M. Nageshwar Rao Vs State
of Andhra Pradesh
JUDGMENT
AFTAB ALAM, J.
1.
This
appeal by grant of special leave is directed against the judgment and order
dated September 13, 2007 passed by the High Court of Andhra Pradesh in Criminal
Appeal No. 1009 of 2005. The High Court allowed the government appeal, reversed
the judgment of acquittal passed by the trial court, found the appellant guilty
of the charge of killing his wife Laxmi Kumari by giving her cyanide in cold
drink and, accordingly, convicted him under section 302 of the Penal Code and
sentenced him to rigorous imprisonment for life and a fine of Rs.1,000/- and in
default of payment offline, simple imprisonment for 3 months.
2.
The
basic facts of the case which are admitted or are at any rate undeniable need
to be stated in the sequence in which those facts were unfolded. The appellant
and Laxmi Kumari got married on April 30, 2000.After marriage they came to live
in a rented house at Yellareddiguda, Hyderabad. The appellant and his wife
lived on the first floor and the remaining portion of the house was occupied by
its owner. The appellant had a graduate degree in Engineering and a diploma in
Computer. He worked as a faculty member in Harica Information, situated at
Rehamath Complex, Amarpreet, Hyderabad, and he also gave coaching to students
in another computer centre. He was earning a salary of about Rs.20,000/- per
month.
3.
On
September 2, 2000 in the afternoon the landlady, Saroja (PW7) received a
telephone call asking for Laxmi Kumari. She went to the portion of the house
where she lived and found her there lying on a chair. Then with the help of her
maid servant (PW3), she got her shifted to Mythri Hospital. After some time her
husband, the appellant also reached there.
4.
In
the morning of September 3, 2000 Laxmi Kumari's father, PW1received a phone
call from the brother of the appellant, Seshagiri Rao intimating him that his
daughter had fallen seriously ill and had been admitted to the hospital. He
along with his wife proceeded to Hyderabad and on reaching there went to the
hospital, where they found their daughter in an unconscious state. On the same
day at 8.30 p.m. Laxmi Kumari was declared dead by the doctors of Mythri
Hospital. In the death certificate issued by the Hospital (exhibit P-3) it was
stated that she was admitted to the hospital on September 2, 2000 at about 7.15
p.m. At the time of admission she was unconscious and there was no pulse or
blood pressure. She was diagnosed to have suffered a cardio-pulmonary arrest.
She was put on Ventilator and given certain medicines that restored her cardiac
activity. She suffered further cardiac arrest at 8.10 p.m. on September 3, that
led to her death at8.30 p.m.
5.
After
Laxmi Kumari was dead, her father PW1 went to S.R. Nagar Police Station and
lodged a complaint there at 9.15 p.m. In the complaint, he simply stated that
in the morning on that day he received a telephone call from Seshagiri Rao from
Hyderabad asking them to immediately comedown to Hyderabad as their daughter
was in danger. They started at 8 a.m. and on reaching Hyderabad went to Mythri
Hospital where their daughter was in an unconscious state. After half an hour
the doctors declared that their daughter had died. He further said that to his
knowledge their daughter was not suffering from any aliment; he knew that she
was in good health till4 p.m. on September 2, 2000, and after completing her
household work she became unconscious at 6 p.m. He did not know how this
happened. He requested for necessary action so that her dead body could be
handed over to him for the last rites. The complaint (exhibit P-1) was
registered as Crime No. 589/2000 under section 174 of the Criminal Procedure
Code (Cr. P.C.),and was formally incorporated in an FIR (exhibit P-14).
6.
After
recording the statement of the father of the deceased the Sub-Inspector (PW15)
proceeded for Mythri Hospital and got the body of the deceased shifted to
Gandhi Hospital for post mortem examination. At 11p.m. on the same day, the
Sub-Inspector went to the residence of the appellant and the deceased and in
the presence of two `panchas' made a thorough search of the three rooms which
were in the occupation of the appellant and the deceased. He prepared the
`Scene of Offence Observation Panchnama' (exhibit P-5) and the `Rough Sketch of
the Scene of Offence'(exhibit P-6). From exhibit P-5, the `Scene Panchnama,' it
appears that the door on the eastern side of the bedroom was kept closed for
separating it from the portion of the house under the use and occupation of its
owners. A computer system was set up against this door. On the `Sajjas' of the bedroom
the Sub-Inspector found suit cases and some miscellaneous articles and on the
shelves, goddess' pictures, weekly magazines, some books and clothes. There was
also one double bed in the bedroom. No article or anything else that would shed
light on the cause of death of Laxmi Kumariwas found in the search.
