Allowed

Metri Gangonda(A-3) v. State of Andhra Pradesh Rep.by its Public Prosecutor

Telangana HC3 Jul 2012CRLA/2090/2004

Case brief

AI extract

What is this about?

This court allowed criminal appeals against a conviction for culpable homicide not amounting to murder. The appeal was based on insufficient corroboration of the sole prosecution witness and lack of evidence proving the accused caused specific fatal injuries like a hyoid fracture.

What did the court decide?

The judgment convicting the accused for Section 304-II IPC is set aside; appellants acquitted; fine returned; bail bonds cancelled; A-1 released if in jail.

Metri Gangonda(A-3) Vs State of Andhra… — Murder and Culpable Homicide | Telangana HC (2012)

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HON’BLE SRI JUSTICE K.S. APPA RAO Crl.A.Nos.2090 of 2004 and 1514 of 2006

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COMMON JUDGMENT:

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Aggrieved by the judgment dated 23-07-2004 passed in S.C.No.190 of 2001 on the file of the VII Additional District and Sessions Judge (FTC), Nizamabad at Bodhan, Crl.A.No.2090 of 2004 is preferred by A-3 and A-4 and Crl.A.No.1514 of 2006 is preferred by A-2.

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2. Since both the appeals are filed against the same judgment, they are taken up together and disposed of by this common judgment.

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3. The averments of the charge sheet reads as follows:

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A-1 is a native of Dhangarwadi village of Degloor Taluk of Maharastra State. In 1993 the deceased was married with A-1 and they lead happy marital life for four years. Thereafter, A-1 came into contact with A-2 and developed illicit intimacy with her and started humiliating the deceased by physically harassing her. The deceased several times approached her parents and informed them about the illicit intimacy of A-1 with A-2 and the ill-treatment of A-1 towards her, and in pursuance of the same, a panchayat was held by the elders and A-1 was admonished and asked to maintain the deceased properly.

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While so, on 19-02-2000, there was ‘Pournima’ and the deceased was celebrating to eat New Wheat. A-2 sent her daughter to the house of the deceased for cotton and A-1, inspite of the objection raised by the deceased, gave cotton to her due to which the deceased used harsh words against A-1 and A-2. A-3 is the cousin of A-2 and A- 4 is the son of A-3 and they heard the harsh words of the deceased. Therefore, on

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19-02-2000 at about 6-00 PM to 7-00 PM, A-1 to A-4 caught hold of the deceased, beat her with hands and thrown her on the ground and pressed her neck due to which she died. PW-1, the brother of the deceased, gave Ex.P-1 report to the police stating that A-1 to A-4 beat

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and murdered the deceased.

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The Sub-Inspector of Police registered the crime, issued FIR, examined the scene of offence and took up further investigation, and after due investigation, filed the charge sheet against the accused for the offence under Section 302 read with 34 of IPC. The accused denied the charges and claimed to be tried.

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4. The prosecution, in order to prove the guilt of the accused, examined PWs.1 to 14 and got marked Exs.P-1 to P-9. On defence side, DW-1 was examined and Exs.D-1 to D-4 were got marked. The trial Court, after evaluating the oral and documentary evidence, held that the prosecution has failed to prove the guilt of A-1 to A-4 for the offence under Section 302 of IPC beyond all reasonable doubt, however, it has been able to prove the guilt of A-1 to A-4 for the offence under Section 304-II read with 34 of IPC, and accordingly, convicted them and sentenced them to suffer rigorous imprisonment for a period of ten years each and to pay a fine of Rs.500/- each in default to suffer simple imprisonment for one month each. Aggrieved thereby, A-2 to A-4 preferred the present appeals as stated above.

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5. Learned counsel appearing for the appellants, while supporting the appeal grounds, mainly argued that the learned Judge erred in not attaching any importance to the evidence of DW-1, who has been examined to prove the plea of alibi taken by the appellants, and also failed to see that though the name of PW-7, who is the mother of A-1, is shown as accused in FIR, her name has been deleted from the charge sheet. He finally argued that except the evidence of PW-5, who is a chance witness, there is no other evidence on record to prove the offence under Section 304-II read with 34 of IPC.

