HONBLE SRI JUSTICE [ENTITY] AND HONBLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI CRIMINAL APPEAL No.1129 of 2011 30-11-2017 Nagavarapu Prasad @ Nagapuri Prasad Appellant [ENTITY], rep.by its P.P Respondent Counsel for Petitioners : Mrs. [ENTITY] Counsel for Respondent: Public Prosecutor <GIST : >HEAD NOTE : ? Cases referred : 1.(1989) Supp (2) SCC 706 2.(2007) 14 SCC 660 3.(2011) 9 SCC 462 4.2012(12) SCC 289 HONBLE SRI JUSTICE [ENTITY] AND HONBLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI CRIMINAL APPEAL No.1129 OF 2011 JUDGMENT :
(per Honble Sri Justice [ENTITY])
1) The appellant herein, sole accused, who was tried for the offences punishable under [SECTION] and [SECTION] [ACT], for causing the death of his wife by name Nagavarapu Nagamani @ Nagapuri Nagamani (hereinafter referred to as the deceased), on 03.05.2008, at 7.00 p.m., by throttling her neck, was convicted by the Mahila Sessions Judge, Vijayawada, by Judgment dated 23.08.2011, in [CASE NUMBER], under both the offences and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for a period of one month, for the offence punishable under [SECTION] [ACT] and to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for six months for the offence punishable under [SECTION] [ACT]. Both the sentences were directed to run concurrently.
2) The facts, as culled out, from the evidence of prosecution witnesses, is as under:
i) The accused is said to be the husband of the deceased. PW.1 is father, PW.2 is mother and PWs.3 and 4 are neighbours of the deceased.
The marriage between the accused and deceased took place in the year 2004 and out of wedlock they were blessed with a son and daughter. After marriage, both of them lived happily for about one and half years and, thereafter, the accused, who got habituated to alcohol, used to harass the deceased both physically and mentally. He also suspected the fidelity of the deceased. Whenever there were disputes between the husband and wife, the deceased used to inform the same to PWs.1 and 2, who used to convince her and send her back. About four months prior to the incident, PW.1 took a house on rent and both of them were living together as tenants in a portion of the house of PW.4, but there was no change in the attitude of the accused, and continued to harass the deceased. The evidence of PWs.3 and 5 discloses that, on 02.05.2008, the accused came to the house in a drunken condition by which time PW.3 and his family had their meal and slept. At about 12.00 mid night, PW.3 claims to have got up for attending natures call. He noticed the children of the accused and deceased sleeping in a varanda in front of their house, but, however, the accused and deceased were not present in the varanda. He thought that both of them were sleeping inside the house. The evidence of PW.5 discloses that on that day, at about 11.30 p.m., when they were in front of their house, for unloading a sand lorry, they noticed the accused and his son along with a bag leaving the house in a hurried manner. When he questioned the accused, he is said to have informed him that he is going to village and so saying left that place. The evidence of PW.6 shows that, on 02.05.2008, the accused picked up quarrel with the deceased, but, since it was a regular affair, they did not interfere in the said quarrel. It is said that from 10.00 p.m., onwards, PW.6 along with PW.5 were present in front of their newly constructed house so as to unload the sand. At about 12.30 night, they noticed the accused leaving the house along with his son. When PW.6 enquired, the accused is said to have informed him that he is going to his village to hand over his son to his mother. On the next day morning, the mother of PW.4-the house owner, went to the house of the accused and tried to wake up the deceased, but none opened the door. Immediately she came from the house of the deceased and raised cries as bay-bay by action (as she is dumb). On hearing the same, the PW.4 came out of the house and questioned as to what happened. She informed her, through gestures, that the deceased was dead. Then PW.4 went there and found the deceased lying on the floor of the house and her daughter was by her side.
