* HONOURABLE SRI JUSTICE A.GOPAL REDDY and HONOURABLE SRI JUSTICE K.C.BHANU + CRL.A.NO.424 of 2007 & Crl.R.C.No.854 of 2006 % 28-07-2010 CT Crl.A.No.424 of 2007: Between # State of A.P. rep. by Public Prosecutor High Court of A.P., Hyderabad ..Appellant And $ 1. Mirza Mazhar Baig and another ..Respondents ! Counsel for the Appellant in Crl.A.No.424/2007 & respondent No.1 in Crl.R.C.No.854/2006 : Mr. H.Prahlad Reddy, Addl. Public Prosecutor Counsel for petitioner in : Sri M.A.Bari, Advocate Crl.R.C..No.854/2006 ^ Counsel for the respondents in Sri C. Padmanabha, Senior Crl.A.No.424 of 2007 & respondents advocate for Mr.C.Praveen Kumar 2 and 3 in Crl.R.C.No.854/2006 < Gist: >Head Note 1 2010 (1) ALD (Crl.) 939 (AP) 2 (2007) 4 SCC 415 3 (1996) 10 SCC 1193 4 2006 AIR SCW 5300 THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.424 of 2007 & Crl.R.C.No.854 of 2006 Date of Judgment: 28-07-2010 CT in Crl.A.No.424 of 2007 Between State of A.P. rep. by Public Prosecutor High Court of A.P., Hyderabad ..Appellant And 1. Mirza Mazhar Baig and another ..Respondents The Court made the following Common Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.424 of 2007 & Crl.R.C.No.854 of 2006 Common Judgment: (Per Hon’ble Sri Justice A.Gopal Reddy) This appeal and revision by the State and De-facto Complaint are directed against the judgment and order of conviction dated 25-01-2006 passed by the VII Additional Metropolitan Sessions Judge-cum-XXI Additional Chief Judge at Red Hills, Nampally, Hyderabad in S.C.No.699 of 2004 acquitting A1 and A2 (respondents 1 and 2 herein) of the offences punishable under Sections 302, 302 r/w 34, 449, 457, 458, 201 and 202 IPC. The substance of the charge is that on 15-03-2004 at 4 A.M., A1 caused the death of Smt.Tajunnisa Begum (hereinafter referred to as “the deceased”), thereby committed an offence punishable under Section 302 IPC; on 15-03-2004, in furtherance of common intention A1 and A2 caused the death of the deceased, thereby committed an offence punishable under Section 302 r/w 34 IPC; A1 by entering into the dwelling house of the deceased committed house trespass in order to commit offence punishable with death, thereby committed an offence punishable under Section 449 IPC; A1 by lurking house trespass at night also committed an offence punishable under Section 457 IPC; A1 having lurking house-trespass by night made preparation for causing hurt to the deceased, thereby committed an offence punishable under Section 458 IPC; A2 by causing disappearance of evidence committed an offence punishable under Section 201 IPC and A2 intentionally omitted to give information regarding the death of the deceased, thereby committed an offence punishable under Section 202 IPC. The plea of the accused is of total denial. To prove its case, the prosecution examined 11 witnesses and exhibited 8 documents. The learned Sessions Judge on appreciation of oral and documentary evidence was of the view that the evidence adduced by the prosecution do not establish that A1 committed the murder of the deceased; As the prosecution failed to establish A1 entered into the house of P.W.1 on 15-03-2004, acquitted him of the charges under Sections 449, 457, 458. Further, as there is no evidence to establish A1 committed the murder, convicting A2 for the offence under Section 302 r/w 34 IPC does not arise and accordingly acquitted both the accused of all the charges. Questioning the same, the present appeal and revision are filed. Sri H.Parhlad Reddy, learned Additional Public Prosecutor appearing for the State, strenuously contended that when P.W.2 is the eyewitness to the incident and A2 made extra-judicial confession before P.Ws.1, 4 and 5, which has been corroborated with the evidence of P.W.10, the prosecution is able to establish that the deceased met with homicidal death. As A2 was in the house along with the deceased on the relevant date, it is for her to explain how the deceased received injuries. Sri M.A.Bari, learned counsel for the revision petitioner/de- facto complainant while adopting the arguments of the learned Additional Public Prosecutor contends that P.W.2, who is aged about 13 years, though witnessed the incident not stated the said fact to P.W.1 and relatives, as he was in dilemma of choosing mother or father, ultimately he stated the said fact to P.W.1—father and also to P.W.8, who recorded his statement. As the prosecution established A1 entering into the house of P.W.1 and A2, both A1 and A2 are responsible for the death of deceased, mother of P.W.1. When the prosecution proved the homicidal death of the deceased, the burden shifts on the accused under Section 106 of Indian Evidence Act 1872 and it is for them to explain how the deceased died. To substantiate the same reliance is placed on the judgment of this Court in KUKKALA GOVINDA RAJU v. STATE OF ANDHRA PRADESH[1]. Sri C.Padmanabha Reddy, learned senior counsel appearing for the respondents/accused submits that the trial court upon considering the evidence