HON’BLE SRI JUSTICE R.KANTHA RAO AND HON’BLE SRI JUSTICE A. GOPAL REDDY Dated:10-11-2011 BETWEEN: Thattikota Satyananarayana …Appellant AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE R.KANTHA RAO AND HON’BLE SRI JUSTICE A. GOPAL REDDY CRIMINAL APPEAL NO.81 OF 2008 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) Sole appellant-Thattikota Satyanarayana was put on trial for the offence punishable under Section 302 I.P.C. in S.C. No.477 of 2006 on the file of the II Additional Sessions Judge (Fast Track Court), Parvathipuram for causing the death of his wife Thattikota Gowri ((hereinafter referred to as ‘the deceased’). By judgment dated 16.10.2007 he was convicted for the said offence and was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for six months. 2. The gravamen of the charge against the accused is that on 29.04.2006 at 9 p.m. he caused the death of his wife-Thattikota Gowri by putting a towel around her neck tightly, pressing her nose and mouth within the limits of Police Station, Bobbili. 3. The story of the prosecution, as narrated during the course of trial, is as under: The marriage of the deceased with the accused was performed about 13 years prior to the death of the deceased. The deceased used to work as coolie on Navya Jute Mills, Bobbili. About 12 days prior to the incident, the deceased took the thatched house of PW-9- Depallapudi Appa Rao on rent and was living there along with the accused. On 29.04.2006 the deceased returned home along with her paramour PW-8-Gorli Pydiraju after seeing first show cinema in Bobbili under the impression that the accused would return home late as he went to Rayageda in Orissa State. It is further alleged that on 01.05.2006 at about 10.30 p.m. the accused took a cycle from PW-7-W.Gurunadha Rao and returned home and after hearing the noise in the house, he found his wife with PW- 8 on cot in a naked position cohabitating with each other and at the request of the deceased, the accused gave way to PW-8 and when the said incident was questioned by the accused, the deceased gave adamant reply saying that she is enamored of her paramour, then the accused put his towel around the neck of the deceased, pulled it tightly, pressed her nose and mouth, as a result of which, the deceased died on the spot. Thereafter, the accused left the place and kept the cycle at the house of PW-7 and went to the house of his junior paternal aunt Thadibidakala Adamma and alleged to have disclosed the offence to her. On 01.05.2006 at about 6 p.m. the accused went to PW-7 and alleged to have made extra judicial confession under Ex.P-3 before him and thereafter, PW-7 submitted Ex.P-4 report to the police. It is further alleged that prior to submission of this report, PW-1, Village Revenue Officer of Gollapalli village gave report Ex.P-1 to PW-15, the Sub-Inspector of Police on the information given by PW-2, the brother of the deceased. According to the complaint, PW-2’s son PW-5 went to the house of the deceased at about 7.00 a.m. and found the deceased in a naked and death position. Upon such information, PW-2 informed PW-1, then they went to the scene of offence and PW-1 lodged report with the police. Basing on the said report, PW-15 registered a case in Crime No.61 of 2006 on 30.04.2006 for the offence under Section 174 Cr.P.C., rushed to the scene of offence, prepared rough sketch under Ex.P-23, secured the presence of PW-10 and prepared observation report under Ex.P-6, recorded the statements of PWs.1, 3 to 6, 10 and LW-13 (D.Eswar Rao), conducted inquest over the dead body and got photographed the dead body of the deceased through PW-11. PW-12, the Civil Assistant Surgeon, Govt. Community Health Centre, Bobbili conducted post mortem examination over the dead body of the deceased and issued Ex.P-9 post mortem report. After receiving Ex.P-4 from PW-7, the accused was arrested and PW-15 altered the section of law from 174 Cr.P.C. to Section 302 IPC under Ex.P-24, then he handed over the investigation to PW-16, the Inspector of Police who laid the charge sheet against the accused. 4. On committal, the learned Additional Sessions Judge framed a charge against the accused for the offence under Section 302 IPC and when explained and read over the charge in Telugu, the accused denied the same and claimed to be tried. 5. To bring home the guilt of the accused, prosecution examined P.Ws.1 to 16 and marked Exs.P.1 to P.24 besides M.O.1. No oral or documentary evidence was adduced on behalf of the accused. 6. The learned Additional Sessions Judge after appreciation of oral and documentary evidence brought on record, found the accused guilty for the offence under Section 302 IPC and sentenced him as aforementioned. 7. The accused was provided with legal aid by the Legal Services Authority in preferring the present appeal. 8. We have heard Sri S.Surender Reddy, learned counsel appearing for the appellant and also the learned Public Prosecution representing the State. 