ii) The evidence of PW.6 shows that, on the next day morning, the house owner knocked the door of the deceased, but she did not open the door. On such information, he went there and noticed the doors kept open. They noticed that the daughter of the deceased trying to suck milk from the deceased mother. On receipt of information about the death, PW.1 proceeded to the house of the deceased and found the dead body lying on the floor. He also noticed injuries on nose and mouth of the deceased. The accused was not present in the house at that time. On 03.05.2008, at about 9.00 a.m., PW.1 went to the police station and lodged a report with PW.11-the Sub-Inspector of Police, which was registered as [CASE NUMBER], under [SECTION] [ACT] Ex.P.9 is the first information report. Thereafter, he took up investigation, proceeded to the scene of offence, prepared a panchanama and a rough sketch of the scene in the presence of PW.8 and another. Ex.P2 is the scene observation report and Ex.P10 is the rough sketch of the scene. Thereafter, he conducted inquest over the dead body of the deceased in the presence of PW.10. Ex.P3 is the inquest report. During inquest, he noticed injuries on the left side of neck of the deceased and on lip and chin. During inquest, PW.11 recorded the statements of PWs.1 to 7 and others. Thereafter, the dead body was sent to Government General Hospital, Vijayawada, for postmortem examination. PW.9-the Assistant Professor, Government General Hospital, Vijayawada, conducted autopsy over the dead body and issued Ex.P.6-postmortem report. According to the Doctor, the cause of death was due to smothering.
iii) It is also to be noted that after receiving the postmortem examination report, PW.11 altered the section of law from 174 [ACT] to [SECTION] and [SECTION] [ACT]. On receipt of altered F.I.R., PW.12-the Inspector of Police, took up investigation. According to PW.12, on 05.05.2008, at about 04.30 p.m., he received a message from VRO of [ENTITY] (PW8) stating that the accused surrendered before him. Thereafter, PW.12 went to the house of PW.8 and received the confessional statement of the accused from him. The statement of accused is placed on record as Ex.P4. After recording the extra judicial confession, in the presence of PW.4, he informed about the same to PW.12, who arrested the accused. The confession made by the accused lead to recovery of M.O.4-lungi. After completing the investigation and receiving all the material, PW.12 filed the charge sheet, which was taken on file as [CASE NUMBER], on the file of the I Metropolitan Magistrate, Vijayawada. After compliance of [SECTION] of [ACT], the matter was committed to the Court of Sessions, wherein it came to be numbered as [CASE NUMBER].
3) Basing on the material, charges came to be framed for the offences punishable under [SECTION] and [SECTION] [ACT], read over and explained to the accused to which he denied the same and claimed to be tried.
4) To substantiate their case, the prosecution examined PWs.1 to 12 and got marked Exs.P1 to P12 and M.Os.1 to 4.
5) After closure of the evidence, the accused was examined under [SECTION] [ACT], with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, to which he denied. No oral or documentary evidence was adduced on behalf of the accused in support of his defence.
6) After appreciating the oral evidence, the extra judicial confession made by the accused before PW.8, the Sessions Judge convicted the accused in the manner referred to above. Challenging the same, the present appeal came to be filed.
7) Learned counsel for the appellant mainly submits that there are no direct witnesses to the incident and the entire case rests on the circumstantial evidence. According to her, the circumstances relied upon by the prosecution do not form a chain of events so as to connect the accused with the crime. In view of the inconsistent version of the prosecution witnesses and having regard to the fact that the prosecution witnesses themselves stated that there are no quarrels between the accused and deceased, it cannot be said that the accused had any motive or intention to kill the deceased. It is pleaded that if the contents made in the extra judicial confession are taken into consideration, the incident took place when the deceased refused to fulfil his lust, the accused got angry and strangulated her.
8) On the other hand, the learned Public Prosecutor would submit that the circumstances relied upon by the prosecution do form a chain of events so as to connect the accused. He took us through the evidence of the witnesses to show that the accused alone can be responsible for the commission of offence.
9) As seen from the record, there are no eye witnesses to the incident. The entire case rests on the circumstantial evidence. It is well established principles of law that in a case based on circumstantial evidence, the prosecution has to prove the chain of events.
10) In Padala Veera Reddy v. [ENTITY] , the Apex Court, while dealing with the issue on circumstantial evidence, held as under:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
11) In the instant case, the circumstances, which are sought to be relied upon by the prosecution, are (1) disputes between the accused and deceased prior to the incident, (2) the accused entering the house in drunken condition; (3) the accused leaving the house at 11.30 p.m., along with minor son, and (4) extra judicial confession made by the accused before PW.8, on 05.05.2008, and the body of the deceased wife lying in the house.
