THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No. 321/2007 Dt.26-7-2010 Makkala Punjavathi ..Appellant/A-1 V. The State of Andhra Pradesh, represented by Station House Office, P.S., Alwal, through Public Prosecutor, High Court of A.P., at Hyderabad. ..Respondent/complainant The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No. 321/2007 JUDGMENT (per the Honourable Justice A.GOPAL REDDY) The appellant who figured as A-1 along with one Kollapuram Sriramulu @ Shiva (A-2) was put to trial for the offences under Sections 302 and 201 IPC in SC No.351/2004 by I Additional District & Sessions Judge, Ranga Reddy District-cum-Metropolitan Sessions Judge, Cyberabad at L.B.Nagar, Hyderabad. The learned Sessions Judge, by judgment dt. 9-12-2005, while acquitting A-2 for the offences punishable under sections 302 and 201 IPC, found A-1 guilty of the offences under Sections 302 and 201 IPC and convicted accordingly and sentenced him to suffer imprisonment for life and also to pay a fine of Rs.200/-, in default to suffer simple imprisonment for a period of one month for the offence under Section 302 IPC and further sentenced to suffer rigorous imprisonment for a period of two years and also to pay a fine of Rs.200/-, in default to suffer simple imprisonment for a period of one month for the offence under Section 201 IPC. All the sentences are directed to run concurrently. The substance of the charges framed against the accused (A- 1 and A-2) is that on 17-7-2003 at about 10 PM A-1 along with A-2 murdered M. Mallesh, who is the husband of A-1, (hereinafter referred to as “the deceased”) by hitting him with a stone on his head and in order to cause disappearance of evidence of the offence of murder, the accused kept the body in a gunny bag and covered blanket on the body and set fire and thereby committed the offences punishable under Sec. 302 and 201 IPC. The prosecution story, as unfolded during the trial, which led to the conviction of the appellant/A-1, is as follows: The deceased is the husband of A-1. Their marriage took place about 22 years ago. They have been living along with their sons, Vijay Kumar, aged about 20 years, Shekar, aged 12 years and daughter aged 15 years at Macha Bollaram, at the time of the incident. The deceased worked as stone-cutter and building material supplier, whereas A-1 used to work as maid-servant in various houses. At about five years prior to the incident, A-1 eloped with A-2, and went to Nizamabad leaving her children and husband. About three months prior to the incident, the eldest son of the deceased, Vijay Kumar, left the house and went away. During the summer of 2003, A-1 came back and joined her husband and children. A-1 did not change her attitude and continued her illegal intimacy with A-2. The deceased objected to it and warned them that he would kill them if they do not change their attitude. A-1 and the deceased used to quarrel frequently on the said issue. Due to elopement of A-1 with A2, the deceased addicted to alcohol and used to quarrel with A-1. On 17-7-2003 at about 8 PM the deceased and A-1 quarrelled in the house of the mother of the deceased ie., P.W.1. A-1 warned the deceased that she would see his (deceased) end as she had suffered enough in his hands and removed her pusthelathadu and threw it at the face of the deceased and went to her house along with A-2. Later the deceased went to his house at about 10 PM. On the next day morning, the deceased quarreled with both the accused. Both the accused gagged the decease with a cloth strip to stifle noise, beat him with a stone on the head and killed him. Both the accused persons put the dead body in a gunny bag, covered it with a blanket, poured kerosene and set fire. They fled away from the scene and went to the toddy compound along with utensils and slept there. In the early morning, both the accused left the toddy compound and kept the utensils in the hut of one Ramulu, saying that they would be back after breakfast, but they did not turn up. The mother of the deceased, P.W.1, on the next day morning went to the house of the deceased and found the dead body of the deceased in a burnt condition. The legs of the dead body were broken, the mouth was tied from behind the head. There were blood stains nearby the dead body. Thereafter, she rushed to the police station and lodged Ex.P-1 with P.W.8 at 10 AM. On lodging Ex.P-1, P.W.8-Inspector of Police registered the same as in Cr.No.324/2003 for the offences punishable under Sections 302 and 201 IPC and issued First Information Report covered under Ex.P-10. He examined P.W.1 and recorded her statement. Thereafter, he proceeded to the place of offence along with his staff, where he examined P.Ws. 2 and 3 and others and recorded their statements. He got photographed the scene of offence and dead body through L.W.9. Ex.P-11 are photographs with negatives. He prepared a rough sketch of the scene covered under Ex.P-4 in the presence of P.W.4 and another. He also conducted a scene of offence panchanama covered under Ex.P-4. At the scene of offence, he seized the material objects covered under M.Os.1 to 11. In the presence of mediators, he conducted inquest over the dead body of the deceased. Ex.P-5 is the inquest report. After inquest, he sent the dead body for post-mortem examination. P.W.7, who is working as a Professor in Gandhi Medal College, Secunderabad, conducted autopsy over the dead body of the deceased on 18-7-2003 and issued post-mortem certificate covered under Ex.P-9 opining that the cause of death was due to head injury. L.W.15-A.Balakoti, Sub- Inspector of Police, arrested the accused on 20-7-2003 at Bolarum Railway Station and brought them to the police