HON'BLE SRI JUSTICE B.N.RAO NALLA Crl. A.No. 454 of 2005 DATED :02.02.2011 Between : Smt.Bolisetti Krishnaveni … APPELLANT/ accused A N D The State of A.P. rep. By the Public Prosecutor … RESPONDENT JUDGMENT: This Criminal Appeal is directed against the judgment dated 04.03.2005 delivered in Sessions Case No.68 of 2002 whereby the learned VI Additional District and Sessions Judge (Fast Track Court), Narsapur, found the accused guilty of the offence punishable under Section 304 Part-1 IPC which is culpable homicide not amounting to murder and falling under Exception 1 of Section 330 IPC, and convicted and sentenced her to suffer rigorous imprisonment for a period of five years and pay a fine of Rs.200/-, in default, to suffer simple imprisonment for one month. The case of the prosecution in brief is that the accused-wife and the deceased-husband were married in the year 1972 and blessed with PW2-son, PW3-daughter and another daughter. The deceased was working as Electrical Lineman at Pasaladivi and residing at Rustambada, Narasapur with her wife while their children were staying with PW4, who is the brother of the accused-wife in Narsapur. There used to be frequent quarrels between the deceased and the accused. While so, on 13.08.2001, at about 09.00 p.m., in a quarrel ensued between them, when the deceased-husband grew wild, the accused- wife escaped from the house to save herself. During the intervening night of 13/14-8-2001, at about 01.00 a.m., while the deceased was sleeping, the accused picked up a knife which is generally used for cutting wooden planks and hacked him two or three times on his collar bone and throat with an intention to do away with his life and the death of the deceased was instantaneous. On the following morning, the accused went to PW10-Station House Officer, Narasapur Town P.S. along with PW8-Village Administration Officer of Rustumbada, and produced the knife before PW10 and confessed the crime before him. PW10, based on her confessional statement, registered a case against her in Crime No.95/01 for the offence under Section 302 IPC, arrested and sent her for remand. To substantiate the case of the prosecution, it examined PWs. 1 to 12 and got marked Exs.P.1 to P.27 besides marking M.Os.1 to 6, whereas DWs.1 and 2 were examined and Exs.D1 and D2 were marked on behalf of the defence. After closure of prosecution evidence, the accused was examined under Section 313 Cr.P.C., wherein she denied the incriminating material appearing in the evidence of the prosecution witnesses and stated that she had defence witnesses to be examined. She also filed a written statement stating that she made the confessional statement before PW12-Magistrate under Section 164 Cr.P.C. under coercion, duress and due to threat by the Police. The trial court, taking into consideration the evidence of the prosecution witnesses and other material on record, found the accused-wife guilty of the offence punishable under Section 304 Part-1 IPC though initially a charge against the accused was framed for the offence under Section 302 IPC, and convicted and sentenced her as stated supra. The trial Court, merely based on the confessional statement of the accused, which is to the effect that the deceased had provoked the accused insisting her to make their youngest daughter available with him to satisfy his sexual desire by throwing all the canons of morality to the winds and for the reason that he was ill-treating and harassing the accused for keeping their daughters at the house of her brother-PW4, found her guilty of the alleged offence. PW1 is the brother of the deceased-husband. He has testified that the deceased was addicted to alcohol and under the influence thereof he used to harass the accused very often. He has also testified that his brother, on one occasion, raped PW3, who is none other than his own daughter. He further deposed that he did not how his brother died and who caused his death. As he resiled from his statement in Ex.P1, he was declared hostile and subjected to cross-examination by the Additional Public Prosecutor, during the course of which, he specifically denied what is stated in Ex.P1 statement recorded under Section 161 Cr.P.C before the Police and also denied a suggestion that the accused had stabbed his brother to death due to harassment meted out by him. PW2 is the son of the accused and the deceased. His evidence is to the effect that his father used to assault his mother under the influence of alcohol. About 9 years ago, his father sexually assaulted his elder sister and when his mother went to her rescue, he assaulted her. On the date of the offence, PW2 was at the house of his maternal uncle. During the previous night, his father assaulted his mother commanding her to bring his younger sister for his sexual happiness. He along with his mother and sisters were in the house of maternal uncle during the night. In the early hours at about 04.30 a.m. he and his sisters came to know that Police had taken away his mother and someone informed them that his father was killed. As PW2 failed to support the case of the prosecution, he was declared hostile and was cross-examined by the Additional Public Prosecutor. However, the witness denied having made a statement recorded under Section 