THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. Appeal No. 709 of 2007 Date: .12.2010 Between: Maguluri Sriramulu, s/o. Mari Yadas, 23 years, Mala, 1st lane, 3rd Cross Raod, Sanjeevayyanagar, Guntur. .. Appellant/ Accused AND State rep.by Public Prosecutor, High Court of A.P., Hyderabad, and another .. Respondents/ Complainants THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE K.G. SHANKAR CrL.Appeal No.709 of 2007 JUDGMENT (per Hon’ble Sri Justice K.G. Shankar): The sole accused before the learned VIII Additional Sessions Judge, Guntur, who was charged for the offence under Section 302 of the Indian Penal Code (for short ‘IPC’) for murdering his wife and for the offence u/s.309 IPC for attempted to commit suicide, was found guilty by the learned trial Judge. The sole accused was sentenced to imprisonment for life and fine of Rs.50/- for the offence u/s.302 IPC and was also sentenced to simple imprisonment for the offence 309 IPC. Aggrieved by the same, the accused preferred the present appeal. 2. The case of the prosecution is that the accused did not like his wife going out as a servant-maid as the accused was suspicious about the fidelity of his wife and that as the wife of the accused did not heed to the directions of the accused, the accused killed his wife during the small hours of 16.11.2005 (at about 4 a.m.) The prosecution further alleged that the accused thereafter attempted to commit suicide by stabbing himself. Thus the accused allegedly was guilty of offence u/s.302 IPC for killing his wife Lakshmi and for the offence u/s.309 IPC for attempting to commit suicide. 3. The prosecution cited as many as 23 witnesses. The prosecution examined 18 of the cited witnesses. As many as 12 material objects were marked. The prosecution further exhibited Exs.P.1 to P.27. The defence did not choose to examine anyone in support of the contention of the accused nor did the defence mark any documents. It may be noticed at this stage that the trial was conducted before the trial Court by a counsel appointed under the legal aid scheme as the accused expressed inability to engage a counsel. 4. PWs.1 and 2 are the parents of the deceased. They begot 2 sons and 2 daughters. The deceased Lakshmi was the eldest daughter of PWs.1 and 2. She was given in marriage to the accused about six years prior to 2006. There is an allegation that some dowry was given at the time of marriage of the deceased. It, however, is irrelevant for the purpose of the present case since this is not a case of dowry death. The deceased and the accused gave birth to a daughter during their wedlock. The daughter was four years old by 2006. 5. PWs.4 & 3 are man and his wife. They are neighbours of the house where the deceased was residing with the accused at the time of her death. PW.5 is another neighbour of the deceased and the accused. 6. There is complicity of the family of the accused in this case as it is the younger sister of the accused, who was examined as PW.6, that was the first person to witness the accused and the deceased with injuries. We, therefore, may refer to the witnesses who are the relatives of the accused. PWs.7 & 8 are the parents of the accused. As already stated supra, PW.6 is the younger sister of the accused. This is the array of non-official witnesses. 7. PW.1 claimed that when the deceased went to attend the sweeping work in the houses of neighbours against the wish of the accused, the accused quarrelled with the deceased. PW.2 deposed that disputes arouse between the accused and the deceased as the deceased was going out to work as sweeper, which the accused did not like. PW.1 is very vague as to when the accused and the deceased quarrelled on account of the deceased going out to work as a servant-maid. PW.1 deposed in this context that ‘one day’ the deceased went for the work as a servant-maid. PW.1 did not state that the deceased was regularly working as servant-maid against the wish of the accused. The claim of PW.1 would appear to be that the deceased worked as servant-maid on a single day against the wish of the accused. 8. PW.2 on the other hand deposed that the deceased and the accused lived happily for about five years after their marriage and that thereafter quarrels ensued between the accused and the deceased when the deceased started going to work as a servant-maid. The evidence of PW.2 reads as if the deceased had been working as servant-maid for a considerable time before the accused attacked and murdered the deceased. The evidence of PW.1 on the other hand did not create such an impression. 9. We are forced to elaborately mention these details for the reason that the motive attributed to the accused for murdering the deceased was that the deceased was going out as a servant- maid to work in the houses of neighbours, which the accused did not like. The motive became important where there is no direct eye witness account for either the murder of the deceased or for the attempted commission of suicide by the accused. Although the learned Public Prosecutor alleged that the accused was restraining the deceased from going out to work as servant- maid since the accused was suspecting the fidelity of the deceased, neither PW.1 nor PW.2 spoke about the alleged suspicion of the accused over the fidelity of the deceased. PWs.1 & 2 admitted in their cross examination that the accused and the deceased were living happily during the life time of the deceased. It is not the case of either PW.1 or PW.2 that the accused was ill-treating the deceased on any count. Further, PW.2 admitted that the deceased used to inform her that the deceased was living