P KONDA BASU Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) (Criminal Appeal under Section 374(2) of Crl.P.C. against the Judgment dated 4-7-2003 in S.C.No.42 of 2002 on the file of the Court of the District & Sessions Judge, Visakhapatnam.) This is a case where the appellant/sole accused in S.C.No.42/2002 on the file of District & Sessions Judge, Visakhapatnam was convicted under Section 304 Part-I IPC and sentenced to undergo Rigorous Imprisonment for 7 years and also to pay a fine of Rs.100/-, in default to undergo Simple Imprisonment for one month on the strength of circumstantial evidence. The case of the prosecution in brief is as hereunder: The appellant/accused married Chinathalli, hereinafter referred to as deceased for the purpose of convenience, nearly eight years ago and in the wedlock they begot a daughter by name Mani and they were living in their house situated in agricultural fields of the appellant/accused. It is also the case of the prosecution that the accused is a drunkard and was subjecting the deceased and also their daughter Mani to ill-treatment by beating them unnecessarily. Nearly six years prior to the offence, the accused brought another woman as his second wife which was not acceptable to the deceased and hence she discarded and reached her brothers house. Through his second wife the accused begot two children and subsequent thereto the second wife also discarded him on account of his stupidity and reached here parents. The accused again came to Chinathalli who was living with her brother about one year prior to the incident and had taken the deceased to his house. The deceased retained Mani at her brothers house having anticipated danger to her at the hands of the accused. Subsequent thereto the deceased became pregnant and delivered a female child on 27-8-1999 but the new born baby died on the very next day. It is also the version of the prosecution that on the night of 30-8-1999 at about 10 P.M. the appellant/accused picked up quarrel with the deceased for the reason that their daughter Mani was kept away from him even after the new born child died and in the course of quarrel he grew wild and beat her with a bamboo stick on her head with an intention to murder her and on account of receiving grievous injuries on her head, the deceased died on the spot in the main room of the house.

(2.) The appellant/accused left the house leaving the dead body all alone. At about 7 or 8 a.m. on 31-8-1999 PW-1, the sister of the deceased noticed the dead body of the deceased and informed the villagers and all the villagers searched for the appellant/accused and finally they have apprehended him on the same day at about 3 p.m. at the village outskirts and brought him to the house of the Village Sarpanch (PW-4) where it is said that he confessed having committed the offence. PW-1 lodged the report at G. Madugula Police Station at about 6 p.m. and police had registered the case and had taken up the investigation. Final report and the charge sheet were filed before the Mandal Executive Magistrate, G. Madugula who committed the case as per the procedure contemplated under the old Code of Criminal Procedure and the charge also was framed under Section 302 IPC against the appellant/accused and he pleaded not guilty and claimed to be tried.

(3.) The learned Judge in S.C.No.42/2002 in view of the committal made by the Mandal Executive Magistrate in P.R.C.No.8/99/Cr.No.32/99 G. Madugula Police Station, recorded the inasmuch as all these villagers caught hold of the accused who was in a drunken condition, even at the relevant point of time as per the version of the prosecution it is said that he made such extra-judicial confession and definitely on the strength of the same conviction cannot be sustained. The learned Counsel also commented relating to Ex.P-2 and would submit that inasmuch as the same was prepared in the Police Station even the portion of the alleged confession specified in Ex.P.2 also is inadmissible in evidence. The learned Counsel ultimately concluded that this is just a case based on circumstantial evidence and on suspicion only the conviction had been recorded and suspicion at any rate cannot be a substitute to proof.