HONOURABLE SRI JUSTICE D.S.R. VARMA AND HONOURABLE SRI JUSTICE RAJA. ELANGO CRIMINAL APPEAL No. 953 OF 2006 DATED9th April, 2010. Between: Kukkala Govinda Raju. … Appellant And The State. … Respondents For the petitioner : Sri M.Sivananda Kumar. For the Respondent : Public Prosecutor < Gist: > Head Note: ? CITATIONS: [1] AIR 1959 SC 902 [1] AIR 1960 SC 409 [1] AIR 1972 SC 66 [1] 1964 Criminal Law Journal 640 [1] AIR 1955 SC 792 [1] AIR 1974 SC 329. [1] 1999 (7) JT 348 [1] 1992 (3) JT 114 [1] 1999 (9) JT 513 [1] 2001 (9) JT 383 [1] 1995 (5) JT 373 [1] 2006 ALD (Cr) (2) 872. HONOURABLE SRI JUSTICE D.S.R. VARMA AND HONOURABLE SRI JUSTICE RAJA. ELANGO CRIMINAL APPEAL No. 953 OF 2006 DATED 9th April, 2010. Between Kukkala Govinda Raju …….Appellant/Accused No.1 And The State of AP, rep. By Public Prosecutor, High Court of AP, Hyderabad. ……..Respondent/Respondent. HONOURABLE SRI JUSTICE D.S.R. VARMA AND HONOURABLE SRI JUSTICE RAJA. ELANGO CRIMINAL APPEAL No. 953 OF 2006 JUDGMENT: ( Per Hon’ble Sri Justice Raja. Elango) 1. This Criminal Appeal under Section 374(2) of Criminal Procedure Code is directed against the judgment dated 26.6.2006 passed in S.C.No. 229 of 2000 by the learned V Additional Sessions Judge (Fast Track Court), Rajahmundry, East Godavari District, whereunder and whereby the appellant/Accused No.1 was found guilty for the oﬀence punishable under Sections 498-A, 302 and 201 IPC and accordingly convicted and sentenced him to suﬀer rigorous imprisonment for one year and to pay ﬁne of Rs.500/-, in default to suﬀer simple imprisonment for one month for the oﬀence under Section 498-A IPC, to suﬀer imprisonment for life and to pay a ﬁne of Rs.500/- in default to suﬀer simple imprisonment for one month for the oﬀence under Section 302 IPC, and to suﬀer rigorous imprisonment for one year and to pay ﬁne of Rs.500/- in default to suﬀer simple imprisonment for one month for the oﬀence punishable under Section 201 IPC. 2. The accusation, which led to the trial of the accused is that on 27.2.1999 the accused beat the deceased with stick in blue and black and kicked her on stomach indiscriminately till she died and he also tried to screen away the evidence of the oﬀence committed by him. The accused denied the said charge and claimed for trial. 3. The case of the prosecution projected, in brief, as unfolded during the course of trial, is as follows: 4. Accused A.1 to A.5 are the residents of Konarevupadu village, hamlet of Dangeru. A.2 to A.5 are kinsmen of A.1. The deceased, Kukkala Gangabhavani was the daughter of Medisetti Papayamma (P.W.1) who is the resident of Matlacheruvu village, hamlet of Velampalem. The deceased Kukkala Gangabhavani was given in marriage to A.1 and at the time of marriage, her mother (P.W.1) presented Ac.0.80 cents of landed property and cash of Rs.10,000/- to A.1 towards dowry. During the wedlock of the deceased with A.1, she gave birth to one son, K.Tarun Chakravarthi (P.W.2) and one daughter K.Geetha Devi (L.W.3). A.1 used to beat and scold the deceased and subject her to all modes of cruelty on the ground that the deceased brought insuﬃcient dowry. Though the caste elders settled the matters, but there was no change in the attitude of A.1. Though in January 1999, P.W.1 sent Rs.3000/-through her son (P.W.3) to A.1. on a demand made by him to purchase a television, however, he did not stop ill treatment of his wife. Thereafter A-1 shifted his residence to Santhinagar of Ramachandrapuram on the pretext of his studies in Law and also education of children. A.1 got dissatisﬁed with the deceased for her failure to meet his greedy demands and thereby torturing the deceased wife physically by squeezing her neck and sitting on her chest . A.1 also decided to marry another girl capable of bringing much dowry and obtained her signatures on an aﬃdavit, stamp papers etc. with a view to write on them according to his convenience. On 27.2.1999 the deceased wife was tortured by A.1 persistently for the sale of her 80 cents of landed property. A.1 beat the deceased with a stick on her body and kicked her on her stomach till she died in the presence of his son, P.W.2. In the midnight, A.1 asked his neighbour Pilli Gangadevi (P.W.5) to help him to dispose of the dead body by throwing in canal and for that he oﬀered Rs.300/-. The said P. Gangadevi refused to extend any help. A.1 kept the body of the deceased on a mat spread in the kitchen room and in the early morning informed the house owner (P.W.4) and other neighbours about the death of his wife in the previous night. P.W.4 found blood stained injuries on the mouth and nose of the dead body of the deceased and suspected that death is not natural and sent his son to P.W.1 at Matlacheruvu village to convey the death message. On 28.2.1999 at about 10.00 A.M. P.W.1 and her relatives and also the relatives of A.1 came to see the dead body. A.1 to A.5 made false promises to P.W.1 that they would get some property settled by A.1 in the name of children (P.W.2 and L.W.3) and prevailed over her not to take any action over the death of the deceased. In furtherance of their common intention to screen away the evidence, A.1 to A.5 took away the dead body of the deceased to Konarevupadu and cremated the same on 28.2.1999 itself. A.1 also executed a confessional letter (Ex.P.6) scribed by G.China Venkanna (P.W.6) and gave it to the house owner (P.W.4) and later vacated the house of P.W.4. 5. Subsequently P.W.1 realized herself and gave a report to Ramachandrapuram Police station on 3.3.1999 at 4.45 PM and her statement (Ex.P.1) was recorded by the Sub Inspector of Police (P.W.12), who registered the same as F.I.R.No. 36 of 1999 (Ex.P.15). On the same day, P.W.13 inspected the scene of oﬀence in the house of P.W.4 and prepared rough sketch (Ex.P.16) and seized confessional letter (Ex.P.6) from P.W.4. On 4.3.1999, P.W.13 examined other witnesses and seized MPDO hall ticket of A.1, aﬃdavit purported to be written by accused on two pages, Rs.10/- stamp paper dated 23.2.1994 with signature of the deceased, full white sheet of empty conquest paper with signatures of the deceased, four sheets of empty white papers with the signatures of the deceased from the house of K. Venkateswararao (P.W.7) who is the younger brother of P.W.1, who had secreted in the suit case of the accused, which was taken away by P.W.1 from the house of A.1 after the death of the deceased. The Inspector of Police arrested A.1 on 12.3.1999, A3 to A5 on 15.3.1999 and A.2. on 17.3.1999 and sent them for remand. On 22.4.1999 the Inspector along with two mediators visited the house of P.W.1, veriﬁed the suit case of A.1 kept by her and seized letters containing the handwriting of the accused and the deceased and sent the same to F.S.L and on receipt of report, it revealed that A.1 prepared the aﬃdavit as if it was given by the deceased to her husband giving consent for second marriage. After completion of investigation, the police laid charge sheet. 6. In order to prove the guilt of the accused, the prosecution examined P.Ws. 1 to 14 and marked Exs. P.1 to P.21. On behalf of the defence, D.Ws. 1 and 2 were examined and Exs. D.1 to D.4 were marked. 7. After conclusion of the trial, the learned Sessions Judge found A.1 guilty for the oﬀence punishable under Sections 498-A, 302 and 201 IPC and accordingly convicted and sentenced him as stated supra. 8. Assailing the correctness of the conviction and sentence imposed by the learned Sessions Judge, the appellant/Accused No.1 preferred the present Criminal Appeal. 9. We have heard the learned Counsel for the appellant-Accused No.1 as well as the learned Public Prosecutor, who have taken us through the entire evidence and the ﬁndings recorded by the Court below. 10. In view of the rival submissions, and in the peculiar facts and circumstances of the case, the most important point to be decided is, whether the oﬀence is committed; if oﬀence is committed, whether the appellant/Accused No.1 is responsible for the said oﬀence; and whether the appellant/Accused No.1 is liable to be punishable for screening away of the said evidence. 11. This is a case of death of the wife of the appellant herein. As projected the case by the prosecution, the wife of the accused was done to death by the appellant herein. Unfortunately, in this case to prove the fact that the death was due to homicidal violence, the same was not proved by way of any medical evidence due to the fact that the body was cremated three days prior to the lodging of complaint in this case. 12. The prosecution relied on the evidence of P.W.2, son of the appellant and deceased, P.W.4 house owner, in whose house the accused resided together with the deceased wife and children, P.W.1, mother-in-law of the appellant, P.W.6 who scribed Ex.P.6 and P.W.7, an elder of the same village. 