*THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO +Criminal Appeal No.243 of 2007 % 21-10-2009 # Adipaka Kanaka Appa Rao, S/o.Sanyasi, Aged 35 years, E.Bonangi village, Paravada Mandal, Visakhapatnam. (Present Address: C.T.No.6316, Central Prison, Visakhapatnam) … Appellant/Accused Vs. $ 1. State, Rep. by the Inspector of Police, Gajuwaka Police Station, Gajuwaka Circle, Visakhapatnam City and another … Respondents ! Counsel for the Appellants: Sri M.Aravindu Counsel for the Respondent: Public Prosecutor, High Court of A.P., Hyderabad. < Gist: > Head Note: ? Cases referred: - Nil - THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.243 of 2007 Date: 21-10-2009 Between Aripaka Kanaka Appa Rao … Appellant/Accused and 1. State, Rep. by the Inspector of Police, Gajuwaka Police Station, Gajuwaka Circle, Visakhapatnam City. 2. The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of A.P., … Respondents THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.243 of 2007 Judgment: (per R.Kantha Rao, J.) The sole accused in Sessions Case No.48 of 2006 on the file of the IX Additional Sessions Judge (Fast Track Court), Visakhapatnam is the appellant before us. He challenged the judgment, dated 06-10-2006, rendered by the trial Court and the conviction recorded against him for the offence under Section 302 of IPC whereunder he was sentenced to undergo life imprisonment and to pay a fine of Rs.2,000/-. 2. (a) The gravamen of charge against the appellant is that on 19-11-2005 at about 11 O’ Clock in the night in his house situated at E.Bonangi village, he by means of strangulation as well as beating with the head of Usha Sewing Machine caused the death of his wife, by name Aaripaka Kumari, and thereby committed the offence of murder punishable under Section 302 of IPC. (b) According to the prosecution, the appellant was suspecting the fidelity of his wife, who hereinafter called ‘the deceased’, and on that score, there used to be frequent quarrels between the both and he drove her away to her parents’ house and subsequently brought her to his house 21 days prior to the occurrence at the intervention of the elders. On the date of incident i.e., on 19-11-2005 the deceased expressed her desire to go to her parents’ house, which was strongly opposed by the appellant and there was a wordy quarrel between the both during the course of which, the appellant who was suspecting the fidelity of the deceased pulled her down, tied the saree around her neck and tightened the same. But, having noticed that the deceased did not die he took out the head of the Usha Sewing Machine and beat her on her head indiscriminately due to which, the deceased died on the spot. (c) On the information conveyed by the villagers P.W.1, the Panchayat Secretary of E.Bonangi village in Paravada Mandal, proceeded to the house of the appellant and found the body of the deceased in a pool of blood and thereafter he went along with the Village Servant to Paravada Police Station and lodged a written report (Ex.P-1) with the police on which, a case in Crime No.144 of 2005 under Section 302 of IPC came to be registered against the appellant and the same was investigated into by P.W.20 – the Inspector of Police, Circle – Gajuwaka, who filed the charge-sheet after completing the investigation. (d) The prosecution, in order to bring home the guilt of the appellant before the learned trial Court, examined P.Ws.1 to 20, marked Exs.P-1 to P-15 and M.Os.1 to 9. The appellant (accused) did not propose to examine any defence witnesses but marked Ex.D-1. (e) The learned trial Court, upon considering the entire evidence on record and having regard to the facts and circumstances of the case, convicted the appellant for the offence under Section 302 of IPC and sentenced him to punishment, as mentioned above. 3. We have heard Sri Aravindu Maturi, learned Counsel for the appellant-accused and the learned Public Prosecutor for the respondents-State. 4. At the hearing of the appeal, the learned Counsel for the appellant would submit that the evidence on record discloses that the appellant was not at the house at the time when the incident was supposed to have taken place, the circumstances do not indicate that the appellant committed the offence and the trial Court erroneously recorded conviction against the appellant for the offence under Section 302 of IPC and the said conviction and the sentence passed inconsequence thereof are liable to be set aside in this appeal. 5. On the other hand, the learned Public Prosecutor appearing for the State would submit that the prosecution proved the circumstances relied upon by it by means of highly convincing and reliable evidence and the circumstances conclusively prove the appellant committing the murder of the deceased and therefore, the conviction and sentence passed against the appellant has to be upheld in this appeal. 