[2008] 14 S.C.R. 498

MONDRI SREENU

J-- v.

STATE OF ANDHRA PRADESH

OCTOBER 15, 2008

 (Criminal Appeal No. 1263 of 2005)

(S.B. SINHA AND CYRIAC JOSEPH, J.J.]

t-- Penal Code, 1860:

c s. 302 - Accused convicted of causing death of his mother-in-law - Conviction and sentence of imprisonment for life upheld by High Court - HELD: Apart from confession before Magistrate and I. 0., accused also made extra judicial confession to the witness who caught and handed him over to police - Accused never retracted the confessions - Weapons D of crime were recovered at the instance of the accused - It is not a case where courts below could have totally ignored recovery of said articles - Witnesses saw the accused at the relevant time with the deceased near the place of occurrence - Medical evidence corroborated the probable time of death E when accused was seen near place of occurrence and that injuries could have been caused by weapons recovered - Strained relations between parties because of marital disharmany between accused and daughter of deceased not in dispute - There is no merit in the appeal - Confession and Extra-

F ; udicial confessions - Circumstantial evidence - Accused last \__ seen with deceased - Recovery of weapons of crime. [para 17-19, 24-27]

Code of Criminal Procedure, 1898:

G ss. 164 and 342 - Applicability of in Scheduled Area of Andhra Pradesh - HELD: Court can take judicial notice that State of A. P did not extend to its Scheduled areas, the provi- 1. sions of the new Cr.PC. -Accused was examined in terms of s. 342 of the old Code - As there is no separation of Judicial

H 498

MONDRI SREENU v. STATE OF ANDHRA 499

PRADESH --i and Executive Officers, accused was produced before Execu- A tive Officer for recording his statement u/s 164 - As provisions of old Code were applicable, non-compliance of provisions of s. 164 of the 19 73 Code was not of much significance - A statement made by accused u/s 164 is admissible in evidence - Confession - Judicial Notice - Code of Criminal Procedure, B 1973 - s. 164. [para 20-21]

~ CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1263 of 2005

From the final Judgment and Order dated 12.10.2004 of c the High Court of Judicature of Andhra Pradesh at Hyderabad in Criminal Appeal No. 944 of 2002

Ansar Ahmad Chaudhary for the Appellant.

Altaf Fathima and D. Bharathi Reddy for the Respondents.

D The Judgment Order of the Court was delivered ~

1. Appellant is before us aggrieved by and dissatisfied with the judgment and order dated 12 .10 .2004 passed by the High Court of Andhra Pradesh at Hyderabad, whereby and E whereunder the appeal preferred by him from a judgment and order dated 21.12.2001 passed by the learned Sessions Judge, Khammam in S.C. No.143/2001 convicting the appellant herein for commission of an offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo impris- F onment for life and also to pay a fine of Rs. 100, in default to ___,(

suffer R.I. for one month, was dismissed.

2. The basic fact of the matter is not in dispute.

3. The deceased Batta Chandramma is the mother-in-law of the appellant. Appellant married her third daughter Bhadrakali G sometime in 1990. A daughter and a son were born to them. As ... appellant is said to have started harassing his wife by beating .,-

and abusing her, she deserted him and went to her parents' house at Chinthalagudem Village and started living with them.

Appellant, thereafter, married another woman. However, he H

A came to Village Chinthalagudem where his parents-in-law were residing, to live with them. But after 10 days he started harassing his wife again. Batta Chandramma (the deceased)- motherin-law of th~ appellant allegedly used to quarre, I with him and had asked him to leave the house.

4. On 19.10.1999, the deceased went to the agricultural field belonging to the family and she did not return till evening.

On enquiry, one B.P. Veraiah informed the informant that he had seen the appellant in the fields and also heard some cries. Pur-, suant thereto, Pitchaiah, Chinna Veeraiah, Baria Ram Babu and C Degala Veeraiah went to the fields in search of Chandramma.

They found her dead body lying in a pool of blood. Her sari was also tied around her neck. Accusing the appellant as the person responsible for her death, a first information report was lodged. Appellant was arrested at about 8.30 P.M. on D 22.10.1999. He admitted his guilt and confessed about the commission of the offence. He also made a disclosure statement pursuant whereto a stick and a stone, which were said to have been used in the commission of the offence, were recovered.

The said articles were seized.

5. Appellant was produced before Shri R. Verra Reddy, Mandal Magistrate, Dummugudem on 4.11.1999 and his confessional statement was recorded.

