IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIRST DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE V.SURI APPARAO CRIMINAL APPEAL No.325 OF 2007 Between: Jangam Shantha Kumar @ Shantha Murthy .....APPELLANT/ACCUSED And: The Station House Officer, Halaharvi Police Station, Halaharvi Mandal, Kurnool, Rep.by Public Prosecutor, High Court of Andhra Pradesh, Hyderabad .....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON'BLE SRI JUSTICE V.SURI APPARAO CRIMINAL APPEAL No.325 of 2007 JUDGMENT: (per Hon’ble Sri Justice V.Eswaraiah) This criminal appeal is filed by the sole accused against the judgment in SC.No.135/2006 on the file of the II Addl.Sessions Judge, Kurnool at Adoni dated 23.01.2007 in convicting him for the charge under Sec.302 IPC and sentencing him for life imprisonment and to pay a fine of Rs.2,000/- and in default to undergo simple imprisonment for a period of six months. 2. The case of the prosecution, in brief, is that the accused is the resident of Behavanahal village of Halaharvi Mandal of Kurnool District and the deceased Parvathamma is the wife of the accused and the daughter of PW 4. PW 4 is the first wife and PW 1 is the second wife of one late Shankaraiah Swamy. The marriage of the deceased took place with the accused 10 years back. At that time the accused was residing at Agasanur village of Siriguppa taluq, Bellary District, Karnata State. After the marriage, both the accused and the deceased lived there for two years. It is stated that 10 years back, the accused while residing at Bellary town tried to humiliate the deceased by pouring kerosene as the deceased did not give money to him for purchase of liquor. The accused used to consume liquor and used to beat the deceased. Thereafter, the accused came to the house of PW 4 i.e in-laws place along with his wife, but there was no change in the attitude of the accused. The accused used to take personal earnings of the deceased for his bad vices. The accused used to beat the deceased whenever she refused to give money. It is stated that the accused used to beat PW 4 and PW 1 i.e. mother-in-laws when they intervened to rescue the deceased from the hands of the accused. To avoid the humiliation, PW 1 left the house of PW 4 and put up separate family opposite to the house of PW 4. 3. On 29.12.2005 the accused raised a quarrel with his wife, the deceased, for money to purchase alcohol and when the deceased expressed that she was not having any money, the accused left the house of PW 4 in the evening and returned back by 11 p.m. Again the accused demanded his wife, the deceased, for money to purchase liquor, and when the deceased told him that there was no money, the accused grew wild and scolded her in filthy words and uttered that he will kill her. The accused took out a pestle and beat the deceased on her temporal region and the deceased had fallen down. The accused asked PW 4 whether she would give money to him or not and came up on her to beat with pestle. Due to fear, PW 4 came out from her house. The accused bolted the doors from inside the house. PW 4 cried aloud and on hearing her cries, PWs 1 to 3 came there and observed the things going on in the house of PW 4 through a window. The accused continued to beat the deceased with pestle by saying that he will beat her till her death. The beating to the deceased by the accused was clearly visible in the electrical light. On 30.12.2005 at about 8 a.m. the accused opened the doors and came out, then PWs 1 and 4 went inside the house and found the dead body of the deceased with bodily injuries. PWs 1 and 4 raised cries stating that the accused killed the deceased. The villagers gathered there and beat the accused. After arrivals of the relations, PWs 1 and 4 went to Halaharvi Police Station and PW 4 gave a report before PW 12, Head Constable who registered the case. PW 13, the S.I.of Police investigated the case and held inquest over the dead body of the deceased in the presence of the panchayatdars PW 8 and one Kuruva Rudrappa. On 30.12.2005 at about 4 p.m. he prepared the inquest report and at about 7.30 p.m. arrested the accused in the house of Rudrappa in the presence of PW 9 and Rudrappa. The accused confessed his guilt. He referred the accused for medical examination as he sustained injuries. The Doctor opined that the cause of death is due to the shock and hemorrhage due to head injury. On 31.12.2005 PW 13 remanded the accused for judicial custody after he was discharged from the Government Hospital, Alur. PW 14 issued Ex.P12 wound certificate of the accused and opined that the injuries sustained by the accused are simple in nature. 4. On appearance of the accused, the learned Sessions Judge framed the charge against the accused under Sec.302 IPC, read over and explained to him in Telugu, for which he pleaded not guilty and claim to be tried. 