12) The question that falls for consideration is: whether these circumstances are sufficient to hold the accused guilty of the offence?
13) PWs.1 and 2, who are parents of the deceased, in their evidence deposed about the accused harassing the deceased and suspecting her fidelity, which was being informed to them by the deceased. PWs.1 and
2 tried to convince the deceased and sent her to marital life. About two or three months prior to the incident, PW.1 brought his daughter and set up a separate family as a tenant in the house of PW.4. PW.4 categorically stated that, on the previous night, there was a dispute between them. It is her version that the accused was in the habit of taking alcohol, not giving money or provisions in the house and for that reason there were disputes between them. Insofar as this aspect, in her cross-examination, P.W.4 admits that she did not state these aspects before the police and the M.R.O.
14) It will be useful to refer to the said admission, which is as under:
It is true I stated before police and M.R.O that there were no disputes between accused and deceased and I have not heard any cries from the house of the accused on 02.05.2008.
15) Similarly, PW.6 in the cross-examination stated as under:
It is true I have not stated before police that 3 days prior to the death of the deceased there was quarrel in between accused and deceased.
16) Further, PW.6 in the cross examination admitted as under:
it is true I have not stated to police that there were quarrels in between accused and deceased prior to her death and I interfered in the same. It is true I have not stated to police that on 02.05.2008 there was a quarrel between them and I interfered the same.
17) PWs.5 and 6, who are son and father, were examined to speak about the accused leaving the house at about 11.30 p.m., or 12.00 and that they are related to PWs.1 and 2 and the deceased. PW.3, who is a neighbour, was also examined to speak about the quarrel between the accused and the deceased. He deposed that the accused was in the habit of taking alcohol and harassing the deceased without bringing any provisions. The said witness did not depose about any quarrel, which took place on the night of 02.05.2008, or hearing of any cries from the house of the accused and the deceased. In fact, PW.11-the Investigating Officer, in his evidence, admits that none of the witnesses spoke about any harassment by the accused or any demand of dowry.
18) It would be useful to refer to the admissions elicited in the cross-
examination of PW.11, which are as under:
It is true that after recording the statement by the M.R.O., I recorded the statements of the witnesses. It is true that there was no previous allegation against the accused nor given any complaint by PW.1 or deceased about the harassment of the accused. It is true that no witnesses were deposed before me for dowry harassment of the accused. It is true that PWs.1 to 5 are stated before me that there were injuries on the dead body of the deceased.
19) From the evidence, referred to above, it can be said that the prosecution failed to prove the existence of any disputes between the accused and the deceased prior to the incident or from the time they were living as tenants in the house of PW.4.
20) The next circumstance, which is relied upon by the prosecution, relates to accused entering the house on that night in a drunken condition. The said fact was spoken to by PW.3 alone. Though it was suggested to PW.3 that he has not seen the accused in drunken condition at 7.30 p.m., the same was denied by him. Therefore, the circumstance of accused entering the house at 7.30 p.m., in a drunken condition goes un-rebutted.
21) The third circumstance, which relied upon by the prosecution, relates to the accused leaving the house, in the midnight, along with his minor son. PWs.5 and 6, who are son and father, and related to PWs.1, 2 and the deceased, were examined to speak about the said fact. PW.5, in his evidence, deposed that on 02.05.2008, at about 11.30 p.m., while they were present in front of their newly constructed house, for un-
loading sand, noticed the accused along with his son and a bag, leaving the house in a hurried manner. When questioned, the accused told them that he is going to his village and so saying left that place.