7.
Next
morning (September 4, 2000) inquest was held on the body of Laxmi Kumari in
course of which, her parents expressed suspicion on her husband (the present
appellant) and his brother Seshagiri Rao in connection with her death. As a
consequence, the case which was initially instituted under section 174 Cr. P.
C. was changed to one under sections 498A and306 of the Penal Code and further
investigation began in that light.
8.
On
the same day at 4.05 p.m., post mortem was held on the body of the deceased
Laxmi Kumari. According to the post mortem report, cyanosis was present in the
fingers and nails and there was froth in the mouth and nostrils of the
deceased. In the stomach there was 200 ml of yellowish liquid that smelled of
bitter almonds. The mucosa of the stomach, small intestine and large intestine
was congested; similarly congested were the organs liver gall-bladder and billiard
passages, pancreas, kidney and uterus. The doctor conducting post mortem took
samples of small intestine, large intestine, liver and kidney and also
collected a little of the liquid found in the stomach for forensic examination.
The doctor reserved his opinion as to the cause of death awaiting report from
the forensic experts.
9.
According
to the appellant, he was taken in custody by the police on September 4, 2000
itself, though was shown as formally arrested three days later, on September 7,
2000. But we may, for the present, discard the allegation made by the appellant
and proceed with the incontrovertible facts of the case.
10.
On
September 7, 2000 one B.N. Chary (PW10) who knew the families of both the
deceased and the appellant and who was one of the two mediators in the marriage
between the appellant and Laxmi Kumari, along with 20 others, came from Velerupadu
to Hyderabad, to meet their MLA, Tati Venkateswarlu. They took the MLA to the
police station on September7, 2000 between 8 and 9 in the morning where he had
a discussion with the Inspector in connection with the case. At that time, the
appellant and his brother were also present at the Police Station.
11.
On
the same day and at about the same time (September 7, 2000 at7.40 a.m.) the
appellant is said to have made a detailed confessional statement that was
recorded by Ashok Kumar Singh (PW18), Inspector of Police of S.R. Nagar Police
Station, near AP Transco bill-payment office, Ameerpet in the presence of two
panchas, namely, S. Chengaiah Chetty and G. Venkateswara Reddy (PW12).
12.
In
his confessional statement, the appellant is supposed to have said that his
marriage with the deceased Laxmi Kumari was arranged by his parents and it was
solemnized on April 30, 1999 at Annavaram Temple, East Godvari District. His
in-laws had initially agreed to pay as dowry a sum of Rs.5,00,000/-, besides
some furniture and a motor cycle, but they gave onlyRs.3,69,000/- and some
furniture that was worth no more than Rs.10,000/-.In May, 1999 he moved with
his wife to Hyderabad where he took on rent the first floor of house no.
8-3-412 at Yellareddiguda owned by Sri Sudharshan, on a monthly rental of
Rs.1,200/-. He made plans to go to the U.S.A. for better job prospects, and
while continuing to work in the coaching centre he also obtained a passport in
his name. But after a few months of marriage frictions arose between him and
his wife. She did not co-operate with him at the time of sex, and used to pick
up quarrels with him on several issues.
She would complain
about the stay of his brother with them and would strongly oppose his sending
any money to his parents. She did not seem to care much for him or his work and
despite persuasions by him showed no interest in learning computer. Distressed
by the unhappiness of his matrimonial life, he thought of taking his own life
and with that intention procured from his friend Brahmachary, who was a
goldsmith, some cyanide on the pretext that he needed it for cleaning the
computer parts. He kept the cyanide at a concealed place at their residence in Hyderabad.
