* HON’BLE SRI JUSTICE A.GOPAL REDDY AND * HON’BLE SRI JUSTICE R.KANTHA RAO +CRIMINAL APPEAL NO.76 OF 2008 % Date: 10.11.2011 BETWEEN: # Karri Thirupathi Rao …Appellant And $ The State of A.P. represented by the Public Prosecutor, …Respondent ! Counsel for Appellant: Sri V.Venkata Ranga Reddy ^ Counsel for respondent: Public Prosecutor < GIST: >HEAD NOTE: ? Cases referred: [1] (2003) 11 SCC 271 HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL NO.76 OF 2008 Date:10-11-2011 Between: Karri Thirupathi Rao …Appellant And The State of A.P. represented by the Public Prosecutor, …Respondent HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL NO.76 OF 2008 JUDGMENT: (Per Hon-ble Sri Justice R.Kantha Rao) This criminal appeal is from the judgment dated 05.11.2007 passed by the II Additional Sessions Judge (Fast Track Court), at Parvathipuram in S.C.No.148 of 2007. 2. The appellant was tried by the learned Sessions Judge for the offences under Sections 498-A and 302 of IPC. The appellant was acquitted of the offence under Section 498-A of IPC. He was found guilty of the offence under Section 302 of IPC, was convicted for the said offence and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- in default to suffer simple imprisonment for a period of three weeks. 3. Challenging the said order of conviction and sentence, the appellant preferred the present appeal. 4. The brief facts essential for considering the appeal may be stated as follows: The deceased-Karri Parvathi was the wife of the appellant-Karri Thirupathi Rao. Their marriage took place about 17 years prior to the incident. PWs.3 and 4 are the sons of the deceased and the appellant. PW-3 was aged 12 years on the date of the incident and he was studying 7th class. PW-4 is his elder brother. He was aged 16 years on the date of the incident ad he was studying 10th class. The prosecution version is that the appellant was addicted to drinking, he was suspecting the fidelity of the deceased and was harassing and treating her with cruelty. He was in the habit of picking up quarrels unnecessarily with the deceased and was beating her. Some panchayats were convened at the instance of the brothers of the deceased and in the course of the said panchayats, the elders admonished the appellant. In the last panchayat held few days prior to the occurrence, it is said that at the instance of the elders, the appellant executed an agreement undertaking not to quarrel with the deceased and to treat her properly. 5. While so, on the night of 20.06.2007 the appellant quarrelled with the deceased at his house. As usual on the next day i.e. on 21.06.2007 PW-4 went to the school while PW-3 was at the house with his parents. The appellant as usual picked up quarrel with the deceased at about 10 a.m. and asked PW-1 to go to the liquor shop and bring a brandy bottle for him, despite serious objection took by the deceased. As the appellant threatened to beat PW-3, PW-3 being afraid of him, received an amount of Rs.30/- from the appellant and went to the wine shop in the village, there he purchased a brandy bottle and returned home within 15 minutes. He pushed the front doors of the house, but found them bolted from inside. He called her father and mother and as there was no response, he went to the rear side of the house which was also kept closed. He pushed the doors of the house, went inside the house and found her mother lying on her back and the saree was tied around her neck. He called her mother by touching her body and as there was no response, he by observing the body of her mother closely, realised that she died. Thereafter, he came outside and cried that his father killed his mother. The neighbours gathered and they also found the dead body of the deceased in the house. All of them thought that it was the appellant who killed the deceased as he was suspecting her fidelity. 6. PW-1, the V.R.O. of Chinthada village on being informed by PW-2 the village Talayari about the death of the deceased, went to the house of the appellant, saw the dead body of the deceased and thereafter PW-1 went to the Police Station, Bobbili and lodged a written report. Basing on his report, PW-15, the Asst. Sub-Inspector of Police registered a case in Crime No.94 of 2007 under Section 302 of IPC. PW-16, the Inspector of Police investigated into the offence and filed the charge sheet against the appellant. Basing on the material available on record, the learned trial Court framed charges under Sections 498-A and 302 IPC against the appellant. 