HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No. 1901 of 2009 Dated: 22.07.2014 Between:
Smt. Bathula Usha Vs.
The State of Andhra Pradesh, Through P.S. Shivampet, Represented by Public Prosecutor, High Court, Hyderabad.
… Appellant/A.1 … Respondent HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No. 1901 of 2009 JUDGMENT: (Per Hon’ble Sri Justice MSK Jaiswal) This criminal appeal is filed by the Accused No.1 aggrieved by the judgment and conviction ordered in S.C.No. 52 of 2007, dt.27.08.2009 by the learned II Additional Metropolitan Sessions Judge, Hyderabad.
2. The case of the Prosecution, in brief, is that on 22-1-2006 at about 8.45 a.m., PW.1 – K.Sai Prasad came to the Police Station, Shivampet and submitted a report-Ex.P.1, stating that he came to know through villagers that on 21.01.2006 at 7.00 p.m. Bathula Maraiah’s father – Bathula Ambaiah, along with his grandson and granddaughter consumed toddy, administered with some poison and they died while shifting them to Hospital, and that he is suspecting that the accused are responsible for the death of Bathula Ambaiah, Bathula Vijay Kumar and Bathula Chittemma.
Basing on the said complaint, the Sub-Inspector of Police- PW.14 has registered Crime No.6 of 2006 under Sec.174 Cr.P.C., and recorded the statement of PW.1. Thereafter, the Circle Inspector of Police-PW.18 took up the investigation, visited the scene and conducted inquest over the dead bodies of the deceased, in the presence of PW.9 and one L.Ramulu, and examined PWs.1 to 3, PW.15 and another by name B. Ushamma and recorded their statements, and sent the dead bodies of the deceased persons to the Government Hospital, Narsapur for post-mortem examination and later seized the clothes of the deceased persons. PW.18 also conducted scene of offence panchanama and seized an empty bottle whisky, an empty toddy bottle white colour and another bottle jaggery colour, four steel glasses, one Endosulfan pesticide tin under cover of panchanama. Further, on 8.2.2006 PW.7 along with A.1 and A.2 came to the police station, and PW.18 secured the presence of PWs.12 and 13 and recorded their confessional statements. In pursuance of confession of A.1, she led them to the shop of PW.16, where she purchased Endosulfan poison and therefore the police recorded the statement of PW.16 and seized bill book, Ex.P.17.
The case of the prosecution is that A.2 is the mother of A.1. Deceased Ambaiah gave hand loan to the son of A.2 and demanded to pay back the said loan amount. As the deceased Ambaiah was demanding regularly for repayment of the loan amount, and in view of previous enmity, A.1 and A.2 hatched up a plan to get rid of the deceased Ambaiah. In pursuant to their plan, A.1 went to Narsapur and purchased pesticide poison. On the next day evening at 7.00 p.m. the husband of A.1 brought liquor and toddy. A.1 with the consultation of A.2 mixed the poison in the toddy bottle and supplied it to the deceased Ambaiah in a glass. Deceased Ambaiah consumed some quantity of toddy and in turn he supplied to his grand children – Bujji and Vijay Kumar, as a result of which all the deceased were fell unconscious and while shifting to the hospital, they died.
After completion of investigation PW.18 filed charge sheet, against A.1 and A.2 for the offence punishable under Sec.302 read with Sec.34 IPC.
3. Charge under Section 302 read with 34 of IPC., was framed and the accused pleaded not guilty. On behalf of prosecution, PWs.1 to 18 were examined, Exs.P-1 to P-25 are marked, and Mos.1 to 9 are taken on record.
4. After completion of the evidence on behalf of the prosecution, the accused examined under Section 313 Cr.P.C., where they denied the incriminating evidence on record. No defence is produced on their behalf.
5. Basing on the above evidence available on record, the trial Court held that the prosecution proved that A.1 is guilty for the offence u/sec.302 IPC for killing the deceased Ambaiah, by supplying toddy, which was mixed with poison, and further held that the prosecution has not proved the guilt against A.2 beyond reasonable doubt, and the benefit of doubt must be given to A.2. Accordingly, the trial Court convicted A.1 and sentenced her to undergo imprisonment for life and to pay fine of Rs.100/- for the offence under Sec.302 IPC. Aggrieved by the same, A.1 preferred the present appeal.
6. Learned counsel for the appellant/A.1 submits that the Court below failed to see that there is no sufficient evidence to prove the guilt of A.1 and that there is no direct evidence to prove that the toddy was poisoned, and that all the witnesses are planted witnesses.
7. On the other hand, the learned Public Prosecutor submits that the material on record clinchingly establish that A.1 has committed the offence and the learned Sessions Judge has appreciated all the aspects in proper perspective and after giving valid and cogent reasons has believed the prosecution witnesses and convicted the accused. Hence, there are no merits in the appeal and the same is liable to be dismissed.
