Kummari Venkatanna vs The State Of Ap., Another
2022 Latest Caselaw 4977 Tel

        THE HON'BLE SMT JUSTICE P.SREE SUDHA
                         AND
         THE HON'BLE DR. JUSTICE D.NAGARJUN

              CRIMINAL APPEAL No.660 of 2013

                        JUDGMENT

(per Justice P.Sree Sudha)

1. This Criminal Appeal is directed against the judgment

dated 15.05.2015 rendered in Sessions Case No.448 of 2012 on

the file of the learned III Additional District and Sessions Judge,

Gadwal, whereby the appellant-accused is found guilty for the

offences under Sections 302 and 307 IPC and sentenced to

undergo imprisonment for life for the offence Under Section 302

IPC together with fine of Rs.500/- and rigorous imprisonment

for three years and fine of Rs.500/- for the offence under

Section 307 IPC. In default to pay fine amounts, the accused

shall undergo simple imprisonment for a period of one month

on each count.

2. The case of the prosecution is that on 03.12.2011 at

about 0400 hours accused took her daughter Seshamma, aged

10 years, to fetch water from the agricultural well and killed her

by throwing into the well. When his wife-defacto complainant

Kummari Govindamma-P.W.1 enquired her husband about

their daughter, accused confessed before her that he killed his

daughter by throwing in the well. Upon which P.W.1 raised hue

and cry and asked the accused to show the dead body of her

daughter. The accused took P.W.1 to the well and she found the

dead body floating in the well water and at that time the

accused also attempted to kill P.W.1 by throwing her into the

same well, but she was rescued by one Kummari Naganna-

P.W.2. The reason stated by the accused for killing his daughter

is that she gave false information to him that his sister abused

her. Basing on the complaint given by the wife of the accused, a

case in Crime No.88 of 2011 was registered for the offences

under Sections 302 and 307 IPC against the accused and

investigation was conducted by P.W.9. During the course of

investigation P.W.9 visited the scene of offence situated at a

distance of one kilo meter from Kodandapur Police Station and

found the dead body of deceased-Seshamma in the agricultural

well of P.W.3 and thereafter the dead body was lifted from well

and conducted inquest in the presence of mediators. On

examination of the witnesses, it was disclosed that three days

prior to the incident the sisters of the accused, Devamma and

Shanthamma-P.Ws.5 and 6, came to the house of the accused

and scolded his children. The deceased informed to her father

that P.W.5 abused her and when the accused questioned his

sister, she denied the same and stated that the deceased was

deposing falsely against her and as such the accused became

angry, took her to the well and thrown her into the well. After

conclusion of the investigation, P.W.9 laid charge sheet against

the accused.

3. The charges framed by the Sessions Court against the

accused read as under:

'Firstly : That you accused on or about 3.12.2011 at agricultural well of Sudhakar Reddy situate within the limits of Kodandapur village at a distance of 100 meters from the house of you accused committed murder of Sheshamma intentionally causing the death of Sheshamma by throwing and sinking her in the agricultural well and that you thereby committed an offence punishable under section 302 IPC and within my cognizance.

Secondly: That you accused on or about 3.12.2011 at the agricultural well of Sudhakar Reddy situate within the limits of Kodandapur village at a distance of 100 meters from the house of you accused tried to push Kummari Govindamma (LW.1) into well with such intention to cause the death of Kummari Govindamma and that you thereby committed an offence punishable under section 307 IPC and within my cognizance.'

4. The accused denied the charges and claimed to be tried.

Thereupon, the prosecution examined nine witnesses and

marked in evidence seven exhibits. The defence did not choose

to adduce any evidence. The accused was examined under

Section 313 Cr.P.C. and he pleaded not guilty. The trial Court

after considering the evidence of P.Ws.1 and 2 held that they are

material witnesses and convicted the accused for the offences

under Sections 302 and 307 IPC. Aggrieved by the said

judgment, this criminal appeal is preferred by the accused.

5. Heard the learned counsel appearing for the appellant-

accused and the learned Public Prosecutor appearing for the

State.

6. P.Ws.1 and 2 are not eye witnesses to the incident. P.W.2

has not stated that accused informed her about killing of his

daughter by him. Though P.W.1 stated in her complaint, she

has not stated so in her deposition before the Court and as such

it cannot be considered as extra judicial confession made by the

accused. Even if it is presumed to be the extra judicial

confession, the accused should have made the same to the

police or someone else and it cannot be believed that he made

the said confession to his wife-P.W.1. Though P.W.1 stated in

Ex.P1 FIR that her husband informed her about killing of her

daughter by throwing into the well, she has not stated about the

said information in her evidence before the Court. As the FIR is

not substantial piece of evidence, the same cannot be relied

upon for convicting the accused.