6. Now, the point for determination in this appeal is -- whether the conviction and sentence recorded by the learned trial Court against the appellant can be sustained ? 7 . Point :- P.W.3, a neighbour of the deceased, whom the prosecution examined in order to prove the strained relationship between the deceased and the appellant, did not support the prosecution version and she was treated hostile by the prosecution. 8. P.W.4 is no other than the maternal grandmother of the appellant. As per the prosecution version, she, the daughter of the deceased, by name Laya, aged 4 years, the deceased and the appellant were residing in the house of the appellant and all of them were present on the date of incident. But, P.W.4 pleaded ignorance of witnessing the incident and moreover, she stated that on the date of incident the appellant was not in the house. She was also treated hostile by the prosecution. 9. P.W.5 is a crucial witness in this case, whose house is situate at a distance of 15 yards from the house of the appellant. She deposed before the trial Court that on 19-11-2005 the deceased and the appellant came to her house to watch Cricket match in the Television, they watched the match till 9.30 p.m., and on the next day morning, the daughter of the deceased, by name Laya, told her that her mother died. She further deposed that thereafter she went to the house of the appellant at about 8.30 a.m., and found the deceased on the floor near the cot with blood on her face. According to her, she also observed that the head of the sewing machine was near the body of the deceased. 10. She also deposed before the trial Court that there used to be frequent quarrels between the appellant and the deceased, and the appellant used to beat the deceased quite often, the deceased left for her parents’ home and only with the intervention of the elders, she was brought by the appellant to the matrimonial home 21 days prior to her death. She identified M.O.1, head of the sewing machine before the trial Court. 11. P.W.6 is a neighbour of the appellant. According to her, she witnessed the appellant, the deceased, P.W.4 and the daughter of the deceased Laya taking dinner at 8 p.m., at their house. She also stated before the trial Court that she saw at about 11 or 11.30 p.m., the appellant consoling his daughter Laya and on the morning of the next day, she came to know about the murder of the deceased and she proceeded to the house of the appellant and found the body of the deceased there. This witness also spoke about the frequent quarrels between the appellant and the deceased, the deceased leaving for her maternal home and subsequently brought back to the house of the appellant by him at the intervention of the elders. 12. P.W.7, who is no other than the mother of the deceased, testified before the trial court about the appellant suspecting the fidelity of the deceased and the strained relations between the appellant and the deceased, and the appellant beating the deceased quite often and driving her to the house of P.W.7. 13. P.W.9 is the brother of the deceased. He also spoke about the strained relations between the appellant and the deceased. 14. The evidence of P.W.10, who is also a neighbour, discloses that there used to be frequent quarrels between the appellant and the deceased. 15. P.W.11, who is a Watchman in a diesel shed at Lankelapalem, is a crucial witness in this case. He deposed before the trial Court that on 19-11-2005 in the midnight the appellant came to him and requested to permit him to sleep in a lorry till the next day morning, by saying that the lorry on which the appellant had to attend duty would arrive in the morning. This witness identified the appellant before the trial Court. His evidence also further reveals that on the next day morning the appellant went away without informing him. 16. P.W.12 is the Sarpanch of the village, who spoke about the mediation, which took place in connection with the disputes between the appellant and the deceased. 17. P.W.13 is another elder of the village, whose evidence discloses about the harassment caused by the appellant to the deceased by suspecting her fidelity and also the panchayat convened in that regard. 18. P.W.16 is the mediator, who stated before the trial Court that in his presence, the Inspector of Police seized the blood-stained clothes from the accused in pursuance of the confessional statement made by him. 19. P.W.19 is the Sub Inspector of Police, who registered the case against the appellant basing on the report lodged by P.W.1. 20. P.W.20 is the Inspector of Police, who is the Investigating Officer in this case and he spoke about the factum of recovery of blood-stained clothes in pursuance of the disclosure statement made by the appellant in the presence of P.W.16 and another mediator. 