At that time he got an opportunity to go to the U.S.A. through the Macro Technology
Company, and he told his wife that he would go first and then call her there
after a year, but she insisted on accompanying him. He even told her that he
would call her to America only after three months of his going there, but she
would not listen and insisted that he must take her along with him. Completely
exasperated by his wife's nagging he thought of killing her rather than giving
up his own life.
He then decided to
kill her by administering the poison that lay hidden at their residence and
waited for a suitable chance to give her the poison. On August 22, 2000 his
wife went to her native place to attend the marriage of her elder brother and
she returned back to Hyderabad on September 1, 2000. During her absence from
the house he had decided to kill her within the shortest possible time as he
had to go to the U.S.A. in the month of October, 2000. In the night of
September1, 2000 his brother-in-law, Prasad stayed in his house. That night he
was completely unable to sleep and he kept on thinking of ways to kill his wife
by giving her cyanide. On the following day at about 2.30 in the afternoon he
returned from the computer centre. His brother-in-law had already left the house
in the morning. At around 4 in the afternoon his wife said she wanted to have a
cold drink. And this suddenly gave him the idea to give her the poison by
mixing it in the cold drink.
He took out the
cyanide packet from the place where it was hidden and went to a nearby general
store from where he purchased a bottle of Limca. He got the bottle opened and
on the way back went inside a STD booth where he put some cyanide into the
opened cold drink bottle. At around 4.30 p.m. he arrived back at his house and
gave the cold drink, spiked with cyanide, to his wife. His wife asked him to
have some cold drink from that bottle but he declined the offer and left the
house saying that he had some urgent work at the computer centre. On the way to
the institute, he threw away the remaining cyanide in a nala. He was sure that
his wife would consume the poisoned cold drink and would die. At about 6.45
p.m. he received the message at his office that his wife was seriously ill and
was admitted to Mythri Hospital. He knew that his wife would die.
He went to the
hospital and found his wife in unconscious state. He feigned ignorance about
the reason for her falling ill. He rushed back to his house and found the Limca
bottle by the side of the sofa. It still contained about half of its contents.
He threw away the remaining contents of the bottle in the bathroom and
concealed the bottle on the bedroom shelf. Then, he again went to the hospital.
In the meanwhile some of his relatives had sent the message to his in-laws. On
September 3, his in-laws reached the hospital. On the same day (September 3,
2000) around 8 p.m. the doctors declared his wife dead. On the death of his
wife, his in-laws got agitated. They expressed doubt about the cause of her
death and cast suspicion on him. Seeing the turn of the events he went away
from the hospital. On the following morning, he came to know that the police
was searching for him.
He decided to escape
from Hyderabad and go to his village. He was waiting near the Electricity
Office, Ameerpet to meet the M.D. of his computer institute to take some money
from him but in the meanwhile he was apprehended by the police at about 7.30 in
the morning. At the conclusion of his confessional statement the appellant
offered to take the police and the panchas to his house where the empty Limca
bottle was hidden and to showthe point at the culvert where he had thrown the
remaining portion of the cyanide. The confessional statement was read over and
explained in vernacular language and all accepted it to be true and correct.
13.
In
furtherance of the confessional statement, the appellant took the investigating
officer along with the two panchas, S. Chengaiah Chetty and G. Venkateswara
Reddy (who had witnessed the recording of his confessional statement) to his
residence at Yellareddiguda where this time, at the instance of the accused,
the police officer was able to find and recover one empty Limca bottle-300
m.l., lying on a shelf. The Limca bottle was seized in the presence of two
`panchas,' under Seizure Report (exhibit P-10& exhibit P-18) which was
prepared on September 7, 2000 at 10.30 a.m. The Seizure Report is shown to have
been signed by both S. Chengaiah Chettyand G. Venkateswara Reddy (PW12) as
witnesses.
14.
On
the basis of the confessional statement and the recovery of the cold drink
bottle made in pursuance to it, the case was further altered to be one under
section 302 of the Penal Code.
15.
On
September 29, 2000 the investigating officer, Sub-inspector G. Prasada Rao
(PW16) went to Bhradrachalam and recorded the statement of Brahmachary (PW4),
the goldsmith from whom the appellant is said to have obtained cyanide. In the
statement recorded under section 161 of Cr. P.C.(later produced before the
court as exhibit P-2), Brahmachary confirmed that the appellant had obtained
cyanide from him.