22) PW.6, in his chief examination, stated that, on 02.05.2008, at about 10.00 p.m., he along with LWs.7 and 8 were present in front of their newly constructing house, to carry the sand to the house. At about 00.30 night, they noticed the accused leaving the house along with his son. When PW.5 enquired, he informed them that he wants to hand over his son to his mother, as he was going to some village. The evidence of these two witnesses is in-consistent with regard to the purpose for which the accused left the house. It is not in dispute that PWs.5 and 6 are related to PWs.1 and 2 and the deceased. PW.5, in his evidence, stated that he saw the accused leaving the house along with his son at 11.30 p.m., and when questioned, he claims to have stated that he is going to his village, whereas the evidence of PW.6 is something different. PW.6 was also present along with PW.5 at their house and he also claims to have seen the accused leaving the house along with his son. According to him, at about 12.30 a.m., when PW.5 accosted, the accused is said to have told him that he is going to some village to hand over his son to his mother. The version given by PWs.5 and 6 is at variance not only with regard to the time when they saw the accused leaving the house but also the purpose for which the accused left the village. Therefore, there is any amount of doubt with regard to the evidence of PWs.5 and 6, in seeing the accused leaving the house.
23) The next and last circumstance, which is pressed into service by the prosecution, is the extra judicial confession made by the accused before PW.8 and 6, which is produced on record as Ex.P4.
24) It would be useful to extract the relevant portion of the extra judicial confession, which is as under:
On 02.05.2008 in the evening after attending to slab work our Head mason [ENTITY] gave one quarter liquor to me and cash of Rs.200/-. I purchased another quarter and consumed it. I purchased another quarter and took it to the house and consumed it there at my house. My wife is cutting brinjals to cook the brinjal curry. Then I abused my wife as to why she is cooking brinjal curry. When I am raising cries against her in intoxicated condition due to liquoring the neighbours came and chastised me. My wife went to her mothers house and brought the curry of [ENTITY] and dried prawns. She also cooked omlet. After taking meals we slept at 10 clock. After my children slept I wished to have sex with my wife and I woke up her and asked her to come near to me. But she refused to fulfill my desire. As such during night at 10 o clock I took her forcibly in to the room. Even then she has not agreed. She struggled with me for a long time. Then I grew wild, with an intention to kill her I squeezed her neck and I stuffed my lungi in her mouth and pressed her mouth with my lungi forcibly. After a while her breathing stopped. After confirming that she died I kept two pair of clothes, a lungi and album in a carry bag and went to Vijayawada with my son [ENTITY]. I gave my son to my mother and moving in Vijayawada here and there. On knowing that police are searching for me today i.e. on 05.05.2008 I came to you due to fear and told the incident that occurred. It is true. I pray to handover me to the police.
25) The extra judicial confession made before the V.R.O., was reduced into writing and the signature of the accused was also obtained thereon. Subsequent thereto, PW.8 is said to have gone to the police and handed over the accused to PW.12 along with the extra judicial confession statement.
26) A reading of the extra judicial confession establishes the presence of the accused in the house, at the time of incident. The said confession discloses the manner in which the incident took place. In his statement, he disclosed that after consuming alcohol, in the house, he abused his wife as to why she has prepared brinjal curry. As such, the deceased went to her mothers house and brought the curry of [ENTITY] and dried prawns. After taking meals, they slept at 10.00 p.m. After the children slept, the accused wanted to have sex with his wife. Hence, he woke her up and asked her to come near him, but she refused to fulfil his desire. He, then, forcibly took her into the room. Even then, she did not agree for having sex with him. At that time, he grew wild and pressed her neck. Though he confessed that he intentionally tried to kill her when she refused to have intercourse, having regard to the circumstances under which the incident took place, we feel that he never had any intention to kill her, more so, when the evidence on record does not establish any quarrel between them after they got shifted to the house of PW.4.
27) In [PRECEDENT] the Apex Court observed as under:
that the safest way of approach to the interpretation and application of [SECTION] and [SECTION] of the Code is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of [SECTION] and [SECTION] of the Code and the drawing support from the decisions of the court in [PRECEDENT] and [PRECEDENT], speaking for the court, Justice [ENTITY], neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the court said that wherever the Court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it would be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be that the accused has done an act by doing which he has caused the death of another. Two, if such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in [SECTION]. If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder, punishable under the First or Second part of [SECTION], depending respectively, on whether this second or the third clause of [SECTION] is applicable. If this question is found in the positive, but the cases come within any of the exceptions enumerated in [SECTION], the offence would still be culpable homicide not amounting to murder, punishable under the first part of [SECTION] of the Code. It was, however, clarified that these were only broad guidelines to facilitate the task of the court and not cast- iron imperative.
