HON’BLE SRI JUSTICE V. ESWARAIAH Crl.A. No. 1125 of 2007 DATED: 30.03.2011 Between: K. Malyadri .. Appellant And State of A.P. .. Respondent JUDGMENT:- (Per Hon’ble Sri Justice V. Eswaraiah) The appellant, who is the accused in S.C. No.140 of 2006, was tried by VII Additional District & Sessions Judge, Ongole, for the offences punishable under Sections 498-A, 302 and 201 IPC. The learned Sessions Judge, having considered the evidence both oral and documentary, while acquitting the accused of the offence punishable under Section 498-A IPC, found him guilty of the offences punishable under Sections 302 and 201 IPC and convicted and sentenced him to undergo imprisonment for life and also pay a fine of Rs.500/-, in default, to suffer simple imprisonment for a period of three months for the offence punishable under Section 302 IPC., and also sentenced him to undergo rigorous imprisonment for a period of three years for the offence punishable under Section 201 IPC. The substance of the charge framed against the accused is that on 20.10.2005, at about 09.00 a.m., at the house of the accused, near R.D.O. Office, Kandukur, he caused the death of the deceased- K.Venkata Lakshmi by strangulating her with rope and set her ablaze with the intention of screening the offence of murder. The plea of the accused is one of total denial. To substantiate the case of the prosecution, it examined PWs.1 to 22 and got marked Exs.P1 to P41 and M.Os. 1 to 12. The admitted facts of the case are that the accused is the husband of the deceased-K.Venkata Lakshmi, who is the daughter of PWs.2 and 3. PW1 is the brother of the deceased. PWs.4 to 6 are the children of the deceased and the accused. The marriage of the accused took place 18 years prior to the incident. The case of the prosecution is that the accused was running a Drama Dress Supply Company. While so, he developed illicit intimacy with one Sai Bhavani, a dancer, who was working in his company, and he decided to live with her, the deceased was often quarelling with him. In that connection, the accused beat the deceased, drove her away from the house along with the children. When the parents of the deceased tried for settlement of the matter and asked the accused to get her back, he refused to do so. Therefore, the deceased approached the District Collector and presented a petition seeking protection, and the petition was forwarded to PW13-Deputy Superintendent of Police, Kandukur, who sent for the accused and the deceased and conducted counseling and advised both of them to live peacefully, thereby the accused gave an undertaking that he would look after his wife and the children well and took them to the house. He kept quite for sometime and again revived his connections with Sai Bhavani. On 22.10.2005, PWs. 4 to 6 - children of the accused, went to school and during interval, PW4 returned to the house at 09.30 a.m. and found smoke coming out of their house. The door was bolted from inside and locked. He entered his house through the upstairs portion of his neighbouring house and found his mother lying in the kitchen with burn injuries. While he was observing for sometime, the accused came there, opened the lock of the main door, and himself and PW4 out of the house. PW4 telephoned to PWs.1 and 2 from a telephone booth informing that his mother died and asked them to come. PWs.1 to 3, who are residents of Peridepi village of Kondapalli Mandal, Prakasam District, on receipt of the phone call from PW4, rushed to the house of the accused by a car. Several people had gathered at the house of the accused. On 22.10.2001 at 05.00 p.m. PW1 gave a report to PW22 – Sub-Inspector of Police, Kandukur Town Police Station which was marked as Ex.P37, who registered a case in Cr.No.113 of 2005 under Sections 498-A and 306 IPC and issued F.I.R. - Ex.P38. On 23.10.2005, PW22 visited the scene of offence, prepared an observation report Ex.P32, rough sketch of the scene of offence under Ex.P40, secured the presence of PWs.16 and 17, held inquest over the dead body of the deceased from 10 a.m. to 1.00 p.m. and prepared the inquest report - Ex.P33. From the inquest report it is clear that PWs.2 to 4, 7 and 14 were examined. After the dead body was sent to Government hospital for post-mortem examination, PW21 conducted autopsy over the dead body of the deceased. Ex.P36 is the postmortem report. The deceased appeared to have died of asphyxia probably due to strangulation. PW20 – Inspector of Police received the copy of express F.I.R. on 27.10.2005, took up investigation, examined PWs.1 to 5, 7, 8, 12, 14 and 15. He also examined PWs.6, 9, 10 and 11 and recorded their statements. On 31.10.2005 at about 5 a.m., PW20 arrested the accused at Singarayakonda Railway Station in the presence of PW18 and another and after completion of investigation filed charge sheet. There are no eye-witnesses in the instant case. All the witnesses have been declared hostile except PWs. 20, 21 and 22. The plea of the accused is one of total denial. He stated that he was in the shop at the time of the incident and did not see the dead body of his wife. The learned Judge convicted the accused by relying on the circumstantial evidence on the ground that the accused was not living with his own deceased-wife and their two children and he had