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6. The learned Public Prosecutor, while supporting the judgment of the trial Court, sought for dismissal of the appeal.

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7. Now the point for consideration is whether the prosecution proved the guilt of the accused beyond reasonable doubt for the offence under Section 304-II read with 34 of IPC and whether the

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conviction and sentence imposed by the trial Court are sustainable? POINT:

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8. Originally the charge sheet is filed for the offence under Section 302 read with 34 of IPC. The trial Court, after due trial, found that the prosecution failed to prove the guilt of the accused for the offence under Section 302 of IPC, however held that the prosecution has been able to prove the guilt of the accused for the offence under Section 304-II read with 34 of IPC, and accordingly, convicted and sentenced them.

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9. It is the case of the prosecution that A-1 is having illicit intimacy with A-2 for which the deceased used to scold A-1 and in pursuance of the same, A-1 and A-2 with the connivance of A-3 and A- 4 went to the house of the deceased on the date of incident i.e., 19-022000 and invited a quarrel and in that quarrel, they beat the deceased indiscriminately with sticks and hands resulting her instantaneous death. In order to prove the same, except the sole testimony of PW-5, none of the prosecution witnesses have deposed about the offence proper. The trial Court also disbelieved the evidence of PWs.1 to 4 and, while taking into consideration the evidence of PW-5, convicted the accused for the offence under Section 304-II read with 34 of IPC. PWs.6 to 9 turned hostile and did not support the case of the prosecution. Therefore, when the evidence of PW-5 was taken into consideration by the trial Court, his evidence shall attach much importance while deciding the issue on hand.

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10. Now let us see to what extent the evidence of PW-5 make out the case for which the accused were charged. PW-5, Sangamnath, is a resident of Gulla Big village, Jukkal Mandal. According to him, on the date of incident about four years ago, at about 6-00 PM, while he was going to Marepalli, he happened to go in front of the house of A-1 and on noticing some galata at the house of A-1, went there and found A-1 beating his wife.

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He saw the said incident, but did not intervene since the incident was

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taking place between wife and husband. Initially this witness (PW-5) was declared hostile by the learned Additional Public Prosecutor. Thereafter, during the course of cross-examination, he narrated the incident stating that he has seen A-1 to A-4 attacking the deceased. While narrating the same, he stated that on hearing the cries of A-1, he went there and noticed the deceased quarrelling with her husband in regard to cotton.

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In the meanwhile, A-1 questioned her as to why she was quarrelling for the simple issue of cotton and there is an altercation. Meanwhile A- 1 pushed the deceased into the house by beating her, and A-2 to A-4, who were present there, went towards the deceased and beat her with hands and abused her. Meanwhile, A-2 caught hold the neck of the deceased and made her fell on the ground. A-2 caught hold of her hands and A-4 caught hold of her legs and when PW-1 intervened, she was beaten and pushed away.

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11. Admittedly as per the evidence of PW-5, his wife’s younger sister is a resident of Marepalli village and while he was going to her house, he happened to see the incident. As per the prosecution version, the offence took place at about 6-00 PM at the house of the deceased. It is also an admitted fact that there are residential houses in and around the place of incident. None of the neighbours were examined by the prosecution and the reason is obvious. Admittedly PW-5 is not the villager of the place where the alleged incident took place. Even according to him, while he was proceeding to the house of his wife’s younger sister, he has seen the incident. Therefore, in such a situation, the evidence of PW-5 cannot be treated as gospel truth since there is no corroborative evidence on that score and such corroboration should be through the evidence of the neighbours at the place of incident.

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12. The motive for committing the offence is the alleged illicit intimacy of A-1 and A-2. PWs.1 and 2, the brother and mother of the deceased, stated that earlier there was a panchayat in regard to the

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alleged illicit intimacy of A-1 and A-2. But none of the panchayatdars have deposed on that score and the alleged mediators turned hostile. Though there is alleged illicit intimacy between A-1 and A-2, the presence of A-3 and A-4 is doubtful at the place of occurrence, the reason being nothing was attributed against them.

