Sec.498 A and sec.302 I.P.C. - Murder of wife - benefit of doubt - No eye witness - husband left the wife in the house of her parents on plea that he would pick her after his return on next Saturday - but she was sent along with her brother Lova Raju to her matrimonial house - in the morning found dead - No last seen theory - Non-examination of Brother of deceased Lova Raju - their lordships of High court set aside the conviction of lower court and acquit the accused on benefit of doubt =CHEEDIPALLI KALYANAM @GOWTHU...APPELLANT THE STATE OF A.P., REP.BY PUBLIC PROSECUTOR, HIGH COURT OF A.P., HYD = 2014 judis.nic.in/judis_andhra/filename=11023

Sec.498 A and sec.302 I.P.C. - Murder of wife - benefit of doubt - No eye witness - husband left the wife in the house of her parents on plea that he would pick her after his return on next Saturday - but  she was sent along with her brother Lova Raju to her matrimonial house - in the morning found dead - No last seen theory - Non-examination of Brother of deceased Lova Raju - their lordships of High court set aside the conviction of lower court and acquit the accused on benefit of doubt =

three days prior to the
incident, the accused and the deceased came to his house, and thereafter, the
accused alone left the village.  Accused is said to have informed him that he
would come back on the next Saturday and take the deceased along with him.  
Thereafter, PW.1 is said to have sent the deceased to the house of the accused,
along with his youngest son, by name, Lova Raju, but in the morning on
21.10.2007, he received the phone call from Kondapalli Kalyanam, PW.4 a member  
of the Gram Panchayat of Y.B.Patnam, to the effect that his daughter was killed
by causing cut injuries on the neck.  He is said to have proceeded to the
village and noticed his daughter lying on a mat and blanket in a pool of blood.
He mentioned that the accused was married twice and that the deceased was his 
third wife, and that suspecting the character of the deceased, the accused
resorted to the heinous act of killing her.=
This information is said to have been passed
on to PW.3, and he is said to have informed this to PW.4.  When, he is the close
relation of PW.1, one does not find any valid reason, as to why PW.3 should
first inform the Panchayat member, rather than, the father of the child, and his
own brother-in-law, PW.1.  When the prosecution did not hesitate to examine
PW.2, the Juvenile witness, no reason is stated as to why the brother of the
deceased, who is said to have accompanied him to place of the deceased, is not
examined. 
Further, no one has spoken to prove that the theory of last seen together.  It
is difficult to apply that principle, because, even according to PW.3, he saw
the accused and the deceased at 5.00 p.m., whereas, the death was noticed in the
morning of the next day.  The mere absence of the accused in his house cannot,
by itself, be a factor for the needle of suspicion to stop at him.  Reference to
this context may be made to the judgment of the Supreme Court reported in Sujit
Biswas V. State of Assam1. 

Though an attempt was made by the prosecution to portray that the accused is not
a man of character, and that he married twice earlier, none of the witnesses
were able to furnish the particulars.

In view of the above, we are of the view that the conviction of the accused on
the basis of such weak evidence is not at all permissible at law.

In the result, the Criminal Appeal is allowed. The conviction and sentence
ordered in S.C.No.44 of 2008 on the file of the IV Additional District &
Sessions Judge, Visakhapatnam, dated 17.09.2009, against the appellant-accused,  
are set aside.  The appellant-Accused shall be set at liberty forthwith, unless
his detention is needed in any other case.  The fine amount, if any, paid by the
appellant-Accused shall be refunded to him.
The miscellaneous petition filed in this appeal shall also stand closed.
2014 judis.nic.in/judis_andhra/filename=11023

HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE S. RAVI KUMAR                

CRIMINAL APPEAL No. 1634 of 2009  

05-03-2014

CHEEDIPALLI KALYANAM @GOWTHU...APPELLANT            

THE STATE OF A.P., REP.BY PUBLIC PROSECUTOR, HIGH COURT OF A.P., HYD              

COUNSEL FOR THE PETITIONER:SRI D.RAGHAVA REDDYD            

COUNSEL FOR THE RESPONDENT:PUBLIC PROSECUTOR              

<GIST:

>HEAD NOTE:  

?CITATIONS:

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



        The appellant was tried by the Court of the IV Additional District &
Sessions Judge, Visakhapatnam in S.C.No.44 of 2008 for causing the death of his
wife, by name, Lakshmi @ Demudamma.  After conducting the full-fledged trial,
the trial Court convicted the accused for the offences punishable under Sections
498-A and 302 IPC.  It imposed the punishment of imprisonment for life, and fine
of Rs.500/-, in default, to undergo simple Imprisonment for one month for the
offence punishable under Section 302 IPC.  Fine of Rs.500/- was imposed, in
default, to undergo Rigorous Imprisonment for one month, was imposed for the
offence punishable under Section 498-A IPC.     
The case, as presented by the prosecution was that the accused herein was
married to Lakshmi @ Demudamma, the daughter of PW.1, in the middle of the year
2007,  PW.1 submitted Ex.P1, the complaint, before the P.S Rolugunta stating
inter alia that, his daughter died on 20.10.2007, three days prior to the
incident, the accused and the deceased came to his house, and thereafter, the
accused alone left the village.  Accused is said to have informed him that he
would come back on the next Saturday and take the deceased along with him.  
Thereafter, PW.1 is said to have sent the deceased to the house of the accused,
along with his youngest son, by name, Lova Raju, but in the morning on
21.10.2007, he received the phone call from Kondapalli Kalyanam, PW.4 a member  
of the Gram Panchayat of Y.B.Patnam, to the effect that his daughter was killed
by causing cut injuries on the neck.  He is said to have proceeded to the
village and noticed his daughter lying on a mat and blanket in a pool of blood.
He mentioned that the accused was married twice and that the deceased was his 
third wife, and that suspecting the character of the deceased, the accused
resorted to the heinous act of killing her.

The Station House Officer, Rolugunta P.S. registered a case in crime No.45 of
2007 alleging offences punishable under Sections 498-A and 302 IPC.  The scene
of offence, panchanama was conducted, and inquest and postmortem were caused.  
On the basis of investigation, conducted by him P.W.8, the Investigating Officer
filed the charge sheet.  The case was committed to the Court of Sessions Judge,
Visakhapatanm and numbered as S.C.No.44 of 2008, and on being made over to the  
Court of IV Additional District & Sessions Judge, Visakhapatnam, the charges
with reference to the relevant provisions of law, were framed.  The accused
pleaded not guilty.

On behalf of the prosecution, PWs.1 to 9 were examined, Exs.P1 to P13 were
marked.  M.Os.1 to 4 were also taken on record.  Through its judgment, dated
17.09.2009, the trial Court convicted the accused for the offence punishable
under Sections 498-A and 302 IPC, and to pay fine of Rs.500/-, in default, to
suffer Simple Imprisonment for one month, it has also sentenced to undergo
Rigorous Imprisonment for one month, and to pay fine of Rs.500/- for the other
offence.

Sri D.Raghava Reddy, learned counsel for the accused submits that there is any
amount of discrepancy, as to the factum of the deceased, being sent from the
house of PW.1 to the place of the accused.  He submits that though the deceased
is said to have been sent along with the youngest son of PW.1, the son was not
examined and the same leads to inference that person been examined, different
version altogether, would have emerged.  Learned counsel further submits that
PW.1 did not even mention that his sister and nephew PW.2 reside in the village
of the accused i..e, Y.B.Patnam, and though, PW.2 is said to have noticed the
death of the deceased at the earliest, information about the death is said to
have been passed on to PW.1 by PW.4.  Learned counsel further submits that the
trial Court has treated certain circumstances as the basis for conviction, and
none of them are so strong, as to sustain the conviction.

