THE HONBLE SRI JUSTICE [ENTITY] AND THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI CRIMINAL APPEAL NO.1418 OF 2010 08-09-2016 [ENTITY] and others Appellant The [ENTITY] rep. by its Public Prosecutor Respondent Counsel for the Appellant:[ENTITY] Counsel for respondent: Public Prosecutor <Gist: >Head Note: ? CASES REFERRED: 1.2008 (8) Supreme 178 2.1989 Supp (2) Supreme 706 THE HONBLE SRI JUSTICE [ENTITY] AND THE HONBLE SRI JUSTICE [ENTITY] Criminal Appeal no.1418 of 2010 JUDGMENT
(per Honble Sri Justice [ENTITY]) This appeal under [SECTION] [ACT] is directed against the judgment, dated 24.11.2009, of the learned V Additional Sessions Judge, Mahabubnagar, in [CASE NUMBER] whereby the learned Additional Sessions Judge found the sole accused guilty of the offences punishable under [SECTION], [SECTION] and [SECTION] [ACT] and imposed sentences of imprisonment for life and a fine of Rs.1,000/- for the offence of Murder, rigorous imprisonment of two years and a fine of Rs.500/- and simple imprisonment for one month in default of payment of fine for the offence punishable under [SECTION] [ACT] and rigorous imprisonment for a period of two years and a fine of Rs.500/- and simple imprisonment for one month in default of payment of fine for the offence punishable under [SECTION] [ACT].
2. We have heard the submissions of the learned counsel for the appellant/accused and the learned Public Prosecutor appearing for the respondent/State. We have perused the material record.
3. Based on the material available before the learned Additional Sessions Judge, the following charges were initially framed against the accused. FIRSTLY: That you on or about the 4th day of February, 2006 about 3.00 a.m., (mid night) at Kanmanoor village committed house trespass by entering into the house of the deceased [ENTITY] through skylight (POGASOTTAM) by removing the stick and the deceased is in the possession of gold ear tops and black and white portable T.V all worth Rs.5,000/- (Rupees Five thousand only) and the said place for the custody of the property in order to commit the offence of punishable with imprisonment for life and you thereby committed an offence punishable under [SECTION] [ACT] and within my cognizance.
SECONDLY: That you at the same time and place committed murder intentionally causing the death of [ENTITY] by throttling her neck and thereby committed an offence punishable under [SECTION] [ACT] and within my cognizance.
THIRDLY: That you at the same time and place dishonestly misappropriated or converted to your own use certain movable properties namely gold ear tops and black and white portable T.V all worth Rs.5,000/- (Rupees Five thousand only) belonging to [ENTITY] deceased person at the time of the death and had not since been in the possession of any person legally entitled and that you were at the time of the death of the said person a nephew of the deceased and that you have committed an offence punishable under [SECTION] [ACT] and within my cognizance.
[Reproduced verbatim]
4. However, as per orders dated 29.09.2009, the learned Additional Sessions Judge framed the following Altered charges:
Firstly: that in the intervening night of 4/5, February, 2006 in between 12 midnight and 0300 hours, you-accused committed lurking house tress into the house of [ENTITY] at Kanmanoor village through skylight (Pogasottam) by removing the stick in order to commit an offence and that your thereby committed the offence punishable under [SECTION] [ACT] and within my cognizance.
Secondly: that you-accused on the same day and same time during the course of same transaction, you committed murder intentionally causing death of the deceased-[ENTITY], who is your mother-in-law, by throttling her neck and that you thereby committed the offence punishable U/[SECTION] of [ACT] and within my cognizance.
Thirdly: That you-accused, on the same day and same time during the course of same transaction, dishonestly misappropriated certainly movable property namely gold ear tops and black and white portable T.V, all worth of Rs.5,000/- belonging to deceased-[ENTITY] knowing that such property was in the possession of a deceased person at the time of that persons deceased and has not since been in the possession of any person legally entitled to such possession and that you thereby committed the offence U/[SECTION] of [ACT] and within my cognizance.
[Reproduced verbatim]
5. To begin with, it is pertinent to mention that the learned counsel for the accused would contend that no de novo trial was conducted by the learned Additional Sessions Judge after the altered charges/fresh charges were framed at the stage of arguments and that the evidence that was recorded prior to the framing of the altered charges stands eschewed and is not available for consideration and that for lack of any evidence on record the accused is entitled to be acquitted. In the light of the said contentions it is necessary to refer to [SECTION] of the [ACT], which reads thus:
Recall of Witnesses when charge altered:
Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed-
(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may think to be material.