station. P.W.8 interrogated A-1 in the presence of P.W.6 and another and recorded her confessional statement covered under Ex.P-6. At the instance of A-1, P.W.8 went to the house of A-2 along with A-1. Sub-Inspector of Police arrested A-2 along with A-1. He recorded the confession statements of A-1 and A-2. He recovered M.Os.14 to 16 under a common seizure panchanama covered under Ex.P-8. He sent the material objects to the Forensic Science Laboratory for analysis. On receiving relevant reports and on completion of investigation, P.W.8 filed the charge sheet before the Judicial Magistrate of First Class, Medchal. Learned Magistrate took the charge-sheet on file as PRC No.102/2003 and committed the case to the Sessions Division of Ranga Reddy District as the offence is exclusively triable by Court of Sessions. The learned Sessions Judge took the case on file as SC No.351/2004 and made over to I Additional District & Sessions Judge, Ranga Reddy District–cum-Metropolitan Sessions Judge, Cyberabad, at L.B.Nagar for disposal according to law. The learned Metropolitan Sessions Judge on hearing the prosecution and the accused, framed two charges for the offences punishable under Section 302 and 201 IPC against the accused, read over and explained the same to the accused in Telugu, for which the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offences for which they stood charged, the prosecution examined 8 witnesses and proved 12 documents and exhibited 16 material objects. After closure of prosecution side evidence, the accused were examined under Sec. 313 Cr.P.C., and they denied the incriminating material appearing against them in the evidence of prosecution witnesses, and represented that there is no evidence to be adduced on their behalf. The learned Sessions Judge after placing reliance on the evidence of P.Ws.1 to 3 and 5, while finding A-2 not guilty for the offences punishable under Sections 302 and 201 IPC and acquitting him of the offences with which he stood charged, found A-1 guilty of the offences punishable under Sections 302 and 201 IPC and convicted her accordingly and sentenced, as aforementioned. Challenging the conviction and sentences, A-1 preferred the present appeal. The appellant/A-1 has been provided with legal aid in preferring this appeal. Sri S.Chalapathi Rao, learned counsel for the appellant/A-1 strenuously contends that entire case rests upon the circumstantial evidence, and when P.W.3 tuned hostile and did not support the case of the prosecution, there is a missing link, and unless the link is complete, the appellant cannot be convicted for the offences under Section 302 and 201 IPC. He further submits that on granting remission of sentence by the Government, the appellant/A-1 was released from jail and no cause survives for adjudication. Sri H.Prahlad Reddy, learned counsel for the respondent- State contends that P.W.3, who is residing in the adjacent room where A-1 and the deceased along with their children used to live, stated that he saw A-1 and deceased going to their portion of their house and it is for A-1 to explain as to what happened inside the house and silence on the part of the appellant-A-1 is an additional factor to come to the conclusion that the accused killed the deceased. Further, blood stains were found on the saree, blouse and petticoat covered under items 6,5 and 7, which are marked as M.Os.15,14 and 16 respectively as per Ex.P-12-FSL report, which corroborates the evidence of P.W.8, who seized the material objects at the instance of the accused, and therefore he prays to dismiss the appeal. In view of the submissions, as referred to above, the point that arises for consideration is: Whether the prosecution is able to bring home the guilt of the appellant/A-1 beyond reasonable doubt and whether the conviction and sentences imposed on the appellant/A-1 are liable to be set-aside or modified? Before answering the point, it has to be borne in mind that there is no direct evidence of eye witness in this case and the case is based only on circumstantial evidence. At this stage, it is apt to quote the tests summarized by the Supreme Court in PADALA VEERA REDDY V. STATE OF AP[1]. In the said case, speaking for the Bench, Justice Ratnavel Pandian, held that when a case rests upon circumstantial evidence, it 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 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.” As early as in 1952 the Supreme Court in HARNUMANT GOVIND NARGUNDKAR v. STATE OF M.P.[2] held as under: “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 be 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.” In BHAGAT RAM v. STATE OF PUNJAB[3] it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. In STATE OF U.P. v. ASHOK KUMAR SRIVASTAVA[4] the Supreme Court pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. Keeping in view the above principles of law enunciated by the Supreme Court, we will now examine the evidence adduced by the prosecution. P.W.1, who is the mother of the deceased and who lodged Ex.P-1 with P.W.8, is not an eye witness to the incident. She deposed that the deceased and A-1 are the wife and husband and their marriage took place 25 yeas back and they lived happily till third child was born. About five years prior to the incident, A-1 eloped with A-2 and went to Nizamabad. One day prior to the incident, A-1 and the deceased came to her house, which is a bit away from her house and had a quarrel. A-1 took the key from her and went away to her house, threatening that she would see the end of the deceased. So saying, she removed her mangalasutram and threw it on the deceased. A-1 left her house prior to the incident at about 10 PM and