8. The point for consideration is whether the Court below was right in rendering the impugned judgment, imposing punishment on the appellant/A.1 for the offence under Section 302 IPC?
9. It is an unfortunate case where as many as 3 persons lost their lives. Bathula Ambaiah (D.1) is a person aged about 60 years;
Bathula Vijaya Kumar (D.2) is aged about 9 years; and Bathula Chittamma (D.3) is aged about 6 years. D.1 is the father-in-law of A.1 whereas D.2 and D.3 are son and daughter of A.1. A.2 is the mother of A.1. Bathula Maraiah (PW.2) is the husband, Smt.Bathula Ushamma (LW.3) is the mother-in-law and Bathula Yellavva (PW.3) is the daughter of A.1. They were eking out their livelihood by doing labour work and begging. A.1 is alleged to have committed theft of some money from the house of Smt.Mekala Durgamma (PW.4).
D.1 – the father-in-law of A.1 is said to have found fault with A.1 for this incident. He is said to have chastised A.1 in the presence of elders. Due to this humiliation, A.1 is alleged to have developed grudge against her father-in-law – D.1.
10. The case of the prosecution is that on 21-01-2006, A.1 with the help of her mother A.2 procured endosulfan pesticide and mixed it with the liquor and gave it to D.1 for consumption. Having consumed some liquor, D.1 is said to have shared the same with his grand-children – D.2 and D.3. Immediately, D.1 to D.3 developed complications and on the way to hospital, they died.
11. It is not in dispute that the death of D.1 to D.3 is due to consumption of alcohol mixed with endosulfan pesticide. The point in issue is however as to whether it is A.1 who mixed the said endosulfan pesticide in the liquor and gave it to D.1. As noticed above, A.2 has been acquitted by the trial Court. The prosecution relied upon the evidence of the only surviving daughter of A.1 viz., PW.3, who is said to have seen A.1 giving the adulterated liquor to D.1. The other witnesses are circumstantial in nature. The said endosulfan pesticide is said to have been procured by A.1 from PW.16 and the auto driver PW.8 is said to have noticed A.1 bringing endosulfan tin on the date of the incident.
12. The evidence with regard to A.1 purchasing endosulfan from PW.16 is not at all satisfactory. He deposed that about three years back, a lady came to his shop and purchased the pesticide stating that it is required for being used for agricultural operation. Ex.P.17 is the Bill Book, which is said to have been seized from the shop of PW.16. According to the prosecution, the relevant voucher is bearing No.799 under which PW.16 is said to have sold endosulfan to A.1. Firstly, PW.16 do not say that it is A.1 who purchased endosulfan from him. Secondly, the voucher bearing serial No.799 is in the name of one Yellaiah and it is dated 20-01-2006. The incident is said to have taken place on 21-01-2006. The auto driver PW.8 deposed that on the date of the incident i.e., 21-01-2006 he has seen A.1 carrying the endosulfan tin. According to PW.8, A.1 boarded his auto at Narsapur and got down at Kothapet but did not pay the fare of Rs.7/-. During the scuffle between PW.8 and A.1, PW.8 is said to have pulled the pallu of the saree of A.1 and found the endosulfan tin in the possession of A.1. He further deposed that on the same day at about 6.00 or 7.00 p.m., he was called to the house of the deceased and he shifted the deceased in his auto to Rathnapur where the Doctor declared them dead.
13. The evidence of these 2 witnesses is discrepant. According to PW.16, the endosulfan is said to have been purchased on 20-01- 2006 not by A.1 but by a person by name Yellaiah. PW.8 claims to have seen endosulfan tin in the possession of A.1 on 21-01-2006. Therefore, the prosecution could not satisfactorily establish its case that it is A.1 who purchased endosulfan tin from PW.16.
14. The material witness of prosecution was PW.3, who is the only surviving daughter of A.1. At the time of incident, she was a girl aged about 12 years. She deposed that on the date of the incident, her mother (A.1) instructed her to bring a glass of water and when she found smell from the glass, she enquired her mother about it and her mother – A.1 informed that she has sprinkled pesticide on the agricultural fields. PW.3 further deposed that in that glass, toddy was filled and given to D.1. She further deposed that D.1 consumed some toddy and gave it to her brother and sister and after consuming the same, they all started vomiting. She further deposed that all the 3 of them died on the same day. In the cross-examination, the child witness admits that in the village some persons died due to consumption of adulterated toddy. From the evidence of PW.3 what could be gathered is that on the date of the incident, her mother A.1 asked her to fetch a glass and that glass was smelling and when questioned, A.1 is said to have informed her daughter that she used that glass for sprinkling pesticide on the agricultural fields. It is not the case of PW.3 that at the time when she gave the empty glass to A.1, there was any substance in it. The glass was already emitting bad odor. From this evidence, at best, what can be said is that A.1 has used the glass which she used for sprinkling pesticide in supplying liquor to her father-in-law (D.1). It cannot however be said that A.1 has mixed the endosulfan in the liquor and supplied it to D.1 with an intention to kill him.
