Sec.302 I.P.C. - Not sufficient to prove the offence-Taking finger prints with out permission of court for comparison not valid - Non examination of deceased daughter and non examination of first hand information person - non citing the inmates of the house as witness against the charges that the maid servant murder his wife - Not sufficient to prove the offence - their lordships acquitted the accused and set aside the trial court conviction order = Nekkala Bangaramma ...APPELLANT/ACCUSED The State of A.P., Rep.by Public Prosecutor, High Court of A.P., Hyderabad.= 2014 judis.nic.in/judis_andhra/filename=11024

Sec.302 I.P.C. - Not sufficient to prove the offence-Taking finger prints with out permission of court for comparison not valid - Non examination of deceased daughter and non examination of first hand information person - non citing the inmates of the house as witness against the charges that the maid servant murder his wife - Not sufficient to prove the offence - their lordships acquitted the accused and set aside the trial court conviction order =

The appellant herein was tried as the sole accused in S.C.No.60 of 2007 on
the file of the Judge, Mahila Court, Visakhapatnam.  She was working as a maid
servant in the house of P.W.1, a retired railway driver.  He was leading retired
life with his wife, and his daughter at Visakhapatnam.=

There is every possibility of the incident being witnessed by the daughter of
PW.1 and the deceased, i.e., Rupa.  Though PW.13 examined as many as 24 listed   
witnesses, that included the brother, sons, the daughter-in-law, grand children
of PW.1, and other neighbours, he did not even make an attempt to examine the
daughter of PW.1.  Had an effort been made to examine her, things would have
been different altogether.  In the cross examination of PW.1, it was elicited
that his daughter Rupa was married, she lived with her husband for about 10
years, and the couple had two children.  Heavy duty rested upon PW.1 to state,
as to when Rupa became insane, to such an extent, that she cannot act like an
ordinary person. Failure to examine that woman is a serious lapse on the part of
the prosecution.
It has already been mentioned that PW.2 categorically stated that LW.12, by
name, S. Ajaneyulu was with them, both when he went to Ayyappa swamy temple, and    
accompanied him to the scene of occurrence.  However, the said Anjaneyulu was 
not examined.  A person, who happened to notice the state of affairs at the
earliest point of time, would have been of utmost importance to the prosecution.
No reasons whatever were assigned for giving up such an important witness.
PW.5-the ward member was said to be present at the scene of offence, and even he 
has figured as a witness, in the inquest.  However, his presence was not spoken
to by PW.1.  The effect of this and the other lapses is certainly phenomenal.
Learned Public Prosecutor laid much emphasis upon the finger prints, said to
have been noticed upon a broken bottle.  The record does not disclose that the
finger prints of the accused, were taken with the permission of the Court.  Ipsi
dixit of the prosecution in taking the finger prints, and sending them to
Forensic Laboratory, cannot be recognized in law as a step in the investigation
of prosecution.

We are satisfied that the circumstances that are pleaded by the prosecution, are
not sufficient to prove the charge framed against the accused.

In the result, the Criminal Appeal is allowed. The conviction and sentence
ordered in S.C.No.60 of 2007 on the file of the Sessions Judge, Mahila Court,
Visakhapatnam, dated 21.10.2008, against the appellant-accused, are set aside.
The appellant-Accused shall be set at liberty forthwith, unless her detention is
needed in any other case.  The fine amount, if any, paid by the appellant-
Accused shall be refunded to her.

2014 judis.nic.in/judis_andhra/filename=11024
HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE S.RAVI KUMAR                

CRL.A.NO.1616 OF 2009  

05-03-2014

Nekkala Bangaramma ...APPELLANT/ACCUSED        

The State of A.P., Rep.by Public Prosecutor, High Court of A.P., Hyderabad.