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13. It is the finding of the trial Court that if the testimony of the hostile witnesses is helpful to the case of the prosecution, the same can be taken into consideration. There is no dispute on the said proposition, but the fact remains that the said evidence adduced in the cross-examination to be true, trustworthy, genuine and further corroborated by any independent witnesses. As PW-5 happened to be the villager of another village, his evidence to be weighed with great care and caution. In the first instance, he deposed that he has seen A- 1 beating the deceased and left the scene and in the second part of the evidence, in his cross-examination, he deposed that he has seen A-1 to A-4 quarrelling with the deceased and also attributed specific overt acts against them. It is the case of some of the prosecution witnesses that they learnt about the nature of death of the deceased due to consumption of poison. When there are two different versions regarding the nature of the death of the deceased, the benefit of doubt must be given to the accused.

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14. On a perusal of the evidence of PW-10, Doctor, he noted seven injuries and most of them are bruises. One of the grievous injuries is bruise to the neck structures and another grievous injury is fracture to the hyoid bone left horn. Admittedly no material objects were seized by the police at the scene. If the evidence of PW-5 that A- 1 to A-4 attacked the deceased with hands is taken into consideration, sustaining the injuries noted in Ex.P-6, postmortem report, by the deceased cannot be said to be true. Unless a deadly weapon is used, the fracture to the hyoid bone would not have been caused. It is the case of none of the prosecution witnesses much less the evidence of PW-5 that any of the accused twisted the hands of the deceased or

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caused any injury on her neck during the course of attack. Therefore, in the absence of any cogent and corroborated evidence, it cannot be said that the deceased sustained all the injuries in the hands of A-1 to A-4. The trial Court, while evaluating the evidence of PW-5, converted the offence to Section 304-II read with 34 of IPC and accordingly laid the conviction while disbelieving the prosecution version that the accused has motive to kill the deceased and the incident had taken place in the spur of the moment. It is the finding of the trial Court is that there is no motive on the part of the accused for committing the offence.

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15. As per the medical evidence, the deceased received injury on the neck and fracture to the hyoid bone left horn and abrasion on both the knees and bruise on the thighs. But the same is not corroborated with the evidence of PW-5. As there is no corroborative evidence to the evidence of PW-5 and there is no motive on the part of the accused for committing the offence, the finding of the trial Court convicting the accused for the offence under Section 304-II read with 34 of IPC, is not sustainable. Accordingly, the prosecution failed to prove the guilt of the accused beyond all reasonable doubt for the said offence. Thus the judgment of the trial Court cannot be sustained and it is liable to be set aside.

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16. A perusal of the record, no appeal is preferred by A-1 namely Metri Suresh @ Sirgonda S/o. Beeru @ Beergonda, against the conviction and sentence imposed on him by the trial Court. However, in the circumstances of the case on hand and in the interest of justice, the benefit is extended to A-1 also though he did not prefer any appeal.

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17. In the result, both the Criminal Appeals are allowed. The judgment, dated 23-07-2004 in S.C.No.190 of 2001 on the file of the VII Additional District & Sessions Judge, Fast Track Court, Nizamabad at Bodhan, convicting the appellants-A2, A-3, A-4 and A-1 by name Metri Suresh @ Sirgonda S/o. Beeru @ Beergonda, for the

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offence under Section 304-II read with 34 of IPC and imposing the sentence thereon, is set aside, and they are acquitted. If A-1 is in jail, he shall be released forthwith if not required in any other crime. The bail bonds of the appellants-A-2, A-3, A-4 shall stand cancelled. The fine amount, if any, paid by the appellants-A2, A-3, A-4 and A-1 by name Metri Suresh @ Sirgonda S/o. Beeru @ Beergonda, shall be returned to them.

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________________ K.S. APPA RAO, J

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Date: 03-07-2012 YCR

Metri Gangonda(A-3) v. State of Andhra Pradesh Rep.by its Public Prosecutor

Case brief

What is this about?

What did the court decide?

Metri Gangonda(A-3) v. State of Andhra Pradesh Rep.by its Public Prosecutor

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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