HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.499 OF 2007 Dated:04-10-2010 BETWEEN: Yetagani Yadagiri …Appellant AND State of A.P., Rep. by Public Prosecutor, High Court, Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.499 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) The instant appeal is directed against the judgment, dated 12.1.2007 passed by VI Additional Sessions Judge (III-Fast Track Court) Warangal at Mahabubabad in Sessions Case No.435 of 2006 convicting the appellant-accused for the offences punishable under Sections 498-A and 302 IPC, and sentencing him to undergo rigorous imprisonment for three years and imprisonment for life and to pay a fine of Rs.500/- on both the counts, in default to undergo simple imprisonment for three months. Both the sentences were directed to run concurrently. 2. The appellant-sole accused was prosecuted on the charge that he subjected his wife-Yatagani Mallikamba (hereinafter referred to as ‘deceased’) to cruelty of abusing and harassed her both mentally and physically in drunken state and committed the offence under Section 498-A IPC; and that on 11.12.2005 at about 4.00 a.m. he committed the murder of his wife at his house and thus committed the offence punishable under Section 302 IPC. 3. The prosecution story was that the appellant-accused was resident of Katrapally Village and was married to the deceased of the same village eight years back to the date of incident. After the marriage, they lived happily for three years and later the accused addicted to alcohol and used to pick up quarrels with the deceased. He always used to drink and sleep at the house without doing any work and used to abuse and beat the deceased. About three months prior to the date of incident, a panchayat was held in the presence of village elders and the accused was warned to behave well, and in spite of the same, he did not change his attitude. The incident in question was occurred on 11.12.2005. In the night of 10.12.2005, there was some quarrel between the accused and deceased and later they slept. In the wee hours of 11.12.2005 at about 4.00 a.m., the accused beat the deceased with an axe on her head, closed the doors and went away. Later, his mother-P.W.5 saw the door was bolted, opened the same and found the deceased lying dead on the cot with bloodstains. On the information given by her, P.W.1, father of the deceased lodged a report-Ex.P.1 with the sub-inspector of Police of Kesamudram Police Station at 8.30 hours on 11.12.2005 on the basis of which, the Sub-Inspector of Police-P.W.14 registered a case in Crime No.234 of 2005 for the offences punishable under Sections 498- A and 302 IPC and issued F.I.R.-Ex.P.12 to all concerned. P.W.15- Circle Inspector of Mahabubabad, on receipt of F.I.R., proceeded to the scene of offence, recorded the statements of P.Ws.1 to 12, got the dead body of the deceased photographed, conducted inquest over the dead body of the deceased in the presence of mediators-P.W.11 and others, seized M.Os.1 and 2, and sent the dead body of the deceased to the Area Hospital, Mahabubabad for post-mortem examination. He conducted the scene of offence panchanama under Ex.P.8, seized M.O.3-bloodstained bed-sheet, arrested the accused on 15.12.2005 in the presence of P.W.12 and another and basing upon the confessional statement made by the accused under Ex.P.9, he recovered M.O.4-axe used in the commission of offence under cover of panchanama- Ex.P.10. After receipt of all the relevant reports, he laid the charge sheet against the accused for the offences punishable under Sections 498-A and 302 IPC. 4. When the charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate the charges, the prosecution examined P.Ws.1 to 15 and got marked Exs.P.1 to P.14 besides the case properties- M.Os.1 to 4. 6. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same. When the accused was called upon to adduce evidence, he did not let in any evidence. 7. The Trial Court on appreciation of oral and documentary evidence on record, by the impugned judgment found that the prosecution was able to establish beyond reasonable doubt that the accused committed the murder of his wife by hitting with axe and that prior to the commission of offence, he used to harass the deceased in drunken state of mind and accordingly found him guilty for the offences under Sections 498-A and 302 IPC and accordingly sentenced him to undergo imprisonment as aforementioned. 8. Smt. Gayatri Reddy, learned counsel appearing for the appellant-accused did not seriously dispute before us the findings recorded by the learned Sessions Judge with regard to the commission of the offence by the accused but pleaded that as the accused and deceased were not blessed with any children even after eight years of the marriage, there is a possibility of ensuing a quarrel between the accused and the deceased immediately before the incident and the assault being the result of grave and sudden provocation by the accused cannot be ruled out and therefore, convicting the accused for the offence under Section 302 IPC by the learned Sessions Judge is not proper but at the most, he can be convicted for the offence under Section 304 Part-I IPC. Further the post-mortem report also discloses only single external injury on the body of the deceased. She also contends that P.Ws.5 and 6 i.e. the mother and sister-in-law of the accused, who first saw the dead body of the deceased, turned hostile and have not supported the case of the prosecution and therefore, the conviction recorded against the accused for the offence under Section 302 IPC has to be set aside by bringing the offence under Section 304 Part-I IPC. 9. Per contra, learned Additional Public Prosecutor sought to sustain the impugned judgment contending that in the absence of any evidence that there was any quarrel ensued between the accused and the deceased immediately prior to the incident, committing the murder of the deceased by the accused in a sudden grave and provocation does not arise. Further the evidence brought on record shows that the deceased was hacked to death with an axe while sleeping and therefore, the accused can be convicted only for the offence under Section 302 IPC, but not under Section 304 Part-I IPC. 10. In the light of the above submissions, the point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond all reasonable doubt for the offences under Sections 498-A and 302 IPC and whether the convictions and sentences recorded against the accused are liable be to set aside or modified? 