THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.1025 OF 2004 JUDGMENT:- This criminal appeal is directed against the conviction order of the appellant in S.C.No.168 of 2001 passed by the V Additional District & Sessions Judge, Ongole on 29.04.2004. 2. The appellant-A-1 along with three others were prosecuted for the offences under Section 302, 201 and 404 read with Section 34 of Indian Penal Code, alleging that A-1 got married to the deceased Koteswaramma on 26.02.2000, who is the daughter of P.W.1 and P.W.2. P.W.1 presented Rs.1,40,000/- and 8 tulas of gold at the time of marriage. Accused No.1 is serving soldier and he joined to his duty, after marriage and on 30.07.2000, he came to the house of P.Ws.1 and 2 and stayed there for three days along with his wife and his marriage was consummated on 02.08.2000. He returned back to his village Thallapalli along with his wife and mother-in-law. There was altercation between Accused No.1 and his wife regarding spending of Rs.25,000/- brought by A-1 from the army. The deceased strongly objected the spending the said amount for the joint family. P.W.2 observed the altercation between A-1 and her daughter and she chastised her daughter and on the next day morning she returned to her village. Thereafter on the next day, they came to know about the death of their daughter and they found the house of A-1 locked by the time they have gone there. P.Ws.1 and 2 along with elders searched and found the dead body of their daughter buried in a vagu on the eastern side of the village. They first noticed her hair and saree piece in the vagu and when the earth was removed, they found the dead body of deceased Koteswaramma. On complaint by P.W.1, the police came to the scene of offence and observed scene of offence in the presence of mediators and as per the orders, Mandal Executive Magistrate the dead body was exhumed and inquest panchanama was held on the dead body of deceased. The scene of offence was photographed. P.Ws.1 & 2 found ligature marks around the neck of deceased and also found swellings on the dead body. The dead body was sent to Government Hospital for post-mortem examination and the doctor who conducted Autopsy, came to the conclusion that the deceased died due to Asphyxia. As per the statement of PW.4 (Sister of the A-1) Investigating Officer seized Gold and Silver ornaments of the deceased from the house of the P.W.4. A-2 to A-4 were arrested on 16.08.2000 and A-1 resumed to his duty and he could not be arrested inspite of the efforts made by the Investigating Officer with the military official where A-1 was working. After completion of investigation, charge-sheet was filed against Accused No.1 to 4. 3. The learned sessions Judge has framed the charges under Section 304 of I.P.C against A-1 and Sections 201 and 404 of I.P.C against A-2 to A-4 and all the accused pleaded not guilty for the said charges. 4. The prosecution in order to establish the said charges examined P.W.1 to 27 and got marked Exs.P.1 to P.32 and Mo.1 to Mo.12. No oral and documentary evidence was adduced on behalf of the accused. 5. Taking into consideration of the said oral documentary evidence, the learned Sessions Judge has found A-1 not guilty for the charge under Section 302 of I.P.C but found guilty for offence punishable under Section 304-II of I.P.C and convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.5,000/-. A-2 to A-4 were found not guilty for the offences under Sections 201 and 404 of I.P.C and they were acquitted. 6. Aggrieved by the order of conviction, A-1 preferred the present appeal. 7. Now the point that arises for consideration is whether the prosecution could able to establish the offences under Section 304-II of I.P.C against the appellant beyond reasonable doubt. 8. The case of the prosecution is that the marriage between the appellant and the deceased Koteswaramma took place on 26.02.2000 and after the marriage, the deceased went back to join his duty as soldier and again on 30.07.2000, he came back to the house his mother-in-law and stayed along with the deceased for three days and on 02.08.2000 he returned back to his village along with his wife and mother-in-law and an altercation took place between the appellant and the deceased in connection with spending of Rs.25,000/- brought by the accused. P.W.2 chastised her daughter and left to her village on the next day morning and thereafter, they came to know about the death of her daughter. According to prosecution, the appellant and the deceased slept in the cattle shed on that day night i.e. 4/5-08-2000 and a quarrel took place between them with regard to spending of Rs.25,000/- and the accused bore grudge against his wife and with an intention to kill her, took a cloth and tied around her neck and pulled her forcibly and as a result she died instantaneously. Immediately A-1 informed to A-2 to A-4 and all of them carried the dead body of the deceased to the outskirts of the village and after removing the gold ornaments buried her in the Yarravagu Vanka. 