28) In [PRECEDENT] , the Apex Court held that:
In order to hold whether an offence would fall under [SECTION] or [SECTION] of the Code, the courts have to be extremely cautious in examining whether the same falls under [SECTION] of the Code which states whether a culpable homicide is murder, or would it fall under its five exceptions which lay down when culpable homicide is not murder.
29) In [PRECEDENT] , while dealing with a situation as to when an offence can be brought down to [SECTION] [ACT], in Para Nos.20, 21, 22, 23, 25 and 26, the Apex Court held as under:
In other words, [SECTION] states both, what is murder and what is not. First finds place in [SECTION] in its four stated categories, while the second finds detailed mention in the stated five exceptions to [SECTION]. The legislature in its wisdom, thus, covered the entire gamut of culpable homicide that amounting to murder as well as that not amounting to murder in a composite manner in [SECTION] of the Code.
21. [SECTION] and [SECTION] of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. An analysis of these two Sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in [SECTION] of the Code. [SECTION] deals with cases not covered by [SECTION] and it divides the offence into two distinct classes, that is (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life.
In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of this section includes only those cases in which offence is really murder, but mitigated by the presence of circumstances recognized in the exceptions to [SECTION] of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in the case of [PRECEDENT] (Refer : Penal Law of India by Dr. [ENTITY], Volume 3, 2009 )
22. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of [SECTION] of the Code and punishable under [SECTION] of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to [SECTION] of the Code and is punishable under [SECTION] of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed.
23. An important corollary to this discussion is the marked distinction between the provisions of [SECTION] of the Code. Linguistic distinction between the two Parts of [SECTION] is evident from the very language of this Section. There are two apparent distinctions, one in relation to the punishment while other is founded on the intention of causing that act, without any intention but with the knowledge that the act is likely to cause death. It is neither advisable nor possible to state any straight-jacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merits. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused.
25. As we have already discussed, classification of an offence into either Part of [SECTION] is primarily a matter of fact. This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of pre-meditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view, i.e., by applying the principle of exclusion. This principle could be applied while taking recourse to a two-stage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of [SECTION] of the Code, that is, culpable homicide amounting to murder. Then secondly, it may proceed to examine if the case fell in any of the exceptions detailed in [SECTION] of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery. This is more so because presumption of innocence and right to fair trial are the essence of our criminal jurisprudence and are accepted as rights of the accused.
26. Having examined the principles of law applicable to the cases like the one in hand, now we would turn to the present case.
30) A reading of the extra judicial confession clearly indicates that the accused came to the house, at about 12 mid night, in a drunken condition and wanted his wife to come into the house to fulfill his sexual desire, to which she rejected. Then, he forcibly took her into the house and repeatedly asked her to fulfill his lust, but she refused and declined to fulfill his lust.
31) The medical evidence, which has been placed on record, would show abrasions on both lips, an abrasion on the neck, apart from three bite marks on the upper portion of the tongue of the deceased.
32) From the medical evidence, it appears that every effort was made by the accused to have intercourse with his wife in a drunken condition so as to fulfill his sexual desire, but her refusal to oblige him made him angry, which must have lead to putting pressure on the neck.
33) In the absence of any earlier disputes between the accused and the deceased and in view of the admissions elicited, it can be said that there was no animosity or intention or motive for the accused to kill the deceased. The incident occurred when the deceased refused to have sexual intercourse.
34) Under those circumstances, the offence can be scaled down to one under [SECTION] [ACT], since the act of the accused cannot be said to be one of murder under [SECTION] [ACT].
35) In view of the above, the Criminal Appeal is allowed in part. The conviction and sentence recorded against the appellant/ accused in [CASE NUMBER] on the file of the Mahila Sessions Judge, Vijayawada, for an offence punishable under [SECTION] is altered to one under [SECTION] [ACT]. For the altered conviction, the appellant is sentenced to rigorous imprisonment for a period of (10) years.
Miscellaneous petitions if any pending in this appeal shall stand closed.
JUSTICE [ENTITY] [ENTITY] ,J 30.11.2017