IN THE COURT OF THE I ADDITIONAL SESSIONS JUDGE AT VIZIANAGARAM
Present:- Smt D.Leelavathi, B.Sc.,B.L., I Addl. Sessions Judge, Vizianagaram
Saturday, this the 31st day of December, 2011
SESSIONS CASE No.119 of 2011
Name of the ComplainantState, represented by the Inspector of Police, Rural Circle, Vizianagaram.
Name of the accused Nasari Appanna, s/o Yerakayya, 45 years, Yadava by caste, Bellanapeta Village, Kella Panchayat,Gurla Mandal,Vizianagaram District.
Charges498-A and 302 I.P.C.
Plea of the accusedNot guilty
Finding of the JudgeGuilty
Sentence of order The accused is sentenced to suffer R.I. for three years and to pay fine of Rs.1,000/- (Rupees One thousand only) in default of payment of fine to suffer S.I. for three months for the offence u/s.498-A IPC. And further sentenced to suffer IMPRISONMENT FOR LIFE and to pay fine of Rs.5,000/- (Rupees: Five thousand only) in default of payment of fine to suffer S.I. for one year, for the offence u/s.302 I.P.C. Both the sentences shall run concurrently. M.Os 1 to 10 and the unmarked property, if any, in this case, shall be destroyed after expiry of appeal time. Prosecution conducted byAddl.Public Prosecutor, Vizianagaram.
Defence conducted bySri A. Harish, Advocate, Vizianagaram (State Brief)
This case was committed by the Judicial Magistrate of I Class,
Cheepurupalli, as per order dated 28.07.2011 in P.R.C.No.7/2011 (Concerned in Cr.No.30/2011 of Gurla Police station).
1.The Inspector of Police, Vizianagaram rural circle laid the charge sheet before the learned Judicial Magistrate of the I Class, 2Sessions Case No.119/2011
Cheepurupalli against the sole accused in Crime No.30/2011 of Gurla Police station, under Sec.498-A and 302 I.P.C.
2.The brief allegations in the charge sheet are as follows:-
(i)The accused is a resident of Bellanapeta village of
Gurla mandal and Nasari Ramanamma (hereinafter referred to as the deceased) is the wife of the accused. The marriage of the deceased with the accused was performed about 17 years back and they were blessed with three children. The accused was addicted to drink liquor and wandering in the village without any work. The accused used to harass the deceased suspecting her fidelity and objected her whenever she goes for coolie work at
Vizianagaram to eke out their livelihood. When the deceased questioned him about his attitude, the accused was harassing her by beating indiscriminately and also warned several times to kill her if she questioned him. The deceased tolerated his harassment with a hope that he will change his attitude. But, the accused did not change and continued his harassment. The deceased informed the harassment and threatening of the accused to her younger brothers and mother who placed the matter before Nasari Butchodu and
Gompa Tata (LWs 9 and 10). In turn, they admonished the accused and advised him to change his attitude and look after the deceased and her children properly. Though the accused admitted before the village elders that he would look after his wife (deceased) and children properly, he did not change his attitude and continued the harassment and beatings. Due to unbearable harassment caused by the accused towards the deceased, she went away to her parents’ house at Bethanapalli about 15 days prior to the incident. The accused also got suspicion that the deceased is having illicit intimacy with somebody at Bethanapalli also. On that he hatched up a plan to kill the deceased by calling her to his house. Accordingly, he got called the deceased through his brother Nasari Ramana (LW 4) over phone stating that 3Sessions Case No.119/2011 she has to receive Indiramma housing bill, believing the words of Nasari
Ramana (LW 4), the deceased returned back to the house of the accused at
Bellanapeta along with her children, five days prior to the incident. The accused moved with her closely without any suspicion for which the deceased believed that her husband changed his behaviour.
(ii)On 9.4.2011 afternoon at 3 p.m/., the accused took the deceased along with him to get firewood and Nasari Raju (LW 5) who is the son of the deceased and accused has seen them while they were going together towards gedda to get firewood. The accused took her to the stream called as “Nakkala gedda” nearby hillock. There the accused pushed her on the ground and hacked her with a knife and caused severe bleeding injuries on left side of head, back side of right ear, below the chin, on the neck and abrasion on left fore arm and caused her instantaneous death. Later, the accused secreted the blood stained knife and his blood stained shirt in the nearby bushes and absconded. As the accused and the deceased did not reach the house late in the night, Nasarai Ramana (LW 4) informed the same to Kornana Suryanarayana, Kornana Pydamma and Kornana Pydiraju (LWs 1 to
3) younger brothers and mother of the deceased, who rushed to the village and made search about the deceased and the accused and found the dead body of the deceased was lying at Nakkalagedda with severe bleeding injuries.
Then, Kornana Suryanarayana (LW 1) younger brother of the deceased gave complaint to the police and set the criminal law into motion. Basing on the report of the said Kornana Suryanarayana (LW 1), the Sub Inspector of Police,
Gurla Police station (LW 19) registered a case in Crime No.30/2011 u/s.302 IPC on 10.4.2011 at 12 hours and later the Inspector of Police, Vizianagaram rural circle (LW 20), took up investigation in this case. During course of investigation, the Inspector of Police, Vizianagaram rural circle (Lw 20) visited the scene of offence, observed the same in the presence of Kuriminella 4Sessions Case No.119/2011
Rajarao and Kella Suryanarayana (LWs 12 and 15) and got the scene of offence photographed through Jaka Pudayya (LW 11) and conducted inquest over the dead body of the deceased in the presence of Kuriminella Rajarao and Kella Suryanarayana (LWs 12 and 15) and others and sent the dead body for conducting post mortem examination. On 19.4.2011 the accused surrendered before Kuriminella Rajarao and Panchadi Appalanaidu (LWs 12 and 13) and made extra judicial confession admitting his guilt. The said
Kuriminella Rajarao and Panchadi Appalanaidu (LWs 12 and 13) produced the accused before the Inspector of Police (LW 20) on the same day and he arrested the accused at 1 p.m., in the presence of Badiganti Jagannadharao and Kella Suryanarayana (LWs 14 and 15) and got recorded the confessional statement of the accused and seized the blood stained knife and shirt of the accused under the cover of mediators report at Nakkalarayudu gedda, at the instance of the accused and sent the accused to court for judicial custody.
The Inspector of Police (LW 20) forwarded the material objects to the RFSL,
Visakhapatnam for chemical analysis through V.Chandrasekhar Camp clerk to
SDPO, Vizianagaram (LW 16) and the chemical examiner opined that human blood is found on item Nos. 1, 3 to 7 and 9. Dr.P.M anjula, Civil Assistant
Surgeon, Government Hospital, Vizianagaram (LW 18) who conducted autopsy over the dead body of the deceased opined that the death of the deceased is due to “massive haemorrhage due to anti mortem injuries”. Thereby the accused has committed the offences punishable u/s.498-A and 302 IPC.
3.On production of the accused before the learned Judicial
Magistrate of I Class, Cheepurupalli, copies of documents were furnished to
him as contemplated u/s.207 Cr.P.C. and as the offence u/s.302 IPC is exclusively triable by the court of Sessions, committed the case to the
Sessions Judge, Sessions Division, Vizianagaram and the same was numbered
as S.C.No.119/2011 and was made over to this court for disposal according to 5Sessions Case No.119/2011 law. The accused in this is an undertrial prisoner and detained at Sub Jail,
Vizianagaram.
4. On production of the accused before this court from Sub
Jail, Vizianagaram and when he was questioned with regard to means for engaging an advocate and he stated that he has no means and no capacity to get appointed an advocate to defend his case. Hence, Sri A.Harish, Advocate is appointed to defend the accused in this case. Later, after hearing both sides and after considering the material on record, charges u/s. 498-A and 302
I.P.C. were framed against the accused, read over and explained to him in
Telugu. He pleaded not guilty of the alleged offences and claimed to be tried.