9. With regard to the death of the deceased, PW.1 and 2 have stated that they have found the dead body in the vagu and found ligature marks and scratches around the neck of the deceased. P.W. 24-Doctor who conducted autopsy over the dead body of the deceased has found external injuries 1 ½ width contused marked around the neck and small abrasion of ¼ x ¼ in ten number are present on right side of neck. On either side of contused marked small abrasion 3 in number are present on lower 1/3rd of Right fore arm with ¼ x ¼ size and also fore in number of 1/3rd arm with 1 ¼ x inches size. According to him, deceased would appear to have died of Asphyxia due to Strangulation, time of death 34 to 40 hours prior to Post Mortem examination. The condition of the body then was not decomposed rigormortis present only in Lower limbs. Ex.P.29 is the post mortem report issued by him. P.W.23 is the M.R.O who conducted Inquest over the dead body of the deceased. He has also stated about the finding of the injuries on the dead body of the deceased and the same was noted in Ex.P.25-Inquest Report. Therefore, from the evidence of PW-1, PW- 2, PW-23 and P.W-24, it is clearly established that the death of the deceased was due to Strangulation. 10. The next point to be considered is whether the appellant is responsible for causing death of the deceased. The Additional Public Prosecutor has pleaded that the accused-appellant was found last seen with the deceased and he has not given any explanation for not giving a complaint when his wife was found missing from his house and also pleaded that even though the accused pleaded alibi, he has not produced evidence to establish the same, as such the appellant is responsible for causing the death of the deceased. 11. According to the prosecution, P.W.2 has dropped the deceased in the house of the accused and returned back to her village on 05.08.2000 and on the next day, i.e. on 06.08.2000, she came to know about the death of her daughter. P.W.2 has stated that she has gone along with her daughter and accused to his house on the occasion of Nagulachaviti and she heard a quarrel between A-1 and the deceased with regard to spending of Rs.25,000/- brought by him and P.W.2 advised her daughter not to quarrel in that regard. On the next day morning, she returned back to her house and informed the same to her husband P.W.1. On the next day morning, she came to know that her daughter is no more. In the cross-examination, she admitted that she returned back to Thurimella Village on 05.08.2000. P.W.1 who is the father of the deceased has also stated about P.W.2-his wife informing him about the quarrel that took place between the deceased and the appellant with regard to spending of Rs.25,000/-. The other witness examined by the prosecution is P.W.3 who is residing opposite to the house of the accused has stated that the accused is residing in front of his house and the accused No.1 married the deceased three years back and six months after marriage, she died. The cattle shed is situated on the right side of the house of the accused. Accused No.1 came along with his wife to their house one day before the death. He has not seen anything in the house of accused cattle shed during the night of incident. Therefore, he has only stated about A-1 came to his house along with his wife one day prior to her death. The investigating officer-P.W.27 has stated in the cross-examination that P.W.3 has not stated about the accused came along with his wife to their house one day before her death. Thus, the statement of P.W.3 is an improvement made by him before the Court. Therefore, the prosecution could not establish that the accused was last seen in the company of the deceased. 12. To connect the accused with the offence, the prosecution has relied upon recovery of gold ornaments of the deceased from P.W.4. According to P.W.23-M.R.O, on 07.08.2000 about 04.00 P.M myself mediators along with C.I of police went to the house of P.W.4 and she brought gold ornaments from her house and handed over them to police in presence stating that those gold ornaments were handed over by her brother Nageswara Rao. The said ornaments were seized under Ex.P.28. According to the prosecution, the said ornaments belong to the deceased. The investigating officer P.W.27 also stated that the gold ornaments belongs to deceased (Mo.1 to Mo.4) from the possession of P.W.4. P.W.4 has turned hostile to the prosecution and has not said anything about the recovery of gold ornaments from her and she has stated that she did not know the name of her deceased sister-in-law, and she does not know whether her second brother has married or not, she got married in 1999 and since then there was no relation between her and her parents and she did not know anything about the case. The said gold ornaments (Mo.1 to Mo.4) were not identified by the parents of the deceased P.W.1 and P.W.2. Therefore, recovery of Mo.1 to Mo.4 from the possession of P.W.4 as they belong to the deceased was not established by the prosecution. 