161 Cr.P.C. before the Police as in Ex.P2. He also denied a suggestion that his mother stabbed his father to death. PW3, who is the daughter of the accused and the deceased, deposed that her father used to assault her mother. He also used to assault her brother and sister under the influence of alcohol. Her father sexually assaulted her when she had just attained the age of puberty and when her mother objected to it, he assaulted her. He also assaulted PW3 when she objected to his cruel behaviour. Thereafter, they went to the house of their maternal uncle(PW4). Her father used to assault her mother on the ground that she sent her to her maternal uncle’s house. Her father also tried to sexually assault her younger sister, and being afraid of her father, she is also staying with them at the house of their maternal uncle. On the date of the incident, her mother was staying with them and all of them were sleeping in the house of her maternal uncle during the night. In the early hours at about 04.00.am., they came to know that their mother was taken away by the Police and someone killed her father. As PW3 resiled from the statement made in Ex.P3 recorded under Section 161 Cr.P.C. she was declared hostile and was cross-examined by the Additional Public Prosecutor. She denied a suggestion that her mother had done away with the life of her father. PW4 is the brother of the accused. His evidence is to the effect that there were disputes between his sister and the deceased on the ground that the deceased spoiled the life of their eldest daughter- PW3. Therefore, the children were residing in his house. During the night of the incident, the children of her sister were in his house. Since this witness also did not support the prosecution case, and denied Ex.P4-statement recorded under Section 161 Cr.P.C., he was declared hostile and cross-examined by the Additional Public Prosecutor. During the course of the cross-examination, he denied a suggestion that the accused must have killed the deceased to get rid of him. PW5 is the neighbour of the accused and the deceased. His evidence is to the effect that everyday there used to be quarrels between the accused and the deceased. The deceased used to assault the accused under the influence of alcohol and he was also quarrelling with women residing nearby. He also denied his Ex.P5- statement recorded under 161 Cr.P.C. and also the suggestion that he had stated before the police as in Ex.P5 that the accused might have killed the deceased in order to get rid of him. This witness too, was declared hostile and was cross-examined by Additional Public Prosecutor. Thereafter, this witness was also cross-examined on behalf of the accused. During the course of which, he stated that he came to know that the deceased had sexually assaulted his eldest daughter and further tried to sexually assault his youngest daughter, and therefore, the children started living with their maternal uncle. PW.6 is a panch witness to the scene of offence. Exs.P6 and P7 – signatures of PW6 and Ex.P8-seizure panchanama. However, this witness has denied the proceedings under Exs.P6, P7 and P8 held in his presence. He stated that the Police did not seize anything in his presence. He further stated that the Police obtained his signatures on those exhibits. Even though this witness was declared hostile and subjected to cross-examination, the Additional Public Prosecutor could not elicit any material from him in support of the prosecution case since he has clearly denied a suggestion that he was present when the police prepared Ex.P6 - scene of observation report and conducted inquest proceedings under Ex.P7 and seized the blood-stained clothes and broken pieces of bangles at the scene of offence. PW7 is the medical witness, who conducted autopsy over the dead body of the deceased on receipt of requisition from PW10-Station House Officer, Narsapur Police Station and issued Ex.P9-Post Mortem certificate. He has only spoken as to the injuries both internal and external present on the dead body of the deceased inter alia as stated in Ex.P9 and opined that the deceased would appear to have died of shock, hemorrhage and asphyxia. PW8 is a former Village Administration Officer, Rustumbada. His evidence is to the effect that on the early hours of the date of incident, he went to the Police when the accused came with knife and made confessional statement under Ex.P12 before PW10 which is scribed by PW10 himself. He also spoke to his accompanying the Police to the scene of offence and seizure of M.Os. 1 to 4 by the Police. He further submitted that when he accompanied PW10 to the scene of offence, he found rain water in the hut. He also stated that he scribed Ex.P13- scene of observation report, held inquest under Ex.P14 over the dead body of the deceased at the scene of offence and the inquestdars opined that the deceased was killed by the accused. He also scribed Ex.P15 under which blood-stained sari of the accused was seized. However, in his cross-examination, he stated that on the fateful day, he went to the Police at about 08.00 a.m. with a boy, who took him in his vehicle to the Police and he cannot say the name of the boy. He further stated that the accused was taken to the room of Station House Officer- PW10 