THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.302 of 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) This appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 is directed against the judgment dated 05.02.2007, passed by I Additional Sessions Judge, Mahabubnagar in S.C.No.83 of 2006, whereunder and whereby the appellant/sole accused was found guilty of the offence punishable under Sections 302 and 404 I.P.C., convicted therefor, and sentenced to undergo imprisonment for life and to pay a fine of Rs.100/-, in default, to suffer simple imprisonment for three months for the offence under Section 302 I.P.C., and further sentenced to undergo rigorous imprisonment for three years for the offence under Section 404 I.P.C. Both the sentences were directed to run concurrently. 2. The gravaman of the charges against the appellant/accused is that on 12th July, 2003 at ‘G’ Type Labour Quarters near Krishnaveni Guest House, Eagalapenta, he caused the death of his wife Balamani (hereinafter referred as “the deceased”) by throttling her neck, thereby committed the offence punishable under Section 302 IPC, and that during the course of the same transaction, he took away the gold and silver ornaments from her body, and thereby committed the offence punishable under Section 404 IPC. 3. The prosecution story, which led to the conviction of the accused, is as under: P.W.1 is the father and P.W.3 is the maternal uncle of the deceased. The deceased was given in marriage to the accused, who is a Mason, as second wife. At the time of marriage, Rs.20,000/- cash, ear tops of 3 grams, gold ring of two grams and anklet of six tulas of silver was given in dowry. The accused and the deceased lived amicably for some time. Subsequently, the deceased complained to P.W.1 that the accused was suspecting her character and beating her. On one occasion, the deceased stayed back at her parents’ house, but on the advise of the elders, she was sent back to the accused. P.W.3 took the deceased and accused to Hyderabad and engaged them in coolie work. But, there also the accused and deceased used to quarrel and the accused beat the deceased. Then P.W.3 brought the deceased to the village and informed P.W.1 about the incident. About 15 days prior to the incident, the accused took the deceased to Srisailam, and they worked at Eagalapenta attending the petty works in and around the colony for some time. P.W.2, who is the neighbour of the accused and the deceased, on two or three occasions, heard the deceased weeping and also some quarrel. When the neighbouring ladies enquired the accused about his conduct, he questioned their right to interfere in his family matter. While so, suddenly on one day the accused telephoned to P.W.1 and informed him that the deceased was suffering with severe stomachache. On the next day, the accused again telephoned to the neighbours of P.W.1 and asked him to come over to Eagalapenta, but P.W.1 did not go. Then on the next day at about 10.30 a.m the accused telephoned and informed P.W.1 that the deceased committed suicide. Then he immediately engaged a jeep and proceeded to Eagalapenta along with his family, and on the way, the accused met him at Santa Bazar at Achampet and informed that the deceased committed suicide by hanging at ‘G’ type quarters at Eagalapenta. When P.W.1 asked the accused to accompany them, he refused and escaped. Then, they reached ‘G’ type quarters at 8.00 p.m., by that time the dead body of the deceased was smelling and blood was coming out of the house through threshold. The dead body was lying on the floor and two granite stones were lying near the head of the dead body. Only jacket and petty coat were found on the dead body of the deceased and blood was coming from nose and ears, which indicated forcible snatching of her gold ornaments. On 15.07.2003 at about 8 a.m on receiving Ex.P.1-report from P.W.1, P.W.11-the then Assistant Sub Inspector of Police, Amrabad, registered a case in Crime No.61 of 2003 and issued FIR-Ex.P.8. P.W.15-C.I of Police, Achampet, who took up further investigation, visited the scene of offence, sent a requisition to P.W.7-Mandal Revenue Officer to conduct inquest over the dead body of the deceased. Accordingly, P.W.7 held inquest over the dead body of the deceased in the presence of P.W.13 under Ex.P.3. Thereafter, P.W.15 conducted scene of offence panchanama and prepared rough sketch of the scene under Exs.P.10 and P.11 respectively. On the same day, P.W.10-Civil Assistant Surgeon, Government Community Hospital, Achampet held autopsy over the dead body of the deceased and opined that the cause of death was due to asphyxia due to throttling. Ex.P.6 is the postmortem report and Ex.P.7 is the final opinion. On 17.07.2003, P.W.12 took over investigation from P.W.15 and during the course of investigation he examined and recorded the statements of P.Ws.3 and 4. On 25.07.2003, Amrabad Police apprehended the accused at Achampet Bus Stand and produced him before P.W.12-C.I of Police. Then P.W.12 recorded the statement of the accused in the presence of P.W.9 and another and in pursuance of his statement-Ex.P.9, M.Os.1 to 3 ornaments were recovered from a big pot inside the house in the presence of P.W.8 and the same were seized under Ex.P.4-panchanama. Thereafter, he recorded the statement of P.Ws.5 and 6, who are the owner and Manager of Annapurna Lodge, and seized lodge register under Ex.P.2. P.W.14-C.I of Police, who took over the subsequent investigation, after receiving the relevant documents and on completion of investigation, laid the charge sheet against the accused for the offences aforementioned. 