Counsel for the Petitioner: Sri B.Parameswara Rao

Counsel for the Respondent :Public Prosecutor

<Gist:

>Head Note:

?Citations:

CRIMINAL APPEAL No. 1616 of 2009  

JUDGMENT: (per the Hon'ble Sri Justice L.Narasimha Reddy)      


        The appellant herein was tried as the sole accused in S.C.No.60 of 2007 on
the file of the Judge, Mahila Court, Visakhapatnam.  She was working as a maid
servant in the house of P.W.1, a retired railway driver.  He was leading retired
life with his wife, and his daughter at Visakhapatnam.
On 18.11.2006, PW.1 is said to have gone to the Ayyappa Swamy Temple, for Pooja.
At about 11.00 a.m., PW.2, his tenant and a resident near by, is said to have
come to the temple, and informed him that the accused knocked the door, when he
was asleep, and informed him that the wife of PW.1, by name Savitramma, was
murdered by somebody.  P.Ws.1 and 2 were said to have proceeded to the house,
and found that the deceased was in a pool of blood, on a cot.  PW.1 also said to
have noticed a towel, around the neck of the deceased, and a portion of it,
having been pushed into her mouth, and on removal of that, he is said to have
noticed that the gold ornaments such as chain, mangalasutram were missing.  The 
accused also is said to be present in the house, at that time.
P.W.2 is said to have informed about the incident to PW.5, the Ex-ward member of
Vepagunta Gram Panchayat.  On receiving the telephone message from PW.5, the Sub  
Inspector of Police, Pendurthi-PW.10, registered a case in Crime No.394 of 2006,
and proceeded to the scene of offence.  He has also passed the information to
PW.11-the Circle Inspector of Police, and various steps in the investigation,
such as, preparation of the scene of offence, panchanama, causing inquest and
postmortem, were completed.
At that stage, a written complaint being Ex.P1 drafted by PW.2 and signed by
PW.1, was submitted to the police.
Entertaining suspicion against the accused on the ground that, though she was in
the house, when PWs. 1 and 2 came to the house, she moved away when they were    
discussing about the submission of a complaint to the police.  The investigation
was carried out in that direction.  The golden ornaments missing from the
deceased are said to have recovered from the accused.  PW.11, the Circle
Inspector of Police, filed a detailed charge sheet, narrating all the events
noticed by him, in the course of investigation.  Based on the same, the trial
court framed the charge against the accused.  On behalf of the prosecution,
PWs.1 to 13 were examined, Ex.P1 to P28 were marked.  M.Os.1 to 11 were also  
taken on record.
Through its judgment, dated 21.10.2008, the trial Court held the accused guilty
of committing the offence of murder of the deceased and imposed punishment of
imprisonment for life, and fine of Rs.500/-, in default, to undergo Simple
imprisonment for one month.  She was also held guilty of the offence punishable
under Section 380 IPC, and was sentenced to undergo Rigorous Imprisonment for
two years, and a fine of Rs.500/-, in default, to undergo Simple Imprisonment
for one month.  Hence, this appeal.
Learned counsel for the accused submits that there is any amount of doubt, as to
how the prosecution was initiated, or the police swung into action in this case.
He contends that though PW.1 stated that, himself and PW.2, went to the house of
the accused, on receiving the information, he did not state, as to what was the
source of information for the police, to reach there.  He submits that PW.12 has
stated in his evidence that, on receiving information from the accused about the
death of the deceased, himself, and one S.Anjaneyulu-LW.12, proceeded to Ayyappa
swamy temple, informed the same to PW.1, and all the three of them returned to
the scene of occurrence, but PW.1 did not make any reference in the presence of
LW.12.  He further submits that failure to examine LW.12, would have its impact
upon the case of the prosecution.
Learned counsel further submits that the plea of PW.1 that his daughter Rupa,
who is living along with him, is an insane person, is belied from the fact that
the said woman was not only married, but also had two children.  He further
submits that though the brother, sons, daughter-in-law and grand son of PW.1,
were examined in the course of investigation, none of them have been cited as
witnesses in the Court.  He contends that PW.2 and PW.13 made extensive
reference to the role played by PW.5-the ward member, whereas, PW.1 did not make
any reference to him at all.  He pleads that, if in fact, the accused committed
murder, there would not have been any question of her informing the incident to
PW.2, or for that matter, to remain in the house, till PW.1 came back.
Learned Public Prosecutor, on the other hand, submits that the oral evidence, as
well as the medical evidence adduced before the trial Court, has clinchingly
proved the involvement of the accused in the incident.  She contends that though
the accused was present after the incident occurred, the very fact that she has