16.
Later,
on December 16, 2000 two reports were received from the Forensic Science
Laboratory, Andhra Pradesh. The first report was in respect of the
samples/specimens preserved by the doctor holding postmortem on the body of the
deceased. The forensic report stated that the samples in the three screw capped
bottles were received in the laboratory on September 15, 2000 (samples were
collected in course of post mortem held on September 4, 2000 and there is no
explanation where the samples lay for11 days). The three bottles contained
specimens of (i) Stomach and piece of intestine, (ii) Pieces of liver and
kidney and (iii) Reddish turbid liquid(collected from the stomach of the
deceased). According to the report, cyanide, a chemical poison was found in all
of them.
17.
The
second report of the same date was in respect of the Limca bottle, allegedly
recovered from one of the rooms of the appellant's residence. This was received
in the laboratory on September 27, 2000 (the recovery of the bottle was made on
September 7, and it is not explained why it reached the laboratory after 20
days). In the forensic report it is noted that the bottle labeled as `Limca'
contained "small amount of white powder." According to the report, on
analysis it was found to be cyanide, a chemical poison.
18.
On
the basis of the forensic reports, the doctor who earlier held the post mortem
gave the final opinion on the cause of death and stated that it was due to
cyanide poisoning.
19.
This
finally tied up the investigation and the police submitted charge sheet on
January 31, 2000 and the appellant was finally sent for trial for committing
the murder of his wife.
20.
It
is significant to note here that the appellant was charged only under section
302 of the Penal Code. He was not charged under sections 304B or498A of the
Penal Code or under the provisions of the Dowry Prohibition Act, 1961.
21.
Before
the trial Court, the prosecution examined as many as 18 witnesses and produced
20 documents that were marked as exhibits. The appellant in the statement under
section 313 Cr. P. C., of course denied all the allegations against him. He
denied having made any confessional statement. He also denied that he led the
investigating officer and the` panchas' to his residence and there produced
before them an empty Limca bottle from a `sajja' in the bedroom. At the end of
the statement he said that sometime after marriage his wife had become unwell
and he had got her treated. She had gone to attend the marriage of his brother,
PW2. After returning from the marriage of her brother, she was in a
disappointing (sic depressed) mood. At the end of examination by the court he
made further statement which was recorded as follows:
"It is submitted
that after the death of my wife on 3-9-2000 the body was shifted to Mortuary
at Gandhi Hospital from Mythri Hospital, myself, my father-in-law (Bapaiah), my
brother-in- law and my brothers were together and slept in my house at Yellareddyguda.
Next Day i.e. 4-9-2000 we all went to Mortuary where the police Sanjeeva Reddy
Nagar was also present. After the post-mortem the police and my father-in-law took
me and my brother to police station of Sanjeevareddy nagar and where we were
kept illegally and forced us to give money to my father-in-law. I pleaded my
innocence, but neither the police nor my father-in-law listened me (sic).
Subsequently relatives of my father-in-law and MLA visited the police station had
the discussions with the police officials and put up a false case against
me."
22.
The
trial Court on a consideration of all the evidence produced before it found
that the prosecution had failed to prove the guilt of the accused beyond all
reasonable doubts. It, therefore, acquitted him of the charge under section 302
of the Penal Code. Against the judgment of the trial Court, the state
government preferred an appeal (Criminal Appeal No. 1009 of 2005).The High
Court, by a long and detailed judgment set aside the judgment of the trial
Court and convicted and sentenced the appellant as stated above.
23.
We
will now proceed to examine whether on the basis of the materials on record,
the view taken by the trial Court, was so wrong and unreasonable as to warrant
interference and reversal by the High Court.
24.
The
medical evidence by PW14, including the post mortem report(exhibit P-12) and
the final opinion on the cause of death (exhibit P-13)coupled with the evidence
of PW17, Joint Director F.S.L., Hyderabad and the report dated December 16,
2000 (exhibit P-15) leave no room for doubt that Laxmi Kumari died of cyanide
poisoning. But the question is whether there is sufficient reliable evidence to
show that the cyanide was given to her in the cold drink by the appellant.
25.
