THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO. 481 of 2007 JUDGMENT: (per the Hon’ble Sri Justice A.Gopal Reddy) 1. This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’), is directed against the judgment dated 05.04.2007 in Sessions Case No.244 of 2005 on the file of the Sessions Judge, Krishna at Machilipatnam. The appellant is the sole accused in the Sessions Case. Vide the impugned judgment, the learned Sessions Judge found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, ‘I.P.C.’), convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs.500/- in default to suffer simple imprisonment for three months. 2. The case of prosecution is that P.W.1 is the father, P.W.2 is the brother, P.W.3 is cousin and P.W.4 is maternal aunt, of one Kolakaleti Durga Sitha Maha Lakshmi (hereinafter referred to as ‘the deceased’). On 31.10.2003, marriage of the deceased was performed with the accused. At the time of marriage, an amount of Rs.2,00,000/- and 5 sovereigns of gold was given as dowry. The accused contacted the marriage by making false representation that he was a commerce graduate. They led their married life in the house of parents of the accused for some time. Subsequently, they shifted their residence to the nearby house of one Ramana, with whom was having illicit intimacy. Whenever the deceased questioned the accused about the illegal intimacy, the latter used advise her not to question him again about the same and if she repeats, he would some how get rid of her. The deceased informed the same to her parents. On 26.2.2004, as the grand father of the deceased died, she along with the accused attended his cremation. On 7.3.2004, the accused dropped the deceased at the house of her parents. On 10.3.2004, P.W.2, the deceased, the accused and the brother of the accused, went to Sirivellapalem. On 11.3.2004, the ceremony of grand father of the deceased was performed at the house of paternal uncle and after the ceremony, the deceased complained to P.W.1 that the accused was threatening her and that she was apprehending danger in his hands. On that, P.W.1 informed her that he would discuss the same on the next day. On 11.3.2004, the deceased slept with the accused in the house of Posina Venkata Mahalakshmi. On 12.3.2004 at about 7.00 AM, the deceased complained pain in her abdomen and the accused, who was waiting for an opportunity, administered country poison (Nitrite) by representing that it was Ayurvedic medicine. Thereafter, within no time, the deceased fell severely ill and was loosing vision. Thereafter, the deceased was shifted the deceased to the District Headquarters Hospital, Machilipatnam. P.W.12-Deputy Civil Surgeon, examined her. The deceased informed him that her husband gave ayurvedic medicine to her on the complaint of abdominal pain and bleeding piles. He then intimated to Outpost police station under Ex.P6- intimation. The deceased died while undergoing treatment. On hospital intimation, P.W.7-Sub Inspector of Police, rushed to the hospital, received written report from P.W.1 and registered case in crime no.28 of 2004 for the offence punishable under Section 302 I.P.C. Further investigation was taken over by P.W.11-Inspector of Police. P.W.11 recorded statement of P.W.1 and others. On 13.3.2004, P.W.5-Mandal Revenue Officer held inquest on the dead body of the deceased in the presence of P.W.8 under Ex.P2-inquest report. On the same day, P.W.6-Civil Assistant Surgeon held autopsy over the dead body of the deceased and opined that the cause of death of the deceased was due to nitrite poisoning as per Ex.P3-post mortem report and Ex.P4- final opinion. P.W.11 visited the scene of occurrence, prepared Ex.P12-rough sketch of the scene of occurrence and recorded statements of all relevant witnesses, and after receipt of relevant documents and completion of investigation, laid the charge sheet. 3. The trial Court framed the following charges against the accused. “That you, on or about the 31st day of March, 2003 at your house situated in Madhura Nagar, Vijayawada, demanded from the parents of the deceased viz. Kolakaleti Durga Sitha Maha Lakshmi and that you thereby committed offence punishable under Section 4 of the Dowry Prohibition Act and within my cognizance. That you, on or about the 31st day of March, 2003, at your house situated in Madhura Nagar, Vijayawada, took Rs.2,00,000/- towards dowry from the parents of the deceased viz. Kolakaleti Durga Sitha Maha Lakshmi and that you thereby committed offence punishable under Section 3 of the Dowry Prohibition Act and within my cognizance. That you, on or about the 31st day of March, 2003, at your house situated in Madhura Nagar, Vijayawada, cheated the deceased viz. Kolakaleti Durga Sitha Maha Lakshmi and her parents by dishonestly inducing them as if you are graduate of B.Com. by playing fraud and false representation contracted the marriage with the deceased Sitha Maha Lakshmi and that you thereby committed offence punishable under Section 420 of Indian Penal Code and within my cognizance. That you, on or about the 12th day of March, 2004 at the house of Posina Venkata Maha Lakshmi, w/o. Yasoda Rao, situated in Sirivellapalem village of Bandar mandal committed murder by intentionally or knowingly causing the death of your wife viz. Kolakaleti Durga Sitha Maha Lakshmi by administering the country poison (Nitrate) by representing as if it was Ayurvedic medicine and that you thereby committed offence punishable under Section 302 of the Indian Penal Code and within my cognizance.” When the charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 12 and got marked Exs.P1 to P14. 