7. The trial Court considering the last seen theory, discussed

that P.W.1 has last seen her husband with her daughter when

they were going to the well in the morning hours to fetch water

and later her husband alone returned and when P.W.1

questioned about her daughter, he confessed the guilt. Then

immediately she along with her husband and P.W.2 rushed to

the well and other villagers also gathered and they found the

dead body of their daughter in the well. But P.W.1 has not

stated that she has seen the accused with her daughter for the

last time in her evidence before the Court, though P.W.1 stated

so in Ex.P1. P.W.1 further stated that on the next day morning

they noticed the dead body of deceased in the agricultural well

of P.W.3. Therefore, the learned counsel for the appellant-

accused argued that the said theory of last seen was created for

the purpose of the case and conviction cannot be sustained

basing on the evidence of P.W.1 who has not stated that she has

seen the accused with her daughter for the last time. Learned

counsel for the appellant-accused would mainly point out two

defences i.e. extra judicial confession said to have been made

before P.W.1 and also the last seen theory which was not

deposed by P.W.1.

8. Admittedly, there is no eye witness to the incident and it

is a case of circumstantial evidence and therefore it is for the

prosecution to establish the guilt of the accused beyond

reasonable doubt.

9. Learned counsel for the appellant-accused further argued

that the motive stated by the accused for killing his daughter is

too remote and has no relevance and for the simple reason that

the deceased made false allegation against the sister of the

accused, the accused cannot go to the extent of killing his own

daughter mercilessly. As the agricultural well has no compound

wall around it, the deceased might have slipped and fell down in

the well and it is a case of accident but not the case of

homicidel. There is no eye witness to the incident that the

accused pushed her into the well. P.W.3 is the owner of the well

where the dead body of the deceased was found. P.W.4 is the

Teacher who drafted Ex.P1 complaint. P.W.5 is the sister of the

accused and she also supported the version of P.W.1. P.W.6 is

panch witness for the scene of offence. P.W.7 is the panch for

confession of the accused. P.W.8 is the Doctor who conducted

post-mortem examination and after completion of investigation

P.W.9 filed charge sheet.

10. Learned counsel for the appellant-accused would mainly

argue that under 313 Cr.P.C. examination, the incriminating

material i.e. the alleged extra judicial confession was not put to

the accused and the learned counsel also relied upon the

citation reported in SUJIT BISWAS V/s. STATE OF ASSAM1 in

which it was held as follows:

'It is a settled legal proposition that in a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C. is to meet the requirement of the principles of natural justice i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his

(2013) 12 SCC 406

examination under Section 313 Cr.P.C., cannot be used against him and must be excluded from consideration. ...'

11. Learned counsel for the appellant-accused also relied

upon a case law in SAHADEVAN V/s. STATE OF TAMIL

NADU2 in which the principles for extra judicial confession are

laid down, which are as follows:

i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

ii) It should be made voluntarily and should be truthful.

          iii)    It should inspire confidence.

          iv)     An    extra-judicial       confession   attains   greater

credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

vi) Such statement essentially has to be proved like any other fact and in accordance with law.'

(2012) 6 SCC 403

12. In this case the allegation against the appellant-accused

is that he killed his minor daughter by throwing her into well

and the complaint was given by his wife. But, during her

deposition before the Court she has not deposed the crucial

aspects which were alleged to have been stated in the

complaint. In fact, the complaint was not drafted by her. In

criminal matters, that too when an allegation of grievous offence

like murder and attempt to murder are made against the

accused, it is for the prosecution to establish the guilt of the

accused beyond reasonable doubt. If the defence is able to

create any doubt in the mind of the Court, the benefit of doubt

is invariably to be extended to the accused. In this case since

P.W.1 has not deposed that her husband alone informed her

about killing of his daughter and so also as she has not stated

that she has last seen her husband and daughter together, it is

fatal to the case of the prosecution and basing on her sole

testimony the accused cannot be convicted. Therefore, the trial

Court erred in appreciating the facts and the judgment of the

trial Court is liable to be set aside.

13. The appeal is accordingly allowed, setting aside the

judgment dated 15.05.2015 passed in Sessions Case No.448 of

2012 on the file of the learned III Additional District and

Sessions Judge, Gadwal, and acquitted the appellant-accused of

the charge under Sections 302 and 307 IPC. He shall be set at

liberty forthwith, if he is not required in any other case. Fine

amount, if any, paid by him shall also be refunded.

____________________________ P.SREE SUDHA, J

____________________________ Dr.D.NAGARJUN, J 10th OCTOBER, 2022.

PGS