11. P.Ws.1 and 2 are the father and mother of the deceased. P.Ws.3 and 4 are brother and sister of the deceased. P.W.5 is the mother and P.W.6 is the sister-in-law of the accused. P.Ws.5 and 6 first saw the dead body of the deceased on 11.12.2005 at 4.00 a.m. and informed the same to the parents of deceased i.e. P.Ws.1 and 2 who reside in the same village. P.W.1 deposed that the marriage between the accused and deceased was performed 8 years back and for three years they lived happily and that they used to attend cooli work. Later the accused addicted to liquor and in spite of the advice by the deceased, he did not stop consuming the liquor and used to be idle in the house. As the deceased insisted the accused to stop consuming liquor, he started beating her and used to harass her. He did not know what happened between the accused and the deceased on the night of the incident. The mother of the accused, P.W.5 came and told him that the deceased was axed to death and her dead body was lying on the cot. On that, himself, his wife and other family members went to the house of the accused, saw the dead body of the deceased, and he went to the police station and gave Ex.P.1 report to the police. The evidence of P.Ws.2,3 and 4 is in the similar lines. Though they were cross-examined at length, nothing was elicited to discredit their testimony. P.W.5, who is none other than the mother of the accused, deposed that on the date of incident in the morning, while she was sweeping the open place, she observed the open place in front of the house of the accused was not swept, so, she threw the door of house of the accused and observed the deceased lying dead with injuries on a cot. At that time, the accused was not in the house. She deposed that the accused addicted to liquor and used to remain at the house idle without attending any work. She was declared hostile by the prosecution. In her cross-examination by the Public Prosecutor, she admitted that on the night of the incident also, the accused came to the house in a drunken condition and slept at his house. To a question posed by the Court that whether the accused came to the house to see the dead body of the deceased, she answered that the accused drunk liquor and slept somewhere else and did not come to the house. P.W.6, sister-in-law of the accused also corroborated the evidence of P.W.5. P.W.10, who is nieghbour of the accused deposed that while he was going to attend the calls of nature, he saw the accused going away from the village on his bicycle towards Arpanapally Village and after sometime, he heard hue and cry from the house of the deceased. Then he went and observed that the deceased was axed to death. P.W.13 is the doctor who conducted autopsy over the dead body of the deceased. He found the following external injuries on the dead body of the deceased: “1. laceration 12”6”x ½ from mid forehead extending to left side involving left temporal region, parietal region to the occipital region. 2. Loss of left eye.” He issued Ex.P.11 post-mortem certificate opining that the deceased died due to cordio respiratory arrest, due to the head injury. 12. From the above evidence, it is clear that the accused and the deceased were together in the house on the intervening night and in the morning, P.W.5 found the door bolted from outside the house, she opened the door and saw the deceased in pool of blood. At that time, the accused was not found in the house. P.W.10, the neighbour of the accused, stated that he saw the accused going away from the village in the morning hours on his bicycle and the accused did not turn up till his arrest on 15.12.2005. When the accused was examined under Section 313 Cr.P.C., it is not his case that a quarrel ensued between the deceased and himself, due to which, he was provoked and as a result he axed the deceased. The weapon-M.O.4, which was recovered at the instance of the accused was sent for R.F.S.L. and the report under Ex.P.14 shows that the blood detected on the axe was of human origin though the group of blood cannot be determined. In that view of the matter, the prosecution was able to bring home the guilt of the accused. But from the said evidence, the prosecution except proving that the accused used to drink alcohol and used to beat the deceased, has not established any willful conduct of such nature which caused grave injury to life, limb or health of the deceased so as to attract the offence punishable under Section 498-A IPC. Therefore, in the absence of any such evidence, the accused cannot be convicted for the offence under Section 498-A IPC. We accordingly set aside the conviction and sentence recorded against the accused for the said offence. However, still the question falls for our consideration is as to what offence the appellant-accused has committed, whether it is under Section 304 Part-I or 302 IPC. Though the learned counsel for the appellant strenuously contended that during eight years of wedlock, there were no children to the accused and deceased and therefore, there is a possibility of ensuing a quarrel between them in that regard and that the accused due to the sudden provocation might have killed the deceased. But, in defence, no such evidence has been adduced to that effect. Further the injury which was inflicted on the deceased while she was asleep itself shows that no quarrel was ensued between the accused and the deceased prior to axing of the deceased by the accused with the axe. In that view of the matter, the appellant can be convicted only for the offence under Section 302 IPC but not under Section 304 Part-I IPC. We accordingly, confirm the conviction and sentence recorded against the accused for the offence under Section 302 IPC. 13. In the result, the appeal is partly allowed as indicated above. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J OCTOBER 04, 2010 Tsr.