5.1 Perusal of the record reflects that at the stage of arguments, the learned Additional Sessions Judge noticed that the charges initially framed are not correctly framed and therefore framed the afore-stated charges after hearing both the sides and thereafter examined the accused yet again and recorded his plea and then gave an opportunity to both the sides to recall and re-summon and examine, with reference to such altered charges, any witness already examined. An opportunity was also given to call and examine any further material witness, not already examined. Such opportunity afforded by the Court of Session was availed by both the sides. The said facts borne out by record are not in dispute. In the light of the undeniable facts and the provision of law and its due compliance, the preliminary contention that the learned Additional Sessions Judge ought to have held de novo trial is devoid of merit and is accordingly rejected.
6. At trial, the prosecution examined PWs 1 to 11 and exhibited P1 to P7 and marked MOs 1 to 3. No evidence was adduced on the side of the defence.
7. Now it is necessary to examine and evaluate the evidence adduced by the prosecution to bring home the guilt of the accused for the offences with which he is charged.
7.1 The gist of evidence of PWs1 to 3, in brief, is this:
PW1, [ENTITY], is the wife of [ENTITY], the accused. The deceased, [ENTITY], is the mother of PW1 and the mother-in-law of the accused. PW1, the accused and their children used to reside in the house of the elder brother of PW1 at Kanmanoor village. The mother of the accused also used to reside with them. The deceased, who is the mother of PW1, used to reside in a separate house in the same village. The accused used to harass and beat PW1 as her mother, the deceased, has given him less dowry. About 5 or 6 days before the incident of murder of deceased, the accused threatened PW1 that he would kill PW1 and her mother. On the day of the incident of the murder of the deceased, the accused quarrelled with PW1 and went away from the house at 08:00 PM. He returned to the house around 03:00 AM, the early morning hours, of the next day. On enquiry by PWs1s brother, the accused stated that he went to the house of the deceased. As the brother of PW1 questioned the accused as to where he has gone on that night, the accused, in a hurried manner, took his mother, children and luggage at 03:00 AM and left the house of the brother of PW1, where they all used to reside. In the morning hours, PW2, [ENTITY], and PW3, [ENTITY], came to PW1 and informed that her mother is not responding from the house to their calls. Therefore, PW1 along with others went to the house of her mother. They found that the doors of the house of the deceased were closed from inside. The doors were broken open with the help of villagers. On entering the house of the deceased, they noticed the dead body of the deceased. They further noticed that there are bleeding injuries on both the ears of the deceased indicating that her ear studs (ear tops) were snatched away forcibly by someone. They also noticed a mark on the neck of the deceased indicating that her neck was pressed by someone. On examination of the house, they further noticed that the TV and the purse which belonged to the deceased were also missing and that the culprit/s gained entry into the house through poga sottum (chimney). Hence, PW1 got scribed a report by a villager and lodged the same with the police.