7. In the course of the trial before the learned trial Court for the offence under Sections 498-A IPC and 302 IPC to which the appellant pleaded not guilty, the prosecution examined PWs.1 to 16, marked Exs.P-1 to P-12 and M.Os.1 and 2. PWs.3 and 4, the sons of the appellant, PWs.6, 7 and PW-8, the brother of the appellant have deposed before the trial Court of the fact that the appellant was a drunkard and he was harassing and ill-treating the deceased by suspecting her fidelity. PWs.6, 7 and 8 have spoken to the fact of several panchayats held owing to the conduct of the appellant and in the said panchayats, the elders admonished the appellant. PW-9, the salesman working in Sriram Wine Shop in Chanthada village stated in his evidence about PW-3 coming to the shop on the date of the incident and purchasing a brandy bottle from him for his father. PW-10, a document writer stated in his evidence that on 20.06.2007 at about 2 p.m. he drafted an agreement at the house of the sarpanch as per the undertaking of the appellant not to harass the deceased and to lead life amicably with her. The said agreement is marked as Ex.P-2 which is signed by the appellant as executant and PW-6, the sarpanch of the village and PW-8, the brother of the appellant as witnesses. The said fact has also been testified by PWs.6 and 8 in their respective depositions. It is mainly basing on the above said evidence and considering the circumstances in which the deceased came to be killed, the learned trial Court convicted the appellant for the offence under Section 302 IPC and sentenced him to punishment as mentioned above. 8. We have heard Sri V.Venkat Ranga Reddy, learned counsel appearing for the appellant and the learned Additional Public Prosecutor representing the State. 9. The learned counsel appearing for the appellant would contend that the entire case rested on the evidence of PW-3, the son of the appellant who was aged 12 years on the date of the incident and he being the child witness, his evidence ought to have been scrutinized with great circumspection by the trial Court. The trial Court failed to do so and erroneously recorded a conviction against the appellant for the charge of murder. According to the learned counsel, the circumstances are not enough to draw a presumption of guilt against the appellant and the conviction recorded by the appellant is liable to be set aside in this appeal. 10. On the other hand, the learned Additional Public Prosecutor supporting the judgment of the trial Court would contend that the circumstances relied upon and proved by the prosecution are strong enough and they are sufficient to record a conviction against the appellant, the learned trial Court since rightly on proper appreciation of evidence, recorded a conviction, an d hence, the conviction and sentence passed by the trial Court do not require any interference in this appeal. 11. One of the important contentions urged by the learned counsel appearing for the appellant is the presence of PW-3, the son of the appellant who is a school going boy is doubtful at the time of occurrence and the date of the incident being a working day for school, the prosecution did not assign any convincing reasons for the presence of PW-3 at the house. As to this, we may state that the school is located in the same village and PW-3 in his evidence clearly explained the circumstances under which he did not go to the school on the date of the incident. He stated in his deposition in clear terms that on the date of the incident, he did not go to school as he had no sleep because on the previous day, he attended the marriage of his senior paternal uncle’s daughter at Pakki village. As per the evidence, his parents did not attend the said marriage as the appellant and his senior paternal uncle were not on talking terms, but he attended the marriage. Thus, PW-3 furnishes sufficient reasons for his not going to the school on the date of the incident and his evidence which inspires the confidence of the court as truthful, cannot be brushed aside merely on the ground that the school records were not produced showing the absence of PW-3 to the school at relevant time. Therefore, we are of the view that PW-3 was very much present at the house on the date of the incident and it is confirmed by PW-9, a salesman in the brandy shop that PW-3 went to the brandy shop and purchased a brandy bottle for his father on the date of the incident. Therefore, we absolutely see no force in the argument that PW-3 was planted by investigating agency for the purpose of the case. 12. We are aware of the legal position that the circumstantial evidence must be of such a nature as to exclude any other inference except the guilt of the accused, the Apex Court has laid down in catenae of decisions that the circumstances relied upon by the prosecution have to be proved, the proved circumstances must be conclusive in nature, they should be complete and affirmatively point out towards the guilt of the accused without there being any scope for presumption of innocence of the accused. However, the circumstances required to be proved need not be too many. If the prosecution establishes very few strong circumstances which are enough to establish the guilt of the accused with certainty, a conviction can be based on such circumstantial evidence. In STATE OF PUNJAB v. KARNAIL SINGH[1] the Apex Court explained the concept of benefit of doubt in the following terms: “Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See: Gurbachan Singh v. Satpal Singh and Others [ AIR 1990 SC 209]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava [ AIR 1992 SC 840]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stir/and v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh (AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. (See: Shivaji Sahebrao Bobade and Anr. v. State of Maharashtra (1974 (1) SCR 489), State of U.P. v. Krishna Gopal and Anr. ( AIR 1988 SC 2154), and Gangadhar Behera and Ors. v. State of Orissa (2002 (7) Supreme 276).” 