15. The other aspect is that 4 empty steel glasses were seized from the house of A.1 and they were sent to the Forensic Science Laboratory. Ex.P.21 is the report. The chemical analyst though noticed the endosulfan insecticide poison on several other items sent to it but did not find any endosulfan insecticide poison in the steel glasses, which were marked as item Nos.9, 10, 11 and 12. On the other hand, the chemical analyst in his report Ex.P.21 found ethyl alcohol in some other items.
16. The other evidence on record comprises of the witnesses who speak about the facts not in controversy. PW.1 is the Village Secretary who lodged the complaint Ex.P.1 with the police. It is however noticed that when the incident is said to have taken place on 21-01-2006 at about 07.00 p.m., the complaint is lodged on 22-01-2006 at 08.45 a.m. There is a delay of 12 hours in lodging the complaint. Further more, the FIR and the complaint which was issued by the police, was received by the Executive Magistrate on 23-01-2006. This delay is not satisfactorily explained.
17. PW.2 is the husband of A.1 and he deposed that A.1 and A.2 brought toddy and they consumed the same and also gave it to his father, who in turn gave it to his children. It is further in his evidence that after consumption of toddy, his father and children were struggling and they were shifted to hospital but on way they died. He further deposed that he came to know that A.1 and A.2 mixed endosulfan pesticide in the toddy supplied to his father. His evidence is based on the knowledge which he had from somewhere but did not even say as to who informed him that it is A.1 and A.2 who have mixed the endosulfan pesticide in the toddy. PW.2 however admits that prior to the alleged incident, the relationship between his father (D.1) and his wife (A.1) was amicable. PW.4 is the person from whose house A.1 is alleged to have committed theft in the past, due to which D.1 has chastised A.1 in the presence of elders. She also admits in the cross-examination that the accused and their family members namely the deceased used to live amicably. The evidence of PW.5 is also in respect of the theft which A.1 is alleged to have committed in the house of PW.4. He acted as one of the elders in the Panchayat in that connection. The evidence of PWs.6 and 7 are also with reference to the same incident. From the evidence of these witnesses, what is established is that sometime in the past, A.1 was found guilty of having committed theft in the house of PW.4 and the said cash was recovered from A.1 and in that Panchayat, her father (D.1) has found fault with her. This, according to the prosecution, is the motive for A.1 to cause the death of her father-in-law (D.1).
18. PW.9 is a panch witness for the scene of offence and in his presence, the tin (MO.1) and 4 steel glasses (MO.2) and two toddy bottles (MO.3) were seized. Inquest over the dead bodies was held in his presence. P.Ws.10 land 11 are the panch witnesses for the panchanamas conducted for seizure of the articles.
19. According to the prosecution, on being apprehended, A.1 is said to have confessed having committed the crime in the presence of two panch witnesses. They are examined as P.Ws.12 and 13. Both of them turned hostile and categorically denied that the accused made any confession in their presence and they have committed the crime. They deposed that their signatures were obtained on some papers by the police at the Police Station.
20. PW.17 is the Medical Officer who conducted postmortem and after obtaining the report of FSL, he gave the opinion that the 3 persons died due to consumption of endosulfan insecticide poison.
21. As noticed from the foregoing discussion, the evidence on record shows that the deceased and A.1, who were the members of the same family living amicably but for some minor disturbance. No strong motive or enmity is said to have existed in between A.1 daughter-in-law and her father-in-law (D.1). The evidence on record do not show that it is A.1 who mixed endosulfan in the liquor and supplied it to D.1. As per the evidence of her daughter (PW.3), she has supplied alcohol to D.1 in a glass which was already emitting some smell. Except that, there is no evidence to show that it is A.1 who has mixed endosulfan in the liquor and gave it to D.1 with an intention to kill him.
22. The evidence on record, at best, raises suspicion against the accused but it do not conclusively establish that it is A.1 who is responsible for the unfortunate death of her father-in-law (D.1) and her own two children (D.2 and D.3). Therefore, A.1 is entitled to the benefit of doubt. The point is accordingly answered.
23. In the result, the Criminal Appeal is allowed. The conviction and sentence ordered in S.C.No.52 of 2007 on the file of III- Additional Dist. & Sessions Judge, (Fast Track Court), at Medak, dt.27-08-2009, against the appellant–A1 for the offence punishable under Sec.302 IPC., are set aside. The appellant–A1 shall be set at liberty forthwith unless her detention is needed in any other case. The fine amount, if any paid, shall be refunded to her.
G. Chandraiah, J.
M.S.K. Jaiswal,J.
Dt.22.07.2014
Kv/Smr
HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No. 1901 of 2009 (Judgment of the Division Bench delivered by Hon’ble Sri Justice G. Chandraiah) Dated: 22.07.2014
kv/smr