7.2 It is apt to now refer to the gist of the evidence of the remaining witnesses and the details of the other witnesses examined by the prosecution. PW10, [ENTITY], the Sub-Inspector, Peddamandadi police station, received Exhibit P1, report, from PW1 and registered the crime and issued FIR. The copy of the FIR is Exhibit P6. She forwarded the original FIR to the Court of the Judicial Magistrate of First Class, Wanaparthy, which is at a distance of 25 K.Ms from the said police station. PW4, who knows the deceased, the accused and PWs1 to 3 testified as under: When he, PW3 and others were sitting in front of Anjaneyaswamy temple in their village, PW2 came there and informed that the deceased was not responding to her call when she went to her house to pay labour charges and that the house doors of the deceased were closed. Immediately, they went to the house of the deceased. He, PW3 and others opened the doors of the house of the deceased forcibly and found the dead body of the deceased. He also stated that when police examined him he opined that the neck of the deceased was pressed by someone and that he knows that there are disputes between the deceased and PW1 on one hand and the accused on the other. PW5 and PW6 are said to be panch witness in whose presence the police held inquest over the dead body of the deceased and prepared Exhibit P2, inquest [ENTITY], and Exhibit P3, scene of offence observation panchanama with rough sketch. PW5 stated that he does not know the contents of Exhibits P2 and P3. In his cross examination he stated that PW1 is his sister by courtesy. PW7 who deposed that he knows PW1, the deceased, and the accused, further testified that the marriage between PW1 and the accused was solemnized about 10 to 12 years prior to his giving evidence and that the accused did not look after PW1 well and that the accused used to always quarrel with PW1 and that several times panchayats were held and he acted as an elder during such panchayats and advised the accused to treat PW1 well and asked PW1 to live with the accused. He further deposed about the accused coming to their village and the accused residing with PW1 and his knowledge about the death of the deceased. He also stated that on coming to know of the death of the deceased he accompanied the villagers to the house of the deceased and that they sent a message to the police. According to his further testimony, the accused absconded from the village after the incident and that they all found that the gold ear studs and a TV belonging to the deceased were found missing from her house. PW8 is said to be a mediator in whose presence the police were said to have recovered MO1, pair of gold ear studs (ear tops), and MO2, portable black and white TV, from the accused on his arrest at Kothakota RTC bus stand. PW8 did not support the case of the prosecution. PW9 is the Doctor who held Post Mortem Examination on the dead body of the deceased and issued Exhibit P5, Post Mortem Examination Report. PW11 is the CI of police, who took up investigation, collected evidence and filed the charge sheet.
8. We have carefully gone through the entire evidence. Scrutiny of the evidence brought on record would show that there are no eyewitnesses to the incident of murder. Hence, the prosecution relies upon circumstantial evidence to prove the complicity of the accused. Therefore, before we proceed further, it is profitable to refer to the precedential guidance dealing with appreciation of circumstantial evidence.
In [PRECEDENT] , the law on the appreciation of circumstantial evidence is stated as follows: There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by this Court as far back as in 1952 in [PRECEDENT], wherein it was observed thus:
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
Further, in [PRECEDENT] the Supreme Court laid down the principle that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
9. Keeping in view the legal position, the evidence needs to be evaluated in the light of the contentions advanced on behalf of the prosecution and the sole accused. The learned Public Prosecutor while supporting the findings of the learned Additional Sessions Judge submitted that the evidence firmly established the circumstances, which point towards the guilt of the accused, and that the prosecution successfully proved the guilt of the accused. Per contra, the learned counsel for the accused submitted that the evidence is unsatisfactory, weak and scanty and is not sufficient to sustain the findings of conviction recorded by the learned Additional Sessions Judge and that the accused is entitled to be acquitted.
9.1 Firstly, the evidence of PW1 and the version of the prosecution reveal that the mother of PW1, the deceased, who is no other than the mother-in-law of the accused, was residing in a separate house in the same village. According to the evidence of PW1, the deceased was alone residing in that house. PW2 who went to the house of the deceased to pay labour charges first noticed that she was not responding to her call and that the doors of the house of the deceased are bolted from inside. Therefore, she along with her husband, PW3, went to the house of PW1 and informed her that the deceased did not respond to her call. Later, they and some other villagers went to the house of the deceased and broke open the doors of the house of the deceased and found the dead body of the deceased inside the house. They noticed that there are bleeding injuries on the earlobes of the deceased indicating that her ear tops were forcibly snatched away by someone. They also found that Portable TV and purse of the deceased were missing from the house. 9.2 Admittedly the purse of the deceased, if any lost, is not recovered. Therefore, to link the accused with the crime and to show his complicity, the prosecution relies upon the recovery of MO1, pair of ear studs, said to be of the deceased, and MO2, portable TV said to be missing from the house of the deceased. Since the doors of the house of the deceased are found bolted from inside, the prosecution also relies upon a theory that the accused, who is the culprit, entered the house of the deceased through a poga sottum (chimney) of the house and killed her and escaped with the lost articles MOs1 and 2 and a purse through the poga sottum (chimney). What is to be noted is that though the poga sottum (chimney) is also referred to in the charge as a skylight (a window placed in the roof to admit day light) it is not in dispute and it is also borne out by evidence that it is only a chimney [poga sottum] and not a skylight.