13. The prosecution in proving that the death of the deceased was due to homicidal violence relied on the above said witnesses and statement made by the appellant/accused to P.Ws, 1,2,4,6 and 8 which is in the nature of extra judicial confession and also Ex.P.6 written by P.W.6 signed by the appellant/accused herein. 14. The learned Counsel for the appellant submitted that the statement given by the appellant to the said witnesses cannot be construed as extra judicial confession; the same is not in the nature of extra judicial confession, and the said statement does not discloses any speciﬁc implication of the accused to the said crime. The learned Counsel for the appellant relied on the judgments of the Supreme Court in Mulk Raj Vs. State of Uttar Pradesh[1], Om Prakash Vs. State of Uttar Pradesh[2], Kanda Pandayachi @ Kandaswamy Vs. State of Tamilnadu[3], Hans George Vs. State[4], Mahender Vs. State of Hyderabad[5] and Kaursen Vs. State of Panjab[6]. 15. A perusal of the evidence brought on record, it is evident that the said witnesses informed the Court that the accused accepted the responsibility for the death of his wife and tried to conceal the said crime. But, at the same time, as stated by the learned Counsel for the appellant that there is nothing to suggest that the statement is in the nature of extra judicial confession. Even though it cannot be construed as an extra judicial confession, the evidence adduced by the witnesses can be scrutinized with due care and caution with the aid of Sections 7 and 8 of the Evidence Act, which runs as follows: “ Se ct i on . 7: FACTS WHICH ARE THE OCCASION, CAUSE OR EFFECT OF FACTS IN ISSUE: Facts which are the occasion, cause, or eﬀect, immediate or otherwise, of relevant facts, or facts in issue, which constitute the state of things under which they happened, or which aﬀorded an opportunity for their occurrence or transaction are relevant. Sect i on. 8: MOTIVE, PREPARATION AND PREVIOUS OR SUBSEQUENT CONDUCT: Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an oﬀence against whom is the subject of any proceeding, is relevant, if such conduct inﬂuences or is inﬂuenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.” 16. In view of the same, this Court is of the view that P.W.1 stated before the Court that she witnessed the dead body of the deceased and found some black marks on her neck and also she was able to identify blood strains in the bed-sheet. The same was supported by the evidence of P.W.4, and, further the evidence adduced by the prosecution to prove that the elders, P.W.1-mother-in-law and P.W.4-house owner raised questions about the cause of death and also there were some deliberations among the elders and suspected the appellant. 17. As such, evidence of P.W.1,who is the mother of the deceased, runs as follows: “….. After reaching the house of the accused we found the dead body of the deceased in the kitchen room lying ﬂat on a mat. A blanket was covered over half of the body and there was stains of blood to the blanket. I found blackishenss on the neck and blood at the angle of the month and nose. On enquiry my grand son Tharun Chakravarthi informed me that A-1 killed the deceased by kicking on her abdomen and beating her with a stick by placing a cloth in her mouth on the previous night. While I was in grief A-2t o A-5 an some others approached me and informed me that considering the future of the children they will get the property transferred in the name of the children and that therefore I may not give any report to the police… …In our community family disputes will be settled by the caste elders. During the life time of the deceased disputes arose between me and A-1 and between the deceased and A-1…..” 18. The evidence of P.W.2, son of the deceased and appellant, runs as follows: “ In the morning of the next day I disclosed the incident to my maternal grand mother and maternal uncles. Before their arrival I disclosed the incident to my paternal grand parents also who came in the ﬁrst instance. I am now staying with my maternal grand mother…” 19. The evidence of P.W.4, owner of the house where the appellant and deceased resided, runs as follows: “…..I found her laying on a mat. I instructed him to lift the leg and hand of the deceased, though he tried to left them, I observed them stiﬀ as they are not raising. I did not touch the body. A-1 enquired me as to what happened and when I was thinking he himself stated that the deceased died. Against says that A-1 enquired me chachipoyinda? A-1 again opened her eyes and then proclaimed her dead. I found blood