happily with the accused. Thus, it would appear that the very motive for the commission of the offences was ruled out where PWs.1 & 2 did not state that there were precedent quarrels between the accused and the deceased. Indeed, PW.1 as well as PW.2 stated that the accused quarrelled with the deceased regarding the deceased working as a servant- maid. At the same time, in the cross-examination, PWs.1 & 2 admitted that the deceased and the accused were living amicably. We therefore do not agree with the claim of PWs.1 and 2 that there were quarrels between the accused and the deceased. At any rate, if there were quarrels between the accused and the deceased, they could not be of such a magnitude as to force the accused to go to the extent of committing a crime, much less a heinous crime where the accused and the deceased did not indulge in such quarrels which can be considered serious. 10. Neither PW.1 nor PW.2 witnessed the incident proper. As already pointed out, PWs.3 to 5 are the neighbours of the deceased and the accused. They also did not witness the incident proper. The fact that the deceased was fatally injured came out from the evidence of PW.6, younger sister of the accused. Admittedly, there was a theft in the house of one Chavala Venkateshwarulu, neighbour of PWs.3 to 5, the accused and the deceased. PWs.3 to 5 went to the house of their neighbour Chavala Venkateshwarulu to enquire about the theft at his house. At that time PW.6 heard some cries in the voice of the deceased. PW.6 rushed to the room wherefrom she heard the alaram. PW.6 deposed that she found the deceased and the accused in a pool of blood on the floor in the room of the house of the accused and that PW.6 became unconscious on seeing her brother and sister-in-law in an unconscious state. PWs.7 & 8 who are the parents of the accused corroborating the evidence of PW.6 that on hearing the alaram of PW.6, they rushed to the house of the accused and found the deceased and the accused in a pool of blood. PW.7 deposed that the deceased breathed her last at the Government Hospital, Guntur at about 7 a.m. on 16.11.2005. PW.6 also deposed that the deceased breathed her last after she was admitted in the hospital. This is the whole evidence on the basis of which it is to be determined whether the prosecution proved the guilt of the accused beyond reasonable doubt for the murdering of the deceased and for his attempt to commit suicide. 11. There is a stray reference in the evidence of PW.1 in the cross-examination that the accused informed PW.1 that the accused murdered the deceased. Even PW.1 did not state that the accused claimed that he attempted to commit suicide. It is the evidence of PW.1 that the accused admitted that the accused murdered the deceased and no further. There is no reason why the accused merely stated that he murdered his wife and why the accused refrained from stating that he has attempted to commit suicide after he murdered his wife. In view of the stray evidence of PW.1 that the accused confessed to PW.1 that the accused murdered the deceased, which statement has not been corroborated by PWs.2 to 8, we are not prepared to accept the evidence of PW.1 that the accused himself admitted that he murdered the deceased let alone admitting that he thereafter attempted to commit suicide. 12. PWs.3, 6 to 8 and 14 were considered hostile by the trial Court. The learned trial Judge permitted the additional Assistant Public Prosecutor to put leading questions to these witnesses. The learned Public Prosecutor further contended that the evidence of PWs.1, 2, 4, 5 and 9 to 13 is more than sufficient to bring home the guilt of the accused beyond reasonable doubt. 13. PW.14 is 15 year old and younger brother of the accused. He deposed that the accused and the deceased were living amicably during the life time of the deceased. His evidence is relevant to the extent of the story that the house was bolted from inside. He deposed that as the house in which the deceased and the accused were residing was locked from inside, he climbed on to the roof, went into the house under the occupation of the accused and opened the door by unbolting the door from inside the house. He did not support the prosecution story and was considered hostile to the prosecution. Be that as it may, PW.4 younger brother of the accused, PW.6 younger sister of the accused, PWs.7 and 8 parents of the accused as well as PWs.3 to 5 neighbours of the accused did not witness the attack of the deceased by the accused as much as PWs.1 & 2. Further, PWs.3 to 8 and 14 have deposed that there were no quarrels between the deceased and the accused. During their cross-examination, PWs.1 and 2 supported this stand of the witnesses that there were no quarrels between the accused and the deceased on any count. Thus, there was no motive for the accused to murder the deceased. The question of admitting to commit suicide which was a corollary to the murdering of the deceased also would not have any motive in this background. 14. PW.9 was one of the mediators for the inquest. PW.10 was another mediator for the inquest. Both of them claimed that the mediators at the time of the inquest under Ex.P.6 inquest report considered that the death of the deceased was homicidal and that the accused was responsible for the death of the deceased. None of the mediators speak about the circumstances in which the deceased died. Their evidence has no relation and has no effect at all if the prosecution fails to prove the case otherwise. Therefore, PWs.9 and 10 would act as corroborative witnesses if the prosecution has established the case of the prosecution otherwise. The evidence of PWs.9 and 10 would be irrelevant otherwise. 