Allowed

Perugu Hymavathi at Hyma, Rajahmundry., v. the State of Ap., Rep Pp.

Andhra Pradesh HC6 Mar 2024CRLA/699/2016

Case brief

AI extract

What is this about?

This court allowed the criminal appeal against the conviction and life sentence of the appellant for murder. The High Court acquitted the appellant, finding that the prosecution failed to prove motive, failed to conclusively establish strangulation versus hanging based on medical evidence, and that the circumstantial evidence was incomplete and incompatible with innocence.

What did the court decide?

Conviction and life sentence set aside; appellant acquitted of charge under Section 302 IPC and set at liberty with fine refunded.

Perugu Hymavathi at Hyma, Rajahmundry… — Murder and Culpable Homicide | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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THURSDAY, THE SEVENTH DAY OF MARCH TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE K. SURESH REDDY AND

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THE HONOURABLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

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CRIMINAL APPEAL NO: 699 OF 2niR

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Pleased ?h ' a '^'9'^ ^ourt may be pleased to set asde the order and sentence passed by the learned 1“ Additional Sessions Judge, Rajahmundry, in S.C.No.33/2015 dated' 08-07-2016

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Between:

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Perugu Hymavathi @ Hyma, W/o: Late. Surya Prakash, Aged 24 years, Occ: Housewife, R/o: 44-16-16/ 1 Thoda Veedi, Annapumammapeta, Rajahmundry, Andhra Pradesh.

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...Appellant/Accused No. 1

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AND

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The State of Andhra Pradesh., Rep. by its Public Prosecutor, High Court at Hyderabad.

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...Respondent/Complainant

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Counsel for the Appellant: SRI. CHALLA AJAY KUMAR

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Counsel for the Respondent: PUBLIC PROSECUTOR

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The Court made the following Judgment:

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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THURSDAY, THE SEVENTH DAY OF MARCH TWO THOUSAND AND TWENTY FOUR

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HON'BLE SRI JUSTICE K. SURESH REDDY

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AND

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HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

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CRIMINAL APPEAL No.699 of 2016

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Between:

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Perugu Hymavathi @ Hyma ... APELLANT AND The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court.

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... RESPODENT

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The Court made the following:

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JUDGMENT: (Per Hon 'ble Sri Justice K Suresh Reddy)

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Accused No.l in Sessions Case No.33 of 2015 on the file of the learned I Additional Sessions Judge, Rajahmundry, is the appellant in the present criminal appeal. In the said Sessions Case, the appellant, along with accused No.2, who is none^otherthanher younger brother, was tried for the offence under Section 302 I.P.C. Vide Judgment dated 08.07.2016, the appellant/accused^No.lwas convicted for the charged offence and imposed with the punishment of sentence of life imprisonment and payment of fine of Rs.2,000/-,

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in default to suffer simple imprisonment for one year,^whileaccused No.2 was acquitted of the offence.

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Substance of the charge is that on 23.01.2014 at about^1.00 p.m., accused Nos.l and 2 committed murder of Perugu Surya Prakash (hereinafter referred to as 'the deceased^ by tying a nylon rope around his neck, and thereby committed an offence under Section 302 I.P.C.

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Case of the prosecution, in nutshell, is as follows:

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(i) The deceased and accused No.l fell in love with each other and they got married about 5 years prior to the date of incident, against the wishes of the parents of the deceased. The deceased was eking out his livelihood by running an auto-rickshaw^andwas residing in the house of his parents-in-law along with his wife/accused No.l. The deceased and accused No.l had no children. P.W.2 is the father of the deceased, P.W.l is the younger^brotherof P.W.2 and P.W.5 is the sister of P.Ws.l and 2. On 23.01.2014,^at about 3.00 or 3.30 p.m., P.W.l received a phone call^fromP.W.5 stating that the deceased died by hanging himself. Thereupon, he proceeded to the house of the deceased and found the dead body of the deceased lying on a cot. Accused No.l informed him that the

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deceased died by hanging himself to ceiling fan. He found a plastic rope on the cot and also observed some scratches on the neck of the deceased and as he got suspicion as to the death of the deceased, he lodged Ex.Pl- report with the police.

