Telangana High Court

Devarakonda Shankar, vs The State Of Ap Rep By Its Pp Hyd., on 14 July, 2022

Bench: K.Surender

             HON'BLE SRI JUSTICE K.SURENDER

             CRIMINAL APPEAL No.1209 OF 2008
JUDGMENT:

1. The appellant is questioning his conviction and sentence

of rigorous imprisonment for a period of two years and to pay

fine of Rs.6,000/-, in default, to suffer three months simple

imprisonment for the offence under Sections 498-A of IPC and

also convicted and sentenced to undergo rigorous

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

Rs.6,000/-, in default, to suffer simple imprisonment for a

period of two months for the offence under 304(ii) IPC vide

judgment in S.C.No.16 of 2008 dated 13.08.2008 passed by

the learned III Additional Sessions Judge (FTC), Asifabad (for

short 'the Sessions Judge'), vide the present appeal.

2. Learned Sessions Judge convicted the appellant for the

aforesaid offences for committing death of his wife by

suspecting her chastity.

3. Briefly, the case of the prosecution is that the appellant

was married to the daughter (deceased) of P.W.1. After

marriage, the deceased and the appellant lived happily for five

years. Thereafter, the appellant started harassing the deceased

after she was appointed as Anganwadi helper, suspecting her

chastity as she was talking with others. The deceased had

informed P.Ws.1 and 2 who are her parents that the appellant

was harassing her. P.W.1 enquired with the appellant and the

appellant informed that he did not intend to continue his

marital relationship with the deceased. However, the elders

and P.W.1 tried to pacify the appellant. On the day of the

death, in the night, the deceased went to the house of the

appellant and in the night around 11.00 or 12.00 p.m, the

appellant went to the house of P.W.1 and informed that he

beat the deceased and she fell down unconscious. Thereafter,

P.Ws.1 and 2 went to the house of the accused and found that

the deceased was lying on the cot with swollen neck and for

the said reason, P.W.1 concluded that it was the

appellant/accused, who murdered the deceased by throttling

her neck. On the next date, P.W.1 lodged complaint Ex.P1

stating that the accused killed his daughter suspecting her

character.

4. It is the case of the prosecution that the appellant

confessed before P.W.1 that he had beaten his deceased wife

and also before P.Ws.9 and 10, who are reporters of daily news

papers Vaartha and Andhra Jyothi respectively. On the basis

of the alleged confession made to the said witnesses, the trial

Court inferred that it was the accused who had beaten the

deceased resulting in her death.

5. P.W.9 before whom the alleged confession was made was

declared hostile to the prosecution case, as he did not state

that the appellant had confessed in his presence. However,

P.W.10, who is reporter of Andhra Jyothi news paper stated

that the accused made extra judicial confessions in his

presence and also in the presence of P.W.1, for which reason,

P.W.10 contributed news item in Andhra Jyothi, which is

marked as Ex.P8. However PW10 did not state what exactly

appellant had stated to him.

6. The neighbors of the appellant, P.Ws.3 and 4 were

declared hostile. However, P.W.5, who was living nearby

stated that the appellant was suspecting the character of the

deceased and beat her due to suspicion. Eight days prior to

the death, panchayat was held and the appellant/accused

refused to take back his wife (deceased) to the house. He

further states that around 3.00 in the morning, he heard cries

from the house of the accused and having gone to the scene,

he saw the dead body of the deceased and her neck was

throttled. He further states that he came to know that the

accused himself throttled the deceased when he suspected her

character.

7. As seen from the evidence, the deceased died in the

house of the accused. However, it is not stated by any of the

witnesses that the accused was in the house when the

incident had taken place. The only basis for the prosecution

to conclude that the accused committed murder of his

deceased wife is the alleged confession made to P.W.1 and also

P.Ws.9 and 10.

8. P.W.1 has filed complaint on the next date stating that

the accused is responsible for causing death of his daughter

and also mentioned in Ex.P1 that the accused himself had

informed him that he is responsible for causing the death of

the deceased.

9. The case of the accused is one of total denial. The

accused was arrested on 08.07.2007 when he voluntarily

surrendered before police. The alleged incident had taken

place on the previous day 07.07.2007.

10. The prosecution has failed to prove the exact sequence of

events which transpired leading to the death of the deceased.

P.W.1 states that he went to the house of the accused at 3.00

a.m and found his daughter dead. P.W.5 stated that at

around 3 a.m he went to the house of the accused and found

the deceased dead. However, he did not state anything about

the accused or P.W.1 being present at the house of the

accused, where he found the deceased dead. The prosecution,

except relying upon the alleged extra judicial confession made

to P.Ws.9 and 10, has not produced any evidence to show that

the accused was present in the house and he inflicted injuries

on the deceased, as such, it cannot be held that the accused is

the person responsible for causing the death of the deceased.

