HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.861 OF 2002 Dated : 07.12.2010. Between : D.Yadaiah … Appellant-accused a n d The State of A.P. … Respondent-Prosecution HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.861 OF 2002 JUDGMENT: This Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) is filed by the appellant- accused challenging the judgment, dated 01.07.2002, rendered in Sessions Case No.483 of 1999 by the Principal Sessions Judge, Ranga Reddy at L.B.Nagar, Hyderabad, wherein the learned Sessions Judge convicted the accused under Section 235 (2) Cr.P.C. for an offence punishable under Section 304 Part II of Indian Penal Code (for short ‘IPC’) and sentenced him to undergo rigorous imprisonment for five years. The case of the prosecution, in brief, is that the deceased Smt.Dandu Jangamma was given in marriage to the accused about four years prior to her murder. The grandfather of the deceased and grandfather of the accused happen to be own brothers. Accused and his sister were brought up by their grandfather. One year prior to the incident in the present case, the grandfather of the accused expired. Since then deceased and accused alone were residing in the house. Accused, who was aged about 21 years at the time of incident, was forcing the deceased, who was aged about 15 years at the time of incident, for sexual intercourse. Since the deceased has not attained puberty, she resisted the accused for sexual intercourse, due to which accused beat the deceased for three or four times. Likewise, 15 days prior to the present incident also accused forcibly tried to have sexual intercourse with the deceased and when she resisted the same accused beat her and sent her to her mother’s house. Consequently, a panchayath was conducted and the elders warned the accused not to force the deceased for sexual intercourse till she attains puberty. Accused agreed for the same and taken back the deceased to his house. While so, on 05.01.1998 at about 4 a.m. accused again forced the deceased to have sexual with him and when she resisted the same, accused throttled her to death and fled away by closing the door from outside after putting the latch. On coming to know about the incident, the Village Administrative Officer lodged a report before the Police. Basing on the said complaint, Police registered a case in crime No.1 of 1998 and after completion of entire investigation, they filed charge sheet. When a charge under Section 302 IPC was framed against the appellant-accused, he pleaded not guilty and claimed for trial. To prove its case, the Prosecution examined PWs 1 to 13 and got marked Exs.P.1 to P.6. After closure of prosecution evidence, accused was examined under Section 313 (1) (b) Cr.P.C. in which he denied the incriminating material read over to him. Though he failed to adduce any oral evidence on his behalf, he got marked Exs.D.1 and D.2 in support of his case. After carefully evaluating the oral and documentary evidence placed before him, the learned Sessions Judge rendered the impugned judgment as stated above. This Court perused the entire material on record and also heard the arguments. The evidence of PWs 3 to 7 and 9 is hereby extracted from the impugned judgment for the purpose of better appreciation of the matter: “P.W.3-Smt.D.Pentamma is the mother and P.W.4-Sri D.Jangaiah is the elder brother of the deceased Jangamma. P.W.3 has deposed that Jangamma’s marriage was performed with the accused four years prior to her death. One year after the marriage they have sent Jangamma to her husband Yadaiah-accused to live with him. She has not sent Jangamma to Yadaiah earlier thereto as she did not attain puberty. By the time of her death Jangamma attained puberty. At the time of the marriage of Jangamma, the maternal grand father of the accused was alive. That maternal grand father died just two months prior to the death of Jangamma. Therefore, by the time of the death of Jangamma only the accused and the deceased were residing in their house. This witness and her husband are residing in the same village. Four days prior to the death of Jangamma the decedased came to their house as the accused beat her on the ground she was not working and this witness referred the matter to the elders like the village Sarpanh Ramulamma, Galaiah, Ananth Reddy, Mallaiah, etc. The elders called and advised accused to be cordial with his wife and so advising they sent Jangamma with the accused to his house. At about 8 A.M., she came to know that the accused squeezed the neck of the deceased and caused her death. Police have come and recorded her statement. Narsaiah father-in-law of this witness and Chandraiah the maternal grand father of the accused are brothers. Pochamma is the only daughter of Chandraiah. Pochamma was married to Ashaiah by bringing him as ill-tom son-in-law. Pochamma died and therefore Ashaiah went back to his house. Ashaiah abandoned Pochamma and went away. The accused is the son of Pochamma. P.W.4-Sri D.Janaiah deposed that as Jangamma did not attain puberty till her death Jangamma lived in the house of these people for about one year after the marriage. The accused and the deceased were cordial with each other. But, now and then the accused was intending to have intercourse with Jangamma but, she was not co- operating as she did not attain puberty. This was brought to the notice of these people and panchayats were held. The elders advised the accused and sent Jangamma with him and he promised to treat her well. Within three days she was murdered. P.W.5-Smt.Ratnamma is a resident of Veerapuram. The accused was working as a cooli under her for about two years prior to the incident. Jangamma died nearly four years ago. On that day morning this witness has gone to the field to attend her vegetable crop. Her son Ananth Reddy-P.W.7 came to P.W.5 when she was in the field and told her that the accused did not turn up on that day for cooli work. Then, this witness came to the village with her vegetables and went to the house of the accused to enquire about him. The door of the house of the accused was found