HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.549 OF 2007 Dated:19-10-2010 BETWEEN: N. Srinivas Goud …Appellant AND State of A.P., Rep. by Public Prosecutor, High Court, Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.549 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) Appellant-sole accused was tried for the offences punishable under Sections 304-B, 302 and 201 IPC in S.C.No.101 of 2004 by I Additional Sessions Judge, Adilabad. Through judgment, dated 6.2.2007, he was acquitted for the offence under Section 304-B IPC but was convicted for the offences under Sections 302 and 201 IPC and was sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for three months for the offence under Section 302 IPC and was also sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for three months for the offence under Section 201 IPC. 2. The case of the prosecution in brief is that, the marriage of the appellant-accused with Nerella Sarla @ Kavitha (hereinafter referred to as ‘deceased’) was performed about six years back prior to the date of incident. After the marriage, they lived happily for a period of four years and out of the wedlock, they were blessed with one male child, who is aged about 1 ½ years as on the date of offence. Later, the accused addicted to bad vices like drinking and used to return home during night hours and used to beat the deceased demanding to bring additional dowry of Rs.20,000/-. The accused had been harassing the deceased mentally and physically for the last two years. Unable to tolerate the torture of the accused, the deceased used to inform her parents about the cruelty of the accused. On 7.1.2004 at about 2.30 hours, the accused picked up quarrel with the deceased and as usual demanded additional dowry and during such heated arguments, the accused grew wild, throttled her to death by pressing her throat and committed her murder. Later, in order to cause disappearance of evidence and to mislead the case, he poured kerosene on the body of the deceased and set it on fire. On seeing the flames, P.Ws.3 and 8, who were playing Volley Ball in the vicinity under the lights, saw the flames, rushed to the scene of offence and found the doors bolted from inside. They broke open the doors and saw the deceased lying dead in flames and they found the accused inside the room. On coming to know the death of the deceased, P.W.1 rushed to the house of the deceased and found the dead body of the deceased with burn injuries. Then, she lodged Ex.P.1 report with police of Jinnaram Police Station at about 8.30 hours on 8.1.2004. On receipt of complaint-Ex.P.1, P.W.15-Sub-Insepctor of Police registered a case in Crime No.2 of 2002 under Sections 304-B and 302 IPC and issued Ex.P.19-F.I.R. After recording the statement of P.W.1, he sent a requisition to the M.R.O. for conducting inquest over the dead body of the deceased. P.W.12-M.R.O., on receipt of requisition, conducted inquest over the dead body of the deceased in the presence of P.Ws.5,7 and 9. Ex.P.5 is the inquest report. After conducting the inquest, the dead body was sent for post-mortem examination. Doctors-P.Ws.11 and 13 conducted post-mortem examination over the dead body of the deceased and issued Ex.P.16-post-mortem report. The cause of death as spoken to by the doctors was due to cardio- respiratory arrest due to asphyxia in result of homicidal throttling. P.W.14-Circle Inspector took over further investigation. L.W.17-Deputy Superintendent of Police prepared rough sketch under Ex.P.17, recorded the statements of P.Ws.2,3,8,4,10 and 6 and after completion of investigation, L.W.17 laid the charge sheet. 3. On committal, the charges under Sections 304-B, 302 and 201 IPC have been framed against the accused. When the charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 15 and got marked Exs.P.1 to P.19 besides the case properties- M.Os.1 to 3 and Ex.C.1. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same. When the accused was called upon to adduce evidence, He did not let in any evidence. 6. The Trial Court on appreciation of oral and documentary evidence on record, found that the prosecution failed to prove the guilt of the accused for the offence under Section 304-B IPC and acquitted him of the said charge but found guilty of the charge under Section 302 and 201 IPC and sentenced him to imprisonment as aforementioned. 7. Heard the learned counsel for the appellant-accused and learned Public Prosecutor who have taken us through the entire evidence and the findings of the learned Sessions Judge. 