adduced by the parties rightly acquitted the accused of the charges levelled against them, which needs no interference, and, therefore, prays for dismissal of the appeal. In view of the above rival submissions, the only point that arises for consideration in this appeal is: “Whether the prosecution is able to establish strong and compelling circumstances to reverse the order of acquittal to convict the accused for the offences with which they stood charged.” P.W.1, who sets the criminal law into motion, is not an eyewitness to the incident. He stated that he is working in Soudi Arabia; on receiving the information that his mother died on 15-03- 2004, he came to Hyderabad on 16-03-2004 and performed last rites of his deceased mother; while he was staying at Hyderabad, on 27-03-2004 he returned back at 0.30 hours mid night and slept along with his wife and children having bolted the doors inside. At about 4.10 A.M., when he woke up, his wife—A2 also woke up; at that time when he asked her why she woke up, she replied that she got a bad dream, therefore, she woke up; then he advised her to read verses of Quran and sleep. After some time, he observed that his wife again woke up; when he was going to toilet he saw a person behind the cooler covering his face below the eyes with scarf by holding a pipe in his hand; then he raised slogans “Chor Chor”; immediately that person beat on his head at three places on the back side; when he tried to apprehend and caught hold him, he found that new person is A1, who is neighbour; A1 again beat him on back; in the meantime, his sister Zeenath Begum along with two sons entered into the room; A1 again beat him and ran away with the pipe. Thereafter, he was shifted to hospital; police came there and examined him and recorded his statement. On 31-03-2004, he telephoned to his wife—A2 and asked her to go over to New Life Hospital; when A2 came to the hospital, he asked who removed the bolt of the door; then she told that she herself opened the door and there is plan to attack him. She also told that she allowed A1 to enter into the house. She further informed that she got illicit intimacy with A1 for the last 3 three years. When he asked who killed her mother, A2 told that A1 came to the house on 15-03-2004 and stayed whole night in the room upto 4 A.M. and when his deceased mother saw A1, he pressed her neck and killed her. Then he lodged a complaint—Ex.P1 before the Inspector of Police, Rain Bazar P.S. on 02-04-2004 at 3 P.M. In the cross-examination he did not mention in the earlier complaint about his seeing the person behind the cooler covered with scarf and did not mention in the complaint that his sister —Zeenath Begum and her two sons came to his house and stayed in the house at that time. He did not state before the police on 31-03- 2004 that he called A2 to New Life Hospital. He did not mention in Ex.P1—complaint specifically that he asked as to why she did not reveal the said fact earlier, A2 told him that A1 threatened her by saying that he will kill her children. He performed last rites of his deceased mother at Hyderabad and he has seen her face before burying in burial ground. He did not find any bleeding injury on the head of the deceased i.e. parital reign of the head. His sister— Zeenath Begum and her two sons are witnesses in S.C.No.102 of 2005. All the relatives were present at the time of funeral and personally contacted me and offered condolences but none of the witnesses disclosed that they saw A1 visiting the house of A2 including night time. Nobody informed that they found injury on the head of his mother. He did not mention the reason for lodging the compliant, which was lodged two days after coming to know of the incident. P.W.2, who is projected as eyewitness to the incident is none other than son of P.W.1 and A2. He stated that on 15-03-2004 at about 4 or 4.30 A.M., he heard shouting of her grand mother Naif, Naif, then he woke up and found his grand mother was not present in the hall; his mother—A2 told him that the deceased went to toilet, as she is suffering from stomach pain, and asked him to sleep. Again he heard shouting of his grand mother—deceased; then he went to the bed room and seen A1 caught hold of her neck and dashed to wall; then he raised cries; deceased fell down; on seeing him A1 ran away. In the cross-examination he admitted that he did not inform to anybody, including his father—P.W.1, regarding A1 pressing the neck of the deceased and killing her. After the death of his grand mother for the first time on 07-04-2004, he stated to the police regarding circumstances under which his grand mother died. He also informed to P.W.1 after his discharge from the hospital after 3 or 4 days when he asked. Though his grant mother received injury on head, there was no bleeding. He did not disclose to anybody about his witnessing the incident till he discloses the same to P.W.1 to whom he disclosed after 20 days after the death. On 16-03-2004, the dead body was brought to