5.In order to prove its case, the prosecution has cited as many
as 20 witnesses in the charge sheet and out of them P.Ws 1 to 13 were
examined and Exs.P.1 to P.13 were marked besides M.Os.1 to 10. The accused got marked the contradiction i.e., Ex.D.1 in the 161 Cr.P.C. statement of P.W.4 during course of his cross-examination.
P.Ws.1 and 2 are the younger brothers of the deceased.
P.W.3 is the son of the deceased and the accused. P.W.4 is the neighbour of the accused and deceased. P.W.5 is caste elder at Bellanapeta village. P.W.6 is the photographer who took photographs of the scene of offence and dead body of the deceased. P.W.7 is the Village Revenue Officer of Kella village,
P.W.9 is the Vice President of Kella village before whom the accused made an extra judicial confession about commission of the offence and the same is recorded by P.W.7 in the presence of P.W.9 and surrendered the accused
before police and also acted as mediator for observation of scene of offence
and also acted as panchayatdar at the time of inquest over the dead body of the deceased along with P.W.8. P.W.8 deposed that he along with P.W.7 was present at the time of observation of scene of offence and conducting inquest over the dead body of the deceased and also at time of arrest of the accused 6Sessions Case No.119/2011 and making confessional statement before the police officer with regard to commission of the offence etc. facts. But, he did not support the case of the prosecution with regard to seizure of M.Os 9 and 10 knife and blood stained shirt of the accused, at the instance of accused under the cover of mediators report Ex.P 10. P.W.10 is the doctor who conducted post mortem over the dead body of the deceased on 11.4.2011 at 11.45 a.m. and issued Ex.P.9 post mortem certificate and opined that the deceased might have died due to “massive haemorrhage due to ante mortem injuries”. P.W.11 is the person in whose presence the police interrogated the accused at the police station and seized M.Os 9 and 10 at the instance of the accused under the cover of
Ex.P.10 mediators report. P.W.12 is the then Sub Inspector of Police, Gurla
Police station who registered the case in Cr.No.30/2011 u/s.498-a and 302 IPC, basing on the report given by P.W.1. P.W.13 is the Investigating Officer in this case, who investigated the entire case and filed charge sheet against the accused after completion of investigation.
Ex.P.1 is the report given to Police by P.W.1. Ex.P.2 are nine photos with corresponding C.D. Ex.P.3 is scene of observation report. Ex.P.4 is inquest report of the deceased. Ex.P.5 is confessional statement of the accused recorded by P.W.7. Ex.P.6 is report given by P.W.7 to Gurla Police, along with Ex.P.5 extra judicial confession of the accused.
Ex.P.7 is relevant portion in the confessional statement of the accused. Ex.P.8 is the signature of P.W.8 on the seizure report dated 19.4.2011. Ex.P.9 is the post mortem certificate of the deceased. Ex.P.10 is relevant portion in the mediators report dated 19.4.2011 at 3 p.m. Ex.P.11 is original FIR in
Cr.No.30/2011 of Gurla Police station. Ex.P.12 is rough sketch of scene of offence and Ex.P.13 is RFSL report.
M.O.1 are plastic chappals. M.O.2 is white coloured saree with red, green and black stripes design. M.O.3 is white coloured petti 7Sessions Case No.119/2011 coat. M.O.4 is black coloured blouse. M.O.5 is white coloured towel. M.O.6 is black coloured chikkam (small bag). M.O.7 is controlled earth. M.O.8 is blood stained earth. M.O.9 is knife and M.O.10 is blood stained shirt of the accused.
6.After closure of the prosecution evidence, the accused was examined u/s.313 Cr.P.C. The accused denied the incriminating evidence found against him in the evidence of the prosecution witnesses and stated that he did not commit any offence and the police implicated him falsely in this case. He further submitted that he is an insane person suffering from mental disorder and taking treatment in Government Hospital for Mental care at Visakhapatnam. Therefore, he has not committed any offence as alleged by the prosecution and he is no way concerned with the death of the deceased. He also filed Unit-II book maintained in the Government Hospital for Mental care, Visakhapatnam pertaining to the years 2008 to 2010.
7.On consideration of the prosecution evidence and upon hearing prosecution and the defence, this court found that the accused is not entitled for acquittal u/s.232 Cr.P.C. and hence, he was called upon u/s.233
Cr.P.C. to enter upon his defence and adduce evidence, if any. The accused did not adduce any defence evidence, but got marked Ex.D.1 contradiction in 161 Cr.P.C. statement of P.W.4)
8.Heard the learned Addl. Public Prosecutor and the learned counsel for the accused (state brief). Perused the material on record.
9. Now the point for determination is whether the prosecution has brought home the guilt of the accused for the offences u/sec.498-A and 302 I.P.C. against the accused, beyond all reasonable doubt?
10. (i) Admittedly, there is no direct evidence to substantiate the case of the prosecution. The entire case of the prosecution solely rests on circumstantial evidence only. P.W.10 is the doctor who conducted autopsy over the dead body of the deceased and found the following ante mortem injuries:- 8Sessions Case No.119/2011
1. A laceration of scalp, with skull fracture 4 x 1 cm on frontal bone.
2. cut injury behind the right ear approximately 6 cm
3. cut injury on the chin extending in front of the neck, exposing vascular tissue damage to carotids on right side.
4. Fracture of mandible on right side, neck structures softened due to putrification, hyoid bone intact.
5. Skull fracture on frontal bone, brain soft and putrefied extradural haemorrhage.
She opined that the deceased would appear to have died due to “massive haemorrhage due to ante mortem injuries” and issued Ex.P.9 post mortem certificate. She further stated that those injuries could be possible by beating with M.O.9 knife. Nothing has been elicited to discredit the testimony of
P.W.10 during course of her cross-examination by the learned counsel for the accused.
(ii)P.Ws 7 and 8 are the inquest panchayatdars when the police conducted inquest over the dead body of the deceased and also for observation of the scene of offence. They categorically deposed that they noticed bleeding injuries on the chin, neck, left side of the head, right back side of the head and left fore head of the deceased and they opined that the deceased died due to “severe bleeding injuries” sustained by her. So, from the medical evidence, it is established beyond reasonable doubt that the death of the deceased was homicidal in nature. The medical evidence is also corroborated with the evidence of P.Ws.7 and 8 and P.W.1 to P.W.3 who have seen the dead body of the deceased and observed the ante mortem injuries on the dead body of the deceased. The ante mortem injuries can be seen from Ex.P.2 photographs with corresponding C.D. given by P.w.6 the photographer.
(iii)Now it has to be seen whether the prosecution established its case against the accused for the charges leveled against him.
9Sessions Case No.119/2011
As already stated above, the entire case of the prosecution rests upon the circumstantial evidence only. When a case rests upon circumstantial evidence, the law is well settled that the following points have to be proved by the prosecution in view of the principles laid down by the Hon’ble Supreme
Court in a decision reported in AIR 1990 SC page 79 in a case between
PADALA VEERA REDDY VS. STATE OF A.P. AND OTHERS, as follows:- (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain to complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
The circumstances relied on by the prosecution in this case are…
(i) that the accused had made extra judicial confession of his guilt
before P.Ws 7 and 9 on 19.4.2011 at 11.00 a.m..
(ii) that the deceased was last seen in the company of the accused on 9.4.2011 afternoon
(iii) that on his pointing out M.O.9 knife was recovered from the bushes of
Nakkalarayudu gedda, which is supposed to be stained with blood and also recovered M.O.10 blood stained shirt of the accused.