Learned Public Prosecutor, on the other hand, submits that though there are no
eye witnesses to the occurrence, the chain of events proved by the prosecution
is so perfect that hardly there exists any doubt about the involvement of the
accused.  She contends that the evidence on record disclosed that the accused is
not a man of character, and ever since his marriage with the deceased, his
conduct was suspicious, and criminal in nature.  She contends that the evidence
of PWs.2 and 3, is consistent, and, together with the other circumstantial
evidence, it is adequate to hold the accused, as guilty of the offences alleged
against him.
PW.1 is the father of the deceased.  He submitted the complaint, soon after he
received the intimation about the death of his daughter.  Ex.P1 is to the effect
that the deceased and the accused stayed in his house for three days, and later,
the accused alone left the house by promising to come back on next Saturday, and
to take the deceased but did not come as promised.  He further stated that he
sent the deceased to the house of the accused along with his youngest son, by
name, Lova Raju.  Though, he made a mention that the accused was married twice  
earlier, and both the wives left him, he did not state as to whether he came to
know about that after the marriage of the accused with the deceased, or earlier
thereto.  The motive attributed to the accused to kill the deceased is said to
be the suspicion entertained by him.

It is some what curious to read the evidence of PW.4, the ward member of
Y.B.Patnam, who is said to have passed the information of the death of the
deceased, to PW.1.  He stated that the deceased and the accused eloped on  
earlier occasion, and later on, their marriage was performed, three months prior
to the date of occurrence.
PW.3, another resident of the village, is said to have informed him about the
death of the deceased, and thereafter, he passed on the same to PW.1.  Several
inconsistencies were elicited from this witness.

PW.3 is the brother-in-law of PW.1, and the father of PW.2.  According to this
witness, he has seen the accused and the deceased at 5.00 p.m., on 20.10.2007, 
and the brother of the deceased has spent that night in his house.  The wife of
PW.3 i.e., the sister of PW.1, is said to have sent her son, PW.2, to the house
of the deceased on Sunday morning, for the purpose of requesting the deceased to
come to the Temple.  PW.2 is said to have gone to the house of the accused, and
there, he found the deceased dead.  This information is said to have been passed
on to PW.3, and he is said to have informed this to PW.4.  When, he is the close
relation of PW.1, one does not find any valid reason, as to why PW.3 should
first inform the Panchayat member, rather than, the father of the child, and his
own brother-in-law, PW.1.  When the prosecution did not hesitate to examine
PW.2, the Juvenile witness, no reason is stated as to why the brother of the
deceased, who is said to have accompanied him to place of the deceased, is not
examined. 

Further, no one has spoken to prove that the theory of last seen together.  It
is difficult to apply that principle, because, even according to PW.3, he saw
the accused and the deceased at 5.00 p.m., whereas, the death was noticed in the
morning of the next day.  The mere absence of the accused in his house cannot,
by itself, be a factor for the needle of suspicion to stop at him.  Reference to
this context may be made to the judgment of the Supreme Court reported in Sujit
Biswas V. State of Assam1. 

Though an attempt was made by the prosecution to portray that the accused is not
a man of character, and that he married twice earlier, none of the witnesses
were able to furnish the particulars.

In view of the above, we are of the view that the conviction of the accused on
the basis of such weak evidence is not at all permissible at law.

In the result, the Criminal Appeal is allowed. The conviction and sentence
ordered in S.C.No.44 of 2008 on the file of the IV Additional District &
Sessions Judge, Visakhapatnam, dated 17.09.2009, against the appellant-accused,  
are set aside.  The appellant-Accused shall be set at liberty forthwith, unless
his detention is needed in any other case.  The fine amount, if any, paid by the
appellant-Accused shall be refunded to him.
The miscellaneous petition filed in this appeal shall also stand closed.
__________________________  
L.NARASIMHA REDDY, J    
____________________  
S.RAVI KUMAR,J  
Date: 05.03.2014

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