9.3 Dealing first with the recovery, it is necessary to refer to the evidence of the panch witness, PW8, who was said to have been present when the alleged recovery (discovery) of MO1, ear tops, and MO2, portable black and white colour TV, was made pursuant to the arrest of the accused and disclosure of fact by him. The said panch witness, PW8, deposed that he knows the accused and that about three years back on one day at around 01:00 PM, PW11, the CI of police, called him and one [ENTITY], LW11, to RTC bus stand Kothakota, where the accused was present with the police and that on the request of the said Inspector, he enquired with the accused as to why he killed [ENTITY] and that the accused made a confession and stated further that he forcibly snatched gold ear studs from the ears of the deceased and took away TV and that police also showed the TV and gold ear studs to him (PW8) and that police drafted confessional and recovery [ENTITY] and obtained his signature on Exhibit P4. His evidence on a plain reading does not show that the said articles were discovered at the instance and on a disclosure of fact made by the accused. Further, subsequent to alteration of the charges and after PW 8 was recalled, he stated in his further cross examination that on the date of the [ENTITY] he and the other mediator, [ENTITY], went to the office of the CI of police and that the accused was in the custody of the said Inspector and that he does not know since how long the accused was in the custody of the police and that on the request of the CI he made an enquiry with the accused and that by the time he and the said other mediator went to the said Inspector, MO1, pair of gold studs, and MO2, TV, were on the table of the CI and that he saw the accused handing over the said MOs on the said day to the CI. This witness was not declared hostile and was not cross-examined by the learned Public Prosecutor. The other mediator was not examined and no explanation is forthcoming for the non examination of the said witness. For the confession of an accused to be admissible under [SECTION] of the [ACT], it is necessary that such part of the confession should lead to the discovery of a fact referred to by the accused in his confession. That is not so in the case instant. Thus, in the absence of any reliable evidence, the case of the prosecution based on the alleged recovery/discovery of MOs1 and 2 is not worthy of trust and is therefore of no avail. Further, it is the case of the prosecution that the accused has a grudge against his mother-in-law. It is not the case of the prosecution that the murder was committed for gain. In such an event, as rightly contended by the learned counsel for the accused, if really the accused committed the murder of the deceased out of grudge and not for gain, he would not have resorted to committing theft of ear tops from the person of the deceased and TV from the house of the deceased, which, if found in his possession at any later point of time, would, in all probability, give a chance to others to point out an accusing finger against him. 9.4 Secondly, dealing further with the aspect of loss of ear tops of the deceased during the incident of murder, it is to be noted that the witnesses who entered the house, after force opening the house doors, and saw the dead body of the deceased, stated that they noticed that there are bleeding injuries on both the ears of the deceased indicating that her ear studs (ear tops) were snatched away forcibly by someone. It is trite to note that the Doctor who conducted post mortem examination on the dead body of the deceased noted the following ante mortem injuries: (i). Abrasion black in colour over right side of upper neck 2 nos each about 1 cm x 1 cm in size; (ii). 4 nos. abrasion black in colour over left lateral side and upper part of neck (a) 1 cm x cm; (b) 1 cm x cm; (c) 2 cm x cm; (d) 3 cm x cm; (iii). abrasion over 4th toe 1 cm x 1 cm; and (4) abrasion over left little toe 1 cm x 1 cm. It is significant to note that the Doctor did not note any injuries on the lobules of the ears indicating that the ear tops of the deceased were forcibly snatched away. In a case based solely on circumstantial evidence, this aspect, which is of significance, cannot be ignored.
9.5 Thirdly, the next set of circumstances which the prosecution relies upon is as follows: The accused, PW1, their children and the mother of the accused used to reside in the house of the brother of PW1. As per the evidence of PW1, on the night of the incident, accused left the house at 08:00 PM and returned at 03:00 AM on the next day. And, when questioned by the brother of PW1 as to where he had gone, the accused replied that he has gone to the house of the deceased and then hurriedly took away at that hour of the night (03:00 AM) his mother, children and also luggage and left the house of the brother of PW1 where they all used to reside.
9.6 The accused leaving the house with his mother, children and luggage, even if true, is not a circumstance of essence to establish the complicity of the accused. Moreover, the brother of PW1, who was said to have questioned the accused on that night, was not examined, though he is a material witness to corroborate the version of PW1. When the case rested on circumstantial evidence, the prosecution ought to have left no stone unturned and ought to have examined the material witness by making necessary efforts to secure his presence. When PW1 was admittedly living in the house of her brother, the reason assigned by the prosecution that her brothers where abouts are not known cannot be countenanced.