Before
proceeding to examine the evidence adduced by the prosecution in support of its
case, it would be better to put aside the so called confessional statement made
by the appellant. It is seen above that the confessional statement was
completely repudiated by the appellant before the trial court. Further, the
statement was supposedly made in presence of` panchas,' namely, Sri. S.
Chengaiah Chetty and Sri. G. Venkateswar Reddy and it was shown to have been
signed by them as witnesses along with Inspector Ashok Kumar Singh, the
investigating officer (PW18). Of the two panchas, only Venkateswar Reddy was
examined as PW12, but he did not support the prosecution case either in regard
to the appellant's confessional statement or the Seizure Report of the Limca
bottle and was declared hostile. It was only PW18, the investigating officer,
who stated before the trial court that the accused voluntarily made the
confessional statement and voluntarily produced the empty Limca bottle from the
`sajja' at his residence. The confessional statement, disowned by the appellant
and not supported even by the witness, is of no use for judging the appellant's
guilt and must be kept out of consideration.
26.
Now,
coming back to the evidence led by the prosecution; as noted above, apart from
the doctor (PW14) and the forensic expert (PW17), 16more witnesses were
examined to prove the culpability of the appellant. Out of them PWs 1 and 2
were the father and the brother respectively of the deceased, Laxmi Kumari.
Having regard to the charge on which the appellant was tried, and the nature of
the prosecution case the relevance of their evidences is limited to the
question, whether or not the appellant can be said to have the motive to commit
the crime. But before that, the prosecution is required to establish other
circumstances which are more important and directly relevant to the case.
27.
PW7
was the landlady in whose house the appellant and the deceased lived on rent,
and PW3 was her maid. These two witnesses stated before the Court how they had
found Laxmi Kumari lying unconscious in a chair and had shifted her to Mythri
Hospital for treatment. PW3 further stated that at that time the accused was
not present in the house but he came to the hospital an hour after the deceased
was admitted there. In her cross-examination by the defence, she stated that
the deceased was suffering from some kind of disease, and at that stage she was
declared hostile by the prosecution. PW7 similarly stated that on receiving a
telephone call she went to the portion of the house occupied by the deceased
and found her the relying unconscious in a chair. She, then, called her maid
PW3 and with her help, shifted her to Mythri hospital. She did not know what
had happened to the deceased. In her cross examination she stated that the
accused and the deceased were living amicably prior to the date of the
incident.
28.
PW4
was Brahmachary, the goldsmith residing at Bhadrachalam, from whom the
appellant is supposed to have obtained the cyanide as per his confessional
statement. In his deposition before the Court, PW4 stated that he was
threatened and cajoled by the police to say that the appellant had obtained
cyanide form him on the pretext of cleaning the computer parts. He stated
before the court that in the last week of September 2000, S.R. Nagar Police
came to his house at Bhadrachalam and from there brought him and his brother to
S.R. Nagar Police Station in Hyderabad. There they were kept for 10 days and
were threatened that they would be implicated in the case, unless they made
statements as directed by the police. In the end, finding no way out, he
yielded and made the statement before the police and the magistrate as he was
asked to do. He was declared hostile and was cross-examined by the prosecution,
in course of which he bluntly denied that his statement under section 161 of
Cr. P. C. was given voluntarily and not under coercion. The deposition of PW4
is a major blow to the prosecution case as regards the source of cyanide to the
appellant and his access to the poison.
29.
Next
comes, the issue of the appellant mixing up cyanide in the cold drink bottle of
Limca and giving it to the deceased to drink. On this issue, the prosecution
relies upon the evidence of PW6, the owner of the general store and the
recovery of the empty Limca bottle from one of the rooms in the occupation of
the appellant and the deceased. PW6 deposed before the court that more than a
year ago, at about 2.30 or 3 p.m., the accused went to his store and purchased
a Limca bottle. Apart from the price of the cold drink, he was asked to deposit
Rs.5 for the bottle. He paid Rs.15 and took away the bottle of Limca, but he
didn't return the empty bottle. He did not know where and in which house the
accused resided. In cross-examination, he stated that his store was a big shop
and a number of customers came there. He remembered some customers and the
articles purchased by them but didn't remember most of the customers or the
articles purchased by the mon a particular day. He also said that most of the
time he went out for the purchase of supply for the shop and at those times his
brother sat in the shop. He also said that he was a social worker and a reputed
person in the locality. And he went to the police station whenever some
disputes arose in the locality and tried to settle them amicably by compromise.