6. Before the learned Sessions Judge, the prosecution F examined 18 witnesses. We, however, need not deal with the depositions of all the prosecution witnesses. Suffice it to point out that PW-1 (Batta Pitchaiah) father-in-law of the appellant in his deposition categorically supported the statements made in the first information report before the S.H.O. of Bhadrachalam G Police Station. PW-2 Bhadrakali, who is the wife of the appellant, also supported the prosecution case. PW-3 Batta Pedda Veeraiah and PW-4 Batta China_ Veeraiah, who were brothers of PW-1 and had been working in the adjoining fields, deposed that they had seen appellant and the deceased together. PW-3 categorically stated that whereas the deceased Chandramma H

was sitting on 'Mancha' in her paddy field, the appellant (ac- A cused) was standing near it and Chandramma was shouting at appellant. Thinking that the same was a common affair between them, he went to his work. The evidence of PW-4 is also to the same effect.

7. PW-5 Degala Veeraiah is a resident of Chinthalagudem B

Village. He in his deposition categorically stated that on the date of incident, while he was grazing his bulls at the pastures at about 1.00 P.M., he found the appellant going towards the field of PW-1. He furthermore found the appellant coming back in a hurry at about 4.00 P.M .. He called him (appellant) but he did c not give any reply to his call and went away. On the same night he learnt that Chandramma was found dead in the fields.

8. PW-6 Baria Raghavulu who is also a resident of Chinthalagudem Village, a mason by occupation, in his evidence D stated that 3 days after the death of Chandramma, he saw the accused while he was talking to his brother at Bhupathiraopeta Colony. When the accused was questioned, he confessed before him that he killed his mother-in-law as she had not been , allowing him to live with his wife (PW-2). Appellant was caught E by the said witness and then handed over to the S.H.O., Bhadrachalam Police Station.

9. PW-7 K. Rajamma is said to be the second wife of the appellant. She came to learn about the first marriage of the appellant one year after her marriage with him. Thereafter, she F left his company. According to her also, appellant used to beat her after consuming alcohol.

10. One D. Motiya, who examined himself as PW-8, was residing in the house adjacent to the house of the deceased.

He also testified that the appellant used to harass his wife PW- G 2 whereupon a Panchayat meeting was convened and the ap- -t pellant was chastised. He also deposed that after the meeting of the Panchayat, appellant came to his in-laws' place and started living there. He also proved that Chandramma used to harass and warn him to go out of the said house but he contin- H

A ued to live there. Almost to the same effect is the evidence of .~ PW-9. Both PW-8 & PW-9 supported the prosecution case. '\-

11. The learned Sessions Judge having regard to the aforementioned materials brought on record by the prosecu-

B tion found the appellant guilty of commission of offence and recorded a judgment of conviction and sentence in the manner as noticed hereinbefore.

~ 12.The High Court on-appeal preferred by appellant has affirmed the said judgment of conviction and sentence.

l c

13. Mr. Ansar Ahmad Chaudhary, learned counsel appearing on behalf of appellant would raise the following contentions in support of this appeal:

(1) That the recovery of stone having been made from

D an open place, no reliance could have been placed thereupon by the Courts below.

(2) The evidence of PW Nos.3, 4, 5 & 6 could not have been relied upon by the Courts below as it was wholly unbelievable that although they had been working in E the adjoining fields, but did not come to the rescue r l of the deceased despite her cries.

(3) P\/\f-1 the informant in the first information report did not make any statement as to how the death of the

F deceased took place and as such prosecution must be held to have failed to prove its case. ·~ (4) No reliance can be placed on the statement of the appellant purported to have been made under Section 164 of the Code of Criminal Procedure as

G no requisite warning, before making the statement, that the same can be used against him in the criminal case was given. .1-

14. Learned counsel appearing on behatf of the respondent, on the other hand, supported the impugned H judgment.

MONDRI SREENU v. STATE OF ANDHRA 503

PRADESH --1 15.The background fact in which the offence was alleged A to have been committed is not in dispute. The relationship between the parties is also not in dispute. The fact that appellant had married PW-2 and they had been living separately for a few years before he came to his parents-in-laws' house to live with his wife has also not been disputed.

- ) 16.0ut of those witnesses who had deposed in support of the prosecution case for proving the guilt of appellant, not only PW-5, but also the second wife of the appellant who are independent witnesses, to a large extent, supported the prosecution case. The strained relationship between appellant and the c deceased must be held to have been proved. PW-2 who is the wife of the appellant, had completely supported the prosecution case in that regard.

17. The prosecution case must also be considered from D another angle. PW-6, although is a resident of Chinthalagudem ,;--i Village, who had been earning his livelihood by working as a mason, used to visit Bhadrachalam. He found the appellant talking with his brother at Bhupathiraopeta Colony at about 7 .30 P.M. on 22.10.1999. Appellant made an extra judicial confes- E sion before him. The reason that the deceased did not allow

him to live with his wife (PW-2) was said to be the reason for commission of the offence. It was at that point of time he caught hold of appellant and handed him over to the S.H.O. of the Bhadrachalam Police Station.

