Nagula Ganga Jamuna vs State of Andhra Pradesh

K.Surender, J

This Criminal Appeal is filed by the appellant/accused aggrieved by the judgment dated 05.03.2012, in S.C.No.140 of 2008, on the file of the III Additional District and Sessions Judge (Fast Track Court), Nizamabad (hereinafter referred to as ‘the trial Court’), whereunder the appellant/accused was found guilty for the offence under Section 304-II of IPC and sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.200/- in default to undergo simple imprisonment for a period of one week.

Heard learned counsel on either side and perused the material placed on record.

The case of the prosecution is that on 02.04.2007 around 03.30 p.m., PW1, who is the VRO of Dharpally village, lodged a complaint with the police stating that a dead body was found with burnt injuries and at a distance a boy was alive struggling for his life. At the scene, there were broken pieces of bangles and blood stains. The dead body was identified as that of the deceased Veldurthi Srinivas (deceased No.1). PW11 registered the crime and investigation was taken over by PW12/Investigating Officer. He went to the scene of offence and meanwhile, the dead body was shifted to the Government Hospital at Nizamabad. The boy (deceased No.2) was barely breathing and thus, his statement could not be recorded by the police officer. Meanwhile, deceased No.2 died in the hospital while undergoing treatment. After sending deceased Nos.1 and 2 to the hospital for post mortem examination, PW12 then went to the scene of offence and conducted scene of offence of panchanama and inquest proceedings. At the scene, PW12 recorded statements of PW2, PW3 and PW4. According to PW3, he saw the appellant and her son, while they were going on the motor cycle of deceased No.1 around 4 or 5 p.m., on 01.04.2007.

As per the post-mortem examination report, the reason for death of deceased No.1 was extensive deep burn injuries up to 98% and the death of the boy (deceased No.2), who is the son of the appellant, was on account of head injury. PW9/doctor conducted post-mortem on deceased No.1. PW10/doctor, conducted post-mortem on deceased No.2.

It is further case of prosecution as stated by PW12/Investigating Officer that the appellant was treated in the Government Hospital, Nizamabad for poisoning. DW1 is the doctor who treated the appellant. According to DW1, the appellant was joined in District Hospital, Nizamabad at 03.30 p.m., on 02.04.2007 on the day of the incident and she was discharged on 04.07.2007.

PW12 effected arrest of the appellant on 05.04.2007. Further, the case of prosecution is that the boy (deceased No.2) was assaulted by Veldurthi Srinivas (deceased No.1) on his head resulting in head injury. Since, the murder of deceased No.2 was committed by deceased No.1, no further investigation was done regarding death of deceased No.2. However, the appellant was charge sheeted for the offences under Sections

302 and 201 of IPC for killing deceased No.1, who injured her son/deceased No.2 viz., Kranthi Kumar seriously.

The version of prosecution is that the deceased No.1 killed deceased No.2 by beating him on his head, for which reason, the appellant took out petrol and burnt deceased No.1 after kicking him in his private parts (testicles). The petrol was drawn from the motor cycle, which was parked nearby.

The trial Court, having framed charges under Sections 302 and 201 of IPC convicted the appellant for the offence under Section 304-II of IPC and acquitted her for the offences under Sections 302 and 201 of IPC.

Learned counsel appearing for the appellant would submit that the entire version of the prosecution regarding deceased No.1 killing deceased No.2 and thereafter, enraged by the act of deceased No.1, the appellant kicking deceased No.1 on his testicles resulting in his death and burning him, is all imaginary and an assumption. No proof is filed to show that there was a motor cycle at the scene and PW12/Investigating Officer admitted that they have not seen any motor cycle near the scene. In the absence of such proof, the question of convicting the appellant does not arise. Further, it was admitted by PW12/Investigating Officer that the appellant was treated in the hospital for poisoning. The said aspect is also not explained as to how the appellant, who was poisoned, could kill deceased No.1.

On the other hand, learned Assistant Public Prosecutor appearing for the respondent would submit that PW3 is the person, who had last seen the appellant while she was going on motor cycle along with deceased Nos.1 and 2. It is for the appellant to explain as to what transpired in the forest, where the dead body was found. In the absence of any such explanation, the trial Court has rightly inferred that the appellant had injured deceased No.1 enraged by the act of deceased No.1 injuring deceased No.2.

DW1 is the doctor working in Government Hospital, Nizamabad, who treated the appellant. Ex.D1 is the case record of appellant. According to DW1 there was poisoning of the appellant, for which reason, her stomach was washed and treated.

The version of the prosecution that it was the appellant, who had caused death of deceased No.1 enraged by the act of deceased No.1 hitting on the head of deceased No.2, is on the basis of alleged confession made by the appellant. Admittedly, source of petrol, with which deceased No.1 was burnt, was not identified by PW12/Investigating Officer. PW12 stated in his cross-examination that he did not find any motor cycle at the scene of offence and they have gone to the scene only after the appellant confessed.

The prosecution version cannot be on the basis of imagination. If the manner in which the offence occurred has to be reconstructed, such reconstruction of the offence has to be convincing and should not leave any doubt in the mind of the Court.

It is admitted that the appellant was treated for poisoning. No poison was found at the scene. Dead bodies were found around 03.30 p.m., on 02.04.2007 and around the same time, the appellant was joined in the hospital. When exactly the incident of deceased No.1 hitting deceased No.2 had taken place, could not be determined. If the appellant was poisoned, it is not known as to how the appellant had assaulted deceased No.1 and then poured petrol on him and burnt him. As already discussed, source of petrol was neither investigated nor found by the prosecution. The fact remains that the appellant was treated in the hospital for poisoning. The dead body of deceased No.1 was found by the police and the son of the appellant was found at the scene with head injury. Though the son of the appellant was alive when the police found him, however, he has not given any statement to the police.

The learned Sessions Judge heavily relied on the confession made by the appellant. Nothing was seized pursuant to the confession. The confession is hit by Section 25 of the Evidence Act. The learned Sessions Judge found that the genital organs of the deceased were swollen. Further, injuries were found on the hand of the appellant as on the date of remand. The learned Sessions Court further found that according to the version of the appellant, she was treated at Government hospital, but, Ex.D1 did not disclose any such injuries on the hand of the appellant when she was admitted. The swelling of the testicles of the deceased would suggest that the appellant having witnessed the beating of her son by the deceased with a stone, the appellant immediately lost her balance and hit the testicles of the deceased and then burnt him. The entire version was picked up from the alleged confession recorded by the Police which is wholly inadmissible. As already discussed, the Court cannot liberally rely on the confession made by an accused unless for the limited purpose permitted under Section 27 of the Evidence Act, when there is any discovery of fact or an object at the instance of an accused. The approach of the trial Court is wholly erroneous.

The prosecution version lacks prudence and logical reasoning, giving rise to any amount of doubt regarding its correctness. The Court cannot draw conclusions on the basis of imagination or draw inferences based on confession of the appellant. The manner in which the dead bodies were found and looking at the condition of the appellant, the version projected by the prosecution is unconvincing. For the said reasons this Court deems it appropriate to extend benefit of doubt to the appellant.

Accordingly, the Criminal Appeal is allowed, setting aside the conviction imposed against the appellant/accused vide judgment dated 05.03.2012 passed in S.C.No.140 of 2008, by the trial Court. The appellant/accused is acquitted for the offence punishable under Section 304-II of IPC. Since the appellant/accused is on bail, her bail bonds shall stand discharged. The fine amount paid, if any, shall be refunded to her.

Pending miscellaneous petitions, if any, shall stand closed.