4. On laying the charge sheet, the Judicial Magistrate of First Class, Achampet committed the case to the Court of Sessions and on such committal, the I Additional Sessions Judge, Mahabubnagar, framed the charges under Sections 302 & 404 IPC, read over and explained the same to him in Telugu. The accused denied the said charges. 5. To prove the guilt of the accused for the offences with which he stood charged, the prosecution examined 15 witnesses, marked 11 documents—Exs.P.1 to P.11 and exhibited M.Os.1 to 7. 6. After closure of the evidence, the accused was examined under Section 313 Cr.P.C. with regard to incriminating material made against him by the prosecution, which he denied and got marked Exs.D.1 to D.5-admissible portions of Section 161 Cr.P.C statements of P.Ws.2, 3 and 4. 7. The learned Sessions Judge framed four points for consideration to prove the guilt of the accused and on evaluating the oral and documentary evidence produced by the prosecution found him guilty with the charges with which he stood charged, convicted and sentenced him as stated supra. Aggrieved by the same, the appellant preferred this appeal. 8. Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the appellant contended that the learned Sessions Judge convicted the appellant based on three circumstances, namely; (1) the accused and the deceased lived together; (2) the accused alleged to have given false information, and (3) recovery of jewels of the deceased from the house of the accused. He also contended that the only circumstance, which the prosecution could establish is that the accused and the deceased lived together in the house for 15 days and that the explanation of the accused cannot be said to be false because there is no one in the house. He further contended that the case rests upon the circumstantial evidence of P.W.2, who saw the accused and deceased together, and the evidence of P.W.10-doctor, who opined that the approximate time of death of the deceased was less than 72 hours prior to postmortem examination. The learned Senior Counsel further, while contending that a strong suspicion, no doubt, exists against the appellant, but the same cannot be the basis for conviction, unless the prosecution establishes the death of the deceased beyond reasonable doubt, relied upon a judgment of the Supreme Court in Dasari Siva Prasad Reddy v. The Public Prosecutor, High Court of A.P[1]. He also relied upon the judgment of the Supreme Court in Pradeep Kumar v. State of Haryana[2] and contended that the only evidence adduced by the prosecution to substantiate the allegation of commission of the offence punishable under Section 302 IPC is that the accused and the deceased stayed in the same house, but it is not sufficient to hold the accused guilty for the offence punishable under Section 302 I.P.C. He also relied upon the judgment of this Court in Parsineni Venkateswarlu v. State of Andhra Pradesh[3]. 9. On the other hand, the learned counsel representing the Public Prosecutor, while sustaining the judgment under appeal, contended that the accused himself admitted that he was present in the house when the deceased committed suicide. But, however, he absconded from the scene of offence without lodging any report and the explanation given by him that the deceased committed suicide appears to be false. In view of the same, it is clear that it is the accused, who committed the offence, and therefore, the conviction and sentence recorded by the Court below do not call for any interference. 10. P.W.1, who is the father of the deceased, and who resides at Wanaparthy, stated that one year prior to the incident he gave the deceased in marriage to the accused, as second wife. At the time of marriage, he gave cash of Rs.20,000/-, ear tops of three grams, gold ring of two grams and anklets of six tulas of silver, as dowry. He also stated that the deceased and the accused lived amicably for eight months, though they were quarreling now and then. Thereafter, the deceased started complaining that the accused was beating her suspecting her character. On one occasion he brought the deceased to his house and kept with him for some time. Later, on the advise of elders, he sent her to the house of the accused by advising him not to harass the deceased. About 15 days prior to the incident the accused, who works as a mason, took the deceased to Srisailam stating that he got some work at Eagalapenta. The accused and the deceased worked at Eagalapenta for 8 to 10 days but he does not know what transpired between them during that