where he was sitting and he did not remember what the accused had stated before PW10. He also stated in his cross examination that he could not remember whether the accused signed Ex.P12-confessional statement made by her before PW10 in his presence. PW9 is the elder brother of the deceased-husband. He has testified that he did not know how the deceased died and at whose hands he suffered death. As he did not support the prosecution case, he was declared hostile and he was cross-examined by the Additional Public Prosecutor, however, he has denied having made a statement before the police as in Ex.P15. Moreover, he has specifically denied a suggestion that he had come to know that deceased suffered death in the hands of the accused. PW10 is the Station House Officer of Narsapur Town P.S. He has testified inter alia as to the accused coming to the police station with a knife on 14.08.2001 at about 08.00 a.m. and confessing her guilt, and his recording her confessional statement-Ex.P12 in the presence of PW8, Village Administrative Officer and seizing the knife. He further deposed that he examined and recorded the statement of PW8, and thereafter, he along with PW8 went to the scene of offence, seized a blood-stained blanket and saree including glass bangles under cover of scene of observation report-ExP13. However, in his cross-examination, he stated that PW8-V.A.O. came to the police station at about 08:00 a.m. on that day after the accused reached the police station. By the time PW8 came, the accused was inside the police station. He also stated that he recorded the confessional statement of the accused in the police station hall, but he could not say for what purpose PW8 had come to the police station. He admitted that it was raining on that day. He also testified that while he was observing the scene of offence, no rainwater was found inside the house. He further stated that he did not prepare a separate panchanama for seizure of knife, nor did he describe any features of the knife in Ex.P12 – confessional statement of the accused. PW11 is only testified as to the laying of charge sheet into the Court after verifying the investigation already done by PW10. His evidence does not in any way prove or disprove the case of the prosecution. PW12 is Senior Civil Judge, Kadapa. He has only stated as to his recording Ex.P26 – confessional statement of the accused under Section 164 Cr.PC. after following due procedure prescribed therefor. It is to be found in the last sentence of the chief-examination that the accused stated before him that the deceased died due to accidental fall on “kathipeeta”. The learned counsel for the appellant-accused submitted that the statement alleged to have been made by the accused before PW10 in the presence of PW8 under Ex.P12 is not admissible in evidence. It has to be construed to be a statement recorded under Section 161 Cr.P.C., which could be used only for the purpose of either corroboration or contradiction. It cannot be construed as a substantive piece of evidence. The learned Additional Public Prosecutor submits that as per the evidence of PW8-V.A.O. who is the panch witness to Ex.P12 confessional statement of the accused before PW10 SHO. and PWs.10, 12 and DW2, who is the landlord of the father of the accused, the police took the accused in the early hours of the fateful day to the police station from the house in which her father was staying as tenant. The evidence of both PW10, the Investigating Officer, who recorded Ex.P12 and PW12 - Judicial Magistrate, who recorded Ex.P26-confessional statement of the accused under Section 164 Cr.PC. go to prove the case of the prosecution, as such, he contends that the trial Court, after considering the evidence as well as other material on record, rightly convicted the accused, and prays that the appeal may be dismissed. Heard the learned counsel for the appellant, the learned Additional Public Prosecutor for the State appearing on behalf of the respondent and perused the material placed on record. After a careful analysis of the evidence on record, it is pertinent to observe that though PW8 has stated in clear terms that the accused was taken to the room of PW10 where he was sitting, but has not whispered anything in his evidence that the accused had made Ex.P12-confessional statement before PW10 in his presence to the effect that she caused the death of her husband, and merely stated that he did not remember what the accused had stated before PW10. He further stated that observation of scene of offence under Ex.P13 was held with the help of torchlight. The use of torchlight indicates that there was power-cut during that night. Moreover, the inquest proceedings under Ex.P14 were also stated to have been conducted with the help of charging light, which is also indicative of the fact that there was power failure on that day. The scene of offence is stated to have occurred in a single room-hut, which is being used by the accused and the deceased for their residential purpose. Therefore, it is likely to probablise the statement made the accused before PW12-Magistrate under Ex.P26 that the deceased died due to accidental fall on Kattipeeta, more so, when there was power-cut during that time. Further, the very presence of PW8 in