11. The Honourable Supreme Court in Sharad Birdhi Chand

Sarda vs State Of Maharashtra [984 AIR 1622], held as

follows:

"3:3. Before a case against an accused vesting on circumstantial evidence can be said to be fully established the following conditions must be fulfilled as laid down in Hanumat's v. State of M.P. [1953] SCR 1091.

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;

2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of a conclusive nature and tendency

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

3:4. The cardinal principle of criminal jurisprudence is that a case can be said to be proved only when there is certain and explicit evidence and no pure moral conviction."

12. The following circumstances create suspicion regarding

the prosecution case being correct. i) There is no evidence to

show that the accused and the deceased were present in their

house alone prior to the death of the deceased; ii) There is no

evidence to show that they heard any kind of cries or shouting

or fight that had taken place on the day of the incident when

the deceased was found dead; iii) P.W.1 does not speak about

the presence of P.W.5, however both P.Ws.1 and 5 stated that

at 3.00 a.m, they found the deceased dead in the house of the

accused; iv) The police have not conducted any investigation

to show how the injuries found on the deceased could have

been made by the accused; v) Though, P.W.13, Doctor found

that there were finger nail marks on both sides of the neck,

the nails of appellant were collected to send for FSL

examination, vi) Both PW1 and PW5 did not state that

appellant was present when they went to see the body at 3 am.

vii) PW1 did not speak about the whereabouts or abscondance

of appellant after he allegedly met him and informed about

beating his wife.

13. P.W.14 investigating officer, during his cross-examination

has stated that none of the witnesses whom he examined

stated that the accused started harassing the deceased after

she got Anganwadi post, as such, except the alleged extra

judicial confession there is no other evidence to suggest that

the accused was in any way responsible for causing the death

of the deceased.

14. In Balwinder Singh v. State of Punjab [1995 Supp. (4) SCC

259], Supreme Court stated the principle that an extra-judicial

confession, by its very nature is rather a weak type of evidence

and requires appreciation with a great deal of care and

caution. Where an extrajudicial confession is surrounded by

suspicious circumstances, its credibility becomes doubtful and

it loses its importance.

15. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158], the

Court held that it is well settled that it is a rule of caution

where the court would generally look for an independent

reliable corroboration before placing any reliance upon such

extra-judicial confession.

16. In Kavita v. State of T.N. [(1998) 6 SCC 108], the Supreme

Court held that the dictum that there is no doubt that

conviction can be based on extrajudicial confession, but it is

well settled that in the very nature of things, it is a weak piece

of evidence. It is to be proved just like any other fact and the

value thereof depends upon veracity of the witnesses to whom

it is made.

17. While explaining the dimensions of the principles

governing the admissibility and evidentiary value of an extra-

judicial confession, Supreme Court in the case of State of

Rajasthan v. Raja Ram [(2003) 8 SCC 180] stated the principle

that an extra-judicial confession, if voluntary and true and

made in a fit state of mind, can be relied upon by the court.

The confession will have to be proved like any other fact. The

value of evidence as to confession, like any other evidence,

depends upon the veracity of the witness to whom it has been

made. The Court, further expressed the view that such a

confession can be relied upon and conviction can be founded

thereon if the evidence about the confession comes from the

mouth of witnesses who appear to be unbiased, not even

remotely inimical to the accused and in respect of whom

nothing is brought out which may tend to indicate that he may

have a motive of attributing an untruthful statement to the

accused.

18. In the case of Aloke Nath Dutta v. State of W.B. [(2007)

12 SCC 230], the Supreme Court, while holding the placing of

reliance on extra-judicial confession by the lower courts in

absence of other corroborating material, as unjustified,

observed:

"87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.

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89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof."

19. As seen from the evidence on record, the prosecution,

except relying upon the evidence of P.Ws.1 and 10 to state

that the accused had made extra judicial confession regarding

the cause of the death of the deceased, no reasons are shown

as to why the accused informed P.W.10, who is news paper

reporter and stranger to the accused about the causing death

of the deceased at the police station. Pw1's evidence regarding

confession is also unreliable as the prosecution has failed to

convince the Court regarding the delay in lodging the

complaint. Even though the death occurred on 07.07.2007,

complaint was lodged only on the next day. P.W.1, though he

claims that he went to the scene in the night of 07.07.2007,