5. After completion of the prosecution side evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances found against him in the evidence of the prosecution witnesses. He denied the same. No evidence, either oral or documentary, was adduced on behalf of the defence. 6. The learned Sessions Judge, considering evidence on record, found the appellant/accused guilty of the offence punishable under Section 302 I.P.C., accordingly convicted and sentenced him as stated above, while acquitting him of the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act and 420 I.P.C. Challenging his conviction and sentence, the sole accused filed the present appeal. 7. Sri C.Padmanabha Reddy, learned senior counsel appearing for the appellant contended that P.Ws. 1 to 4 are interested witnesses; that, since it is the case of prosecution that the deceased died of administering poison, four ingredients have to be satisfied so as to find the accused guilty; that, P.Ws. 1 and 2 are the only persons with whom the deceased allegedly made oral declaration that the accused administered poison under the guise of ayurvedic medicine, but the postmortem report does not indicate presence of any ayurvedic medicine; that, in the absence of any recovery of any bottle containing poisonous substance from the accused or possession of the same by the accused prior to administering the same, it is unsafe to convict the accused basing on the oral declaration made by the deceased, and hence, he prays to set aside the conviction and sentence recorded by the trial court. 8. Per contra, the learned Additional Public Prosecutor contended that P.Ws. 1 to 4 are natural witnesses, who were present when the deceased complained administering poison and with whom she disclosed about the accused putting something in her month saying that it is an ayurvedic medicine, but the same is known to be poisonous substance as per the post mortem report. He further contended that P.W.12, who was the Doctor present when the deceased was first admitted in hospital, recorded the statement of the deceased in M.L.C. and the same was also intimated to police under Ex.P6 that the deceased was administered with phosphorous poison; that the deceased and the accused stayed in one room on the fateful night, and so there was no possibility for any other person to administer the substance; that, the learned Sessions Judge, after an elaborate consideration of the evidence on record, rightly convicted and sentenced the appellant and there are absolutely no grounds to interfere with the same. 9. P.Ws. 1 to 4 are not eye-witnesses to the incident. P.W.1 is the father, P.W.2 is younger brother and P.W.3 is the cousin, of the deceased. The deceased is daughter of sister of P.W.4. P.W.1 stated in his evidence that marriage of deceased with the accused was performed on 31.10.2003 and at that time, Rs.2,00,000/- cash and five sovereigns of gold were given, and when he visited the house of deceased, she complained to him that the accused was coming to the house in the mid night and developed illegal contact with one Ramana. He further stated that his father died on 26.2.2004 and the deceased and the accused attended the cremation and thereafter, they went back to Vijayawada. According to him, on 7.3.2004, when he was planning to go to Sirivellapalem, the accused came to Vijayawada with the deceased and left her at his house and went away, and the deceased again complained the old matter to him and on that he informed her that he would place the matter before elders after completion of ceremony of his father, and went to Sirivellapalem in evening hours on that day. It is the further evidence of P.W.1 that on 10.3.2004, his wife, his son-P.W.2, his daughter (deceased), the accused and his brother came to Sirivellapalem, and that he stayed in a thatched house and the deceased and the accused were accommodated in a building; that, on 11.3.2004, 11th day ceremony of his father was performed and on the same day at about 7.00 PM, the deceased raised the same issue of complaint against the accused and informed them that the accused was threatening her and that she was apprehending danger and wept; on that, he informed the deceased that he was busy with the ceremony and they could have leisure talk on the next day, and thereafter, they stayed back in the thatched