5. In support of its case, the prosecution examined PWs 1 to 15 and got marked Exs.P1 to P12 and Mos.1 to 5. The accused was examined under Sec.313 Cr.p.c. and he denied the incriminating evidence adduced against him. 6. As already stated, on an analysis of both oral and documentary evidence, the learned II Addl.Sessions Judge, Kurnool at Adoni convicted the accused for the offence under Sec.302 IPC and sentenced him, as stated supra. Aggrieved thereby, this criminal appeal is filed by the sole accused. 7. In the instant case all the so called eyewitnesses PWs 1 to 4 as well as the panchayatdars i.e. PWs.5 to 10 turned hostile. PW 11 the Assistant Civil Surgeon stated that he conducted post mortem over the dead body of the deceased on 31.12.2005 at 10 a.m. and found the following ante mortem and internal injuries. Anti mortem injuries: 1. Contusion about 3m x 4cm over left temporal region. 2. Contusion about 5cm x 4cm over right temporal area. 3. Contusion 3cm x 3cm over right side of the face. 4. Abrasion (scratch marks) below the chin 5. Abrasion over anterior aspect of chest 6. Contusion 3m x 2 cm over left side of the back Internal injuries: Fracture of the right temporal bone present. Fracture of the base of the skull present. Fracture of left temporal bone present. Bleeding in the scalp present. Brain matter congested. Spinal cord normal. Hyoid bone normal. Thorax- Lungs congested normal. Heart normal congested. Stomach normal, liver normal congested. Kidneys normal congested. PW 11 opined that the cause of death of the deceased was shock and haemorrhage due to the injuries. Ex.P8 is the post mortem certificate issued by him. 8. PW 12 is the Head Constable. He stated that he recorded the statement of PW 4 and registered a case in Cr.No.54/2006 under Sec.302 of IPC against the accused. 9. PW 13, the Sub-Inspector of Police took up the investigation. As soon as receiving the copy of FIR on 30.12.2005, he went to Behavanahal village at 3.30 p.m. and visited the scene of offence and found the dead body of the deceased lying in the veranda. He secured the presence of PWs 1 to 5 and recorded their statements and after completion of inquest, he forwarded the dead body to the Government Hospital for post mortem. At the time of inquest, he seized M.O.1 pestle and MOs.3 to 5 petty coat, jacket and saree and also seized M.O.2 broken bangle pieces and recorded the statements of PWs 6 and 7. He found that the accused received injuries on his forehead. He referred the accused to the Government Hospital, Alur through a constable. At the time of inquest, he prepared Ex.P11 the sketch of scene of offence in the presence of panch witnesses. He affected the arrest of the accused in the presence of PWs 4 to 7 after recording the statements of PWs 1 to 4 under Exs.P1 to P4. He admitted in his cross examination that he has noted under Ex.P11 sketch about the height of the window between the joint wall of the house of PW 2 and PW 4. He has also shown pial near to the window in the house of PW 2. The said pial is attached to the northern wall of that house. 10. PW 14, the Doctor stated that he examined the accused and found two lacerated injuries on the right side of the forehead and on the left ear and a contusion. He opined that those injuries are simple in nature. 11. PW 15, the Inspector of Police stated that he visited Behavanahal village and examined the scene of offence along with PW 13 and examined PWs 1 to 7. He received Ex.P8 post mortem certificate and Ex.P12 wound certificate of accused. After completion of investigation, he filed charge sheet. 12. It is not in dispute that the death of the deceased is homicidal. The next question that arises for consideration is who caused the murder of the deceased. 13. All the eyewitnesses PWs 1 to 4 turned hostile. The learned Public Prosecutor appearing for the State submits that all the statements of the eyewitnesses PWs 1 to 4 are consistent. PWs 1 to 3 were examined in chief on 23.10.2006, but they were cross examined on 27.10.2006. In the meantime, the eyewitnesses changed their version in the cross examination. Merely the eyewitnesses changed their version in their cross examination, it cannot be said that the chief examination of PWs 1 to 3 is not relevant. It is stated that PW 4 was examined after winning over of PWs 1 to 3. PW 4 also did not support the case of the prosecution though she being the complainant and eyewitness. It is the case of the prosecution that PW 4, the deceased and the accused are residing in the same house at the time of incident. When the accused asked the deceased for money to purchase the liquor, the deceased refused to give money and on that the