moved away from the house of PW.1, and was not available for verification by the
police, indicated her guilty conscious.  Learned Public Prosecutor further
submits that the police collected the broken pieces of a glass bottle, and the
Forensic analysis, disclosed the existence of finger prints of the accused
thereon, and it is sufficient to link the accused, with the occurrence.
The back ground of the incident about the death of the wife of PW.1, and the
steps that were taken thereafter, are mentioned in brief, in the preceding
paragraphs.  The stage at which, the police received the information, is a bit
uncertain.  Information about the death of the deceased was first received by
PW.2.  He is none other than the tenant of the accused.  It is the specific case
of PW.1 that, himself, his wife-the deceased, and his daughter, Rupa, are
residing in the house, whereas, his two sons, who were grown up, are married,
and living elsewhere.  The accused is said to have been employed as a maid
servant in their house, and living in the same house with them.  On the date of
occurrence, PW.1 is said to have gone to the Ayyappa Swamy temple at 5.00 p.m.
and at 11.00 p.m., PW.2 is said to have informed him about the death of the
deceased.
In his evidence, PW.2 stated that soon after receiving the information from the
accused, himself and LW.12- S.Anjaneyulu, proceeded to Ayyappa Swamy temple, and    
from there, PW.1 and those two persons have come back to the place of the
occurrence.  It is only after coming back, that he is said to have passed the
information to PW.5-the ward member.  PW.11-the Sub Inspector of police, has
stated that he received the phone call in the mid night, from PW.5, about the
death of the deceased, and soon thereafter, he rushed to the scene of offence.
A scrutiny of evidence also discloses that PWs. 2 and 5, were present, when the
police received Ex.P1-the complaint, in the night of 19.10.2006 i.e. at 01.00
a.m.  It is only thereafter the crime was registered under Sections 302 and 380
IPC, against the accused.  PW.1 categorically stated that accused was very much
present, when himself, and PW.2 returned.  It was suggested not only to PW.1,
but also to other witnesses, that the accused was very much present when the
police arrived, and it is only thereafter, that she was taken to the police
station.
There is every possibility of the incident being witnessed by the daughter of
PW.1 and the deceased, i.e., Rupa.  Though PW.13 examined as many as 24 listed   
witnesses, that included the brother, sons, the daughter-in-law, grand children
of PW.1, and other neighbours, he did not even make an attempt to examine the
daughter of PW.1.  Had an effort been made to examine her, things would have
been different altogether.  In the cross examination of PW.1, it was elicited
that his daughter Rupa was married, she lived with her husband for about 10
years, and the couple had two children.  Heavy duty rested upon PW.1 to state,
as to when Rupa became insane, to such an extent, that she cannot act like an
ordinary person. Failure to examine that woman is a serious lapse on the part of
the prosecution.
It has already been mentioned that PW.2 categorically stated that LW.12, by
name, S. Ajaneyulu was with them, both when he went to Ayyappa swamy temple, and    
accompanied him to the scene of occurrence.  However, the said Anjaneyulu was 
not examined.  A person, who happened to notice the state of affairs at the
earliest point of time, would have been of utmost importance to the prosecution.
No reasons whatever were assigned for giving up such an important witness.
PW.5-the ward member was said to be present at the scene of offence, and even he
has figured as a witness, in the inquest.  However, his presence was not spoken
to by PW.1.  The effect of this and the other lapses is certainly phenomenal.
Learned Public Prosecutor laid much emphasis upon the finger prints, said to
have been noticed upon a broken bottle.  The record does not disclose that the
finger prints of the accused, were taken with the permission of the Court.  Ipsi
dixit of the prosecution in taking the finger prints, and sending them to
Forensic Laboratory, cannot be recognized in law as a step in the investigation
of prosecution.

We are satisfied that the circumstances that are pleaded by the prosecution, are
not sufficient to prove the charge framed against the accused.

In the result, the Criminal Appeal is allowed. The conviction and sentence
ordered in S.C.No.60 of 2007 on the file of the Sessions Judge, Mahila Court,
Visakhapatnam, dated 21.10.2008, against the appellant-accused, are set aside.
The appellant-Accused shall be set at liberty forthwith, unless her detention is
needed in any other case.  The fine amount, if any, paid by the appellant-
Accused shall be refunded to her.

The miscellaneous petition filed in this appeal shall also stand disposed of.
________________________  
L.NARASIMHA REDDY, J    
____________________  
S.RAVI KUMAR,J  
Dt: 05.03.2014

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