9. Learned counsel appearing on behalf of the appellant-accused contended that except the evidence of PW.8 and PW-7 before whom the accused made extra judicial confession, there is no other evidence to connect the accused with the crime. It is further contended that even if the said evidence is accepted, the accused cannot be convicted for the offence punishable under Section 302 of IPC as the offence was committed by the accused was in a grave and sudden provocation and at the most, the accused is liable for punishment for the offence under Section 304 Part-I IPC. 10. On the other hand, the learned Public Prosecutor sought to sustain the conviction and sentence imposed on the accused. Both the learned counsel taken us through the entire evidence adduced and the findings recorded by the learned Additional Sessions Judge. 11. There are no eyewitnesses to the incident. PW-1, Village Revenue Officer of Gollapalli village deposed in his evidence that on coming to know about the deceased on a cot in a naked position, himself and PW-2 went to the house of the accused and found the deceased lying on a cot in a naked position and accordingly he gave a report to the police Ex.P.1, on the basis of which a crime was registered. PW-2 told him that his sister died in a suspicious manner and accordingly he drafted Ex.P.1 report, but he did not know the exact time of the death of the deceased, who died on 29.04.2006 and he also prepared Ex.P.2- inquest panchanama. PW.2 who is the elder brother of the deceased stated that the marriage between the accused and the deceased was performed 13 years ago and they were blessed with two children, one male and female and after the marriage, both were lived in Makkuva by doing coolie work and eking their livelihood. Due to non-availability of coolie work at Makkuva, PW-2 brought both of them to his village Gollapally eight months prior to the death of the deceased. The deceased was doing coolie work in Navya Jute Mill and the accused also doing coolie work at Bobbili. On 30.04.2006 at 7 a.m. his son Mohan-LW6 informed him about the death of the deceased, on that himself and PW.3-Murali and Pila Apparao-LW.4 went to his sister’s house and found the deceased died in a naked position on a cot and then he informed the same to PW.1. He gave a report to the police, but did not give any report to the police suspecting any person responsible for the commission of the offence. PW.3 also corroborated the evidence of PW.2 with regard to his accompanying PW.2 to the house of the accused and seeing the deceased lying on a cot. PW.4 also went to the house of the deceased and saw the deceased lying on the cot. PW.5, son of PW-2 stated in his evidence that the accused is his uncle and every Sunday he used to visit his house. On Sunday, when he went to the house of the deceased, he found the doors of the house were closed and when there was no response for his call, he knocked the door and saw the deceased in a naked position on the cot and he rushed to his house and informed the same to his father-PW.2. PW.7 – fair price shop dealer stated that the accused joined in his shop as daily wage labour on 23.04.2006. On 29.04.2006 at 07.00 PM after completion of his work, he paid the daily wage amount to the accused, that the accused asked his cycle to go to his house and accordingly, the accused took the cycle and on the next day early morning, the accused put the cycle in front of his house. Again on 01.05.2006 the accused came to his house at 05.30 or 06.00 PM, requested him to come inside the house for giving important information, and when he questioned, the accused told him that when he reached his house after taking wage, he heard some noise from his house, then he forcibly pushed the doors of his house and found his wife with another person PW.8 in a naked position on a cot and both were in cohabitation, that the accused further told him that PW.8 is a driver with whom the deceased was cohabitating and the deceased asked him not to quarrel with PW-8 and allow him to go out and after PW-8 left the place, the accused questioned the deceased about her conduct, the deceased replied that as the earnings of the accused were not sufficient for their maintenance, she is ready to give divorce and keep PW-8 as a paramour. On hearing the adamant answers given by the deceased, the accused took the towel and throttled his wife to death and due to the fear of the police, he voluntarily surrendered before the police thinking that the police will save him. PW.8 with whom the deceased was seen on the bed was examined by the Magistrate and the Magistrate recorded his statement under Section 164 Cr.P.C.