(iv) That the accused had absconded after the incident;
(v) That the accused had motive for committing murder of the deceased.
(iv)Bearing the above principles in mind it has to be seen that whether the circumstantial evidence adduced by the prosecution is sufficient to hold that the accused as the assailant of the deceased.
10Sessions Case No.119/2011
11.POINT NO.1 (that the accused had made extra judicial confession of his guilt before P.Ws 7 and 9 on 19.4.2011).
(i)The circumstance relied on by the prosecution to establish the guilt of the accused is extra judicial confession said to have been made by the accused before P.Ws 7 and 9.
(ii)In order to rely upon the extra judicial confession, the basic principles to be observed and proved by the prosecution, are (1) it should be voluntary and true and also free from suspicion (2) there should be a history previous association between the accused and the person
before whom he confessed (3) the accused must repose confidence and belief
in the person that he could save him. To prove those circumstances, the prosecution has relied upon the evidence of P.Ws 7 and 9. P.W.7 deposed in his evidence that he is working as Village Revenue Officer of Kella village, he knows the accused who is a resident of Bellanapeta village, when ever the accused is facing any problem, he used to consult him to solve the same. He further deposed that on 19.4.2011 at 11 a.m. when he and P.W.9 Appalanaidu,
Vice President of Kella village were present at Ramamandiram in Kella village, the accused came there and requested them to surrender him to Police as he committed murder of his wife. He stated that he married the deceased about 18 years back and begot three children during their wedlock and the deceased used to go for coolie work and come late in the night thereby he used to suspect her fidelity and he used to beat her and asked her not to go for coolie work and that ten days prior to Ugadi festival, he beat the deceased and necked her out from the house, then she went to her parents’ house along with children and that five days prior to the death of the deceased, he got called the deceased back to his house through his brother on the pretext that she should receive Indiramma housing bill and on 9.4.2011 at about 3 p.m. he took the deceased along with him to hill area to collect firewood and took her to hillock and there they both collected some firewood, then he took her to a 11Sessions Case No.119/2011 stream called as “Nakkaramulu gedda” and stabbed her with a knife, after throwing her on the ground and caused bleeding injuries on her cheek, neck, left side head and right back side of head and on left fore hand and back side of right ear, she died on the spot on account of the bleeding injuries caused to her with a knife and after confirming that she died, he went towards
Ramathirthalu and Seetharamunipeta villages along with the knife. He (PW 7) reduced the extra judicial confession made by the accused into writing in the presence of P.W.9 under Ex.P.5, later he and P.W.9 took the accused to Gurla
Police station and handed over him to police along with his report under
Ex.P.6. P.W.9 deposed to the effect that he was present while the accused was making extra judicial confession before P.W.7 which was reduced into writing by P.W.7 and later he and P.W.7 brought the accused to Gurla Police station and handed over the accused to police along with the report prepared by P.W.7. The learned counsel for the accused cross-examined P.Ws 7 and 9, but nothing was elicited from their cross-examination to discredit their testimony with regard to giving of extra judicial confessional statement by the accused before them. As seen from Ex.P.5 extra judicial confession recorded by P.W.7, it does not contain the signature of P.W.9, for which P.W.9 gave explanation that P.W.7 did not obtain his signature on Ex.P.5 and he does not know that he should sign on Ex.P.5 along with P.W.7 and the accused. But, his evidence is very clear that he was present all through the accused was making extra judicial confession before P.W.7 with regard to commission of the offence.
(iii)The learned counsel for the accused argued that normally a confession will be made by the culprits to a person in whom he has got confidence and he is having some sort of emotional relationship. But, in the instant case, the accused is not having any acquaintance with P.Ws 7 and 9 and hence, the evidence of P.Ws.7 and 9 is unbelievable. At this juncture, I 12Sessions Case No.119/2011 feel it is appropriate to mention a decision reported in 1997 (2) ALD (Crl) page 363 in a case between M.MANI VS. STATE OF A.P. wherein at para 13 while considering Sec.24 of the Evidence Act, it was held that “confession made by the accused before a stranger about the commission of the offence cannot be relied upon”. But, in the instant case, P.W.7 has stated that he has acquaintance with the accused as the accused used to meet him whenever he is having any problem and he used to solve his problem, as he being working as Village Revenue Officer of Kella village. Therefore, P.W.7 is not a stranger to the accused. I would like to refer another decision reported in 2006
Cri.L.J.3667 in a case between DNYANESHWAR VITHAL KHULPE VS. STATE OF
MAHARASHTRA wherein it was held at para 43, that “there is nothing uncommon in accused confessing to a stranger in a remorseful mood and there is an extra judicial confession made to a Surpanch or the superior military officer can be considered as a truthful piece of evidence”. It is also observed in the said decision that “in the absence of any material on record to indicate that the person to whom the accused made confessional statement was biased against the accused or that, the person was inimical towards him or that, the person was set up by the police or any other person to act against the interest of the accused, it would be unfair to stamp him or her as a got up witness”. In the instant case, P.W.7 categorically stated that he got prior acquaintance with the accused, as the accused used to come to him whenever he is facing any problem and that he used to solve the same. Further, no personal enmity or political rivalry is suggested either to P.W.7 or P.W.9 with the accused in their respective cross-examination. P.W.7 is working as Village
Revenue Officer of Kella village and he is a respectable citizen of the society.
Similarly, P.W.9 is working as Vice President of the said village. In the absence of any material on record, to indicate that P.Ws.7 and 9 were biased against the accused, or that they were inimical towards him or that they were set up 13Sessions Case No.119/2011 by the police or any other person to act against the interest of the accused, it can be said that they are not at all got up witnesses and therefore, there is nothing uncommon in accused confessing a crime to P.Ws 7 and 9 in a remorseful mood. Therefore, I see no reason to disbelieve the evidence of
P.Ws 7 and 9. As per the decision reported in 2009(1) Supreme Court at page 455 in a case between STATE OF TAMIL NADU VS. MANMATHARAJ, “extra judicial confession needs corroboration and satisfactory procedure related thereto”. In the instant case, the evidence of P.W.7 is fully corroborated by the evidence of P.W.9 in all aspects. Moreso, P.W.9 is an independent witness and working as Vice President of Kella village. Therefore, the extra judicial confessional statement can be accepted as it was corroborated by independent evidence.
(iv)The main plea of the accused during the trial is that by virtue of unsoundness of mind the act done by the accused comes within the general exception u/s.84 of the Indian Penal Code, therefore, he cannot be held guilty for the act done by him. He further contended that since the accused is suffering from mental instability even prior to the incident or at the time of the incident, the question of giving extra judicial confession before
P.Ws 7 and 9 does not arise. Therefore, Ex.P.5 extra judicial confessional statement said to have been given by the accused, cannot be believed. He further submitted that the accused has produced the Unit-II book maintained by Government Hospital for Mental Care, Visakhapatnam to show the mental status of the accused that he was suffering from mental instability even prior to the incident and at the time of the incident. He further submitted that the accused was an insane since 2008 and he was given treatment for his mental disorder, in these circumstances, the accused is entitled to be acquitted u/s.84
I.P.C as the act committed by him in such unsound state of mind, is not an offence.