the house; he did not see any injury or bleeding from any part of the body. He did not disclose the circumstances leading to death of his grand mother to the relatives, who visited their house on 16-03-2004. P.W.4, who is the daughter of the deceased and elder sister of P.W.1, stated that on the telephonic information about P.W.1 sustaining injuries she rushed to the hospital; on 31-03-2004, P.W.1 called A2, when she was present, and asked A2 what happened; then A2 stated that A1 came and killed her mother in law; A2 further stated that A1 attacked P.W.1 on 28-03-2004 and she got illicit intimacy with A1 since three years. P.W.4 admitted that her mother was shifted to New Life Hospital when she was in unconscious stage. Witness volunteered that she came to the house and shifted her deceased mother to the hospital and did not observe any pressing marks on the neck or head injury on the person of her unconscious mother. Doctor did not disclose any reason for her death like head injury or any other injury. She is not aware of filing case by A2 against P.W.1, herself and against her husband on the ground that they have demanded A2 to get dowry from her parents and Osmania PS registered that case in Cr.No.203 of 2004. P.W.5, husband of P.W.4 stated that on 15-03-2004 on receiving a telephonic call, P.W.4 and himself went to the house of P.W.1 and saw his mother in law lying in the hall. Immediately they shifted her to New Life Hospital where the doctors declared her as dead; on 28-03-2004 himself and P.W.4 went to the hospital on receiving telephonic message that P.W.1 sustained bleeding injuries; when P.W.1 called A2 and enquired her before them, A2 stated that she and A1 planned to kill P.W.1 and her deceased mother in law was killed on 15-03-2004 night because she (deceased) saw while A1 entering into the house. He admitted that he did not state before the police on 31-03-2004 that P.W.1 called A2 to the hospital and enquired, in their presence and A2 revealed about the said two incidents stated above and her relationship with A1. P.W.10, who is the circumstantial witness, stated that he saw A1 entering into the house of P.W.1 on the date of incident i.e. on 15- 03-2004 and police examined him 15 days after his witnessing. He admitted that he did not disclose the said fact to inmates or to anybody. P.W.8, who registered the crime and gave a requisition to the Mandal Revenue Officer for exhumation of body, conducted inquest over the dead body of the deceased and also sent a requisition to the Forensic department to conduct postmortem examination. He stated that P.W.1 did not state in his statement that he called A1 on 31-03- 2004 to New Life Hospital and also did not state that A2 told him that A1 stayed whole night and killed the deceased. P.W.2 did not state before him at 4.00 or 4.30 A.M. he woke up on hearing the shouting of his grand mother and did not state that again he heard the cries of his grand mother; A1 caught hold the neck of the deceased and dashed her to the wall. He also admitted that P.W.3 did not state to him when he woke up A2 talking in low voice with somebody and she brought wet cloth and cleaned the neck of the deceased. The Supreme Court in CHANDRAPPA v. STATE OF KARNATAKA[2] observed in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. In the above case, the Apex Court after referring to its various earlier judgments laid down five principles, which have to be bear in mind in appeal against acquittal, which reads thus: (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code Of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. In view of the above principles, we have to carefully scan the evidence whether the prosecution is able to bring home the guilt of the accused beyond reasonable doubt and the view taken by the trial court in passing the acquittal order was not possible on the evidence or perverse, unreasonable and relevant and convincing material have been unjustifiably eliminated in the process, it is a compelling reason for interference with the order of acquittal passed by the trial court. The entire prosecution version hinges on the evidence of P.W.2, child witness and the so-called extra-judicial confession said to have been made by A2 with P.Ws.1, 4 and 5 and the circumstantial evidence of P.W.10 who alleged to have seen while A1 entering into the house of P.W.1 on the date of incident. P.W.2, admittedly, has not disclosed his witnessing A1 dashing the deceased to the wall and his raising cries on 16-03-2004 either to P.Ws.4 and 5 or to P.W.1—father when he reached Hyderabad. The Investigating Officer—P.W.8, who examined A2 after registering the crime on 07-04-2004, admitted that P.W.2 did not state before him when A1 caught hold of deceased and dashed her head to the wall, he raised cries. P.W.2 stated that he informed to P.W.1 about the circumstances in which his grand mother died 20 days after the death. P.W.8 also admitted that P.W.1 has not stated before him about P.W.2 informing him of