Allowed

Kummari Venkatanna v. the State of Ap., and Another

Telangana HC10 Oct 2022CRLA/660/2013

Case brief

AI extract

What is this about?

High Court of Telangana allowed the criminal appeal filed by an accused convicted under Sections 302 and 307 IPC. The court set aside the conviction because the sole material witness failed to corroborate the extra-judicial confession and last seen theory in her deposition.

What did the court decide?

The appeal is allowed; the judgment of the trial court is set aside, and the appellant-accused is acquitted and set at liberty.

Kummari Venkatanna Vs the State of Ap., and… — Murder and Culpable Homicide | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA

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AT HYDERABAD

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MONDAY,THE TENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE SMT JUSTICE P.SREE SUDHA AND

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THE HONOURABLE DR. JUSTICE D.NAGARJUN

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CRIMINAL APPE NOI 660 OF 20'13

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Crl.Appeal Under Section 374 (21 o't Cr.P.C. against the Judgment dated 15-05-2015 in S.C.No. 448 oi 2012 on the file of the Court of the lll Additional District and Sessions Judge , Gadwal.

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Between:

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KUMMARI VENKATANNA, S/o Beresanna occ: Coolie F/o Kondapur Village, Itkyala Mandal, Mahabubnagar Dist. ...APPELLANT/ Accused AND

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The State of Andhra Pradesh, Rep- by its Public Prosecutor High Court of AP., Hyderabad. ...RESPODENT/ Respondent

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Counsel for the Appellant :SRl. P. PRABHAKAR REDDY

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Counsel for the Respondent: THE PUBLIC PROSECUTOR

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The Court delivered the following: Judgment

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)

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THE HON'BLE SMT JUSTI CE P.SREE SUDHA AND THE HON'BLE DR. JUSTI CE D.NAGAR.TUN

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CRIMINAL APPEAL No.66() of 2013

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JUDGMENT

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(per Justice^p.Sree Sudha)

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i . This Criminal Appeal is directed against the judgment dated 15.05.2015 rendered in Sessions Case No.44g of 2Ol2 on the liie of the learned III Additional District and Sessions Judge, Gadwal, rvhereby the appellant-accused is found guilt5z for the offencr:s under Sections 3O2 and 307 IpC and sentenced to undergo imprisonnrent for life for the offence Under Section 3O2 IPC together with hne of Rs.5O0/- and rigorous imprisonment for three years and fine of Rs.5O0/- for the offence under Section 3O7 IPC. In default to pay fine amounts, the accused shall undergo simple imprisonment for a period of one month on each count.

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The case of the prosecution is that on 03.12.2011 at about 0400 hours accused took her daughter Seshamma, aged 10 years, to fetch water from the agricultural well and killed her by throruing into the well. When his wife-defacto complainant Kummari Govindamma-p.W. 1 enquired her husband about their daughter, accused confessed before her that he kiiled his

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daughter by throwing in the well. Upon which P.W. 1 raised hue and cry and asked the accused to show the dead body of her daughter. The accused took P.W.1 to the well and she found the dead body floating in the well water and at that time the accused also attempted to kill P.W.l by throwing her into the same well, but she was rescued by one Kummari NagannaP.W.2. The reason stated by the accused for killing his daughter is that she gave faise information to him tl-rat his sister abused her. Basing on the complaint given by the wife of the accused, a case in Crime No.88 of 201 1 was registered for the offence s under Sections 3O2 and 307 IPC against the accused and investigation was conducted by P.W.9. During the course of investigation P.W.9 visited the scene of offence situated at a distance of one kilo meter from Kodandapur Police Station and found the dead body of deceased-Seshamma in the agricuiturai well of P.W.3 and thereafter the dead body was lifted from well and conducted inquest in the presence of mediators. On examination of the witnesses, it was disclosed that three days prior to the incident the sisters of the accused, Devamma and Shanthamma-P.Ws.5 and 6, came to the house of the accused and scolded his children. The deceased informed to her father that P.W.S abused her and when the accused questioned his

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sister, she denied the same and stated that the rleceased was deposing falsely against her and as such the accused became angry, took her to the well and thrown her into the well. After conchrsion of the investigation, P.W.9 laid charge sheet against the accused.