the police station at about 8.00 a.m. on that day appears to be doubtful since he admitted at the end of his further chief-examination that he was not always coming out of the house due to skin allergy in the year 2001. It is an undisputed fact that the incident occurred during intervening night of 13/14-8-2001. Further, it is to be seen here that as per the evidence of PW1, the accused is stated to have confessed her guilt in the presence of PW8, however, it is not known as to why PW8 visited the police station on that day and particularly at that time. This evidence is fortified by PW10, who stated that he did not know as to why PW8 had visited the police station. However, it is in his evidence that PW8 reached the police station after the arrival of the accused, whereas the evidence of PW8 is to the effect that when he was in the police station, the accused visited the police station and she made a confessional statement before PW10 in his presence, that too, in a room of the police station. It is a fact that the incident is stated to have taken place during intervening night of 13/14.08.2001. Therefore, the very presence of PW8 at the police station on that day and particularly at that time is doubtful. Therefore, there is any amount of inconsistency in the evidence of PW8. Further, it is the case of the prosecution that the accused went to the police station with the knife. If that is so, it is not known why PW10 failed to seize the knife under seizure panchanama. So far as the evidence of PW10 is concerned, there was no rainwater in the house when visited the scene of offence whereas PW8, who is stated to have accommodated PW10 to the scene of offence, testified that there was rain water inside the house. According to PW8, it is a single room but it is to be found in the evidence of PW10 that the hut consists of a hall and a room. PW8- V.A.O. has stated in his evidence that on the date of the incident, there was no power supply at the scene of offence and inquest and scene of panchanama proceedings were held with the help of torchlight and charger light and the same gives credence to the fact that there was no power supply on that day. Inasmuch as the alleged incident took place in darkness during the night, the same probablises the statement of the accused made before PW12-Magistrate. Even if it is construed that the entire prosecution case rests on the Ex.P12 – confessional statement made by the accused before PW10-SHO and Ex.P26 confessional statement made before PW12 - Magistrate, both the statements are not in tune with each other. As per the evidence of PW8, Ex.P12 loses its sanctity since he has testified that he did not know and could not remember as to what the accused has stated before PW10 though he happened to be present in the room. Moreover, the place of recording Ex.P12 is also doubtful because as per the evidence of PW8, it is a room and as per the evidence of PW10, it is a hall of the police station, whereas, the gist of Ex.P26 is that the deceased died of accidental fall on “Kathipeeta”. Apart from this, the presence of the accused at the scene of offence is also doubtful as PWs.2 and 3, who are the children of the accused and the deceased testified that during the fateful night the accused was in their company at the house of their maternal uncle-PW4. Moreover, Section 25 of the Indian Evidence Act prohibits the use of confession made to the police against the accused. Therefore, Ex.P12 has to be eschewed from consideration as it loses its sanctity in view of the provisions under Section 25 of the Indian Evidence Act. So far as Ex.P26 is concerned, it is stated to be a confessional statement made before a Judicial Magistrate under Section 164 Cr.P.C. However, the only thing that was stated in Ex.P26 is the death of the deceased was due to accidental fall on “Kathipeeta” and there is nothing incriminating in it against the accused. Therefore, both Exs.P12 and P26 are of no consequence to the prosecution. Moreover, the presence of the accused was also doubtful during the fateful night in view of the evidence of PWs.2 and 3, who are the children of the accused and the deceased. For the foregoing reasons, this Court is of the view that there are several inconsistencies in the versions of PW8 – Village Administrative Officer and PW10-Station House Officer which run contrary to one another. Even PW1 - de-facto complainant, who is the brother of the deceased and PWs.2 to 4 have resiled from their statements made under Section 161 Cr.P.C. before the police. Therefore, the evidence of the prosecution witnesses coupled with the documentary evidence is not reliable and trustworthy and does not inspire any confidence to attribute the cause of the death of the deceased to the accused-wife. Hence, the contentions put forth by the learned counsel for the appellant are wholly sustainable. In the result, this Criminal Appeal is allowed and the conviction and sentence imposed on the accused by the learned VI Additional District and Sessions Judge (Fast Track Court), Narsapur, vide his judgment dated 04.03.2005 delivered in Sessions Case No.68 of 2002, are set aside, and the accused is acquitted of the offence with which she was charged. _________________ B.N. RAO NALLA, J 2nd February, 2011 bcj