14Sessions Case No.119/2011
(v)Per contra, the learned Addl.P.P. argued that the accused who seeks exoneration from criminal liability of an act u/s.84 of I.P.C.
has to prove the legal insanity and not medical insanity and every person who is suffering from mental disorder is not ipso facto exempted from criminal liability. He further submitted that the accused has to prove the same by producing evidence as to his conduct prior to offence, his conduct at the time or immediately after the offence, with reference to his mental condition by production of medical evidence and other relevant factors. He further submitted that the accused produced Unit-II book maintained by Government
Hospital for Mental Care, Visakhapatnam. The book is of the year 2008 and the incident in this case occurred on 9.4.2011, moreover, the said book does not show that he was suffering from insanity at the time of the incident. He further submitted that even if it is considered that the accused is of unsound mind Sec.84 I.P.C. will not come to its rescue as it is found in this case that the accused knew that what he was doing was wrong or that it was contrary to law, because after murdering his wife, the accused ran away from the place of occurrence and threw away the knife which was used for commission of the offence into the bushes in order to conceal himself from the crime. Therefore, the accused failed to discharge his burden that he is suffering from mental disorder.
(vi)In view of the plea raised by the accused, it is necessary to consider the meaning of the expression “unsoundness of mind” in the context of Sec.84 I.P.C. Sec.84 I.P.C. reads as follows:- “Sec.84 Act of a person of unsound mind:-
Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law”.
15Sessions Case No.119/2011
Sec.84 I.P.C. is found in its Chapter IV which deals with general exceptions.
From a plaint reading of the aforesaid provision it is evident that an act will not be an offence, if done by a person who, at the time of doing the same by reason of unsoundness of mind, is incapable of knowing the nature of the act, or what he is doing is either wrong or contrary to law”. The scope and ambit of Sec.84 IPC came up for consideration before the Hon’ble Supreme Court in the case of HARI SINGH GOND VS. STATE OF MADHYA PRADESH, (2008) 16
SCC 109 equivalent to AIR 2009 SC 31, wherein it was held as follows:- “Sec.84 IPC lays down the legal set of responsibility in cases of alleged unsoundness of mind.
There is no definition of ‘un soundness of mind’ in IPC. The courts have, however, mainly treated this expression as equivalent to insanity. But the term ‘insanity’ itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity.”
The learned Addl.P.P. has relied upon a decision reported in 2001 Cri.L.J. page 1161 in a case between SURENDRA MISHRA VS. STATE OF JHARKHAND, wherein the Hon’ble Supreme Court at paras 10 and 11 held as follows:- “Para 10: The next question which needs consideration is as to on whom the onus lies to prove unsoundness of mind. In law, the presumption is that every person is sane to the extent that he knows the natural consequences of his act. The burden of proof in the face of
Sec.105 of the Evidence Act is on the accused. Though the burden is on the accused but he is not required to prove the same beyond all reasonable doubt, but merely satisfy the preponderance of probabilities. The onus has to be discharged by producing evidence as to the conduct of the accused prior to the offence, his conduct at the time or immediately after the offence with reference to his medical condition by production of 16Sessions Case No.119/2011 medical evidence and other relevant factors. Even if the accused establishes unsoundness of mind, Sec.84 of I.P.C. will not come to its rescue, in case it is found that the accused knew that what he was doing was wrong or that it was contrary to law. In order to ascertain that, it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following the crime. Behaviour of an accused pertaining to a desire for concealment of the weapon of offence and conduct to avoid detection of crime go a long way to ascertain as to whether, he knew the consequences of the act done by him. Reference in this connection can be made to a decision of this court in the case of T.N.Lakshmaiah Vs. State of
Karanakta (2002) 1 SCC 219 :AIR 2001 SC 3828), in which it has been held as follows:- 9.Under the Evidence Act, the onus of proving any of the exceptions mentioned in the chapter lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It is sufficient if an accused is able to bring his case within the ambit of any of the general exceptions by the standard of preponderance of probabilities, as a result of which he may succeed not because that he proves his case to the hilt but because the version given by him casts a doubt on the prosecution case.
10.In State of M.P. Vs.Ahmadull, AIR 1961 SC 998, this court held that the burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by the section, lies on the accused who claims the benefit of this exemption vide Sec.105 of the Evidence Act (illustratrion (a). The settled position of law is that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. Mere ipse dixit of the accused is not enough for availing of the benefit of the exceptions under chapter IV.
11.In a case where the exception under sec.84 I.P.C. is claimed, the court has to consider whether at the time of commission of the offence, the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to 17Sessions Case No.119/2011 law. The entire conduct of the accused, from the time of the commission of the offence up to the time the sessions proceedings commenced, is relevant for the purpose of ascertaining as to whether plea raised was genuine, bona fide or an afterthought”.
“PARA 11: In the background of what we have observed above, we proceed to consider the facts of the present case.
The first evidence in regard to the unsoundness of mind as brought by the appellant is the medical prescription dated 18th
October, 1987 (Ex.A.1) in which symptom of the appellant has been noted as psychotic with paranoid features and medicine was advised for sleep. Other prescriptions are dated 9th
January 1988 (Ex.A) and 5th September, 1998 in which only medicines have been prescribed. Other prescriptions (Exs.A.5 to A.7) also do not spell out the disease the appellant was suffering but give the names of the medicines, he was advised to take. The occurrence had taken place on 11th August 2000.
From these prescriptions, the only inference one can draw is that the appellant had paranoid feeling but that too was not proximate to the date of occurrence. It has to be borne in mind that to establish that acts done are not offence and come within general exception it is required to be proved that at the time of commission of the act, accused by reason of unsoundness of mind was incapable of knowing that his acts were wrong or contrary to law. In the present case the prosecution has proved beyond all reasonable doubt that immediately after the appellant had shot dead the deceased, threatened his driver P.W.1 Vidyut Kumar Modi of dire consequences. Not only that, he ran away from the place of occurrence and threw the country made pistol, the weapon of crime, in the well in order to conceal himself from the crime.
However, it was recovered later on. The aforesaid conduct of the appellant subsequent to the commission of the offence clearly goes to suggest that he knew that whatever he had done was wrong and illegal. Further, he was running a medical shop and came to the place of occurrence and shot dead the deceased. Had the appellant been a person of unsound mind, it may not have been possible for him to run a medical shop.
18Sessions Case No.119/2011
We are of the opinion that the appellant though suffered from certain mental instability even before and after the incident but from that one cannot infer on a balance of preponderance of probabilities that the appellant at the time of the commission of the offence did not know the nature of his act; that it was either wrong or contrary to law. In our opinion, the plea of the appellant does not come within the exception contemplated under Sec.84 I.P.C”.
Coming to the facts of this case, the evidence in regard to unsoundness of mind as brought by the accused is the Unit-II book maintained at Government
Hospital for Mental Care, Viksakhapatnam, which was filed during 313 Cr.P.C.
examination of the accused. As seen from the said book, it appears that the accused took treatment in the said hospital once in two months as out patient during the years 2008 to 2010 in which only medicines have been prescribed.
Moreso, the occurrence in this case had taken place on 9.4.2011. From the book the only inference can be drawn is that the accused had anxiety, anger, fear and sad, but it was not proximate to the date of occurrence. Moreso, the entries in the said book are not proved by examining the concerned medical officer of Government Hospital for Mental Care, Visakhapatnam under whom the accused said to have been treated. Had the accused been a person of unsound mind, he would be under the constant medical care as inpatient. To establish that the acts done are not offence and come within the general exception it is required to be proved that at the time of commission of the act, the accused by reason of unsoundness of mind was incapable of knowing that his acts were wrong or contrary to law. In the present case, the prosecution has proved beyond all reasonable doubt that immediately after killing his wife, the accused ran away from the place of occurrence and threw away the knife which was used for commission of the offence into the bushes to conceal him from the crime. However, it was recovered later on. The said conduct of the accused, subsequent to commission of the offence clearly go to suggest that 19Sessions Case No.119/2011 he knew whatever he had done was wrong and illegal. P.W.3 clearly stated in his chief examination itself that his father (accused) used to attend coolie work prior to the incident. Had the accused been a person of unsound mind, it might not have been possible for him to attend coolie work. Therefore, I am of the opinion that the accused though suffered from certain mental instability
before the incident, but from that one cannot infer on a balance of
preponderance of probabilities that the accused at the time of commission of the offence did not know the nature of his act that it was either wrong or contrary to law. Therefore, I conclude that the plea of the accused does not come within the general exceptions contemplated u/s.84 I.P.C. Therefore, I hold that the accused failed to discharge his burden that he is suffering from mental disorder at the time of commission of the offence.