marks at the angle of the mouth and the nostrils. I also found blood mark on the bed sheet. By the time we went to see the deceased A-1 covered the body completely with a bed sheet. The bed sheet contained blood marks… ………At about 9. a.m. the relatives and the elders on both sides came to the village and had discussion with A-1 in a room in the portion of A-1. The discussion went on till 2 or e p.m. Even without my asking after due deliberations to avoid complications to me A-1 voluntarily executed of his own accord a letter stating that he himself is responsible for the death of the deceased and gave the letter to me. Ex.P.6 is the letter given to me which was written by G.Chinavenkanna who is a retired teacher residing opposite to my house…” 20. The evidence of P.W.6,who is an independent witness, who prepared Ex.P.6, runs as follows: “ On 28.2.1999 at about 7 a.m. the brother, father and other relatives of A-1 approached me and requested me to scribe a paper making some arrangement for the children. According to their dictation I scribed Ex.P.6. The time mentioned by me as 7 a.m. is incorrect and it was written by me at 11 a.m. (The witness made the correction in his statement after going through Ex.P.6). A.1 signed and also affixed his thumb impression. The elders that gathered attested the same. After the execution of the paper and attested by the witnesses I signed the paper as the scriber. Thereafter they took away the deceased…” 21. The evidence of P.W.8, who is also an independent witness, runs as follows: “…When the elders of the village of A-1 expressed suspicion and questioned A-1 saying that it is not a natural death and you might have committed the murder. A-1 confessed his committing the murder………. …….Then they consulted A-1 questioning him as to whether he is prepared to make arrangement for the children. A-1 agreed for transferring his property in favour of his children. Then they consulted P.W.1, her brothers and us. Then all of us accepted the proposal…” 22. In view of the above, the said evidence adduced by the prosecution clearly proves to the eﬀect that the death of the wife of the appellant is not a natural one. Further, the appellant herein also has not taken any step when the death of the wife of the accused questioned by the witnesses stated above to lodge a complaint and exonerated himself from the said accusation raised by the witnesses. 23. Even though there is no medical evidence available, it is not the fault of the prosecution since the complaint was lodged by P.W.1 after the lapse of three days. So there is no possibility of the investigation agency to adduce any evidence by way of medical examination. The appellant cannot raise the point when he has not taken any steps subjecting himself for the scrutiny of the investigation agency by lodging a complaint regarding the death of his wife. Further, this Court is of the view that any prudent man who lasts his wife all of sudden without any ailment who is aged about only 35 years during the matrimonial tie, the said person in the normal circumstances to subject the body for medical examination to know the cause of the death. In this case there is no explanation adduced by the accused either during the investigation or at the time of examination under Section 313 Cr.P.C. 24. When the accused with the help of the villagers prevented normal legal procedures to be adopted, in such circumstances he has no right to question the non-availability of any medical evidence. That is way he is rightly convicted under Section 201 of the Indian Penal Code. 25. Hence safely placing reliance on the above said witnesses, this Court can come to the conclusion that the death is due to homicidal violence. 26. When it comes to place reliance on the said witnesses, the learned Counsel appearing for the appellant has raised a question as to whether these witnesses can be believed? 