the deceased remained in his house. On next day morning, she rushed to the house of the deceased and found the deceased body in a burnt condition; legs of the dead body were broken and mouth was tied from behind the head. Immediately, she rushed to the police station and gave Ex.P-1. In her cross-examination, P.W.1 stated that the house of the deceased and A-1 is at a distance of 100 meters away from her house. She does not know where A-1 left after quarrelling with the deceased on the previous day to the incident. P.W.2, who is the brother of the deceased, deposed that A-1 eloped with A-2 and went to Nizamabad and they returned to the village after five years and just prior to the death of the deceased. The deceased and A-1 used to live in that house where A-2 was frequently visiting A-1’s house. P.W.1 told him about the quarrel between A-1 and the deceased and seeing the dead body of the deceased. He had suspicion on A-1 and A-2 for the death of the deceased. In the cross- examination, P.W.2 admitted that in his presence A-1 and the deceased did not quarrel and he came to know that there were frequent quarrels between the couple. P.W.3, who is a neighbour of the deceased, deposed that on the previous day evening of the death of the deceased, he saw A-1 and the deceased going to their portion of their house and he does not know where their children were at that time. On the next day morning at about 8 AM, P.W.1 came to the house of the deceased and knocked at the door. As the doors were not bolted, he gave a small kerosene lamp and the help of lamp, P.W.1 saw the dead body of the deceased. He went inside along with P.W.1 and saw P.W.1 further inside and saw the dead body and told him so. Due to fear, he came out of the house of the deceased. At that stage, he was declared hostile by the prosecution. P.W.4 is a witness to the seizure of some of the material objects by the police and to the inquest conducted over the dead body of the deceased and during the course of inquest, the witnesses opined that the deceased was killed. P.W.5, who is working as a Watchman in a toddy compound at Alwal, deposed that A-1 and A-2 came to the toddy compound along with household utensils and took his permission and slept in the compound and at about 4 or 5 AM in the morning they left along with their belongings towards Kummaribasti, Alwal. P.W.6, who is a panchayatdar to the seizure of M.Os.12 to 16, admitted in his cross-examination that he does not know what is written in the panchanamas covered under Exs.P-6 to P-8. P.W.7, who is a Professor in Gandhi Medical College, Secunderabad, deposed that he conducted autopsy over the dead body of the deceased and issued post-mortem certificate covered under Ex.P-9 opining that the deceased died due to head injury. Except the evidence of P.W.3, there is no evidence to show that the deceased and A-1 lived together in the house prior to the incident. P.W.3 stated that on the previous evening of the day of incident, he saw A-1 and the deceased going to their portion of the house. Since he was declared hostile, his evidence can only be used as a corroborative evidence to establish that A-1 and the deceased lived together in the same portion on the previous night. P.W.1 stated that one day prior to the incident, after quarreling with the deceased, A- 1 broke her Mangalasuthram and threw it on the deceased. P.W.1 in her cross-examination categorically admitted that she does not know where A-1 left after quarrelling with the deceased. P.W.5 stated that A- 1 and A-2 took his permission and slept in the toddy compound and at about 4 or 5 AM they left towards Kummaribasti. In the absence of any evidence that the deceased and A-1 were lived together on the previous day to the date of the incident, it is unsafe to convict the accused basing on the evidence of P.W.3, which has not been corroborated by any other evidence of the prosecution witnesses. According to the evidence of P.W.8, he seized M.O.14- blouse, M.O.15-saree and M.O.16-petticoat and M.O.12-full shirt and M.O.13-pant from the house of A-2 at the instance of A-1. The Seriologist in his report dt. 18-9-2003 covered under Ex.P-12 opined that human blood was detected on M.O.14 to 16 and blood group of blood stains on Saree-M.O.15 and petticoat-M.O.16 was ‘0’ group. But there is no evidence to show that the blood group of the deceased was ‘O’. Since the prosecution has not established the presence of A-2 along with A-1 and where A-1 joined A-1 in perpetrating the crime, the trial court dis-believed the evidence of P.W.5 who stated that A-1 and A-2 came to his toddy compound an slept there till 4 or 5 AM and acquitted him. Therefore, his evidence that A-1 slept in the toddy compound of P.W.5 on the date of incident, cannot be relied upon to establish that she was present in the village at that time. In view of the same, the appellant/A-1 is entitled to benefit of doubt. The Criminal Appeal is accordingly allowed and the conviction and sentences recorded against the appellant/A-1 for the offences punishable under Sections 302 and 201 IPC, in SC No.351/2004 by I Additional District & Sessions Judge, Ranga Reddy District-cum-Metropolitan Sessions Judge, Cyberabad at L.B.Nagar, Hyderabad dt, 9-12-2005, are set-aside, and she is acquitted of the charges levelled against her. Since both counsel submit that the appellant/A-1 was already released from jail on granting remission of sentence by the Government, we are not inclined to pass an order to release the appellant/A-1 from the jail. --------------------- A.GOPAL REDDY,J --------------- K.C.BHANU,J DT. 26-7-2010 Kmr [1] 1989 Supp. (2) SCC 706 [2] AIR 1952 SC 343 [3] AIR 1954 SC 621 [4] AIR 1992 SC 840