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(ii) On receipt of Ex.Pl - report, P.W.12 - S.I. of Police, I Town Law & Order Police Station, Rajahmundry, registered^acasein Crime No.41 of 2014 under Section 174 Cr.P.C. Ex.P12 is the F.I.R., copies of which were furnished to all the concerned by P.W.12. P.W.13- Inspector of Police, I Town Law & Order Police Station, who took up investigation from P.W.12, visited the scene^ofoffence. He seized a nylon rope - M.0.1, which was found on the cot by the side of the dead body of the deceased, in the presence of^P.W.9and another. He prepared rough sketch of the scene, which^wasmarked as EX.P14, and took photographs of the scene of offence, which were marked as Ex.PlS. Ex.P16 is the C.D. of Ex.PlS-photographs. He sent the dead body to the Government Hospital, Rajahmundry, and held inquest over the dead body in the Government Hospital, in the presence of mediators. Ex.P4 is the inquest report. During the course of inquest, he recorded the statements of P.Ws.l^to3and others. He also examined P.Ws.4, 5 and 8. Thereafter, on his

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requisition, P.W.IOCivil Assistant Surgeon, District Hospital, Rajahmundry, conducted autopsy over the dead body at 2.40 p.m. on 24.01.2014 and issued Ex.PlO- post-mortem examination report. Under Ex.Pll- final opinion, P.W.IO opined the cause^ofdeathofthe deceased was due to asphyxia as a result of the pressure^overthe neck, most likely to be strangulation with ligature. On receipt of post-mortem examination report, P.W.12 altered the^sectionoflaw from Section 174 Cr.P.C. to Section 302 I.P.C. and issued copies of altered F.I.R., which was marked as Ex.P13, to all concerned. (iii) Further investigation was taken up by P.W.14. On 27.09.2014, while P.W.14 was in police station, P.W.6 - Village Revenue Officer, Rajahmundry Urban In-charge of Annapurnammapeta, brought accused Nos.l and 2 to the police station and submitted a written report along with statements^of accused Nos.l and 2 made before him, confessing the^commission of offence. P.W.14 secured the presence of P.W.7 and another and in their presence, recorded the confessional statements of accused Nos.l and 2 under mahazarnama and arrested the accused Nos.l and 2 and sent them to Court for remand. After completion of investigation, P.W.14 filed charge sheet on 30.10.2015.

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In support of its case, the prosecution examined P.Ws.l to 14 and marked Ex.Pl to P17 and exhibited M.0.1. On behalf of defence, Exs.Dl and D2 - portions of 161 Cr.P.C. statement of P.W.2 were marked.

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After closure of the prosecution evidence, when the accused were examined under Section 313 Cr.P.C., they denied the incriminating material against them. The accused did not choose to adduce any oral evidence in defence. 6. After completion of trial, the learned Additional Sessions Judge found accused No.l alone guilty of the charge under^Section302 I.P.C. and accordingly, while acquitting accused No.2 for the charged offence, he recorded the conviction and imposed the sentence against accused No.l as already stated supra, leading to the filing of the present criminal appeal by her.

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Sri Challa Ajay Kumar, learned counsel appearing for the appellant/accused No.l, strenuously contends that the prosecution has failed to establish the chain of circumstances pointing towards the guilt of accused No.l, but the learned Additional Sessions Judge erred in holding accused No.l guilty of the offence. He further contends that the opinion of doctor is not conclusive evidence and

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hence, it cannot be taken as a sole ground to convict the appellant, without any substantial corroborative evidence, and^{evenotherwise} the final opinion - Ex.Pll given by the doctor was^{notcorroborated} by his oral evidence as P.W.IO. He further contends that the prosecution failed to prove the motive on the part of the appellant to kill the deceased and merely because the appellant failed to explain the cause and manner of the death of the deceased, she ought not to have been convicted when there was no cogent evidence on record to establish her guilt and when the evidence does not prove it to be a case of strangulation. Learned counsel, therefore, prays for acquitting the appellant by allowing the criminal appeal.

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On the other hand, learned Additional Public Prosecutor would support the judgment under appeal and contend that both the ocular and documentary evidence adduced by the prosecution clinchingly established all the circumstances that lead to the only conclusion that the appellant has committed the offence, and therefore, no interference is warranted with the conviction and sentence imposed against the appellant. He, therefore, prays for dismissal of the appeal.