21. P.Ws.17 and 18 are the doctors, who conducted post-mortem examination over the body of the deceased and the evidence of P.W.17 discloses that he and P.W.18 found the following injuries on the body of the deceased: (a) Two ligature marks around the neck noted, bruising anteriorly and tailing posteriorly measuring 18 x 4 cms and 16 x 1.5 cms; (b) Laceration of the left upper lip mucosal area measuring 1 x 0.5 cms; (c) Lacerated injury left occipital region measuring 19 x 10 cms, scalp lap was raised. Bony injury noted at occipital region; (d) Laceration measuring 8 x 3 x 3 cms at the occipital parietal region the bone was fractured and a prope is easily extended into the hole; (e) Two lacerations on the occipital region measuring 5 x 2 x 2 cms and 3 x 2 x 2 cms, respectively, a healed post surgical scar over the lower abdomen; (f) Left eye congested, admatus haemorrhage in the congectiva and eyeball. The surrounding tissue filled with defused haemotoma; (g) Bleeding through left nostril, verticle humarises, noted all over the larengial cartilage with prominent haemorrhage here and there. Hyoid bones fractured at the right limb and angle. 22. The opinion as to the cause of death, according to him, is the massive head injury associated with asphyxia by a ligature around the neck. Ex.P-10 is the post-mortem report issued by P.Ws.17 and 18. 23. It is basing on the above stated evidence, the learned trial Court convicted the appellant for the offence under Section 302 of IPC. From the medical evidence of P.Ws.17 and 18, there is no manner of doubt whatsoever that the death of the deceased is homicidal. Admittedly, the body of the deceased was found in her matrimonial home, which is nothing but the house of the appellant. It is also borne out from the evidence on record that on the night of the incident, the appellant, P.W.4 and the daughter of the appellant, by name Laya, aged 4 years, were in the house. P.W.4 was present in the house during the night of the incident and therefore, she must be knowing as to where the appellant had gone during the said night. But her evidence is lacking in details. She only stated that the appellant was not in the house on the date of incident, but she did not ask the appellant as to where he had gone. Therefore, in our view, P.W.4 is not disclosing the true facts, which ought to have been within her exclusive knowledge. However, the evidence of P.W.5 discloses that the appellant, the deceased and their daughter Laya watched Cricket match in the Television at her house till 9.30 p.m. Her evidence therefore falsifies the entire defence theory that the appellant was not present in the house during the said night. 24. Similarly, the evidence of P.W.11 also indicates that at midnight the appellant came to the diesel shed in which P.W.11 was working, sought his permission and slept in a lorry till the morning of the next day and left the shed without informing P.W.11. From the evidence of P.W.11 also, it can be safely inferred that some time after the deceased died, the appellant came to P.W.11 and sought his permission to sleep in a lorry in the diesel shed. This witness is not in any way inimical to the appellant to give a false version against him. Against the version of P.W.11, there was no reasonable explanation from the appellant except total denial. 25. Further, the prosecution also proved recovery of the blood-stained clothes of the appellant in pursuance of the confession made by him to the Inspector of Police in the presence of the mediators. The very fact that the blood-stained clothes were recovered from the appellant suggests the culpable conduct of the appellant. 26. Since the murder of the deceased was committed in the house of the appellant and the evidence on record in this case is that the appellant was present in the house till 9.30 p.m., and the medical evidence indicating that the deceased might have died around 11 or 11.30 p.m., the appellant is duty bound to offer a reasonable explanation as to how the incident happened and as to where was he at crucial time. But, except the total denial there was no plausible explanation from the appellant. Therefore, the circumstances relied upon and proved by convincing evidence by the prosecution unerringly point out that the appellant alone is the perpetrator of the crime and nobody else. The circumstances are complete and there is nothing on record to suggest that in any way they are in favour of the presumption of innocence of the appellant. Therefore, we concur with the finding of the guilt arrived at by the trial Court and confirm the same. 27. Consequently, the conviction and sentence passed by the trial Court against the appellant are confirmed. The appeal is dismissed. _________________________ JUSTICE D.S.R.VARMA _________________________ JUSTICE R.KANTHA RAO 21st October, 2009. Note:- L.R.Copy to be marked. (B/o) Ak