period. Suddenly, on one day the accused telephoned to his house at Wanaparthy and informed that the deceased was suffering with severe stomach ache. On the next day when he was not in the house, the accused again telephoned to their neighbours. On his return, the neighbours informed him that the accused asked him to go over to Eagalapenta to see his daughter, who was suffering from pain in abdomen. Thinking that the accused would take the deceased to hospital, he did not go to Eagalapenta on that day. On the next day at about 10.30 a.m. the accused again telephoned and informed that the deceased committed suicide by hanging at their residence at Eagalapenta. Immediately, he engaged a jeep and went to Eagalapenta along with his family members. When they reached Achampet, petrol was exhausted in the jeep. Then he disposed of some gold ornaments and purchased petrol and when he was about to go to Eagalapenta, the accused met him at Santa Bazar at Achampet. On enquiry, the accused asserted that the deceased committed suicide by hanging. When he asked the accused to accompany them, he refused and escaped. They reached the scene at about 8.00 p.m., by that time the dead body was smelling obnoxiously and blood was coming out from near the threshold of the house. The dead body was lying on the floor and two granite stones were lying near the head of the deceased. The dead body of the deceased was found swollen and only jacket and petty coat were found on her body. They found injuries at the nose and ears of the deceased, which indicated forcible snatching of her gold ornaments. Then he telephoned to Amrabad Police Station at about 9.p.m. On the next day at about 9 a.m. the police came to the scene and obtained his complaint under Ex.P.1. 11. P.W.2, who is a resident of Eagalapenta, stated that he is residing at ‘G’ type quarter No.13/35 on payment of some money and he is working as a coolie. He also stated that the accused stayed for two or three weeks in ‘G’ type quarter No.13-36 along with the deceased. During the said period, he heard the weeping of the deceased and also some quarrel between them. Suddenly, the accused and the deceased were not seen for some time. He thought that they left the quarters. On one day he saw blood flowing out of the threshold of the quarters of the accused and found foul smell emitting from inside the quarters. At their request, their officials informed Amrabad Police about these circumstances. Meanwhile, they collected the phone number of the parents of the deceased from the co-workers of the accused and telephoned to them. The parents of the deceased came to the scene of offence on the same day and the police came on the next day. 12. P.W.3, who is the maternal uncle of the deceased, while corroborating the evidence of P.W.1, stated that he took the deceased and accused to Hyderabad and engaged them in coolie work. He speaks about the quarrel between the accused and the deceased. He stated that on one Monday evening he received a phone call from his paternal uncle that the deceased was murdered at Eagalapenta, and his parents already went to Eagalapeta. 13. P.W.11, who worked as A.S.I at Amrabad Police Station, deposed that on receiving a complaint from P.W.1 on 15.07.2003 at 8 a.m he registered a case in Crime No.61 of 2003 under Sections 302 and 379 I.P.C., issued Ex.P.8-F.I.R, and sent the express F.I.Rs to all the officers concerned. Thereafter, he sent a requisition to P.W.7 to visit the scene of offence and conduct spot inquest. On the same day, he visited the scene of offence, which is ‘G’ type quarter. Meanwhile, P.W.12-C.I of Police, Achampet came to the scene of offence and took up investigation. 14. P.W.7, who is the Mandal Revenue Officer, Amrabad conducted inquest over the dead body of the deceased on 15.07.2003 and issued inquest report-Ex.P.3. He stated that the panchas opined that the accused murdered the deceased by throttling her neck by suspecting her character. In the cross-examination he stated that tongue was protruded from the mouth and therefore it was inferred that the neck of the deceased was throttled. 15. P.W.10 is the doctor, who conducted post mortem examination on the dead body of the deceased. He opined that the approximate time of death was less than 72 hours prior to post mortem examination and the cause of death was asphyxia due to throttling. Ex.P.6 is the postmortem examination report and Ex.P.7 is final opinion issued by him. 16. P.W.12, C.I of Police, Amrabad Police Station, stated that he recorded the statement of P.Ws.3 and 4; that on 25.07.2003, the police constables of Amrabad Police apprehended the accused at Achampet Bus Station and produced before him; that he secured the presence of L.W.14 and P.W.9 and recorded the confession of the accused; that he secured the presence of P.W.8 for recovery of the gold ornaments of the deceased and the accused picked out the ornaments from a big pot inside the house and produced the same before them and they seized the same under cover of panchanama Ex.P.4. 