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2009(3) Supreme 447
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and Asok Kumar Ganguly, JJ.
Gamparai Hrudayaraju — Appellant
versus
State of A.P. thr. Public Prosecutor — Respondent
Criminal Appeal No. 744 of 2009
(Arising out of SLP (Crl.) No. 1073 of 2008)
Decided on : 16-04-2009
Facts of the Case :
1. Accused appellant was prosecuted herein in the instant case for causing death of deceased by smothering her. Case was based on circumstantial evidence. Trial Court convicted appellant for said offence. Appeal thereagainst was dismissed by High Court.
2. Present Appeal has been filed against said order of High Court.
Findings of The Court :
High Court had not referred to any circumstance which could fasten guilt on the accused. PWs 1 and 2 sisters of the deceased stated that the ill feelings prevailed in between the appellant and the deceased with regard to the children of the deceased born through her first husband. PWs 4 and 5 stated that the deceased came to the house of PW-4 and just wished her and left the house. Ten minutes thereafter the appellant came to her and informed that he was going to Primary Health Centre to bring ambulance to attend to the deceased. Then she went to the house of the appellant and found that the deceased was all right and when the ambulance came the deceased sent the same back saying that she was doing well. After some time, ambulance came and the appellant and the deceased went in it. The evidence of PWs 5 and 6 could not constitute sufficient evidence against accused to fasten alleged offences. Prosecution having failed to establish accusations, conviction could not be maintained and was set aside. Appeal was allowed.
Result : Appeal allowed.
JUDGMENT
Dr. Arijit Pasayat, J.—
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the Andhra Pradesh High Court dismissing the appeal filed by the present appellant who was found guilty of offence punishable under Sections 302 and 203 of the Indian Penal Code, 1860 (in short the ‘IPC’). Appellant was found guilty by VII Additional Sessions Judge, Fast Track Court, Visakhapatnam.
3. Background facts in a nutshell are as follows:
One Kuda Ammaji (hereinafter referred to as the ‘deceased’) married one Samareddy Surayanarayana (PW-6). They were blessed with a son and a daughter. Subsequently, the deceased secured employment as A.N.M. and shifted her residence to Munchingput. Thereafter, the appellant who is a neighbour developed illicit intimacy with the deceased and started living with her. As the appellant did not allow the children of deceased to stay with her, PW-1 the sister of the deceased brought them to Serivayalu village and was looking after them.
While so, on 21.6.2001, at 06.00 p.m., one Gampari Baburao told P.W. 5 that the deceased was seriously ill and asked him to bring ambulance of Primary Health Center, immediately. When P.W. 5 brought the same, the deceased sent him back saying that she was not ill. Thereafter, within ten minutes, the appellant and Baburao asked P.W. 5 to come with the ambulance on the ground that the deceased was sick. The deceased was shifted into the ambulance by the appellant in his arms and taken to Primary Health Center. At about 09:00 p.m., on the same day, she was declared dead.
On 22.6.2001, at about 7.30 a.m. based on the report presented by the appellant, the Sub Inspector of Police (P.W. 10) registered a case in crime No. 26 of 2001 under Section 174 of Code of Criminal Procedure, 1973 (in short the ‘Code’). Later, during the inquest on the report given by P.W. 1, the sister of the deceased, P.W.10 altered the sections of law to Sections 498-A and 306 IPC and issued altered First Information Report. On 23.6.2001, on his surrender before P.W.10, the appellant was arrested and remanded to judicial custody. On 30.6.2001, the Sub Inspector of Police, P.W. 9, based on the questionnaire, Ex. P6, given by the Civil Assistant Surgeon (PW-8) altered the section of law to Section 302 IPC and after completion of investigation, PW-11 filed the charge sheet. As accused pleaded innocence, trial was held.
4. In support of its case the prosecution examined PWs 1 to 11 and marked Exs. P1 to P11. On behalf of defence Exs. D1 and D2 (relevant portions in the statements of PWs and 2) recorded under section 161 of Code were marked.
5. The Trial Court came to the conclusion that though the prosecution failed to establish a strong motive for the appellant to cause the death of the deceased, in view of the circumstantial evidence held that the death of the deceased was homicidal. Since only the appellant and the deceased were staying in the house at the relevant point of time, it found the appellant guilty, convicted him and sentenced him to undergo imprisonment for life and SI for three months for the offences punishable under Sections 302 and 203 respectively.
6. Before the High Court it was stated that there was no material to show that the death of the deceased was homicidal. It was pointed out that in case of smothering, the death would have been instantaneous. But the trial Court recorded a finding that the deceased was alive till 9.00 p.m. and, therefore, it cannot be said that the death was homicidal. It was also pointed out that the doctor who treated the deceased was not examined. The stand of the State was that there was a fracture to thyroid cartilage and this certainly was not due to the natural death. The High Court held that the case was one of circumstantial evidence. Strangely, the High Court did not analyse the evidence of PWs 4 and 5. The High Court found that the prosecution case although rested on circumstantial evidence, it clearly established the
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