8. Learned counsel for the appellant-accused contends that all the material witnesses including the mother of the deceased-P.W.1 have not supported the case of the prosecution and were declared hostile, that in the absence of any evidence to show that the accused was responsible for the death of the deceased, it is unsafe to convict the accused on the sole testimony of the doctors-P.Ws.11 and 13 who conducted the post-mortem examination. P.Ws.3 and 8 who are said to have stated that the accused was present in the house at the time of the incident have not supported the case of the prosecution and therefore, in the absence of any other evidence to connect the accused with the commission of the offence, he cannot be convicted for the offences under Sections 302 and 201 IPC. 9. On the other hand, the learned Public Prosecutor by placing reliance of the decision of the Apex Court in Trimukh Maroti Kirkan v. State of Maharashtra [(2007) 1 SCC (Cri) 80] would contend that since the accused is the husband of deceased and as the incident had happened in the house wherein the accused and deceased alone were residing, it is for him to explain as to how the deceased met with the homicidal death and that his silence in not reporting the report to the police immediately after the incident also supports the case of the prosecution that it is the accused and none else who committed the said offence. Therefore, upon considering the evidence brought on record, the learned Sessions Judge rightly convicted and sentenced the appellant and there are no grounds to interfere with the convictions and sentences recorded by the lower Court. 10. The point for determination is ‘whether the prosecution proved its case beyond all reasonable doubt for the charges under Sections 302 and 201 I.P.C. against the appellant?’ 11. There is no dispute that the marriage of the accused was performed with the deceased six years prior to the date of occurrence. P.W.1, the mother of the deceased who set the criminal law into motion by lodging Ex.P.1 complaint has not supported the case of the prosecution and was declared hostile. According to her, on coming to know the death of the deceased, she went to the house of her daughter and saw the dead body of the deceased with burn injuries. She deposed that she does not know the reason how the deceased died and that the accused was not responsible for the death of the deceased and she also denied about lodging of any complaint with the police and denied her signature on Ex.P.1-complaint. Though she was cross-examined at length by the Public Prosecutor, nothing was elicited. The other material witnesses i.e. P.Ws.2,3,4,5,7,8,9 and 10 were declared hostile. P.W.6 is the photographer who took the photos of dead body of the deceased and the scene of offence. P.Ws.11 and 13 are the doctors who conducted post-mortem examination over the dead body of the deceased and issued Ex.P.16-port-mortem certificate. P.W.12 is the M.R.O. who conducted inquest over the dead body of the deceased in the presence of P.Ws.5,7 and 9. The investigating officer-L.W.17 is no more. The evidence of P.W.14- Inspector of Police, who accompanied the investigating officer to the scene of offence discloses about the preparation of rough sketch and scene of offence panchanama etc. P.W.15 is the Sub-Inspector of Police who registered the crime upon receipt of Ex.P.1-complaint. 12. The evidence of doctors-P.Ws.11 and 13 coupled with the post- mortem certificate-Ex.P.16 discloses that the deceased met with homicidal death. Therefore, the prosecution is able to establish the homicidal death of the deceased. But none of the witnesses examined on behalf of the prosecution spoke that the accused and deceased were together in the house on the fateful night along with their child. According to the prosecution, P.Ws.3 and 8, who were playing Volley Ball, upon seeing the flames, broke open the doors and saw the deceased lying dead in flames and that the accused was also present inside the room. But they have not supported the case of the prosecution. None of the witnesses deposed about the presence of the accused in the house at the relevant point of time. Therefore, the prosecution failed to establish that the accused was present in the house at the time of occurrence. Hence, the principles laid down in the case of Trimukh Maroti Kirkan cannot be made applicable to convict the accused for the offences under Sections 302 and 201 IPC. In the absence of any other acceptable evidence adduced by the prosecution, the appellant-accused cannot be convicted for the offences under Sections 302 and 201 IPC. 13. In the result, the appeal is allowed. The convictions and sentences recorded against the appellant-accused for the offences punishable under Sections 302 and 201 IPC, by I Additional Sessions Judge, Adilabad, vide judgment, dated 06-02-2007, in Sessions Case No.101 of 2004, are set aside and he is acquitted of the said charges. He shall be set at liberty forthwith if not required in any other crime. The fine amount, if any, paid by the appellant-accused shall be refunded to him. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J OCTOBER 19, 2010 Tsr.