27. The main contention of the learned Counsel is that P.W.1 is not a reliable witness in view of the fact that she categorically admitted in the cross examination that she lodged a compliant since the appellant herein refused to convey the property as promised by him in the name of her grand children. Placing reliance on the said admission of P.W.1 the learned Counsel argued that it shows the nature of P.W.1 who is very much interested in the property of the deceased and aggrieved over the non conveyance of the said property, she lodged a complaint and she is also a party to screening of evidence in the oﬀence committed by the oﬀender. A meticulous perusal of the complaint as well as the evidence adduced by P.W.1 discloses that P.W.1 even though helped the accused in the beginning, she is one who set the law in motion by lodging a complaint and also it is the case of the P.W.1 in the interest of the grand-children that she does not want to lodge a complaint. In the said circumstances, P.W.1 cannot be said to have attracted the oﬀence under Section 201. Further she truthfully deposed before the Court. Without knowing that such evidence adduced by her will be used against her clearly shows that she wants the culprit to be punished. The conduct of P.W.1 is quite natural in view of the fact that she wanted to protect the grandchildren in the absence of their mother. 28. Further the learned Counsel for the appellant submitted that P.W.1’s evidence in connection with the occurrence is contradictory to the evidence of P.W.2. According to P.W.1, she lodged complaint on the basis of information given by P.W.2. When this fact being so, the contradiction in evidence of P.W.1 and P.W.2 is material in nature. On a perusal of evidence adduced by P.Ws. 1 and 2, there is a diﬀerence regarding the nature of attack by the accused on the deceased. Admittedly P.W.1 lodged complaint on the information given by P.W.2. It is quite natural for some minor discrepancies to occur in connection with the attack on the deceased since she is not the eyewitness to the occurrence. 29. Further, the learned Counsel for the appellant assailed the evidence adduced by P.W.2 who is the child witness and his evidence cannot be a ground to convict the accused. This Court is also aware of the fact that placing reliance on the evidence of said witness, conviction cannot be imposed upon a person, but, at the same time, when the same is corroborated by other circumstances, reliance can be placed safely on the evidence adduced by the child witness. 30. P.W.4 is not an interest witness and also not related to either party and he being the house owner, he deposed in a manner, which gains conﬁdence of this Court. In his evidence, he deposed that the appellant called him to his house and requested him to ﬁnd out what happened to his wife. When he entered the kitchen he saw the dead body in the kitchen. At that time A-1 enquired P.W.4 what happened to her. Even prior to his answer, he informed that the deceased died. Prior to that the appellant informed him that the deceased died and also he stated that he found blood marks on the angle of mouth and the nostrils and also on the bed sheet. Further he deposed that the relatives of the appellant and the deceased arrived at the place of occurrence by 9.00 AM and villagers in general also arrived there; all of them discussed in the room portion of A.1. Further, he deposed that the accused/appellant herein executed a letter that he himself is responsible for the death of the deceased and handed over the letter to him. Even in the lengthy of cross-examination, nothing was elucidated to disprove the evidence of P.W.1. 31. As far as the evidence of P.W.2 is concerned, who is a child witness and none other than the son of the appellant/accused No.1, deposed before the Court that he saw his father beat his mother (deceased) with stick and also stated that he witnessed blood strains and black marks on the right side of the neck and informed the same to P.W.1. It is submitted by the learned Counsel for the appellant that the said witness should not be relied on, since the child was not examined by the trial judge in the manner prescribed by law. Even though the learned trial Judge stated that he has satisﬁed that the child witness is capable of understanding the questions, but he has not relied on the same in such a way for the appraisal of the Court. But on a perusal of the record, it is evident that the satisfaction arrived at by the learned trial Judge is not recorded in the appropriate format, but at the same time, the evidence relied on by the trial Court more particularly by putting questions to the said witness and replies given by the said witness clearly shows that the said witness is capable of understanding the things and capable of giving evidence. 32. Further, P.W.6 who is a scribe of Ex.P.6, which was signed by the appellant herein admitting the responsibility for the death of the deceased, in his evidence stated that A.1 approached him and requested to scribe on a paper