THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1191 of 2007 JUDGEMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) The appellant/accused, who was tried for the offences under Sections 302, 498-A and 379 I.P.C in S.C.No.376 of 2006 by the II Additional Sessions Judge, Fast Track Court, Adilabad, was found guilty of the offences under Sections 302 and 379 I.P.C., convicted therefor and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default, to suffer simple imprisonment for three months for the offence under Section 302 I.P.C; and rigorous imprisonment for one year for the offence under Section 379 I.P.C, by judgment dated 10.07.2007. Both the sentences were directed to run concurrently. Challenging the conviction and sentence recorded against him, the appellant filed this appeal. 2. The case of the prosecution, in nutshell, is as under: Gonugoppula Gangamani (hereinafter referred to as “the deceased”) was a resident of Ponkal Village. The accused is a resident of Bhagyanagar Village of Nirmal Mandal. Their marriage was performed in April, 2005. After the marriage, the accused came to the house of P.W.11, who is the mother of the deceased, and started living there as illotom son-in-law. The deceased was having a credit balance of Rs.30,000/- in Bank of Maharastra Branch at Ponakal Village. The accused started harassing the deceased demanding her to give the said amount to him, but the deceased refused to give the same to the accused. On 16.09.2005, P.W.11 went to Bheemgal Village to attend the funeral of her relative. Then the accused thought that it was right opportunity to take money from the deceased and asked her to give the money, but the deceased refused to give the same. Keeping the same in mind, on the intervening night of 18/19.09.2005, the accused beat the deceased with a stick, tied her neck with a rope, murdered her and threw her on the cot, committed theft of gold ear studs from the body of the deceased and went away by locking the doors from outside. On 19.09.2005, at about 11 a.m or 12 noon, P.W.3, whose house is situated opposite to the house of P.W.11, noticed that the goats in the house of P.W.11 started making noise. Then, he went to the house of P.W.11 and noticed that it was locked. Then he informed the same to P.W.1, who is the brother of P.W.11. Thereafter, P.W.1 came there, broke open the lock, went inside the house and found the deceased lying dead. Then P.W.1 intimated the same to P.W.11 and gave report to the police under Ex.P.1. Based on the said report, P.W.10-Sub Inspector of Police, Mamada registered a case in Crime No.38 of 2005 for the offence under Section 302 I.P.C., took up investigation, examined and recorded the statement of P.W.1, issued Ex.P.14-F.I.R and handed over the C.D file to P.W.12-the then Circle Inspector of Police. P.W.12, who took up investigation, verified the investigation done by P.W.10, examined and recorded the statements of P.Ws.2, 3, 4 & 11, got photographed the dead body by P.W.8, conducted inquest over the dead body of the deceased and drafted a rough sketch of the scene of offence. Thereafter, he sent the dead body to post mortem examination. During the course of investigation, he arrested the accused on 14.07.2006. He secured the presence of P.Ws.6 and 8, recorded the confessional statement of the accused and in pursuance of the said confession, recovered the gold ear studs of the deceased from the house of the accused under the cover of recovery panchanama. P.W.9-the doctor who conducted autopsy over the dead body of the deceased opined that the approximate time of death was 10 to 24 hours prior to the examination and that the cause of death was axpital as a result of hanging. After receipt of the relevant reports and completion of investigation, the police laid charge sheet. 3. On committal, the learned Sessions Judge framed charges against the accused for the offences under Sections 302, 498-A and 379 I.P.C. When the said charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the accusation made against the accused, the prosecution examined as many as 12 witnesses and got marked 15 documents, besides material objects 1 to 4. 5. After completion of the prosecution evidence, the accused was examined under Section 313 Cr.P.C., with regard to incriminating material made against him by the prosecution, which he denied. However, he did not choose to adduce any evidence either oral or documentary on his behalf. 6. The learned Sessions Judge, after appreciation of the oral and documentary evidence, particularly the evidence of P.Ws.3 and 11 found the accused guilty of the offences under Sections 302 and 379 I.P.C, and accordingly, convicted and sentenced him as aforementioned. 7. The appellant/accused was provided legal assistance by the Legal Services Authority by appointing Sri B. Parameswara Rao, Advocate, who contended that the accused is already having a wife and son and in the absence of any proof of marriage between the accused and the deceased, the question of living together by the accused and the deceased in the same house does not arise. He also contended that in the absence of any prosecution evidence that the deceased was having Rs.30,000/- in her bank account, harassment of the accused for the said amount and giving of the same by the deceased does not arise. He further contended that P.Ws.3 and 4 deposed that they have last seen the accused in the company of the deceased, but however, there is no other evidence to connect the accused with the offence. Therefore, the accused is entitled to acquittal. 8. On the other hand, the learned Public Prosecutor sought to sustain the judgment under appeal and contended that in the absence of any suggestion to P.Ws.3 and 4, who are stated to be inimical to the accused, to depose against him, they are called as independent witnesses and their evidence cannot be brushed aside. He further contended that absconding of the accused for nearly 10 months from the date of offence and recovery of M.O.4- ear studs belonging to the deceased from him clearly establishes that it is the accused, who committed the offence. 9. The entire case rests upon the circumstantial evidence and there is no direct evidence. When a case rests upon circumstantial evidence only, all the circumstances must firmly and cogently be established and they should unerringly point out the guilt towards the accused. 10. The Supreme Court in Sharad Birdhichand Sarda v. State of Maharastra[1] laid down certain guidelines for conviction on the basis of circumstantial evidence, which have to be fulfilled before the accused is convicted on the basis of circumstantial evidence, which read as follows. “1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence, and a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction.” 