grouse against his wife as she gave a representation against him to the Collector which was forwarded to the police, and the death of the deceased was homicidal and due to strangulation and thereafter the body was set ablaze. The conduct of the accused in not reporting to the police about the occurrence of incident and not explaining as to how he reentered the house when it was locked and none else was interested in killing her, except the accused. Sri C. Padmanabha Reddy, learned senior counsel for the appellant, has submitted that admittedly there is no eye-witness in the instant case and PW1 - the brother of the deceased and PWs.2 and 3 - parents of the deceased themselves turned hostile and the so-called harassment of the accused on the deceased and the illegal contact with the Sai Bhavani, who is said to have been working in the shop of the accused, were not established and the witnesses who spoke about the harassment, counseling also turned hostile, and therefore, the conviction of the accused mainly based on the evidence of PW4 - son of the deceased, coupled with postmortem report and the evidence of PW21 – Doctor and PW22 – Sub-Inspector of police, is illegal and erroneous as the prosecution has failed to prove that the accused himself caused murder of his wife. He further submits that in fact, this is not a case of homicidal and even the prosecution failed to establish that the death of the deceased was homicidal. Insofar as the circumstantial evidence is concerned, PW1 – brother of the deceased, though stated about the relations and the information received by him from PW4 with regard to the incident occurred on 22.10.2005 and that he came to the house of the accused by 10.30 or 11.00 a.m., and submitted Ex.P37 – report to the police concerned, but he stated that he rushed to the house of the accused by car and several people gathered there near the house of the accused and the police took away the accused after sometime and the accused, who was present there was taken away by the police and the police came and obtained his signature, but he does not remember whether he singed Ex.P2 – statement recorded by Judicial First Class Magistrate, Kanigiri under 164 Cr.P.C., but accepts that the signature on Ex.P2 is that of himself. He did not support the contents of Ex.P37 – report, therefore, he was turned hostile. Even PWs.2 and 3, who are the parents of the deceased, turned hostile, and stated that they did not know anything about the cause of the death of the deceased. In fact, PWs.2 and 3, stated that the accused and the deceased used to live amicably. PW6 is the eldest son and PW4 is the youngest son and PW5 is the daughter of the deceased. PW4 stated that he was 14 years old as on the date of the death of the deceased and his mother died on 22.10.2005, on which day, he went to school and returned during interval to the house at 09.30 a.m. and found smoke coming out of the house and two or three persons were in front of his house. When he knocked on the gates of their house, nobody came and opened the door. The doors were bolted from inside and locked. He entered his house though upstairs portion of his neighbouring house. He found his mother lying in the kitchen due to burn injuries. While he was observing his mother lying in the kitchen for sometime, his father came there, but did not talk to him, and PW4 also did not talk to him. His father opened the lock of the main door. His father and himself came out of the house and called PWs.1 and 2 over telephone informing them about the death of her mother and asked them to come. By the time he went to school and brought his sister back to the house, PW1 came within about one hour. Himself, his sister, and his parents alone were residing in the house at that time. PW1 went to upstairs and saw the dead body of the deceased and after sometime, the police came and talked with the accused and took him away. He also stated that his parents used to live amicably and except that he does not know anything about them. No doubt, in the cross-examination by the Public Prosecutor, he stated that one Sai Bhavani was working in the shop apart from others, but he does not know whether there was any illegal intimacy between the accused and Bhavani. He learnt that his mother approached the District Collector and advised them to live amicably. He further stated that by the time he entered the house, his father was talking over cell phone. PW5, daughter and PW6 – eldest son of the deceased turned hostile. PWs.7 to 9, who were examined to speak about harassment and the disputes between the deceased and the accused, did not support the case of the prosecution. PWs.10 and 11 were examined to speak about the illicit intimacy of the accused and Sai Bhavani. PW12, who is one of the members in Family Counselling Centre in the office of DSP, also turned hostile. PW13, Sub-Divisional Police Officer stated that he received a petition presented by the deceased through the District Collector, Ongole on 28.06.2005, and for the purpose of counseling about harassment on the deceased by the accused, he sent for them on 29.06.2005 and himself and PW12 conducted counseling, advised both of them to live amicably and a xerox copy of the so-called petition and the endorsement was marked as Ex.P28 