accused took out a pestle and started assaulting the deceased. When PW 4 tried to prevent, the accused also threatened her to beat. 14. As per Ex.P9 report, PW 4 stated that on 29.12.2005 at about 11 p.m. the accused came to the house and asked the deceased to give money and the deceased stated that she has no money, on that the deceased took out M.O.1 pestle and beat the deceased on which the deceased fell down. The accused scolded PW 4 also, then PW 4 on fear of the accused, went out of the house and cried. PWs 1 to 3 and others came there and witnessed the incident through the window while the accused assaulting the deceased. But nobody has made an attempt to stop the said assault. She was staying outside the house only. Only on 30.12.2005 at about 8 a.m. the accused opened the doors and went out. Then herself and PW 1 entered into the house and found the dead body of the deceased. On their cries, the villagers came and caught hold of the accused and caused injuries to him also. 15. As per Ex.P11, the rough sketch of the scene of offence, prepared by the Investigating Officer, there is a window from the house of PW 2 to the house of the accused and PW 4. The house of the accused is different from the house of PW 2. As per the rough sketch, the houses of PW 1 and PW 4 are only the portions of one house and the house of PW 2 is a separate house. The entry for the house of PWs 1 and 4 is the same. Even according to the evidence of PWs 1 to 3, it is stated that they have witnessed the accused assaulting the deceased through the window from the pial of the house of PW 2. There is a dividing wall of 9 ft. or 12 ft after the window to see anything in the house of the accused and PW 4. 16. PWs 1 to 3 have consistently stated in their chief examination that PW 4 raised cries after coming out of the house at 11 p.m. and informed them about the assault of the accused on the deceased with pestle. At that time PWs 1, 3 and 6 rushed to the place and witnessed the incident through the window from the house of PW 2. The window is fixed in a joint wall of the house of PWs 1 and 4 and through that window, PWs 1 to 3 and 6 witnessed the happenings inside the house of PW 4 while the accused assaulting the deceased with pestle. In the chief examination itself PW 1 stated that PWs 1 and 4 were stayed there all the night and at about 8 a.m. on the next day morning the accused opened the doors and came out. Then they went inside the house and found the deceased Parvathamma dead. Thereafter, they went to the house of PW 8 and telephoned to Halaharvi police station. PW 4 and PW 1 went to Halaharvi police station and PW 4 gave statement to the police. In the cross examination, she did not support the prosecution and stated that there were differences between them and they were not in talking terms and stated that the window is fixed in the joint wall in between the houses of PW 1 and PW 2. PW 4 totally turned hostile and did not support the case of the prosecution. 17. PW 2 stated that when PW 1 raised cries, he came along with his wife and through the common wall window, himself, PW 1, her son PW 3, his wife PW 6 and PW 4 witnessed the accused assaulting his wife, the deceased, with M.O.1 pestle. But they could not go inside the house as the doors were bolted from inside. He also stated that because quarrels were going on everyday, all of them kept quite after witnessing the assault. He went inside his house and slept. Only on the next day, he was informed by PW 4 about the death of the deceased. He stated that the accused assaulted the deceased in drunken state. In the cross examination he stated that there was a common wall between the house of PW 2 and house of PWs 1 and 4 and the height of the wall is 12 ft and the window is in the middle of that common wall. They cannot see anything through that window from the house of PW 4. It is not possible for anyone to see through the window the happenings in the house of PW 4. 18. PW 3, the son of PW 1, stated that on hearing the cries of PW 4 he came out and after enquiry, he came to know that the accused is assaulting his wife inside the house, and at that time he along with PW 2, PW 6 all went to the house of PW 2 and through the window fixed to the joint wall they witnessed the happenings inside the house of PW 4. He also stated that as quarrels were daily happening between the accused and the deceased, he went back to his house, and in the morning he found the deceased dead. In the cross examination, he stated that the wall between the house of PW 4 and PW 2 is running between north to south, and in fact, the window is fixed at 9 ft height and the middle wall is higher than the joint wall. 19. PW 4, the de facto complainant, the mother of the deceased did not support the case of the prosecution even in the chief examination. She stated that the relationship between the accused and the deceased was cordial and she did not know how the deceased died. In fact, she was not in the house and she did not try to know the reason of the death of her daughter. 