an opportunity. On 14.08.2012, PW3 left

the house at about 8.00 PM. The deceased started taking

food. She was carrying pregnancy of eight months at that

time. Taking advantage of the situation, both the

appellants, along with the son of the 1st appellant i.e.

Juvenile in conflict with law, approached the deceased with

a plastic rope and closed the doors. Both the appellants

tied the rope around the neck of the deceased from

backside and pulled the same, while the Juvenile in

conflict with law was holding the hands of the deceased.

The deceased, who was unable to save her life, raised cries.

PW5, PW6 and LW6-Narsimulu, who heard the voice of the

deceased, went there and knocked the door of the house.

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There was no response. They witnessed the offence

through the window and left the place due to fear. In the

meantime, PW3 returned home on his motor cycle and on

hearing the sound, appellants and the Juvenile in conflict

with law escaped through the rear door. The persons who

witnessed the incident informed the same to PW3. PW3

shifted the deceased to Area Hospital in a Car for

treatment. Subsequently, she was shifted to Government

General Hospital, Kurnool, but she breathed her last there

while undergoing treatment.

6. To decide the points that are taken up for discussion,

the crucial facts to be addressed are :-

(i) Whether the prosecution has established the relationship between the deceased and PW3?

(ii) Whether the prosecution has established that the deceased and the appellants used to reside under one roof, however, in different portions?

(iii) Whether the alleged incident is witnessed by any of the prosecution witnesses and if so, whether their evidence can be relied upon?

     (iv)        Cause of death of the deceased?

                                                   Dr.CSL,J & ASR,J
                                                  Crl.A.No.177of 2014


  (v)        Whether non-recording of dying declaration of
             the deceased is fatal to the case of the
             prosecution?


  (i) Whether    the   prosecution   has   established     the

relationship between the deceased and PW3?

Going further in the discussion, taking point No.(i), it is

incumbent on the part of the prosecution to primarily

establish that the deceased is the wife of PW3. During the

course of submission, learned counsel for the appellants

contended that PW3 never married the deceased. However,

there is overwhelming evidence on record to establish that

the deceased was married to PW3. The parents of the

deceased, i.e. PWs 1 & 2, stated in one voice that the

deceased was first given in marriage to one of their

relatives and it ended in divorce before their caste elders

and thereafter, the marriage of the deceased was performed

with PW3. PW3 himself deposed that after the deceased

separated with her husband, he married her. During the

course of cross-examination of PW1, the learned counsel

for the appellants had put a suggestion that PW3 registered

a site in the name of the deceased for marrying her. That

apart, the scene of offence is located at the house of PW3.

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Therefore, it is clear that the prosecution, by all the

evidence it is produced, has established the relationship

between the deceased and PW3.

(ii) Whether the prosecution has established that the deceased and the appellants used to reside under one roof, however, in different portions?

As indicated in the foregoing discussion, the scene of

offence is located at the house of PW3. It is not the case of

the appellants that they are residing elsewhere. Apart from

PWs 1 & 2, who are the parents of the deceased, PW3, who

is the husband of the deceased as well as the 1st appellant,

PWs 5 to 8 also stated that the incident occurred at the

house of PW3 where the deceased and the appellants were

residing in different portions. Also, nothing is elicited from

the cross-examination of those witnesses to take a different

view. Therefore, it can be safely inferred that the deceased

and the appellants were residing at one house, but in

different portions.

(iii) Whether the alleged incident is witnessed by any of the prosecution witnesses and if so, whether their evidence can be relied upon?

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As per the version of the prosecution, PWs 5 to 7, LW6-

Narsimulu and LW9-Manyamma, are the ocular witnesses

to the incident. The evidence of PW5 is that the appellants

are her neighbours. On the date of occurrence at about

9.00 P.M, while herself, PW6, PW7, LW6-Narsimulu and

LW9-Manyamma, were present in front of their respective

houses and were sitting, they heard groaning from the

house of the deceased and as she was pregnant, they were

under an impression that she was getting pains and they

went to the house and knocked the door. But the deceased

did not open the door and they peeped into the room

through window and they noticed the Juvenile in conflict

with law holding the hands of the deceased and both the

appellants tightened plastic rope to the neck of the

deceased. On enquiry, the appellants informed her that

they are taking care of her as she was getting pains.

Without suspecting anything, they left the house and

meanwhile, the husband of the deceased came on a bike.