(vii)According to the learned counsel for the accused, the accused was an insane since 2008 and he took treatment for his mental disease and thereby he cannot make extra judicial confession. Per contra, the learned Addl.P.P. submitted that the accused has not filed any petition u/s.329 Cr.P.C., that trial cannot proceed due to unsoundness of mind of the accused, because where the court has doubt that the accused is insane it has to hold enquiry. But, in this case, the accused has not taken any steps to hold enquiry u/s.329 Cr.P.C., if really, the accused was insane from the beginning, the accused would have certainly been taken steps u/s.329 Cr.P.C.
before committal proceedings or after committal of the case to the Court of
Sessions, Sessions Division, Vizianagaram. Even before commencement of
trial of the case, the accused has not filed any petition to stop the trial of the case on the ground of his unsoundness mind. This fact itself is sufficient for holding that the accused is not an insane. In support of his contention, he has relied upon a decision reported in 2008 Cri.L.J. 3850 in a case between 20Sessions Case No.119/2011
MAHENDRA SINGH VS. STATE OF RAJASTHAN, wherein at para 11 the Hon’ble
High Court of Rajasthan, held as follows:- “It is clear from the facts that the accused was sent to doctors of mental diseases during period of two years of trial and his trail was not withheld under sec.329 Cr.P.C. by the court nor it was the prayer on behalf of the accused that trial cannot proceed due to unsoundness of mind of the accused. This fact itself is sufficient for holding that mere taking advice or even medicine from doctors of mental diseases or from psychiatrist is no proof for unsoundness of mind of such person. There may be other ailments for which such doctors alone can give treatment and it is not necessary that if person is treated by such doctors, even for long period, then that patient is an insane or man of unso0und mind. We may recapitulate here again that the accused was in service of Arms Force till 1992 and joined the Bank service in the year 1993 and continued in service up till 12.11.1999 when the incident took place and thereafter he might have been sent for medical check up and for treatment of his disease and for that purpose he might have been sent to the doctors treating mental diseases and might have been sent in the psychiatric department, but the medical board’s opinion is that he was not man of unsound mind and till the trial concluded he did not commit any act of insanity, rather say he behaved as a sane person and gave appropriate replies to the questions put to him u/s.313 Cr.P.C.”
In this case, the accused has not taken any steps to hold enquiry u/s.329
Cr.P.C. by the court nor it was the prayer on behalf of the accused that trial cannot proceed due to unsoundness of mind of the accused. Even before commencement of the trial of the case before this court, the accused has not filed any petition to stop the trial of the case on the ground of unsoundness of his mind. It is true that P.W.4 has admitted in his cross-examination that he 21Sessions Case No.119/2011 did not state before the police as in Ex.D.1 to the effect that “due to imbalanced mind the accused used to behave in a mentally disordered condition”. But, this piece of evidence is not sufficient to conclude that the accused is an insane person, in the absence of proof of the said fact. Further, none of the prosecution witnesses i.e., P.Ws 1 to 5 have stated that the accused is an insane person, even before commission of offence or thereafter.
This fact itself is sufficient for holding that mere taking advice or even medicines from the doctor of a mental disease or from psychiatrist is not a proof for unsoundness of the mind of such person. Had the accused been a person of unsound mind, his counsel would have certainly been filed a petition u/s.329 Cr.P.C., to hold an enquiry regarding the unsoundness of the accused.
Absolutely no evidence on record to show that the accused is a man of unsound mind immediately after commission of the alleged act by him or during trial. As per the evidence of P.W.13 the Investigating Officer, he arrested the accused on 19.4.2011 when P.Ws 7 and 9 produced the accused
before him along with Ex.P.5 extra judicial confessional statement of the
accused. If really, the accused was suffering from mental disorder, the investigating officer would have sent him to mental care hospital for treatment. Therefore, the plea that the accused is an insane person cannot be believed.
(viii)The learned counsel for the accused further argued that even if the court comes to a conclusion that the accused is not an insane, as per the case of the prosecution, the accused alleged to have made confession before P.Ws 7 and 9 on 19.4.2011 i.e., 10 days after the alleged incident. There is no apparent reason found for the accused to do so. The possibility of deposing about the confession at the instance of the police cannot be ruled out. He further submitted that P.W.7 is acted as a mediator for observation of scene of offence and inquest and he alleged to have 22Sessions Case No.119/2011 recorded the confessional statement of the accused and that neither he had intimate relationship with the accused nor the accused had personal acquaintance with him prior to the alleged date of confession, therefore, the so called extra judicial confession said to have been made by the accused
before P.Ws 7 and 9 cannot be believed. In support of his contention he has
relied upon a decision reported in 2006 (2) ALD (Crl) 501 (AP) in a case between KOKI PRABHAKARA REDDY VS. STATE OF A.P., wherein our Hon’ble
High Court held at para 32 as follows:- “We must, therefore, now test the veracity of the version of P.W.10 in regard to alleged confession made by A.1 as recorded by him under
Ex.P.1`7. The first and foremost aspect, which needs to be taken, is P.W.10 is not a person who has intimate relationship with the appellants. He admitted that he is a witness to the scene of offence and prepared inquest report and also attested it; at the time of A.1 making statement no one accompanied him and he has no personal acquaintance prior to 13.4.2003 and by then about 10 persons are present in his office, except four village servants he cannot say the names of the persons who are present at that time; nearly it took one hour fifteen minutes for him to record the statement under
Ex.P.17. He is also present and prepared the property identification Mahazar etc. Thus he can be a convenient witness to the prosecution as per his own admission”.
I have gone through the facts of the above stated decision. In that decision, it was observed that extra judicial confession which was recorded by P.W.10 clearly establishes that it is so meticulously drafted about commission of the offence verbatim as stated in the inquest report and it is not recorded in the language spoken to by A.1. Further, it was stated that A.2 and A.3 and himself thought it proper time to kill the deceased. But, in the instant case, as can be seen from Ex.P.5 extra judicial confessional statement, it is recorded by P.W.7 23Sessions Case No.119/2011 in the language spoken to by the accused. It is not a verbatim of Ex.P.4 inquest report. Further, in this case, the evidence of P.W.7 is very clear that he knows the accused even before the extra judicial confession and the accused used to visit him whenever he is having any problem and he used to solve the same. So, P.W.7 got prior acquaintance with the accused. So, the decision relied upon by the learned counsel for the accused is not applicable to the present facts of the case. In the instant case, no doubt, after 10 days of murder, the accused made confessional statement before P.Ws 7 and 9 that he committed the murder of his wife. But, P.Ws 7 and 9 are independent witnesses and they have no enmity with the accused. Moreso, they are respectable persons working as Village Revenue Officer and Vice President of
Kella village. So, their evidence cannot be discarded. I would like to refer a decision reported in 2006 Cri.L.J. page 536 in a case between SIVAKUMAR VS.
