IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY NINETH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL Nos.909 OF 2007 AND 1232 OF 2007 Crl.A.No.909 of 2007: Between: Kurma Pothanna ..... APPELLANT AND State of Andhra Pradesh ....RESPONDENT Crl.A.No.1232 of 2007: Between: Kurma Pothanna ..... APPELLANT AND State of Andhra Pradesh ....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL Nos.909 OF 2007 AND 1232 OF 2007 COMMON JUDGMENT: (Per Hon'ble Sri Justice N.R.L. Nageswara Rao) The accused in Sessions Case No.20 of 2006 on the file of the Sessions Judge, Adilabad, who was convicted for the offences punishable under Sections 498-A and 302 of the Indian Penal Code, 1860 (for short, "I.P.C.") and sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.100/-, in default to under go simple imprisonment for a period of one month for the offence punishable under Section 498-A I.P.C. and further, sentenced to undergo imprisonment for life and also to pay a fine of Rs.100/-, in default to undergo simple imprisonment for a period of one month for the offence punishable under Section 302 I.P.C., is the appellant herein. 2. The case of the prosecution is that the deceased, Kurma Laxmi, was the wife of the accused and their marriage was performed eight years prior to the date of incident i.e., 11.10.2004. The accused addicted to vices and started harassing the deceased demanding more money. The accused and the deceased were living at Pochera. On 11.10.2004, the accused informed PW.2 about the deceased consuming pesticide and consequently, stated that she died due to consumption of poison. PW.2 informed the same to PW.1, who is the father of the deceased, and both of them went to the village of the accused, made enquiries and lodged a report Ex.P1, which was registered as a case in Crime No.82 of 2004 under Section 174 Cr.P.C., and expressed suspicion about the truthfulness of the claim of the accused about the cause of death. Inquest was held over the dead body of the deceased, statements of the witnesses were recorded and the dead body of the deceased was sent for post-mortem examination. During the course of post-mortem examination, the vicera and other incriminating materials were sent for examination to Forensic Science Laboratory and the report of the Forensic Science Laboratory show that there was no poisonous substance causing the death of the deceased. The doctor, who conducted post-mortem examination, was examined as PW.8 and he opined that the death of the deceased was due to asphyxia (Smothering). Thereafter, the section of law was altered into one under Section 302 I.P.C. and the Circle Inspector of Police took up further investigation. During the course of investigation, the accused was arrested and sent for remand. After completion of investigation, the accused was charged for the offences under Sections 498-A and 302 I.P.C. The case was taken on file as P.R.C.No.21 of 2005 and committed the same to the Court of Sessions. 3. After the appearance of the accused the learned Sessions Judge framed the following charges against the accused: “FIRSTLY: That, prior to 11th day of October 2004 at Pochera village of Adilabad Mandal, you Kurma Pothanna being the husband of Kurma Laxmi subjected her to cruelty both physically and mentally by demanding money from her father and brothers for your bad vices and that you thereby committed offence punishable under section 498-A I.P.C. and within my cognizance. SECONDLY: That you Kurma Pothanna, on the 11th day of October, 2004 at about 04:00 AM, in your house at Pochera village, intentionally committed murder of your wife viz., Kurma Laxmi by pressing her neck and also by smothering her nose and mouth with a pillow, and that you thereby committed offence punishable under section 302 I.P.C. and within my cognizance.” When the above said charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. On behalf of the prosecution PWs.1 to 11 were examined and Exs.P1 to P11 were got marked besides case property M.O.1. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. and he did not adduce any defence evidence. 6. The learned Sessions Judge, after appreciating the evidence on record, found the accused guilty of the offences for which he was charged and accordingly, convicted and sentenced him. Aggrieved by the same, initially the state through Andhra Pradesh High Court Legal Services Committee, Hyderabad, preferred Criminal Appeal No.909 of 2007 and subsequently, at the instance of the relatives of the accused Criminal Appeal No.1232 of 2007 is preferred. 7. The legal aid counsel has sought permission of this Court to withdraw Criminal Appeal 909 of 2007 in view of the pendency of another appeal. Accordingly, Criminal Appeal No.909 of 2007 is dismissed as withdrawn. 