subject to the admissibility as the original document was not marked and he was declared hostile. When he was cross-examined by Additional Public Prosecutor, he deposed that he did not state before the Circle Inspector of police that the deceased told him as recorded in Ex.P29. PWs.14 and 15 were examined to speak about the facts between the deceased and the accused and their witnessing the accused going to the house at about 09.30 a.m. and also coming out of his house after sometime, but did not support the case of the prosecution. They further stated that for the first time they saw the accused only at 11.00 a.m. or 12.00 noon on the date of the incident. They also stated that the accused and the deceased were living amicably and their houses are abutting the house of the accused. It is also stated that they have seen the accused in front of their house on the date of the incident for 10 to 15 minutes after the incident. Then, PW16 is the panch witness for the observation of the scene of offence. PW17 is has witnessed the conduct of inquest over the dead body of the deceased by the police, Kandukur. PW18 witnessed for the arrest of the accused, but turned hostile. PW19 is examined to witness the arrest of the accused, but he also turned hostile. PW21 is the Doctor of Area Hospital, Kankudur who conducted autopsy on the dead body of the deceased and found the following injuries: (i) A ligature mark of 6 x ½ cm extending from 2 cm below the left ear lobule obliquely downwards to the front of the neck. (ii) A ligature mark of 5 x 1 ½ cm extending from 2 cm below the right year ear lobule obliquely downwards to the front of the neck on exploration of injury, bruising of subcutaneous tissue present. He stated that the whole body burnt, charred and swollen hair burnt and body is the pugilistic attitude. On internal examination, he found that larynx, trachea and bronchi congested. Esophagus congested rib cage intact. All the internal organs are congested. No smoke in the trachea and the esophagus is found. Brain matter is congested. Hyoid bone is intact. He opined that the deceased would appear to have died of asphyxia probably due to strangulation about 24 to 36 hours prior to Postmortem examination. Ex.P36 is the postmortem certificate issued by him. Stomach contained 5 ounces of semi-digested food. Lungs consist of petehial hemorrhage. He denied the suggestion that he cannot identify the nature of the external injuries when the whole body was burnt. PW22 is the sub-inspector of police, who received Ex.P37 from PW1, and registered the crime under Sections 498-A and 306 IPC. He issued Ex.P38 – F.I.R., examined PW1, recorded his statement, prepared observation panchanama, got the scene of offence photographed and also prepared rough sketch of the scene of offence. He secured panchayatdars, conducted inquest over the dead body of the deceased and sent it for postmortem examination, and after receiving Postmortem certificate, he altered Section of law from Sections 498-A and 306 IPC to 498-A and 302 IPC. PW20 - Inspector of police, deposed that he visited the scene of offence, secured the presence of PWs.18 and 19, arrested the accused at Singarayakonda Railway Station and interrogated him. After completing the investigation filed the charge sheet. The question that arises for consideration is as to whether the death of the deceased was homicidal or suicidal. If it is a case of homicidal then the next question that arises for consideration is as to whether the accused is responsible for cause of the death of the deceased. In the instant case, though all the witnesses spoke about the circumstances, they turned hostile, but the fact remains that as per the evidence of PW4, who is the son of the deceased, he entered the house at about 09.30 a.m. through the upstairs portion of his neighbouring house. As the front door of the house of the deceased was bolted from inside, he did not see about the presence of his father, but he only stated that after entering the house, his father came after sometime and the police talked to him. As per the evidence of PW20, PW1, who lodged a report with the police, took the accused, but the accused was not at all arrested either on 21.10.2005 or 23.10.2005, and was arrested only on 31.10.2010. According to PWs.14 and 15 – neighbours, who are said to have witnessed the accused entering the house, did not support the prosecution case. It is only after the incident they say the accused. If really the accused was present and suspected of the commission of offence, the police would have taken him into their custody. Though the incident occurred at 09.00 a.m. on 22.10.2001, but a written report was given only at 5.00 p.m., but the record shows that it was received by the Munsif Magistrate only on 24.10.2001. However, F.I.R. was registered only for the offences under Sections 498-A and 306 IPC. 306 IPC is for abetment of suicide. Therefore, the witnesses, who were present at the time of the incident, were suspecting that the deceased committed suicide due to harassment by the accused. In fact, the inquest report - Ex.P33 is stated to have been conducted on 23.10.2005, but in the original report, it is stated that it was drafted on 22.10.2005 at 10.00 a.m. and also shows that it was signed on 23.10.2005 and