his (P.W.2) witnessing the incident on the midnight of 15-03-2004. Apart from the fact P.W.2’s conduct was unusual in not informing the same either to the relatives or to his father—P.W.1, it is unsafe to rely upon the evidence of P.W.2, who is projected as eyewitness. Then, coming to the extra judicial confession said to have been made by A2 with P.Ws.1, 4 and 5. P.W.1 has omitted to state to P.W.8 about his calling A2 to New Life Hospital and A2 told him A1 stayed whole night and killed the deceased. In Ex.P1—report, P.W.1 stated that A2 informed him that A1 came to his house on 15-03-2004 and stayed upto 4 A.M., when A1 is going out, the deceased noticed, stopped him and warned him; then A1 pushed and pressed her neck, due to which she fell unconscious on the spot. P.W.8 admitted that P.W.4 did not state before him she went to New Life Hospital while P.W.1 was undergoing treatment and P.W.1 called A2 to the hospital, she was present at the time when A2 made statement. Therefore, there is doubt with regard to so-called extra judicial confession made by A2 with P.W.1 in the presence of P.Ws.4 and 5. It was nextly argued that once the prosecution is able to establish homicidal death of the deceased, the burden shifts on A2, who was present in the house along with the deceased, to explain how the deceased received injuries by placing reliance on the judgment of this court in KUKKALAA GOVINDA RAJU’s case (1 supra). It is now fairly well settled when the case is based on circumstantial evidence, onus is on the prosecution to prove that the chain is complete and infirmity or lacuna in the prosecution cannot be cured by a false defence or plea. (See SHARAD BIRDHICHAND SARDA VS. STATE OF MAHARASHTRA AIR 1984 SC 1622 = (1984) 4 SCC 116). In C.CHENGA REDDY v. STATE OF A.P.[3] the Supreme Court in para-21 observed as under: “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.” The Supreme Court in TRIMUKH MAROTI KIRAN v. STATE OF MAHARASHTRA[4] held as follows: “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….. 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 took place in the dwelling home where the husband also normally resided, 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.” Therefore, mere proving of the homicidal death alone is not sufficient to shift the burden on the accused under Section 106 of the Indian Evidence Act, 1872. As held by the Supreme Court, the onus is on the prosecution to prove the chain of circumstances are complete and infirmity or lacuna in its case cannot be cured by a false defence or plea. Silence of the inmates of the house or the explanation so offered found to be false which can only be an additional link to complete the chain of circumstances. Therefore, the observation made by this Court in KUKKALA GOVINDA RAJU (1 supra) is per incuriam and applicable to the facts arising in the said case only. In the case on hand, prosecution must establish that there was illegal relationship between A1 and A2 and in that connection A1 used to visit the house of A2; that the deceased after noticing the same caught hold of A1 in the house and dispute is raised in that effect; for which A1 and A2 developed a motive to do away the deceased; that on the date of incident there is no possibility of other entering into the house except A1 where A2 and the deceased alone were residing together and that A1 gained entry into the house and was in the house on the relevant date etc. The evidence of P.W.10 shows that he saw number of times A1 coming out of the house of P.W.1 and on one occasion A1 jumping the compound wall at 4 A.M. Whereas P.W.8— Investigating Officer stated that P.W.10 stated before him that he saw A1 jumping the compound wall of P.W.1, which appears to be unnatural. In the normal course, when P.W.10 saw A1 entering into the house of P.W.1 at 4 A.M. by jumping the compound wall, he can disclose the same to P.W.1 or other inmates, but his silence all these days except disclosing the same to the police, who examined him 15 or 16 days after the incident even after coming to know of the death of the deceased, creates any amount of doubt. Therefore, it is not safe to rely upon his evidence. In the absence of chain of circumstances are conclusive in nature, the accused is under no obligation to offer an explanation when she was examined under Section 313 Cr.P.C. or offering no explanation to have an additional link in the chain of circumstances to make it complete. In view of the same, it is unsafe to convict the respondents/accused on the so-called extra judicial confession made by A2, which has not been established by the prosecution. For the aforesaid reasons and conclusions reached by us, we do not see any compelling reasons to set aside the acquittal order and convict the accused. In the result, both the Criminal Appeal and Criminal Revision Case are dismissed confirming the acquittal order. ________________ A.GOPAL REDDY, J. ___________ K.C.BHANU,J. 28-07-2010 L.R. Copy to be marked (bo) Murthy [1]