house and sent the deceased, the accused and his nephew to the building; that, on the next day around 7.00 AM, his wife and son came to him and when he enquired them about the deceased, his son informed that the accused informed him that himself and the deceased would come later and asked them to go first; that, ten minutes later, brother of the accused came running to him and informed that body of the deceased became cool and asked him to come over there; that, immediately, himself, his wife, son and two others went to the deceased, and that the deceased asked him to send away the other persons present there and to close the doors, and accordingly, he sent away outers and bolted the door leaving his family members; that, the deceased informed him that she complained stomachache and on that the accused put something in her mouth saying that it is ayurvedic medicine and after taking that, she was feeling inconvenience and loosing vision, and that the material put in her mouth was not appearing like ayurvedic medicine and appears like poison; that, immediately, the deceased was shifted to Government Hospital, Bandar; that, after joining in the hospital, at the time of taking out poison, the deceased talked to him and informed that she lost her vision, and the deceased died at about 12.00 noon. 10. P.W.2 also deposed in the same lines as spoken to by P.W.1. He further stated that when all outsiders were sent away, himself, his mother and father alone were present in the room and the deceased informed them that when she complained stomachache, the accused put something in her mouth saying that it is an ayurvedic medicine, but the same is not medicine but it is a medicine to kill, and that they noticed bubbles coming out of her mouth, and immediately, they all shifted the deceased on motor cycle driven by P.W.3 to the road and from there they took the deceased to hospital in an auto where the deceased informed that she was loosing vision and not able to see. 11. P.W.3, in whose house the deceased and the accused were accommodated in Sirivellapalem village, stated that the deceased and her husband slept in one room and all others slept in another room, and at about 6.00 AM on 12.3.2004, he went to fields and returned back around 7.15 AM, and at that time, the deceased was found weeping by holding her stomach, and in the mean while, parents of the deceased also came there and thereafter he was sent outside. 12. P.W.4 is the brother of wife of P.W.1. He stated that he went to Sirivellapalem on 11.3.2004 to attend obsequies of father of P.W.1, and in the night of 11.3.2004, the accused and the deceased slept in a separate room, and his sister, P.W.2, Rambabu and other relatives slept in verandah, and in the morning of 12.3.2004, after attending nature calls, when he was returning back, he noticed P.W.1, his sister and P.W.2 rushing hurriedly, and when he went inside the room, the deceased was found in a completely sweating position and bubbles were coming out of her mouth. 13. P.W.12 is the then Deputy Civil Surgeon, District Headquarters Hospital, Machilipatnam, who was on duty when the deceased was admitted into the hospital. He stated that the patient was first admitted in A.M.C. ward as non-M.L.C. case, and that as the patient told him that her husband had given ayurvedic medicine for her complaint of abdominal pain and bleeding piles and after taking the said medicine she got sweating, the Physician of the ward asked him to make it as M.L.C. as the patient had taken organo phosphorous poison along with ayurvedic medicine, and accordingly, he made it M.L.C. and intimated the same to Outpost Police Station of the hospital under Ex.P6-intimation. The contents in Ex.P6 disclose that the deceased was given organo phosphate compound poison by her husband along with ayurvedic medicine at 7.45 AM on 12.3.2004 at Sirivellapalem, Bandar mandal, Machilipatnam. 14. P.W.5 is the then Mandal Revenue Officer, Machilipatnam, who conducted inquest on the dead body of the deceased on 13.4.2004 in the presence of P.W.8 and others, under Ex.P2-inquest report. 15. P.W.6 is the Civil Assistant Surgeon, Government Hospital, Machilipatnam, who conducted post mortem examination on the dead body of the deceased on 13.3.2004, and issued Ex.P3-postmortem report. Ex.P4 is the final opinion. Cause of death of the deceased is due to nitrite poisoning as per the report of the Regional Forensic Science Laboratory(R.F.S.L.). He admitted in cross-examination that if the patient receives first aid, possibility of recovery is there, and that if first aid is not taken, it may lead to unconsciousness and coma. P.W.10 is the then Scientific Officer of R.F.S.L., Vijayawada. He deposed about analyzing the visera derived from the dead body of the deceased and finding ‘nitrate’, a chemical substance. Ex.P11 is the report of the R.F.S.L. 16. P.W.7 is the then Sub Inspector of Police, Bandar Taluq police station, who registered the case under Ex.P5-F.I.R. upon receipt of hospital intimation Ex.P6. P.W.11 is the then Circle Inspector of Police, Machilipatnam, who took up further investigation from P.W.7 and laid the charge sheet. 