the inquest was conducted in between 10.00 a.m to 01.00 p.m. We have perused the inquest report, according to which, as per column Nos.7 to 9, it is observed that almost the dead body of the deceased was burnt completely having red and white blisters and the skin peeled out and it appears that the deceased died due to kerosene burn injuries on her body, and due to it, there is one presumption that ill-treatment was meted by her in the hands of her husband by committing suicide or by pouring kerosene on her body to do away with her life. The inquest report does not show any ligature marks on the neck of the deceased indicating that the deceased died due to strangulation, but the postmortem report shows that though the whole body was burnt, the external injuries show that there is a ligature mark below the left ear lobule obliquely downwards to the front of the neck. The opinion of the doctor is that deceased would appear to have died of asphyxia probably due to strangulation. Therefore, even medical evidence is not clear that the deceased died of asphyxia due to strangulation or due to burn injuries. Even according to the postmortem report, the whole body was burnt and charred and swollen hair burnt. Therefore, we are of the opinion that it may not be possible to notice the ligature mark on the neck. Even as per the inquest report, the left leg of the deceased was completely burnt and shrinked and the dead body of the deceased was fully burnt from top to bottom with read and white blisters and no ligature marks are found as is found from the inquest report. Therefore, it cannot be said that the injuries noticed by the doctor who conducted postmortem examination, are not due to burn injuries but due to strangulation. Therefore, we are of the opinion that even his opinion is doubtful whether the death of the deceased was due to strangulation or due to burn injuries, the Doctor only stated that the dead body of the deceased would probably appear to have died, and therefore, he is not certain about the cause of the death. Therefore, we are of the opinion that the cause of the death of the deceased is due to burn injuries. If that be so, it is homicidal or suicidal. The learned Public Prosecutor submits that as per the evidence of PW4, the son of the accused was present at the scene of the offence and if really the accused is not responsible he would have given a complaint about the death of his wife and there is no possibility of causing the burn injuries of any other person other than the accused. The evidence of PW4 clearly indicates that the accused was present at the incident and the police arrived at the scene of offence and took him to their custody. As the presence was not at all recorded immediately though some of the witnesses stated that the accused was present, the police failed to establish his presence immediately after the incident as he was not at all arrested having suspected him though the complaint was given stating that the accused only caused the murder of the deceased. The husband of the deceased is figured as the accused in the FIR. The fact that he was neither interrogated nor arrested for a period of eight days, it cannot be said that he was present at the time of the incident. Insofar as the so-called recovery of the M.O.12 – rope is concerned, when the whole body was burnt and admittedly such ropes are available everywhere and the rope does not contain any blood marks and it cannot be believed that the accused has preserved the rope in the down stairs portion of his house. It is the case of the prosecution that the accused used to harass the deceased and the deceased also made complaint before the Collector. PW13, who was counselling the accused and the deceased and that there is also an accusation that the accused is having illicit contact with Sai Bhavani, who is working in his shop and if that be so, it cannot be said that there is no possibility of committing suicide due to harassment of the accused as there is no acceptable evidence that the accused is responsible for causing burn injuries to the deceased. Almost all the prosecution witnesses turned hostile except PWs.21 and 22 . Hence, it cannot be said that the prosecution was able to prove the charges beyond reasonable doubt. The accused was suspected to have committed the offence punishable under Section 306 IPC alone and admittedly the ingredients of Section 306 are not proved by the prosecution. Even the harassment said to have been meted out by the accused for the offence under Section 498-A is also not established. Therefore, it cannot be said that the prosecution was able to prove the case of the murder of the deceased by the accused beyond reasonable doubt. For the foregoing reasons, we are unable to sustain the convicting of the accused. Hence, the Criminal Appeal is allowed setting aside the conviction and sentences imposed on the appellant- 0accused namely Konijeti Malyadri, by the learned VII Additional District and Sessions Judge, Ongole, for the offence punishable under Sections 302 and 201 IPC vide judgment dated 30.07.2001 delivered in S.C. No. 140 of 2006. The appellant shall be released forthwith if he is not required in any other case. ________________ V. ESWARAIAH, J 30.03.2011 ___________________ V. SURI APPA RAO, J bcj