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We have considered the submissions made on either side and perused the entire material available on record. As seen from the record, there is no eye-witness to the alleged incident and the prosecution rests its case solely on circumstantial evidence. So far as the circumstance relating to motive on the part of the accused to kill the deceased is concerned, the prosecution attributed two motives. One is that accused No.l was having illegal intimacy^withanother person and the other is that the deceased was in financial crisis and was unable to maintain family and was living in the parents' house of accused No.l and also got addicted to alcohol and was altercating with accused No.2 and thus, the accused decided to do away with his life. To prove the motive, the prosecution relied on the evidence of P.Ws.l, 2 and 5. P.W.2 is the father of the deceased,^P.W.l is the younger brother of P.W.2 and P.W.5 is the sister of P.Ws.l and 2. P.W.2 deposed that accused No.l had illicit intimacy with one Ramana, who was a mason, and P.Ws.l and 5 deposed that^the deceased told them that accused No.l had illicit intimacy^withthe said Ramana. However, the cross-examination of P.Ws.l and 5 would reveal that they did not state before the police that the deceased told them about the alleged illegal intimacy between

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accused No.l and Ramana. Besides that, the evidence of P.Ws.l and 2 would show that the deceased and accused No.l got^married against the wishes of parents of the deceased and for about one year after their marriage, P.W.2 and the deceased were not on talking terms. Thus, the evidence of P.Ws.l, 2 and 5 does not inspire confidence of the Court to believe their version^aboutthe alleged illegal intimacy between accused No.l and other person. Further, P.Ws.3 and 4, who are neighbours of the deceased. categorically deposed that there were no disputes between the deceased and accused No.l. Thus, except the interested testimony of P.Ws.l, 2 and 5, which is found not trustworthy,^{thereisnoother} evidence on record to prove the alleged illegal intimacy^ofaccused No.l with another person. So far as the aspect relating^tofinancial difficulties of the deceased is concerned, P.Ws.l,^2and 5 did not state anything in that regard in their chief-examination, and it is only in the cross-examination of P.Ws.l and 5, it was elicited^thatthe auto of the deceased was seized by the finance company.^Sucha mere statement is not sufficient to attribute motive to the appellant to kill the deceased, when it is also the version of the defence that the deceased committed suicide due to financial difficulties. Thus, it

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can be said that the prosecution has failed to prove^themotiveon the part of the appellant to kill the deceased.

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Further, to prove that the death of the deceased was homicidal, the prosecution has relied upon Ex.Pllfinal opinion given by P.W.IO- doctor, who conducted post-mortem^examination. Ex.PlO - post-mortem examination report issued by P.W.IO^would show that the opinion as to cause of death was reserved awaiting RFSL Report. After receipt of RFSL report, P.W.IO gave^Ex.Pll-final opinion stating that the death might have been caused due to asphyxia as a result of pressure over the neck most likely to be strangulation with ligature. The learned Additional Sessions Judge has referred to the difference between hanging and strangulation, as per the Medical Jurisprudence and Toxicology 3'"^ Edition^ofDr. K.S. Narayana Reddy and Modi's Twenty First Edition edited by C.A. Franklin. As can be seen from both the theories, in case of hanging, ligature mark is oblique, does not completely encircle the neck, usually seen high up in the neck between chin and larynx,^and is hard and parchment-like; whereas in case of strangulation, it is completely encircling the neck below the thyroid cartilage^andthe base is soft and reddish. In the instant case, as per Ex.PlO- post-

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mortem examination report, coupled with the evidence of P.W.IO, a ligature mark was present in front of neck at the level of thyroid cartilage and no ligature mark was present in the posterior aspect of the neck, and further the ligature mark is dry, hard and parchment like. Thus, the ligature mark found on the dead body of the deceased suggests that it is a case of hanging. When that is so, it is not known as to on what basis P.W.IO, under Ex.Pll- final opinion, opined it to be a case of strangulation. In the cross-examinatio n, P.W.IO also admitted that according to the medical jurisprudence and toxicology of K.S. Narayana Reddy 3'^ Edition, dry, hard and parchment like finding could be only in case of hanging,^andfurther added that according to the literature of Parik Text Book of Medical Jurisprudence Forensic Medicine and Toxicology, it^{couldbeincase} of hanging and strangulation. Thus, the ocular evidence of P.W.IO suggests both possibilities and it does not give a^{clear-cutorobvious} opinion that it is a case of strangulation only, as opined in the final opinion under Ex.Pll. In Ghulam Hassan Beigh v. Mohammad Maqbool Magrey reported in 2022 (4) R.C.R. (Criminal) 45, the Hon'ble Supreme Court held that post-mortem report, by itself, does not constitute substantive evidence and the doctor's statement in

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Court is alone the substantive evidence. It was further held that the expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although,^notan expert, may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer^butofthe Court. In the instant case, as the evidence given by^{P.W. 10-doctorin} Court does not clearly show in unequivocal terms that^itisacaseof strangulation only, Ex.Pllfinal opinion given by P.W.IO to the effect that it could be a case of strangulation, cannot be relied upon to come to the conclusion that the death of the deceased occurred due to strangulation.