8. Heard the learned counsel for the appellant and the learned Public Prosecutor. 8. The points that arise for consideration are: 1) Whether the prosecution has proved that the accused has committed the murder of the deceased? 2) Whether the prosecution has proved that the deceased was subjected to cruelty and ill- treatment for money? 3) Whether the conviction and sentence recorded by the learned Sessions Judge is legal and sustainable? 9. In support of the prosecution case, PW.1, who is the father of the deceased, stated that the accused married the deceased about ten years back and that both of them lived happily for four years. As the accused addicted to vices, he used to beat the deceased and demand money and he took money from his sons. The accused and deceased has a son aged about 9 years. The accused informed his son, PW.2, over phone that the deceased committed suicide by consuming poison and on that all of them rushed to the village of the accused and he gave a complaint Ex.P1 to the police. He suspected that the accused committed the murder of the deceased by throttling. In cross- examination, he stated that the deceased was his only daughter and he gave Ac.5-00 of land and the accused himself got Ac.2-00 of land. He denied the suggestion that the accused has not demanded any money and there are no cases against the accused for his vices. His sons are employed in Government services and one on his son is employed in Collectorate and another is a Teacher. The deceased never informed against the accused that he was demanding money. PW.2 is the son of PW.1. He also supported the material evidence of PW.1 about the marriage of the deceased and also receiving phone call on 11.10.2004 from the accused informing that the deceased consumed poison and thereafter, coming to the village and expressing suspicion against the accused about the cause of death of the deceased. In cross-examination, he stated that no panchayat was held about the conduct of the deceased in demanding the money. PW.3 did not support the prosecution case and was declared hostile, but his evidence clearly goes to show that his house is situated behind the house of the accused and he heard cries from the members of the family of the accused and he went to the house and found the dead body of the deceased and the accused informed him that the deceased died by consuming poison. The evidence of PW.4 is about taking photograph of the scene of occurrence. The evidence of PW.5, son of the deceased and accused, who is a child witness, is to the effect that the accused pressed the neck of his mother and abused him when he was weeping and there were quarrels between the deceased and the accused. In cross-examination, it was elicited that he woke up at 06:00 AM and he was under the custody of his grand mother and he stated that they brought him to the Court and instructed him about what he should say before the Court. This shows that he was not present at the time of conducting inquest over the dead body of the deceased and seizure of pesticide tins near the dead body. The evidence of PW.7 is about his presence at the time of inquest and seizure of the properties and also presence at the time of observation of the scene. He did not support the prosecution case about signing on the reports, knowing the facts and therefore, he was declared hostile. The relevant evidence of PW.8, who conducted the post- mortem examination on the dead body of the deceased, reads as follows: “On 11.10.2004, I conducted autopsy over the dead body of Kurma Laxmi and found the following external injuries: 1. Abrasion 1” x 1” on right neck might have caused by blunt weapon. Ante-mortem in nature. Age of injury is about 24 hours. Brain is congested. Frothy discharged from mouth. Trachea, bronchi, plural cavities and lungs are congested. Liver and spleen are congested and enlarged. I sent liver and kidney to FSL. On receipt of FSL it is noted that no poisonous substance was found. As per observation mentioned in PME the cause of death of deceased is cardio respiratory failure due to asphyxia (smothering). Ex.P6 is PME report. Ex.P7 is FSL report. Ex.P8 is final opinion. The cause of death in this case probably are that preventing respiratory system by force with others or self.” He opined that the cause of death was due to asphyxia (smothering). He spoke about the post-mortem report - Ex.P7 and final opinion – Ex.P8. The evidence of PWs.9 to 11 is about the investigation done by them in this case. 10. Learned counsel for the appellant contends that there is no direct evidence about the commission of the murder by the deceased; that the statement of PW.5, who is the son of the deceased and accused, is a tutored one and the possibility of he witnessing the incident cannot be accepted; that the conviction of the appellant for the offence under Section 498-A I.P.C. is based on no evidence and therefore, the accused is entitled for acquittal. 