closed. She called Jangamma by name thrice or four times. When she opened the door by pushing it was opened without any problem. She found Jangamma lying dead just inside the house opposite to the door. Then, this witness went to Sarpanch Ramulamma and brought her. P.W.7-Sri K.Anantha Reddy is the son of P.W.5. He also deposed that the accused was working as a cooli under their family. He did not turn up for work on that day morning. He informed the same to his mother P.W.5. P.W.5 went to the house of the accused found him not there. But, his wife was found dead. She informed the same to this witness. This witness went and saw the dead body. By the time of the marriage of the accused with Jangamma she was young and did not attain puberty. The accused was reluctant to the marriage as he was aged and the deceased was young. The accused was threatening Jangamma to have sexual inter-course with him and when she was refusing, he was serious towards her. She was driven to her parents house. Jangamma, her mother and their brother have referred the matter to these people being elders and these people advised the accused not to mis-behave with Jangamma and not to be harsh towards her and he can wait for some time to enable Jangamma to attain puberty. Within 12 or 15 days thereafter she was murdered. P.W.6-Smt.R.Ramulamma is the Sarpanch of Veerapuram till August, 2001. She knew the accused Yadaiah as well as his wife Jangamma. Jangamma died nearly 4 years ago. At about 8 A.M., on that day P.W.5 came and called this witness to come and see Jangamma in her house saying that she was not responding. The two ladies went and saw Jangamma dead. Both called the villagers including one Mansoor. He brought Kawalkar-P.W.2. On close observation of the body of Jangamma she was having some pressing scratch injuries on her neck. Kawalkar brought P.W.1 and later police came and conducted inquest. 3 days prior to the death of Jangamma she came to these people with swollen cheek and complained that she was beaten by the accused. This witness and other elders like P.W.7-Sri Anantha Reddy and others enquired as to why the accused beat Jangamma and advised him to look after her well and so advising they sent her along with him. The accused complained that Jangamma was young and so he slapped her. They have been enquired Jangamma, and she replied that the accused was pressing for sexual inter-course with her and she could not participate. Then, these people advised Jangamma also tolerate and co-operate with the accused. P.W.9-Sri Mohd.Mansoor Ali is having house opposite to the house of the accused and the deceased. Jangamma died nearly 4 years ago and the accused and the deceased were cordial with each other. On that morning P.W.5 came and called these people and they have gone and saw the dead body of Jangamma. This witness went and brought P.W.2.” As seen from the impugned judgment, P.W.11-Dr.M.Narsing Rao conducted autopsy over the dead body of D.Jangamma, aged 15 years, from 3 to 5 p.m. and found the following injuries: 1. Abrasion on the right side of the nose 5 M.M. in length. 2. Deep nail marks on either side of the neck below the angle of mandible with a size of 1 X 1/8th inch. According to him, on opening the thorax the lungs of the deceased were found congested on both sides. The death would have occurred 12 to 15 hours prior to his examination. Asphyxia due to throttling with hand fingers. Since the accused failed to explain the cause of death of the deceased, the learned Sessions Judge convicted the accused considering the fact that the accused was intending to cause death of the deceased. It is seen from the evidence that even three days prior to the occurrence, there was a quarrel between the deceased and the accused since the deceased, who was aged about 15 years and has not attained puberty, refused to have sexual intercourse with the accused. The same was informed to the elders of the deceased. Unfortunately, the elders advised her to go along with the accused and also advised the accused not to quarrel with the deceased. But, as seen from the circumstances, on the fateful day the accused committed this crime. As pointed out by the learned Sessions Judge, the accused, who was at the age of 21 years, would naturally be intending to ventilate his sexual urge before his wife to have sexual intercourse with her, during which course, he caused her death by throttling. The said act cannot be said to be with an intention to commit murder, but it occurred in the spur of moment. Even though the accused had the knowledge that it may cause death, he never intended to cause death. Hence, the learned Sessions Judge taking into consideration the evidence and the circumstances convicted the accused as stated above. The learned counsel for the appellant prayed this Court to show some leniency against the appellant taking into consideration the occurrence took place in the year 1998, the age of the appellant at the time of occurrence and the lapse of 11 years from the occurrence. He also represented that now the appellant is married and having children and he is the sole breadwinner of his family. Taking into consideration the submissions of the learned counsel for the appellant and the fact that the offence took place in a spur of moment, this Court is of the view that some leniency can be shown to the appellant in imposition of sentence. In view of the above discussion, the conviction passed by the learned Sessions Judge is hereby confirmed. However, the sentence of imprisonment imposed by the learned Sessions Judge for an offence punishable under Section 304 Part II is hereby reduced from five years to one year. Appellant is directed to surrender himself on or before 31.01.2011 to serve the remaining sentence. The remand period already undergone by the appellant be given set off under Section 428 Cr.P.C. On his failure to surrender, the learned Sessions Judge shall issue warrant against him to secure his presence. With above modification, the Criminal Appeal is disposed of. _________________________ JUSTICE RAJA ELANGO Dated : 07.12.2010 sur