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Another circumstance projected by the prosecution to^connect the appellant with the offence is that the deceased was found dead in the bed room of accused No.l and the deceased, and^hewaslast seen in the company of accused No.l alone and in the^absenceof any other inmates of the house, it is for accused No.l to explain as to how the deceased died. The learned Additional Sessions Judge

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«v.-

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observed that according to the case of the prosecution as projected in the charge sheet, the parents of accused No.l kept^accusedNo.l and the deceased in one portion of their house and thus, it is not as though accused Nos.l and 2, their parents and the deceased were residing together in one house and that it is a case where the deceased and accused No.l used to reside separately^from the parents of accused No.l. However, as seen from the evidence of P.Ws.l and 2, both of them stated that the deceased used to reside in the house of parents of accused No.l. It is not their evidence that the deceased and accused No.l used to reside separately^fromthe parents of accused No.l. Even as per the averments in the charge sheet, it was alleged that the parents of accused No.l constructed a new house during June, 2013 and shifted the deceased and accused No.l into one of the rooms in their house to avoid unnecessary expenditure. When the averments of the charge sheet also clearly show that the deceased and accused No.l were residing in one of the rooms in the house of the parents of accused No.l, the observation made by the learned Additional Sessions Judge that the deceased and accused No.l were residing separately from parents of accused No.l is wholly incorrect and has no basis. Further, it is also

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\ (

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to be noted that the learned Additional Sessions Judge^foundthat the circumstances projected by the prosecution to connect accused No.2 with the offence were not sufficient to point out the guilt of accused No.2, and therefore, acquitted him of the offence. When accused No.2 is held to have not been involved in the offence, accused No.l alone strangulating the deceased to death and then hanging his dead body to the ceiling fan, would be highly improbable.

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It is settled law that where a case rests squarely on circumstantial evidence, in order to sustain a conviction, it is imperative that the chain of circumstances is complete, cogent and coherent, and the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In the case on hand,^fromthe discussion above, it is clear that the circumstantial evidence adduced by the prosecution does not conclusively establish the guilt of the appellant/accused No.l in committing the murder of the deceased and the prosecution has miserably failed to prove the guilt of the appellant/accused No.l beyond all reasonable doubt. Therefore, the

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conviction and sentence imposed against the appellant/accused^No.l cannot be sustained.

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In the result, this criminal appeal is allowed, setting^asidethe conviction and sentence imposed by the learned I Additional Sessions Judge, Rajahmundry, against the appellant/accused No.l for the offence under Section 302 I.P.C., vide judgment dated 08.07.2016 in S.C.No.33 of 2015. The appellant/accused No.l is acquitted of the charge and she shall be set at liberty forthwith, if she is not required to be detained in any other case.^Fineamount paid, if any, by the appellant/accused No.l shall be^{refundedtoher.}

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Pending interlocutory applications, if any, shall stand closed, as a sequel.

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To,

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//TRUE COPY//

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SD/- K TATA RAO DEPUTY REGISTRAR %

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SECTION OFFICER

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The 1st Additional Sessions Judge, Rajahmundry (with records) 2. One CC to Sri. Challa Ajay Kumar Advocate [OPUC] 3. Two CCs to Public Prosecutor, High Court of A.P. at Amaravathi [OUT] 4. The Section Officer, Criminal Section, High Court of A.P. at Amaravathi 5. Three CD Copies

PR sree

HIGH COURT

DATED:07/03/2024

JUDGMENT

CRLA.No.699 of 2016

|| 0 2 APR 202*1 0'
Current Sectior

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^Coohy

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ALLOWING THE CRLA

Perugu Hymavathi at Hyma, Rajahmundry., v. the State of Ap., Rep Pp.

Case brief

What is this about?

What did the court decide?

Perugu Hymavathi at Hyma, Rajahmundry., v. the State of Ap., Rep Pp.

Case brief

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What did the court decide?

What the court decided

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