STATE BY INSPECTOR OF POLICE, wherein the Hon’ble Supreme Court held that “extra judicial confession made to VAO by the accused is not inadmissible”. In another decision reported in 2008 Cri.L.J.3502 in a case between KUSUMA ANKAMA RAO VS. STATE OF A.P., wherein the Hon’ble
Supreme Court held that “an extra judicial confession, if voluntary, true and made in a fit state of mind can be relied upon by the court. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession made and the credibility of the witnesses who speaks to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, 24Sessions Case No.119/2011 not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witnesses are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it”. In the light of the above stated decisions, I see no reason to doubt the testimony of P.Ws 7 and 9 and extra judicial confession by the accused made before them. So, the extra judicial confession made by the accused is consequent to his commission of offence and therefore, it can be relied upon and it is voluntary and true and made in fit state of mind and without any coercion or force or inducement by any person or Police Officer.
12. POINT No.2 (that the deceased was last seen in the company of the accused on 9.4.2011 afternoon).
In order to prove the circumstance, the prosecution has relied upon the evidence of P.W.3 who is the son of the deceased and accused. P.W.3 is aged 12 years clearly and categorically deposed in his evidence that he is the elder son of the deceased and accused and he is having two younger brothers, that he is studying 7th class, that his father (accused) addicted to drink liquor and used to come to the house in a drunken state and did not look after the welfare of themselves and their deceased mother and his father used to beat his deceased mother in a drunken state and his father did not give any money to his mother to maintain the family and his deceased mother used to attend to coolie work and maintain the family. He further deposed that 15 days prior to the death of his mother, his mother took him and his other two brothers to their maternal grand-father’s house at Bethanapalli, due to the disputes between his mother and father, they stayed there for a period of 10 days, meanwhile his junior paternal uncle
Nasari Ramana (LW 4) informed to his mother over phone to come to
Bellanapeta for receiving Indiramma housing bill. Accordingly, they returned 25Sessions Case No.119/2011 back to the house of his father, five days prior to the incident. He further deposed that five days prior to the death of his mother on Saturday at 3 p.m.
he was present in the house as it was being holiday to his school. He saw that his deceased mother and father together went into the forest to collect firewood, but they did not return back, he waited for them till 8 p.m. As his father and mother did not return, he informed the same to his junior paternal uncle (LW 4), then his junior paternal uncle went in search for his deceased mother and father but he did not give any information to him, as he slept on that night. On the very next day morning P.Ws 1 and 2 who are his maternal uncles and Kornana Pydamma (LW 2) maternal grand mother, came to their house and questioned him, whereabouts of his deceased mother and father.
Then he told them that they both together went to forest to collect firewood on Saturday at about 3 p.m. and they did not return back. Then his maternal uncles P.Ws.1 and 2 went for search about his father and deceased mother, later P.W.2 his maternal uncle informed him that he found the dead body of his mother was lying near gedda and then he too rushed to the spot and saw the dead body of his mother, he also noticed bleeding injuries on the cheek, neck and head of his mother. He further deposed that he has not seen his father, after his father and deceased mother went together to forest to get fire wood. P.Ws 2 and 3 categorically stated in their respect evidence that after receipt of information through Nasari Ramana (LW 4) that whereabouts of the accused and deceased are not known, they rushed to the house of the accused and deceased and questioned P.W.3 whereabouts of his parents, then
P.W.3 informed them that on Saturday at 3 p.m. his father and mother together went to forest to get firewood. P.W.4 also deposed in his evidence that about 6 months back on one Saturday at about 8 p.m. he noticed that
P.W.3 and his brother were going by weeping to the house of their junior paternal uncle (LW 4), then he questioned P.W.3 as to why he was weeping, 26Sessions Case No.119/2011 then he informed him that his father took his mother to forest to get fire wood on the same day evening and they did not return back, therefore, they are going to the house of their junior paternal uncle to inform the same. Then himself, B.Satyam (LW 7) and Nasari Ramana (LW 4) and some others went in search of the accused and deceased and on the next day morning i.e., Sunday at 3 a.m. they noticed the dead body of the deceased was lying near gedda.
The learned counsel for the accused cross-examined P.W.3 but nothing was elicited from his cross-examination to discredit his testimony with regard to last seen of his deceased mother in the company of his father. Further, it is not the case of the accused that some unknown assailants attacked his wife and caused injuries to her or that for some other reason, some unknown assailants attacked the deceased and caused her death. As per the evidence of P.W.3, he has lastly seen his deceased mother in the company of the accused while they were together going to forest to get firewood at 3 p.m. on one Saturday i.e., 9.4.2011 and on the very next day morning at 3 a.m. they found the dead body of their deceased mother was lying at gedda. So, there is only 12 hours gap between the accused and the deceased going to forest and the accused absconded from that place, which would clearly indicate that this crime might have been committed by the accused alone and none else.
13. POINT NO.3 (that on his pointing out M.O.9 knife was
recovered from the bushes of Nakkalarayudu gedda, which is
supposed to be stained with blood and also recovered M.O.10 blood
stained shirt of the accused).
In order to prove the recovery of M.Os 9 and 10 the prosecution has relied upon the evidence of P.Ws 8, 11 and P.W.13. P.W.13 the Investigating Officer deposed that on 19.4.2011 when he was present in
Gurla Police station, P.Ws 7 and 9 have produced the accused before him along with Ex.P.5 extra judicial confessional statement made by the accused, recorded by him. He took the accused into custody and interrogated him in 27Sessions Case No.119/2011 the presence of P.Ws 11 and 8 and recorded his confessional statement. The accused confessed about commission of the offence and further stated that he would show the weapon, if they follow him. Ex.P.7 is the relevant portion in the confessional statement of the accused. Accordingly, the accused lead him and the mediators P.Ws 11 and 8 to Nakkalavani gedda, there, he searched the bushes and found M.Os.9 and 10 and the accused identified M.O.9 as weapon used in commission of the offence. The said weapon contains blood stains, then he seized the weapon and blood stained shirt of the accused, under the cover of Ex.P.10 mediators report, duly attested by him, P.Ws 8 and 11 and obtained the thumb mark of the accused on it. Then he returned to police station along with the accused and M.Os 9 and 10 and forwarded the accused to the court for judicial remand. On 21.4.2011 the material objects were forwarded to RFSL, Visakhapatnam through a letter of advice and on 20.6.2011 he received Ex.P.13 RFSL report, wherein the chemical examiner opined that blood is detected on items No.1, 3 to 9. P.W.11 corroborated the evidence of P.W.13 with regard to seizure of M.Os 9 and 10 under cover of
Ex.P.10 mediators report at the instance of the accused on which he signed along with P.W.13, P.W.8 and the accused also put his thumb mark on it.
P.W.8 admitted about his presence at the time of observing the scene of offence by P.W.13 and at the time of inquest over the dead body of the deceased and his attestation on Exs.P.3 and P.4 i.e., observation and inquest reports. But, coming to the seizure of M.Os 9 and 10, he turned hostile and did not support the version of the prosecution and he stated that he did not accompany P.Ws 11 and 13 and that he has no personal knowledge with regard to seizure of M.Os 9 and 10 under the cover of mediators report
Ex.P.10 by P.W.13, but he admits his signature on Ex.P.10, which is marked as
Ex.P.8 in mediators report. In the cross-examination by the learned Addl.P.P.
he has stated that he does not remember when his signature was obtained on 28Sessions Case No.119/2011
Ex.P.10 and without going through the contents of seizure report dated 19.4.2011 at 3 p.m. he signed on it, on being asked by P.W.13 stating that he seized a knife and blood stained shirt at the instance of the accused. At this juncture, I would like to refer a decision 2011 Cri.L.J. page 4643 in a case between BRAJLAL DEB AND OTHERS VS. STATE OF TRIPURA, wherein at para 16, the Hon’ble High Court of Guwahati held that “the evidence of hostile witness cannot entirely be discarded and can be used for limited purpose of corroboration of the other evidence on record”. In the light of the above stated decision, the evidence of P.W.8 that while P.W.13 interrogating the accused in his presence and in the presence of P.W.11, the accused stated that if they follow him he would show the weapon which was thrown into bushes near Nakkalavani gedda. So, this piece of evidence of P.W.8 can be taken into consideration to corroborate the same with the evidence of P.Ws 11 and 13. Even if the evidence of P.W.8 is excluded from consideration for seizure of M.Os 9 and 10 under the cover of Ex.P.10, the evidence of P.W.11 is fully corroborated the evidence of P.W.13 with regard to seizure of M.Os 9 and 10 at the instance of the accused under the cover of Ex.P.10 mediators report.