-Ex.P.5 also deposed in the court stating that he got acquaintance with the deceased and every day, he used to ply their jeep with passengers from Therlam to Bobbili twice in a day. He further deposed that the deceased, who was working as coolie used to travel in his jeep quite often and in that process, they developed illicit intimacy and on 29.04.2006 at 02.30 PM while he was going to Therlam with passengers, the deceased met him at Gollapalli village and asked him to come to first show cinema to Vasavi theatre of Bobbili and thereafter, himself and the deceased went to first show cinema and in the middle of the cinema, she informed him that her husband was not present in the house and invited him to come to her house and after completion of cinema, himself and the deceased went to the house of the deceased situated at Chinthala Veedhi in Gollapalli village and had a meal along with the deceased and while they were in sexual intercourse with each other on a cot in a naked position, at about 10.30 PM suddenly her husband pushed the door and entered into the house, on seeing the accused, PW-8 went to the back side of the house, then the deceased asked her husband to leave PW-8 stating that they will discuss the matter later. On the next day morning while PW-8 was plying his jeep from Bobbili to Therlam, on enquiry he came to know that the deceased died lying on the cot without clothes. PW.12-Dr. Sashibhooshan Rao deposed that he conducted postmortem examination over the dead body of the deceased and issued postmortem report-Ex.P.19 and basing on Ex.P-19 and the RFSL report-Ex.P.20, the doctor opined that the deceased died due to asphyxia due to strangulation. PW-12 further deposed that he also examined PW.8 and issued Ex.P.21 potency certificate. PW.15-Sub Inspector of Police, who conducted the investigation initially, registered a crime and rushed to the scene of offence, prepared the observation report, rough sketch and recorded the statements of PWs.1, 3 to 6, 10 and Damma Eswara Rao-LW13, conducted inquest over the dead body of the deceased in the presence of mediators and sent the same for postmortem examination. Basing on the report Ex.P.4, he altered the section of law and Ex.P.24 is the altered FIR. PW.16, Inspector of Police deposed in his evidence that he took up the investigation and after completion of investigation, he filed the charge sheet against the accused. 12. In order to prove the guilt of the accused, the prosecution relied upon the evidence of PW8, the paramour of the deceased and PW-7 before whom the so-called extra judicial confession was made by the accused. The evidence of PW.2, the elder brother of the deceased discloses that the deceased was doing coolie work in Jute Mills at Bobbili and the accused was also doing daily wage work. As the coolie work is not available at Makkuva village, PW-2 brought both the accused and the deceased to his village eight months prior to the death of the deceased and 10 days prior to her death, they were shifted to the rented house, where the deceased died. Both the accused and the deceased were alone living in the house as the daughter of the deceased and the accused was working as house-maid and their son was admitted in the hostel. 13. As per the evidence of PW.8 he developed illicit intimacy with the deceased and on the date of incident, both of them after witnessing the cinema, went to the house of the accused and after taking meal both were involved in sexual intercourse, at that time the accused entered into the house and on seeing the accused, PW-8 left the house as pleaded by the deceased who is the wife of the accused. Added to the same, PW.7, a fair price shop dealer in whose shop the accused was working as daily wage earner and before whom the accused made confession also discloses that the accused entered into the house and saw the accused and the deceased in a compromising position. When the accused questioned the deceased about her conduct, she gave reply to the effect that as the earnings of the accused are not sufficient for their livelihood, she intends to give divorce to him and keep PW-8 as her paramour. Enraged by the same, the accused took a towel, tied around the neck and throttled the deceased to death. Therefore, in our considered view the case falls under Section 304 Part I IPC as the incident happened in a sudden and grave provocation. Further, by examining PW-12, the doctor, the prosecution could be able to establish that the deceased died due to asphyxia due to strangulation. 14. In the result, the criminal appeal is allowed in part. The conviction and sentence imposed on the appellant-sole accused by the II Additional Sessions Judge (Fast Track Court) Parvathipuram in S.C.No.25 of 2007, dated 16.10.2007 are hereby set aside and the appellant-accused is found guilty for the offence under Section 304 Part-I of IPC, convicted thereunder and sentenced to undergo imprisonment for the period already undergone by the appellant. He shall be set at liberty forthwith, if not required in any other crime. _________________ A. GOPAL REDDY. J _________________ R. KANTHA RAO,J Date:10.11.2011 Kvrm/ccm HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL NO.81 OF 2008 (Judgment of the Bench delivered by Hon’ble Sri Justice A.Gopal Reddy) Date:10-11-2011