18. Yet again in the Police Station, the appellant made a confession. Apart from the Investigating Officer (PW-18), a con~ fession was also made before PW-14 Yalam Kendal Rao, a resident of Bhadrachalam.

19. Appellant did not raise any contention that he did not G

4make any extra judicial confession or a confession before the Judicial Officer as also before the PW-14. Indisputably, he was produced before the Mandal Officer. The investigation of the case was taken up by PW-18 Devadas. He produced the appellant before the Manda! Magistrate R. Veera Reddy on H

\--- A 4.11.1999. His statement was recorded under Section 164 of the Code of Criminal Procedure.

20. Submission of the learned counsel for the appellant Mr. Ansar Ahmad Chowdhary that PW-15 Veera Reddy did not

B comply with the provisions contained in Section 164 Cr.P.C. may not be of much significance. Bhadrachalam falls within a scheduled area in the State of A.P. The State of A.P., this Court tcan take judicial notice, had not extended the provisions of the new Cr.P.C. to the scheduled areas of the State of A.P. This fact ...

would be evident from the fact that appellant was examined in c terms of Section 342 of old Cr.P.C. As there is no separation of the Judicial and Executive Officers, appellant was produced before the Executive Officer for recording his statement under Section 164 of Cr.P.C. As the provisions of the old Code were applicable, the precautions which were required to be taken in D terms of Section 164 of the 1973 Code were not complied with.

21. Be that as it may, appellant never retracted the said confession. A statement made by the accused under Section 164 of Cr.P.C. is admissible in evidence. Apart from the juditial

E confession,- as noticed hereinbefore, the appellant has also made extra judicial confession before PW-6.

22. PW-17 Dr. Jhansi Lakshmi, Civil Assistant Surgeon, Area Hospital, Bhadrachalam, who conducted the post-mortem over the dead body of Chandramma, found the following ante-

F mortem injuries:

~- 1.

Lacerated wound 3 x 2 x 2 ems. over the forehead.

Loss of right eye-ball.

Lacerated would 3 x 4 x 1 ems. over dorsal aspect G of left foot.

Lacerated would 3 x 1 x 1 ems. over left side of + abdomen.

Abrasion 3 x 2 ems. over right elbow region.

Contusion 5 x 6 ems. on right temporal region.

Contusion 3 x 3 ems. over right cheek.

23. The said Dr. Jhansi Lakshmi was examined as PW-

17. in her deposition before the learned Sessions Judge, she categorically stated that those ante-mortem injuries were pas- B sible to have been caused by a blunt object like stone or stick.

She found a fracture of ribs on the right side of the deceased, as a result of which a laceration of the right lung was found to be present. She also found 300 CC fluids blood in the right plural cavity, ligature mark on the neck of the deceased, congestion c and haemorrhage by the side of the ligature mark and subdural haematoma on right temporal region. In the aforementioned background, PW-1 had not been able to specifically state the cause of death and he must be held to be a truthful witness. The exact cause of the death of the deceased, thus, in the afore- 0 mentioned situation could not have been certain to a layman, like PW-1 and other witnesses.

24. It may be true that the stone was found in an open place.

But unless and until the site thereof was pointed out, as the Investigating Officer (PW-18) categorically stated, he could not E have identified the weapon which was used for commission of the offence. It was found to be blood stained. Apart from the stone, a stick was also pointed out by the appellant which led to its discovery.

25. It is, therefore, not a case where the Courts below could F have totally ignored recovery of the said articles. Furthermore, although not strictly admissible, even a confession was made by appellant in the Police Station before PW-14 and one Seetha Ramulu. Their statements before the Court are also now not in dispute.

26. Submission of the learned counsel for appellant that the 'last seen' theory propounded by the prosecution cannot be relied upon, is, in our opinion, not of much substance. It has not been denied or disputed that the brothers of PW-1, namely, Batta H

~ ) A Pedda Veeraiah (PW-3) and Batta China Veeraiah (PW-4) had !---· lands by the. side of the land of the deceased and PW-1. PW-3 ' in his statement, categorically stated that although appellant and the deceased were found to be quarrelling with each other, he ignored the same as that had become almost a routine affair.

B He came to know about non-return of the deceased from the

field only in the evening.

27. Furthermore, not only PW-3 and PW-4 but other pros- )..--- ecution witnesses whose independence is not in question, also proved thepresence of appellant near the place of occurrence c on the date of occurrence between 1.00 P.M. and 3.00 P.M.

According to the postmortem report, that was the probable period during which the offence is said to have been committed.

28. For the reasons aforementioned, we are of the opinion that there is no merit in this appeal which is dismissed accordingly.

R.P.

Appeal dismissed.

.___ ,.