11. It is also well settled that last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case Courts should look for some corroboration (AIR 2006 SC 1656). 12. Keeping in view the legal principles in mind as referred to above, we shall now scrutinize the evidence of the prosecution. 13. P.W.1- who is the brother of P.W.11 and maternal uncle of the deceased and who lodged the report, deposed that the accused married the deceased in April, 1995; that after the marriage, the accused started living at P.W.11’s house along with the deceased; that the accused used to demand the deceased and P.W.11 for money; that on the date of incident himself, his brother- in-law and P.W.11 went to Bheemgal Village to attend a death ceremony and the accused and the deceased stayed in their village; that himself and his brother-in-law returned to their village, whereas P.W.11 stayed at Bheemgal; that in the morning time, when he went to the house of his brother to take the goats, he found the house of P.W.11 locked; that out of curiosity he went to the house and peeped into the house through the window and found the deceased lying on the cot and that he broke open the lock of the house, went inside and found the deceased dead. Then he sent intimation to P.W.11 and also informed the police. On coming the police, he gave report to them under Ex.P.1. He further deposed that after shifting the deceased from the cot, he found one rope on the cot and also found a ligature mark around the neck of the deceased. In the cross-examination, he deposed that P.W.11 and his brother-in-law are living separately since two years and that the accused had got a wife and son and they reside in Vai Linge Village. 14. P.W.2, who is the father of the deceased, stated that the marriage of the deceased with the accused was performed four months prior to the incident and that since the date of marriage, the accused and deceased were living in the house of P.W.11. 15. P.W.3, whose house is situated opposite to the house of P.W.11, deposed that the marriage between the accused and the deceased took place four months prior to the incident; that there was an amount of Rs.30,000/- lying in the account of the deceased in Bank of Maharastra Branch, Ponkal; that the accused used to harass the deceased demanding money; that the deceased used to come their house and inform about the harassment; that on the previous night of the incident, the accused and the deceased lived in their house as P.W.11 went to attend a death ceremony; that at about 11 am or 12 noon the goats in the house of P.W.11 started making noise, then he found the house of P.W.11 locked; that he went to P.W.1 and informed the same; that P.W.1 came there, broke open the lock, went inside the house and found the deceased lying dead. In the cross examination, he deposed that he saw the deceased along with the accused in her house on the previous night at 9.00 p.m. 16. P.W.4, who is a resident of Ponkal Village deposed that the accused was brought as illotom son-in-law to the house of P.W.11; that the marriage of the accused with the deceased took place about one year prior to the death of the deceased; that since the date of marriage, the accused has been residing at the house of P.W.11; that three days prior to the death of the deceased, P.W.11 went to her relatives house to attend a death ceremony and the accused and the deceased only stayed at the house of P.W.11; that on the date of incident at about 9.30 a.m, he found the goats inside the house raising cries, then he informed the same to P.W.1 and that P.W.1 came there broke open the lock of the house, went inside the house and brought the dead body of the deceased outside, and thereafter, lodged the complaint. 1 7 . P.W.9 is the doctor, who conducted post mortem examination over the dead body of the deceased and issued Ex.P.13-post mortem certificate opining that the cause of death was axpital as a result of hanging. Ex.P.13 shows that there was sexual intercourse on the previous night of the incident. 18. P.W.11, who is the mother of the deceased, deposed that at about one year eight months prior to the date of her evidence, she performed the marriage of the deceased with the accused; that after the marriage, the accused started staying at her house as illotom son-in-law; that her husband deserted her as he married another woman; that the accused and the deceased lived happily for about one or two months, but thereafter, the accused started harassing the deceased for money, which was kept in the account of the deceased in Bank of Maharastra; that three days prior to the death of the deceased, she went to Bheemgal to attend the funeral of her relative; that on the third day, P.W.1 telephoned to her to come to their village, as the deceased was seriously ill; that immediately she returned to their village and found the dead body of the deceased; that there was ligature mark of rope around the neck of the deceased indicating that the deceased was strangulated with rope and that at the time she went to Bheemgal Village, the deceased and accused had stayed at the house. 19. P.W.12 is the Circle Inspector of Police, who arrested the accused and recovered M.O.4-ear studs from him, which were identified by P.W.11. 20. From the above evidence, the prosecution could able to establish that on the date of incident, P.W.11 went to Bheemgal and the deceased and the accused lived together in the house of P.W.11. P.Ws.3 and 4 also saw them in the house of P.W.11. On the next day, the house was under lock and on information, P.W.1 broke open the lock and saw the dead body of the deceased. Since the entire incident happened inside the house, it is for the accused to explain the same. 21. The Supreme Court in Trimukh Maroti Kirkan v. State of Maharashtra[2] held as under: “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 takes placed 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. In Nika Ram v. State of Himachal Pradesh (AIR 1972 SC 2077) it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra ((1992) 3 SCC 106) the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife.” 22. In the instant case, the entire incident happened inside the house and the accused was absconding from the date of incident till he was arrested by P.W.12. Further, the circumstances point out that there is no possibility for any third person to enter into the house and murder the deceased. Therefore, it is clear that it is the accused, who committed the offence and the prosecution could able to bring home the guilt of the accused beyond all reasonable doubts. 23. In the circumstances, the appeal is dismissed confirming the judgment dated 10.07.2007 passed by the learned II Additional Sessions Judge, Fast Track Court, Adilabad in S.C.No.376 of 2006 _____________________ A.GOPAL REDDY, J ____________________ RAJA ELANGO, J Dt.20.04.2011 va [1] AIR 1984 SC 1622 [2] 2006 AIR SCW 5300