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The charges framed by the Sessions Court against the accused read as under:

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'Firstly : That you accused on or about 3.72.2011 at agricultural well of Sudhakar Reddy situate within the limits of Kodandapur viilage at a distance of 1OO meters from the house of you accused committed murder of Sheshamma intentionally causing the death of Sheshamma by throwing and sinking her in the agricultural well and that you thereby committed an offence punishable under section 302 IpC and within my cognizance.

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Secondly: That you accused on or about 3.12.2OL1 at the agricultural well of Sudhakar Reddy situate within the limits of Kodandapur village at a distance of l0O meters fr,rm the house of you accused tried to push Kummari Govindamma (LW.l) into well with such intention to ca.use the death of Kummari Govindamma and that you thereby committed an offence punishable under section 307 IPC and within my cognizance.,

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The accused denied the charges and claimed to be tried. Thereupon, the prosecution examined nine witnesses and marked in evidence seven exhibits. The defence did not choose to adduce any evidence. The accused was examined under Section 313 Cr.P.C. and he pleaded not guiity. The trial Court after considering the evidence of P.Ws. 1 and 2 held that they are material witnesses and convicted the accused for the offences under Sections 302 and 307 IPC. Aggrieved by the said judgment, this criminal appeal is preferred by the accused.

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Heard t'Le learned counsel appearing for the appellantaccused and the learned Public Prosecutor appearing for the State.

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P.Ws. 1 and 2 are not eye witnesses to the incident. P.W.2 has not stated that accused informed her about killing of his daughter by him. Though P.W. 1 stated in her complaint, she has not stated so in her deposition before the Court and as such it cannot be considered as extra judicial confession made by the accused. Even if it is presumed to be the extra judicial confession, the accused should have made the same to the police or someone else and it cannot be believed that he made the said confession to his wife-P.W. 1. Though P.W. 1 stated in

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Ex.Pl. FIR that her husband informed her about killing of her daughter by throwing into the well, she has not stated about the said information in her evidence before the Court. As the FIR is not substantial piece of evidence, the same cannot be relied upon for convicting the accused.

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The trial Court considering the last seen theory, discussed that P.W. I has last seen her husband with her daughter when they u,ere going to the well in the morning hours to fetch water and later her husband alone returned and when p.W. I questioned about her daughter, he confessed the guilt. Then immediately she along with her husband and p.W.2 rushed to the well and other villagers also gathered and they found the dead body of their daughter in the well. But p.W. t has not stated that she has seen the accused with her daughter for the last time in her evidence before the Court, though p.W. 1 stated so in Ex.Pl. P.W. I further stated that on the next day morning they noticed the dead body of deceased in the agricultural well of P.W.3. Therefore, the learned counsel for the appellantaccused argued that the said theory of last seen was created for the purpose of the case and conviction cannot be sustained basing on the evidence of P.W. I who has not stated that she has seen tht: accused with her daughter for the last time. Leamed

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counsel for the appellant-accused would mainly^point out two defences i.e. extra^judicial confession said to have been made before P.W. 1 and also the last seen theory which was not deposed by P.W. 1.

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Admittedly, there is no eye witness to the incident and it is a case of circumstantiai evidence and therefore it is for the prosecution to establish the guilt of the accused beyond reasonable doubt.

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Learned counsel for the appellant-accused further argued that the motive stated by the accused for killing his daughter is too remote and has no relevance and for the simple reason that the deceased made false allegation against the sister of the accused, the accused cannot go to the extent of killing his own daughter mercilessly. As the agricultural well has no compound wall around it, the deceased might have slipped and fell down in the well and it is a case of accident but not the case bf homicidel. There is no eye witness to the^incident that the accused pushed her into the well. P.W.3^{is the owner of the well} where the dead body of the deceased^{was found. P.W.4} is^the Teacher who drafted^{Ex.Pl complaint.P.W.S is the sister of the} accused and she also^{supported the version of P.W. 1. P.W.6 is}

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panch witness for the scene of offence. P.W.7 is the panch for confession of the accused. P.W.8 is the Doctor who conducted post-mortem examination and after completion of investigation P.W.9 filed charge sheet.