By the time of his arrival, all of them left the house of the

deceased. PW5 further stated that herself and PW6 first

went to the house of the deceased and subsequently, PW7

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& LW9-Manyamma went to the house and later, LW6-

Narsimulu went there. PW6 & PW7 corroborated the

testimony of PW5 in toto. Though those three witnesses

were put to extensive cross-examination, noting could be

elicited through them to discredit their testimony. Further,

the evidence of PW8 is that on the night of occurrence

between 9.00 P.M and 10.00 P.M, while he was sitting at

his house, he heard hue and cry of women folk of his

locality and on that, he came out and saw PW3 bringing

out the deceased from his house and she was in an

unconscious state and her tongue was protruded from the

mouth and there was injury to her neck. Immediately, he

helped him in shifting her to hospital in his car. Thus, the

testimony of PW8 corroborates the testimony of PWs 5 to 7.

PW8, during the course of cross-examination, stated

that PW3 approached him and requested for his car to shift

the deceased to hospital. There is no reason for these

witnesses to give false evidence. Further, it is not the case

of the defence that they have got any enmity with the

appellants herein or have any relationship either with the

deceased or PW3. They being neighbours, are natural

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witnesses. Therefore, this Court has no hesitation to take

into consideration their testimony. Thus, it is clear that

the prosecution has submitted convincing ocular testimony

in support of its case.

(iv) Cause of death of the deceased?

The testimony of eye witnesses goes to show that the

deceased was attempted to be strangulated through a rope.

The evidence of PW13 in this regard is that on 25.08.2012,

on the request of police, he conducted post mortem

examination over the dead body of the deceased and found

antemortem external injuries i.e. healed pressure

abrasion as a hypo pigmented skin tissue present over

front and sides of neck, Tracheostomy opening over front of

neck and cut injuries over left hand. PW13 further stated

that he is of the opinion that the cause of death is due to

asphyxia due to pressure around the neck and its

complications.

PW13, during the course of cross-examination, stated

that in case of suicidal attempt, the injuries would be

consistent and the injuries of the victim were inconsistent

and the possibility of suicide of the victim was ruled out.

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He voluntarily stated that the injury noted on the neck was

horizontal. In case of suicide, there would be ligature mark

in upwards/backwards. Thus, the prosecution has clearly

established that the deceased died due to asphyxia and the

said asphyxia is due to pressure applied around the neck

and its complications. Admittedly, the deceased died

around eleven days after the date of incident.

The evidence of PW15 is that he is working as

Assistant Professor of Medicine at Kurnool Medical College

and he attended the deceased from 15.08.2012 throughout

the treatment till her death. He also stated that as the

deceased was pregnant, he consulted Genology

Department, who also attended her, took care of

spontaneous delivery of a dead foetus when she was in

unconscious stage on 23.08.2012. He also stated that she

was unconscious throughout from the date of admission

till her death. He further stated that he noticed a

strangulation mark on her neck. All the evidence thus

produced establishes the cause for death of the deceased

supporting the version of prosecuting agency.

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(v) Whether non-recording of dying declaration of the deceased is fatal to the case of the prosecution?

Though, during the course of submissions that were

projected by the learned counsel for the appellants it was

argued that the concerned Doctors ought to have taken

steps for recording the declaration of the deceased and

absence of such a dying declaration is fatal to the case of

the prosecution, this Court is not inclined to appreciate

the stand. Though, as rightly projected, dying declaration

was not recorded, yet, the case is established by the

prosecution through the testimony of ocular witnesses.

Therefore, absence of any dying declaration is not at all

fatal to the case of the prosecution. Likewise, though it is

projected that a complaint was not given to police

immediately, as the crucial witnesses clearly deposed that

they were attending the deceased and as the issue is

between the family, they did not give complaint

immediately, this Court is of the view that the delay in

giving complaint to police cannot aid the appellants.

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7. POINT NO.2:-

Whether there exists any infirmity in the judgment of the trial Court as projected by the appellants?

When the judgment of the trial Court is gone through,

considering all the factors, the points that are raised by the

appellants and all the factual aspects of the case, the Court

came to a just conclusion that the prosecution established

the guilt of the appellants beyond all reasonable doubt.

8. This Court, thus, does not find any grounds to

interfere. The judgment rendered is well reasoned and

further, the evidence produced is cogent and convincing.

Therefore, the ultimate conclusion of this Court is the

appeal lacks merits and deserves dismissal.

9. Resultantly, the Criminal Appeal stands dismissed

confirming the judgment that is rendered by the Court of III

Additional District & Sessions Judge, Gadwal, in S.C.No.20

of 2013, dated 31.01.2014.

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10. Miscellaneous petitions, if any pending, shall stand

closed.

________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA

________________________________ JUSTICE A.SANTHOSH REDDY

Dt.23.12.2022 ysk

Dr.CSL,J & ASR,J Crl.A.No.177of 2014

HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA HON'BLE SRI JUSTICE A.SANTHOSH REDDY

CRIMINAL APPEAL No.177 OF 2014

Dt.23.12.2022 ysk