30.
In
appreciating the evidence of PW6, two or three things need to be kept in mind.
First, though it is not impossible for a busy shop keeper to recall a person
who is not a regular customer of the shop but comes there by chance for
purchasing a bottle of cold drink, it is certainly a little unusual. Secondly,
PW6 claimed himself to be a social worker and a reputed person in the locality.
He was quite familiar with the police and used to visit the police station for
settlement of the disputes arising in the locality. Thirdly, and most
importantly, the appellant was presented before him after allegedly making the
confessional statement before the police and the punch witnesses. The whole
story was, thus, out in the open and the police had brought the culprit before
him `for a simple confirmation' that he would indeed do in order to oblige the
police without any difficulty. For the reasons discussed above, we feel very
reluctant in accepting the testimony of PW6.
31.
Next
comes, the recovery of the empty Limca bottle from one of the rooms at the
appellant's residence that was found by the forensic laboratory to contain cyanide.
Proceeding step by step, it may be noted that the appellant's residence was
thoroughly searched soon after the death of Laxmi Kumari on September 3 itself.
The `Scene of Offence Panchnama' is inconsiderable detail and it describes the
appellant's residence and the articles found there. On the `sajja' of the
appellant's bedroom, suit cases and some miscellaneous articles were found and
on shelves there were portraits of goddesses, weekly magazines, other books and
some clothes. It is rather strange, that in course of such a detailed
examination, the Sub-Inspector should have missed out the empty Limca bottle
that is shown to be recovered three days later from the same shelf.
The seizure memo does
not state that the bottle was taken out by the appellant from some hidden place
from where normally it could not be recovered without his assistance. The seizure
memo (exhibit P-10 and exhibit P-18) was prepared in presence of panchas, Sri.
S. Chengaiah Chetty and Sri. Venkateswar Reddy. Only one of them, namely, Sri.
Venkateshwar Reddy was examined by the prosecution as PW12. He denied that any
recovery was made in his presence. On the contrary he stated that on September
7, 2000 S.R. Nagar police obtained his signatures on some papers of which some
were written and some were blank. He denied that in his presence the appellant
had led the police to his house and had produced the Limca bottle, that the
police had seized it under the seizure memo, and that he and another panch
attested the panchnama.
Thirdly, it is to be
noted that in the seizure report under the column details of seizure what is
stated is `One empty Limca Bottle-300ml.' Thus, at the time of seizure there
was no white powder visible inside the bottle as is mentioned in the report of
the Forensic Science Laboratory dated December16, 2000. At this stage, it also
needs to be recalled that the bottle reached the Forensic Science Laboratory
only on September 27, 2000 and there is absolutely no evidence as to where and
with whom the bottle remained during this period. All these circumstances make
the prosecution case on recovery of the Limca bottle from the residence of the
appellant highly suspect.
32.
Thus
analysed, there appears to be hardly anything in the prosecution evidence to
establish the charge against the appellant. The facts and circumstances of the
case may give rise to a strong suspicion against the appellant but it has been
said many times before that suspicion how so ever strong cannot take place of
proof. There is no proof of the appellant's guilt and on the basis of the
evidence on record it would be quite unsafe to hold him guilty of murder and to
send him to imprisonment for life.
33.
We
think that the trial court had taken the perfectly correct view in the matter.
The High Court was, unfortunately, unable to keep aside the so called
confessional statement. On the contrary, it put the confessional statement at
the centre and proceeded to examine all other evidences in its back drop and,
thus, reached to a completely erroneous conclusion regarding the appellant's
guilt. We find the judgment of the High Court unsustainable. The impugned
judgment of the High Court is, accordingly, set aside and the judgment passed
by the trial court is restored. The appellant is acquitted of the charge and is
directed to be released from jail forthwith unless he is required in connection
with any other criminal case. The appeal is allowed.
.....................................J.
(AFTAB ALAM)
.....................................J.
(R.M. LODHA)
New
Delhi;
January
5, 2011.
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