9.7 Fourthly, had the accused left the house at 8:00 PM and returned to the house after committing the murder of the deceased by entering her house through poga sottam (chimney), there is every possibility of his clothes getting stained with either blood or soot/smoke marks or both. PW1 did not state in her evidence that she noticed any such stains or marks on the clothes of the accused on his return to the house.
9.8 Fifthly, the prosecution case as is borne out by the charge itself is that the culprit entered the house of the deceased through the poga sottum (chimney) after removing a stick. The said stick, though a vital piece of material evidence, was not seized during the course of investigation and was not marked. Had that stick been seized and produced there would have been some evidence at least to show the circumference or width of the poga sottum (chimney) at its openings on both the sides. Even in the rough sketch of the scene, Exhibit P3, which is a part of scene of offence observation panchanama, the measurements of the chimney are not noted. As rightly contended by the learned counsel for the accused, no evidence is brought on record as to the physique of the accused as on the date of the alleged offence and the size/width of the poga sottum (chimney) at its openings at both ends to show that it is possible for a person like the accused to enter the house of the deceased through the poga sottum (chimney) and also escape through it that too along with a portable TV. The conspicuous absence of such evidence of vital importance casts a deep-seated shadow of doubt on the veracity of the prosecution case.
9.9 It is also contended by the learned counsel for the accused that if really the accused was involved in the murder of the deceased, the investigating officer ought to have made efforts to recover the clothes of the accused and that no such recovery was made. Having so contended, the following statement from the evidence of PW11 was pointed out: There was possibility of person coming through the chimney to have the smoke marks on his clothes. Witness voluntarily says that due to lapse of time the accused washed the clothes and therefore no such marks were found on his clothes. Therefore, the submission that though the Inspector collected the clothes of the accused, the same were not produced and marked merits consideration for what ever it is worth.
9.10 Lastly, it is to be noted that there is also no reliable evidence as to abscondance of the accused. The contention of the accused that if he was the culprit and if he wanted to abscond, he would not have returned to the house of the brother of PW1, where his wife, PW1, and his children are residing with him, appears to be plausible. Further the evidence of PW1 is to the effect that the accused left the house with his children and mother. This circumstance that the accused did not leave the house all alone but, admittedly left the house with his mother and children would not shore up the case of the prosecution that the accused absconded. The mother of the accused was not examined. No investigation was done to show where the mother and the children of the accused were available immediately after the incident and to prove that the accused was not with them and was absconding.
10. Thus, the evidence brought on record and the circumstances relied upon by the prosecution are not only not established but also not conclusive in nature. No circumstances having a definite tendency to unerringly point out towards the guilt of the accused are established. In the absence of cogent evidence to prove the circumstances relied upon, the evidence adduced taken cumulatively is not even sufficient to make out a prima facie case against the accused leave alone proving the case against the accused beyond reasonable doubt. Since the circumstances from which the conclusion of the guilt of the accused is to be drawn are not at all established much less fully established and do not probablise the commission of the crime by the accused and none else, the contention of the prosecution that the murder must have been committed by the accused cannot be accepted. The learned Additional Sessions Judge inspite of lack of reliable evidence, placed reliance erroneously on the alleged disclosure statement of the accused and alleged recovery of the stolen property and the alleged absence of the accused from the house during the relevant period and came to a conclusion that the accused might have committed the murder of the deceased who was admittedly residing in a separate house in the same village. Such conclusion was arrived at even in the absence of credible and conclusive evidence. On the above analysis, we are of the view that the judgment of the Court below brooks interference and that the appeal of the accused deserves to be allowed.
11. In the result, the Criminal Appeal is allowed and the conviction of the appellant/accused for the offences punishable under [SECTION], [SECTION] and [SECTION] [ACT] and the sentences for the said offences imposed upon him by the learned Additional Sessions Judge in [CASE NUMBER] are accordingly set aside. The appellant/accused is accordingly acquitted of the said offences. He shall be set at liberty forthwith, if his confinement is not required in any other case. The fine amounts, if any, paid by him shall be refunded to him after the time for preferring further appeal/revision is over. JUSTICE [ENTITY] JUSTICE [ENTITY] 08.09.2016