20. None of the witnesses PWs 1 to 4 described about the manner of the beating. It is stated that such quarrels were happening daily in a routine manner, after seeing the happenings through the window, they went back to their respective houses and slept. When the incident occurred on 29.12.2005 at 11 p.m. though PWs 1 to 4 stated that the accused was in the house and he opened the doors on the next day at 8 a.m. on 30.12.2005 but none of the witnesses were tried to call the neighbours or police, but the accused was caught hold only on the next day morning. But as per the rough sketch prepared by PW 13, and as stated by PWs 1 to 3 the window is fixed in the common wall of PW 2 and PW 4 and after the common wall there is another wall which is higher than the window level and therefore, it is not at all possible for anybody to see anything from the said window from the house of PW 2 the happenings occurred inside of the house of PW 4. Therefore, we are of the opinion that the evidence of PWs 1 to 3 that they have witnessed the incident through the window cannot be believed. Moreover, in the evidence, PW 1 stated that on the date of the incident the accused quarrelled with the deceased for the amount to purchase liquor and assaulted her and beat her with the pestle. PW 4 who was sleeping in the upstairs came out raising cries that her daughter was killed. Thereafter only she came out. PWs 1 to 3 went to the window and saw the incident. According to the evidence of PW 1 she was also informed by PW 4 that her daughter was killed by the accused. If it is PW 4 who states that her daughter was already killed and came out of the house and made cries, the question of witnessing the incident from the window does not arise. However, as per the sketch there is no scope at all to see the incident from inside the house of PW 4. 21. It is the case of the prosecution that on 30.12.2005 at 8 a.m. the accused opened the doors and came out and PWs 1 and 3 and others found the dead body of the deceased, the villagers caught hold of the accused and beat. It is not known why the police did not arrest the accused till 7.30 p.m. when he was caught hold by the villagers and was beaten immediately after the incident. According to Ex.P8, the incident was occurred at 11 p.m. on 29.12.2005, but whereas the report was given at 2 p.m. on the next day i.e. 30.12.2005 and the police reached there and arrested the accused at 7.30 p.m. The prosecution failed to explain the delay in lodging the FIR and for arrest of the accused. However, the complainant herself turned hostile. PWs 1 to 3 could not witness the incident as stated by them. In view of the aforesaid discrepancies, we are of the opinion that the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt and the accused is liable to be acquitted. 22. The learned Public Prosecutor relied on the decision of this Court in the case of Middolla Harijana Thimmaiah @ Thimmappa v State of A.P[1] and contended that the evidence by the hostile witness need not be totally rejected, but at the same time such portion of the evidence, which is getting corroboration from other evidence could only be considered before coming to a conclusion whether the accused is entitled to the benefit of doubt. 23. We have perused the said judgment. In the very same judgment it is stated that if there is independent evidence, other than the evidence of the hostile witnesses, which is sufficient to prove the guilt of the accused beyond all reasonable doubt, the version of the defence, which is shaky in nature, can be ignored and no weight need be given to it. In the instant case there is no independent witness and all the witnesses have become hostile and therefore, we are of the opinion that the facts of the above decision are not applicable to the present facts of the case. 24. In the result, the criminal appeal is allowed and the conviction and sentence recorded against the appellant/accused for the offence under Section 302 IPC in Sessions Case No.135 of 2006 on the file of II Additional Sessions Judge, Kurnool at Adoni are set aside. Accordingly, the appellant/accused viz., Jangam Santha Kumar @ Santha Murthy, shall be set at liberty forthwith, if he is no longer required in any other case. Further, the fine amount, if any paid, shall be refunded to him. M.Os.1 to 5 shall be destroyed after the expiry of appeal time. ________________ V.ESWARAIAH,J ___________________ V.SURI APPARAO,J Dated: 01.03.2011 Dsr [1] 2005 (1) ALT 537