17. Basing on the above evidence, now it has to be seen whether the prosecution is able to bring home the guilt of the accused for the offence punishable under Section 302 I.P.C. beyond reasonable doubt ? 18. In Ram Gopal v. State of Maharashtra[1], the Apex Court, while dealing with a case of administering poisoning, held thus: “Three questions arise in such cases, namely (firstly), did the deceased die of the poison in question. (secondly), had the accused the poison in question in his possession? And (thirdly), had the accused an opportunity to administer the poison in question to the deceased? It is only when the motive is there and these facts are all proved that the court may be able to draw the inference, that the poison was administered by the accused to the deceased resulting in his death.” 19. As regards the motive part, from the evidence of P.Ws. 1 and 2, the prosecution is able to establish the motive for the accused to eliminate the deceased as he developed illicit intimacy with another woman by name Ramana and the deceased used to question the accused for the same, which the deceased used to complain to P.W.1 and her mother, and on the date of the incident also, the deceased complained about the same to P.W.1. 20. With regard to death of the deceased due to administering of poison, from the medical evidence of P.W.6-Doctor who conducted postmortem on the dead body of the deceased and P.W.10-the then Scientific Officer of R.F.S.L., Vijayawada, and from the recitals in Ex.P3-post mortem report and Ex.P11-report of R.F.S.L. issued by P.W.10, it is clear that the cause of death of the deceased is due to nitrite poisoning. 21. As regards the third and fourth circumstances, it is clear from the evidence of P.Ws. 1 to 4 that the deceased and the accused stayed in a separate room in the building owned by P.W.3 in Sirivellapalem village, in the intervening night of 11/12.3.2004 after attending the 11th day ceremony of father of P.W.1. It is also clear from the evidence of P.Ws. 1 and 2 that the deceased informed them that when she complained of stomach-ache, the accused put something in her mouth saying that it is an ayurvedic medicine, and after taking the same, the deceased was feeling inconvenience and loosing vision. Further, immediately on admission of the deceased in hospital, the deceased informed P.W.12-duty Doctor about administering of ayurvedic medicine by the accused when she complained of abdominal pain and the Physician informing him that the patient had taken organo phosphorous poison along with the ayurvedic medicine. Admittedly, there is no long time gap between the complaining of stomach-ache by the deceased and her admission into the hospital, so as to implicate the accused falsely in a case of this nature. The accused and the deceased alone were present in the room on the fateful night and there was no scope or possibility for any third person to administer the same. Admittedly, there is no grudge or enmity for the deceased to state before P.Ws. 1 and 2 and the Duty Doctor that the accused administered the medicine to her when she complained of stomach- ache. P.Ws. 1 and 2 have no grouse or enmity against the accused to speak falsehood. Their evidence is consistent and trustworthy, nothing has been elicited to discredit their testimony. Their presence at the relevant point of time is quite natural and probable. Mere close relationship or interestedness is not a ground to discredit the testimony of P.Ws. 1 and 2, if their evidence is found to be reliable and trustworthy. From the chain of circumstances established from the evidence adduced by the prosecution, it can safely be inferred that it is the accused alone and none else, who possessed and administered the poison to the deceased saying that it is an ayurvedic medicine, due to which she died. The learned Sessions Judge, after taking into consideration the entire evidence on record in proper perspective, rightly came to the conclusion that the prosecution is able to bring home the guilt of the accused beyond reasonable doubt. After going through the entire evidence on record, we are not persuaded to come to a different conclusion than the one reached by the learned Sessions Judge. 22. The Criminal Appeal is devoid of merit and is, accordingly, dismissed, confirming the judgment dated 05.04.2007 in Sessions Case No.244 of 2005 on the file of the Sessions Judge, Krishna at Machilipatnam. -------------------------------- (A.GOPAL REDDY, J.) ----------------------- (K.C.BHANU, J.) 31.08.2010 DRK THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO. 481 of 2007 Between: Kolakaleti Venkateswara Rao @ Nani, s/o. Ramesh ….Appellant/accused And The State of A.P. rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO. 481 of 2007 (Per AGR, J.) 31.08.2010 [1] AIR 1972 SC 656