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karned counsel for the appellant-accused rvould mainly argue that under 313 Cr.P.C. examination, the incriminating material i.e. the alleged extra judicial confession was not put to the accused and the learned counsel also relied upon the citation reported in SUJIT BISWAS V/s. STATE OF ASSAMT in which it was held as follows:

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'lt is a settled 1egal proposition that in a criminal tria-l, the purpose of examining the accused person under Section l] l3 Cr.P.C. is to meet the requirement of the principles of rratural justice r.e. audi alterum portem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with i:im, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his

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'1zot31^{tz scc .roo}

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examination under Section 313 Cr.P.C., cannot be used against him and must be excluded from consideration. ...'

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Learned counsel for the appellant-accused a-lso relied upon a case law in SAHADEVAN V/s. STATE OF TAMIL NADU2 in which the principles for extra judicial confession are laid down, which are as follows:

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0 The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

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ii) It should be made voluntarily and should be truthful.

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iii) It should inspire confidence.

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iv) An extra-judicial confession attains greater credibililv and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

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v) For an extra-judicial confession to be the basis of conviction, it shouid not suffer from any material discrepancies and inherent improbabilities.

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vi) Such statement essentially has to be proved like any other fact and in accordance with law.'

'?1zorz1^{o scc ao:}

)

( (

In this case the allegation against the appellant-accused is thzrt he killed his minor daughter by throwing her into well and lhe complaint was given by his wife. But, during her deposition before the Court she has not deposed the crucial aspects which were alleged to have been stated in the compiaint. In fact, the complaint was not drafted by her. In criminal matters, that too when an allegation of grievous offence iike murder and attempt to murder are made against the accused, it is for the prosecution to establish the guilt of the accus,:d beyond reasonable doubt. If the defence is able to create any doubt in the mind of the Court, the benefit of doubt is invariably to be extended to the accused. In this case since P.W. t has not deposed that her husband alone informed her about killing of his daughter and so also as she has not stated that she has last seen her husband and daughter together, it is fatal to the case of the prosecution and basing on her sole testimt>ny the accused cannot be convicted. Therefore, the tri;l Court erred in appreciating the facts and the judgment of the trial Court is liable to be set aside.

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13.^'l'he appeal is accordingly allowed, setting aside the judgme nt dated 15.05.2015 passed in Sessions Case No.448 of 2Ol2 on the lile of the learned III Additional District and

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Sessions Judge, Gadwal, and acquitted the appellant-accused of

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the charge under Sections 302 and 307 IPC. He shall be set at

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liberty forthwith, if he is not required in any other case. Fine

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amount, if any, paid by him shall also be refunded.

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I I !

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/TTRUE coPY//

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Sd/. K. SREENIVASA^RAO, JOINT REGISTRAR ( t

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SECTION OFFIGER

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Toi.it," ttt Additional District and Sessions Judge, Gadwal. (with records ) Z. itre .tudicial^{Magistrateof I Class, Alampur, GSdwal Dist'} 5. iii" irp"rintend-ent,^{CentralPrison, Cherlapalli, RangaReddyDistrict'} - a. two ccs to Public^{Prosecutor,High court at Hyderabadfor the State of} Telangana^(OUT) s. one c6 sri b.^{pingHAKARREDDY, Advocate (oPUC)}

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Two C.D.Copies

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One Spare CoPY

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HIGH COURT

DATED:1011012022

JUDGME:NT

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CRLA.No.660 of 2013

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ALLOWING TEH CRL.A.

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S.$

Kummari Venkatanna v. the State of Ap., and Another

Case brief

What is this about?

What did the court decide?

Kummari Venkatanna v. the State of Ap., and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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