13. The Additional Public Prosecutor has pleaded that the accused has pleaded alibi in 313 examination stating that he was not present on the date of examination and he was on duty and he was not responsible for commission of offence. 14. The learned counsel for the appellant has pleaded that even though the alibi is not established, it cannot be presumed that the prosecution has established the offence, by relying upon the decision rendered in State of Kerala Vs. Anilachandran alias Madhu and others[1], wherein the Apex Court has observed that “the High Court has noticed that crime was not committed in the manner as suggested by the prosecution and the genesis of the incident is not established. Even if a plea of alibi is set up by the accused and is discarded, that does not take away the duty of the prosecution to prove beyond reasonable doubt that the accused persons were guilty. It is certainly the duty of the persons who plead alibi to prove it beyond reasonable doubt. Merely because the accused was not able to prove his defence, it cannot be presumed that the prosecution case is proved against him”. 15. In the present case, the accused could not establish the alibi as pleaded by him and the burden cast on the prosecution to prove their case beyond reasonable doubt. 16. The learned counsel for the appellant has also relied upon the decision Dasari Siva Prasad Reddy V. Public Prosecutor, High Court of A.P[2]. In the said decision the Division Bench of this Court has observed that the accused was in the house at the relevant time and no inference can be drawn in the absence of proof of alibi. In the present case, there is no evidence to establish when A-1 was present along with the deceased on that night. When the same is not proved by the prosecution, it cannot be presumed that the accused was seen last with the deceased on that day night. Moreover, the dead body was not found in the house of the accused and it was buried in vagu which is at a distance of 2 kms from the village. The case of the prosecution is that A-1 to A-4 has carried the dead body from the house to the vagu and burried there. But no evidence was produced in that regard to establish the said fact and the Lower Court has acquitted the accused for offences punishable under Sections 201 and 404 of I.P.C. Therefore, in the above circumstances, the complicit of accused in the commission of offence cannot drawn. The Lower Court recorded a finding that the deceased was in the company of accused on the intervening night of 4/5.08.2000 and in the post-mortem conducted on 07.08.2000 clearly mentioned that the death of the deceased occurred 24 to 40 hours prior to post mortem examination, as such the deceased died on the said night when she was in the company, A-1. The said finding recorded by the learned Sessions Judge cannot be accepted as the prosecution has not established the presence of the accused with the deceased on that day night. Simply because the deceased died due to strangulation on 4/5.08.2000, it cannot be presumed that the appellant is responsible for the death. Hence the finding recorded by the Lower Court has to be set-aside. The other finding recorded by the learned Sessions Judge is that when the evidence of PWs.1, 2, 3, 20, 21, 24, 25 to 27 and the supporting documents clearly establishes that the accused is responsible for the death of his wife, but there is no discussion as to how the said evidence and documents connects the accused for the death of the deceased. The scrutiny of their evidence does not establish the complicity of the accused in the commission of the offence. Thus the finding is also liable to be set-aside. 17. In view of the above findings recorded, the prosecution could not establish that the appellant is responsible for the death of his wife Koteswaramma due to strangulation. Thus the prosecution has failed to establish the charge under Section 304-II of I.P.C against the appellant beyond reasonable doubt. 18. In the result, the appeal is allowed and the conviction and sentence passed by the V Additional District & Sessions Judge, Ongole in SC.No.168/01 is hereby set-aside and the accused No.1 is acquitted for the offence under Section 304-II IPC. _______________________ P. DURGA PRASAD, J 26th December, 2011 sp [1] AIR 2009 SC 1866 [2] 2004 (2) ALD (Crl.) 677 (SC)