As seen from Ex.P.13 RFSL report, wherein the chemical examiner opined that blood is detected on items 1, 3 to 9, items 8 and 9 are M.Os 9 and 10 in this case, so, M.Os 9 and 10 contains human blood. Further, the evidence of P.Ws 11 and 13 is cogent, consistent and there is no reason to disbelieve their evidence. Moreso, P.W.11 worked as an Ex.sarpanch of Manyapuripeta. No personal or political enmity was suggested to P.W.11 with the accused to speak falsehood against him. Therefore, the prosecution has proved the recovery of M.Os 9 and 10 i.e., blood stained knife and shirt of the accused at the instance of accused, beyond all reasonable doubt.
14. POINT NO.4 that the accused had absconded after the incident);- 29Sessions Case No.119/2011
In order to prove this link in chain of circumstances the prosecution has relied upon the evidence of P.Ws 3, 7, 9 and 13. P.w.3 deposed that on 9.4.2011 at about 3 p.m., his father and his deceased mother together went to forest to get firewood, thereafter his deceased mother and father did not return up. P.Ws 1, 2 and 4 found the dead body of the deceased was lying in Nekkalavanigedda on the next day morning i.e., on Sunday at 3 a.m. P.W.7 deposed that on 19.4.2011 while he and P.W.9 were present at Ramamandiram, the accused came there and made Ex.P.5 extra judicial confession with regard to murder of his wife. Later, he and P.W.9 handed over the accused to Gurla Police on the same day along with Ex.P.5 extra judicial confessional statement of the accused and his report
Ex.P.6. P.W.13 deposed that on 19.4.2011, P.Ws 7 and 9 handed over the accused to him along with Ex.P.5 extra judicial confessional statement made by the accused before them along with Ex.P.6 report of P.W.7. So, after the incident as per the evidence of P.Ws 7,9 and 13 the accused absconded from the village from 09.04.2011 and appeared before P.W.7 and 9 on 19.4.2011 and made Ex.P.5 extra judicial confession before them, with regard to commission of the offence. The learned counsel for the accused submitted that P.W.3 has stated in his cross-examination that five days after the death of his mother, police brought his father to his house, therefore, the accused made Ex.P.5 extra judicial confessional statement before P.Ws 7 and 9 on 19.4.2011 at 11.00 a.m., cannot be believed. Admittedly, P.W.3 is aged 12 years studying 7th class and perhaps he might have confused and stated that five days after the death of his mother police brought his father to his house.
When the evidence of P.Ws 7, 9 and 13 is very clear that the accused surrendered before P.Ws 7 and 9 on 19.4.2011 and on the same day, P.W.13 arrested the accused when he was brought by P.Ws 7 and 9 before him along with Ex.P.5 extra judicial confessional statement and Ex.P.6 report of P.W.7.
30Sessions Case No.119/2011
Therefore, this minor discrepancy in the evidence of P.W.3 cannot be taken into consideration for the reasons stated above. If the accused did not commit the murder of his wife, he would have been certainly searched for his wife or, returned to his house. His disappearance after the murder of his wife, creates a genuine doubt that the accused has committed the murder of his wife.
Therefore, it is one of the circumstances to doubt the role of the accused.
Therefore, I am not inclined to accept the contention of the learned counsel for the accused on this aspect.
15. POINT NO.5:- (That the accused had motive for committing murder of the deceased.
(i)Normally, there is a motive behind every criminal act and that is why the investigating agency as well as the court, while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It is not essential for the prosecution to establish motive against the accused in all cases, but, at the same time, it cannot be gain-said that without adequate motive, speaking normally none is expected to take the life of any human being. Where the case of the prosecution has been proved beyond all reasonable doubt, on the basis of the material produced before the court, the motive looses its importance, as per the Decision reported in AIR 1994 Supreme Court page 2585. But, in a case which is based on circumstantial evidence motive for committing the crime on the part of the accused assumes greater importance.
Therefore, it is to be seen how far the prosecution has proved the motive for commission of such a crime by the accused. The motive for the offence is that the accused was suspecting fidelity of his wife.
(ii)In order to establish the motive on the part of the accused, the prosecution has relied upon the evidence of P.Ws 1 to 5.
P.Ws 1 and 2 are younger brothers of the deceased. They categorically deposed in their respective evidence that the accused looked after the 31Sessions Case No.119/2011 deceased well till the birth of the children and thereafter disputes started between them. The accused was addicted to alcohol and not caring the children and the accused used to beat the deceased suspecting her fidelity.
The deceased used to inform the harassment meted out by the accused towards her, to them. They further stated that even during the life time of their father, he got raised a panchayat before the elders regarding the harassment caused by the accused towards the deceased and the elders in the panchayat admonished the accused and advised him to look after the deceased and her children properly, for which the accused agreed, but later he failed to do so and continued to harass the deceased suspecting her fidelity. They further stated that 15 days prior to the death of the deceased, due to unbearable harassment caused by the accused towards her she came to their house along with her children and stayed in their house for a period of 10 days. Five days prior to the death of the deceased, the accused got called the deceased through his brother N.Ramana (LW 4) over phone, on the pretext that she has to receive Indiramma housing bill. On that the deceased went along with her children to the house of her husband. Thereafter, they received a phone message from Ramana (LW 4) stating that the deceased and accused together went to the forest to get firewood on Saturday and thereafter they did not turn up. On receipt of the said information, they along with their mother went to the house of the accused by that time, the accused is not present in the house, then they asked P.W.3 whereabouts of his parents, then he stated that his parents together went to forest on 9.4.2011 at 3 p.m.
to get firewood. Then, they went in search of the accused and deceased and found the dead body of the deceased was lying near Nakkalavanigedda on the next day morning at 3 a.m. P.W.3 deposed that his father used to beat his deceased mother in a drunken state and he did not look after the welfare of themselves and his mother. P.W.4 deposed that the accused used to beat the 32Sessions Case No.119/2011 deceased in intoxicating state, but, he does not know the reason for such beating. P.W.5 deposed that during the life time of the father of the deceased, a panchayat was convened with regard to the harassment of the deceased by the accused and in the said panchayat they advised the accused to look after the deceased and her children properly, for which the accused agreed, but failed to do so and continued the harassment and ill-treatment.