13. Keeping in view the principles laid down by the Apex Court relating to proof of the guilt of the accused by circumstantial evidence and the concept of benefit of doubt, we now turn to the facts of the present case. As mentioned by us in the foregoing paragraph, there is voluminous evidence against the appellant about his drunkenness his suspecting the fidelity of his wife and ill-treating and harassing her, the evidence is of the sons, the brother and the brothers-in-law of the appellant, apart from the evidence of independent witnesses. It would appear that the harassment became so acute, for that reason several panchayats were convened at the instance of the brothers of the deceased and in the last panchayat, the appellant also executed Ex:P-2 undertaking not to harass the deceased and to look-after her well. Since the prosecution could be able to establish that the appellant was harassing the deceased suspecting her fidelity, it can certainly be said that the appellant had enough motive to do away with the deceased and thus, we hold that the prosecution proved motive as one of the circumstances against the appellant. 14. PW-3 who is no other than the son of the appellant is a star witness in this case. As we have indicated hereinabove, the prosecution could prove that he was very much present at the house at the time of the incident as spoken to by him. Here it is to be seen that the investigating agency did not try to introduce distorted facts. It did not project PW-3 as an eyewitness to the incident though it was very much possible for the investigating agency to plant him as such. PW-3 stated what all happened in his presence on the date of the incident and nothing else. The appellant after sending PW-3 to purchase brandy bottle, was the only person present with the deceased at the house. The evidence of PW-3 reveals that he returned with the brandy bottle within 15 minutes by which time he found his mother dead and his father was not present at the house. The brandy bottle brought by him which was kept at the house was subsequently recovered by the investigating officer while observing the scene of offence. By the time PW-3 brought the brandy bottle from the brandy shop as instructed by the appellant, the appellant was not to be seen at the house. Soon-after the arrival of PW-3, it became known to each and everybody that the deceased was killed at the house. The appellant did not go to the house to see the deadbody of the deceased. Subsequently, he was arrested on 23.06.2007 by the investigating agency. When the deceased was killed, the normal conduct expected of him was after knowing about the death of the deceased, to go to the house, see the deadbody and lodge a report with the police. But, he was obviously absconding. The evidence on record clearly reveals except the appellant nobody was in the house during the said 15 minutes of time when PW-3 went to fetch liquor bottle for the appellant. In such a situation, the appellant has to offer proper explanation as to what happened to the deceased or where did he go after sending PW-3 to fetch liquor bottle. The absence of such explanation can be considered as additional circumstance against the appellant in proof of his guilt. After conducting preliminary examination, the learned trial Court found PW-3 to be a competent witness, we could see from his evidence that he withstood the lengthy cross-examination and gave rational answers to all the questions put to him. As he did not exaggerate the version and did not claim as an eyewitness to the occurrence, we do not find any reason to doubt his testimony on the other aspects. Thus, by thoroughly scrutinizing the evidence on record, we are of the considered view that there was no alternative possibility of the happening of the incident other than which was projected by the prosecution. There was no scope for nobody except the appellant to kill the deceased. In a situation like this, the appellant has to explain as to how the deceased died. But, he did not offer any explanation except denial of each and every fact. We have no manner of doubt whatsoever that the appellant alone and nobody else is the perpetrator of the crime. The prosecution could be able to establish by highly convincing and reliable evidence which is circumstantial in nature, the guilt of the appellant beyond reasonable doubt, the conviction and sentence passed by the learned trial Court do not require any interference in this appeal. 15. For what all stated by us hereinabove, we confirm the conviction and sentence passed against the appellant by the learned trial Court and dismiss the appeal. _____ ____________ A.GOPAL REDDY,J ________________ R.KANTHA RAO,J Date:10-11-2011 Note: L.R.copy to be marked. B/O CCM HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL NO.76 OF 2008 (Judgment of the Bench delivered by Hon’ble Sri Justice R.Kantha Rao) Date:10-11-2011 [1] (2003) 11 SCC 271