11. On the other hand, learned Public Prosecutor contended that except the theory that the accused alone is guilty of the offence, there is no other theory possible, since he is alone in the house along with his wife and he also gave a false information about the cause of death of the deceased. 12. So far as the conviction for the offence under Section 498-A I.P.C. is concerned, from the evidence of PWs.1 and 2 there is no material to come to a conclusion that the deceased was subjected to any cruelty, except on and of demand by the accused for some money from the brothers of the deceased. Even from the evidence of PW.1, the above charge against the accused is very vague and the deceased herself never complained to anybody about the harassment meted out by her in the hands of the accused. Therefore, on consideration of the above statements of the witnesses, we are in agreement with the learned counsel for the appellant that the charge under Section 498-A I.P.C. cannot be established beyond all reasonable doubt. 13. So far as the cause of death of the deceased is concerned, the medical evidence of PW.8 clearly goes to show that it is an asphyxial death (by smothering). It is not a natural death and it is an unnatural death. Death by smothering can only be by a third person, who could have exerted pressure and stopped the respiratory system. The question is whether that act of smothering was done by the accused or somebody else. Evidently, time of offence is about 04:00 AM i.e., in the early hours. The fact that the accused was alone with the deceased prior to the incident, at the time of incident and after incident is not in dispute. The presence of PW.5, son of the accused and deceased living in the house, at that time also cannot be ruled out. The accused probably being aware of the burden on him, to discard his liability, has developed a false theory that the deceased consumed poison and committed suicide and gave the same information to PW.2 and also made an effort to believe the story by planting MO.1 – pesticide tins. The factum of death by poisonous substance is ruled out by Forensic Science Laboratory examination and from the evidence of doctor. Therefore, the alternative theory of any benefit of doubt to be extended to the accused on the ground of suicidal death is ruled out from the medical evidence. On the other hand, the accused by his conduct himself gave false information and pretended that as if the death of the deceased was suicidal, there is no reason as to why the accused should plant the poisonous bottles, if he himself is not guilty of the offence. This circumstance added to the medical evidence that the death of the deceased was asphyxial and unnatural, clearly shows that the accused alone could have committed the offence and none else. The explanation given by the accused about the cause of death is not believable. Therefore, from the circumstances on record, it is clear that the accused was alone present along with the deceased prior to, at the time of and after the incident and he gave false information. Though PW.5 may be a child, when there was a quarrel according to him between the mother and the father, a child aged about ten cannot be expected to be in sleep and not reacting immediately. His evidence cannot be totally discredited and it can be taken only as an additional circumstance to add to the prosecution case. There is absolutely no need for PWs.1 and 2 to tutor PW.5 when evidently the complaint is based on the fact that the conduct of the accused is suspicious. Therefore, for all the above reasons, we hold that the conviction of the accused for the offence under Section 302 I.P.C. is valid and it does not call for any interference. 14. In view of the above discussion, the conviction and sentence recorded by the learned Sessions Judge against the accused for the offence punishable under Section 498-A I.P.C. are set aside, while confirming the conviction and sentence for the offence punishable under Section 302 I.P.C. 15. Accordingly, the Criminal Appeal No.1232 of 2007 is partly allowed to the extent indicated above. ______________ K.C.BHANU, J ____________________________ N.R.L.NAGESWARA RAO, J December 29, 2010 MD THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL Nos.909 OF 2007 AND 1232 OF 2007 (Per Hon'ble Sri Justice N.R.L. Nageswara Rao) December 29, 2010