(iii)The learned counsel for the accused submitted that P.Ws 1 and 2 did not state either in Ex.P.1 report or in their 161 Cr.P.C.
statements that the accused looked after the deceased well till the birth of the children, thereafter, disputes arose between them and accused addicted to alcohol and did not look after the deceased and her children and that he was wandering in the village and used to harass the deceased suspecting her fidelity and that during the life time of the father of P.Ws 1 and 2, he got raised a panchayat regarding the attitude of the accused towards the deceased before P.W.5 and other village elders etc., facts. Therefore, in view of the contradictions and omissions in the evidence of P.Ws 1 and 2 their evidence cannot be believed with regard to proof of motive for committing the offence by the accused. The occurrence had taken place on 09.04.2011 after noon. P.W.1 to P.W.5 gave evidence before this Court in the month of
October, 2011. In my opinion, the contradictions or omissions of such a nature are bound to occur in the statements of the witnesses, who are deposing about the occurrence after lapse of six months. It is common experience that such omissions, contradictions and improvements are invariably found in the testimony of even wholly truthful witnesses, who they are made to depose about the occurrence after lapse of six months. The capacity of human mind to retain the minute details of the occurrence vary from man to man, human brain is not a video camera to reproduce the sequences as it is. In my opinion, those contradictions and omissions do not 33Sessions Case No.119/2011 cause reflection upon the evidentiary value of those witnesses. The omissions and contradictions are in my opinion, very common and they do not affect the substratum of the prosecution story. In this case, the contradictions are not material to cut the route of the prosecution case. At this juncture, I would like to refer a decision reported in AIR 1997 Supreme Court 1809 in a case between NATHUNI YADAV VS. STATE OF BIHAR, wherein while considering the circumstantial evidence, the Hon’ble Supreme Court held that “motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which implies a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. In Atley Vs.State of U.P. (AIR 1955 SC 807) it was held that “it is true, and where there is clear proof of motive for the crime, that lends additional support to the findings of the court that the accused was guilty but absence of clear proof of motive does not necessarily lead to the contrary conclusions”. It is further observed that “there may also be cases in which it is not possible to disinter the mental transaction of the accused which would have impelled him to act. No proof can be expected in all cases as to how the mind of the accused works in a particular situation. Some times, it may appear that the motive established is a weak one”. However, in the instant case, the prosecution has established that the accused had motive to commit the crime by suspecting the fidelity of his deceased wife. Therefore, there is strong motive for the accused to commit the offence. Hence, in the light of the above stated decisions and in view of the legal principles laid down, it can be said that the prosecution has established the motive on the part of accused beyond all reasonable doubt.
34Sessions Case No.119/2011
The evidence of P.W.12 the then S.I. of Police, Gurla
Police Station would go to show that he registered Ex.P.1 report given by
P.W.1 with regard to murder of the deceased, as a case in Cr.No.30/2011 of
Gurla Police Station against the accused and sent Ex.P.11 original FIR to the concerned Magistrate Court and assisted P.W.13 in conducting investigation in this case. The evidence of P.W.7 and P.W.8 discloses about seizure of M.Os 1 to 8 under cover of Ex.P.3 mediators report from the scene of offence.
(iv)Therefore, the prosecution has established beyond all reasonable doubt that the accused was guilty of the offences charged against him. The circumstances established in the instant case clearly establish the chain so complete that there is no escape from the conclusion that the crime had been committed by the accused and none else and it is incapable of explanation and any other hypothesis consistent with the innocence of the accused. All the circumstances have clearly proved the guilt of the accused beyond all reasonable doubt. Therefore, I hold that the evidence let in by the prosecution amply established that the accused used to harass the deceased by suspecting her fidelity and with that suspicion he committed murder of the deceased Nasari Ramanamma and thereby he was guilty of the offences charged u/s.498-A and 302 I.P.C.
16.IN THE RESULT, the accused is found guilty for the offences u/s.498-A and 302 I.P.C. and accordingly he is convicted for the said offences u/s.235(2) Cr.P.C.
Dictated to the Personal Assistant, transcribed by him
corrected and pronounced by me in open court on this the 31st day of December, 2011.
SD/- D. LEELAVATHI,
I ADDITIONAL SESSIONS JUDGE,
VIZIANAGARAM.
When the accused was questioned with regard to the quantum of sentence to be imposed upon him, while pleading mercy of this 35Sessions Case No.119/2011 court he submitted that he is having old aged parents and three young children and he is the sole bread winner of the family and he pleaded to take a lenient view in imposing the sentence.
Considering the submissions made by the accused and the offence committed by him i.e., murder u/s.302 I.P.C., which is a grave offence I am not inclined to take a lenient view, in imposing the sentence. Further, there are no mitigating circumstances to deal the accused u/s.360 Cr.P.C. or u/s.3 and 4 of the P.O.Act. The accused is informed about his right to appeal against the conviction.
Hence, I sentence the accused to suffer R.I. for three years and to pay fine of Rs.1,000/- (Rupees One thousand only) in default of payment of fine to suffer S.I. for three months for the offence u/s.498-A IPC.
I also sentence the accused to suffer IMPRISONMENT
FOR LIFE and to pay fine of Rs.5,000/- (Rupees: Five thousand only) in default of payment of fine to suffer S.I. for one year, for the offence u/s.302 I.P.C.
Both the sentences shall run concurrently.
M.Os 1 to 10 and the unmarked property, if any, in this case, shall be destroyed after expiry of appeal time.
Dictated to the Personal Assistant, transcribed by him corrected
and pronounced by me in open court on this the 31st day of December, 2011.
SD/- D.LEELAVATHI
I ADDITIONAL SESSIONS JUDGE,
VIZIANAGARAM.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution:For Defence
P.W.01 : Kornana Suryanarayana
P.W.02 : Kornana Pydi RajuNONE
P.W.03 : Nasari Raju
P.W.04 : Nakkana Gowri Naidu
P.W.05 : Gompa Thata 36Sessions Case No.119/2011
P.W.06 : Jaka Pudayya
P.W.07 : Kuriminella Raja Rao
P.W.08 : Kella Suryanarayana
P.W.09 : Panchadi Appala Naidu
P.W.10 : Dr. P. Manjula, Civil Assistant Surgeon
P.W.11 : Badiganti Jagannadha Rao
P.W.12 : M. Kannam Naidu, Sub Inspector of Police
P.W.13 : Raghuveer Vishnu, Inspector of Police.
DOCUMENTS MARKED
For Prosecution :
Ex.P.01: Report given to Police by P.W.1.
Ex.P.02: Nine photos with corresponding C.D.
Ex.P.03: Scene of observation report.
Ex.P.04: Inquest report of the deceased.
Ex.P.05: Confessional statement of the accused recorded by P.W.7.
Ex.P.06: Report given by P.W.7 to Gurla Police along with Ex.P.5
Ex.P.07: Relevant portion in confessional statement of the accused.
Ex.P.08: Signature of P.W.8 on the seizure report
Ex.P.09: Post mortem certificate of the deceased.
Ex.P.10: Relevant portion in mediators report dt.19.4.2011 at 3 p.m.
Ex.P.11: Original FIR in Cr.No.30/2011 of Gurla Police station.
Ex.P.12: Rough sketch of scene of offence
Ex.P.13: R.F.S.L. report.
For defence :
Ex.D.1: Marked portion in the 161 Cr.P.C. statement of P.W.4
MATERIAL OBJECTS MARKED
M.O.01: Plastic chappals.
M.O.02: White coloured saree with red, green and black stripes
M.O.03 : White coloured petti coat.
M.O.04: Black coloured blouse.
M.O.05: White coloured towel.
M.O.06 : Black coloured chikkam (small bag).
M.O.07: Controlled earth.
M.O.08: Blood stained earth.
37Sessions Case No.119/2011
M.O.09: Knife
M.O.10: Shirt of the accused.
SD/- D.LEELAVATHI,
I ADDL. SESSIONS JUDGE,
VIZIANAGARAM
Copy to the Hon’ble High Court of Andhra Pradesh, Hyderabad.
Copy to the Accused viz., Nasari Appanna
Copy communicated to :
1. The Director of Prosecutions, D.G. & I.G. Office Complex, Hyderabad.
2. The Judicial Magistrate of the First Class, Cheepurupalli.
3. The Addl.Public Prosecutor, Vizianagaram.
4. The Superintendent of Police, Vizianagaram.
5. The District Collector, Vizianagaram.