17. P.W.13, who is the inquest Panchayatdar, deposed that on one day in July, 2003 at about 10.00 a.m, Eagalapenta Police came to the scene, dogs were moving around the quarter and some bad smell was coming in that area. They found some liquid like material flowing through a hole beneath the entrance door of the quarter. The dead body was lying by the side of the kitchen room. The police conducted inquest over the dead body of the deceased and he signed in the inquest report. 18. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C., in which he admitted that himself and the deceased were living at ‘G’ type quarter No.13-36 and P.W.2 in the adjacent quarter. He stated that his wife hanged herself with her saree and committed suicide and that on the date of incident when he woke up in the morning he found her hanging in the kitchen. Presuming that the deceased was alive he cut the saree with the help of knife, put down and brought her to outside room. Her tongue was protruded from the mouth. Thereafter, he telephoned to his father-in- law-P.W.1, but out of fear he lied that his wife was in serious condition and asked him to come to Achampet as they did not see his house. As his father-in-law did not come till that evening, on that day he slept in a lodge. On the next day also his father-in-law has not come and on the third day his father-in-law had come and started alleging that he killed the deceased. Upon this allegation, he surrendered before the Achampet Police, but the police referred to Amrabad Police Station on the point of jurisdiction and there he narrated the incident to C.I of Police (P.W.12). P.W.12 registered the case though he had assured that he would enquire and help him. 19. The Supreme Court in Trimukh Maroti Kirkan v. State of Maharashtra[4] held that in a case based on circumstantial evidence where no eye-witness account is available, there is another principle of law which must be kept in mind; the principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken by the Supreme Court in a catena of decisions. [See State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 (para 40); State of Maharashtra v. Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of M.P. (1995) 3 SCC 574 (para 4)]. The Supreme Court further held that where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence taken placed in the dwelling home where the husband also normally resides, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh (AIR 1972 SC 2077) it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra ((1992) 3 SCC 106) the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. 20. The learned Senior Counsel appearing for the appellant referred to the Medical Jurisprudence & Toxicology by Modi, wherein it is stated that the hyoid bone and superior cornuae of the thyroid cartilage are not, as a rule, fractured by any other means other than by strangulation, although the larynx and the trachea may, in rare cases, be fractured by a fall. Postmortem fracture of the hyoid bone is characterised by the absence of haemorrhage in the tissues around the fracture. 21. The evidence of P.W.10-doctor and the post mortem report show that hyoid bone was normal and there was no fracture to hyoid bone. Therefore, the possibility of the deceased committing suicide by hanging herself can be ruled out. When the evidence of P.W.1 shows that the saree of the deceased was thrown in a corner of the room and it was not cut into two pieces as stated by the accused, the explanation offered by the accused shows that he cut the saree with a knife and laid the dead body on the floor. The observation of the scene of offence does not indicate that the remaining piece was on the ceiling, which naturally has to be tied with the ceiling. Once the prosecution could establish that the accused and the deceased lived together in the same quarters, and when examined, the accused under Section 313 Cr.P.C statement stated that he was present in the house at the time of death of the deceased, the explanation offered by the accused that the deceased committed suicide has not been established. Therefore, the false explanation offered by the accused that the deceased committed suicide by hanging herself, is an additional link to connect the accused with the commission of the offence. The judgments relied upon by the learned Senior Counsel appearing for the appellant are distinguishable and do not apply to the facts of the case on hand, in view of the evidence adduced by the prosecution and also the admission made by the accused under Section 313 Cr.P.C.. 2 2 . For the discussion as aforementioned and the conclusion reached by us, we are not persuaded to come to a different conclusion than that of the Court below that the prosecution has been able to bring home the guilt of the accused beyond reasonable doubt. We see no merits in this criminal appeal. 23. Accordingly, the Criminal Appeal is dismissed confirming the conviction and sentence imposed by the Court below. A. GOPAL REDDY, J K.C.BHANU, J Date: 13.07.2010 va [1] 2004(6) Supreme 281 [2] (2010)1 SCC (Cri) 1322 (Supreme Court) [3] 2009(1) ALD (Crl.) 438 (AP) [4] 2006 AIR SCW 5300