15. PW.11 was a mediator before whom the accused was allegedly arrest. The accused allegedly made a confessional statement before the police in the presence of PW.11. The confession of the accused obviously is inadmissible in view of Section 26 of the Indian Evidence Act. Ex.P.8 is a mediators report relating to the recovery of the knife (MO.7) with which the accused allegedly stabbed the deceased. It is the case of the PW.11 that the accused took PW.11 and police party to the place where MO.7 was concealed by the accused. However, MO.7 did not contain any slip bearing the signature of PW.11 to show that MO.7 was the knife seized at the behest of the accused. Thus, it would appear that the seizure of MO.7 u/s.27 of the Indian Evidence Act has not been made out. 16. PW.12 is the photographer, who allegedly took photographs of the scene of offence under Exs.P.9 to P.17. 17. PW.15 was the head constable who examined PW.1 and recorded the statement under Ex.P.1 which was later registered as First Information Report (FIR) under Ex.P.26. 18. PW.17 was the Sub-Inspector of Police who issued the F.I.R. and assisted PW.16, Inspector of Police in conducting the investigation. PW.16 conducted investigation in this case and held inquest over the dead body of the deceased in the presence of PWs.9 and 10, arrested the accused and interrogated him in the presence of PW.11 and seized various material objects again in the presence of PW.11 and another. While PW.13 conducted autopsy over the dead body of the deceased and issued Ex.P.19 post-mortem certificate, PW.18 examined and treated the accused and issued Ex.P.27 wound certificate. It is the case of the prosecution that these witnesses have proved the case of the prosecution beyond reasonable doubt. 19. We are unable to agree with the contention of the learned Public Prosecutor that the evidence of PWs.9 to 18 with the exception of PW.14 is sufficient to bring home the guilt of the accused beyond reasonable doubt. The evidence of PWs.9 to 18 would act as corroborative evidence if the prosecution is able to show that the accused murdered his wife and has attempted to commit suicide. We are afraid that if the prosecution fails to establish the same, the evidence of official witnesses cannot prove the case much less beyond reasonable doubt. 20. The learned Public Prosecutor drew our attention to the fact that the injuries upon the deceased were not possible through self infliction and that the injuries upon the deceased were not possible through such a self infliction. He pointed out that the medical evidence under Exs.P.26 and P.27 coupled with PW.13 and PW.18 ruled out the possibility of the deceased attacking the accused and later attempting to commit suicide. 21. We may refer to the injuries found on the dead body of the deceased. Ex.P.19 is the post-mortem report. PW.13 found as many as seven injuries upon the dead body of the deceased, out of which injuries 6 and 7 are mere abrasions on the forehead and on the lower lip respectively. Injury No.1 to 5 were stab wounds. PW.13 deposed that these injuries were possible through MO.7 knife (It was unfortunately wrongly recorded that the deceased could have died on account of the injuries sustained through the weapon under MO.1, instead of MO.7). PW.13 was not cross-examined whether the injuries upon the deceased were self implicated injuries or not. In the absence of cross-examination of PW.13, we are constrained to agree with the contention of the learned Public Prosecutor that the prosecution has established that the injuries were homicidal injuries. PW.18 on the other hand pointed out that the injuries upon the person of the accused could be caused on account of self infliction. We agree with the contention of the learned Public Prosecutor that the medical evidence under Exs.P.26 & P.27 coupled with the evidence of PWs.13 and 18 supports the prosecution story. The question is whether it would prove the prosecution story by itself. We are afraid that the homicidal injuries upon the person of the deceased and the possible self inflicted injuries on the accused per se are not sufficient to conclude that the accused was the guilty of murdering his wife and attempting to commit suicide. Something more is needed to prove the prosecution case. 22. Turning back to the circumstances of the case, it may be pointed out that it is the case of the prosecution that the witnesses found the accused and the deceased lying with injuries, that they were shifted to the hospital and that the deceased breathed his last shortly thereafter, while the accused subsequently recovered from the injuries. 23. It is the case of the prosecution that the accused did not offer any explanation for the injuries upon the person of the deceased and upon himself and that necessary presumption is that the accused murdered his wife and has subsequently attempted to commit suicide. He placed reliance upon Trimukh Maroti Kirkan v. State of Maharashtra[1] in support of his contention. 24. That was a case of dowry death. There were no eye witnesses for the occurrence. The case of the prosecution rested on circumstantial evidence. The Supreme Court referred to the normal principle in cases of circumstantial evidence that the circumstances from which an inference of guilt is sought to be drawn should be cogently and firmly established, that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused, that 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 that the circumstances are incapable of explanation on any hypothesis other than the guilt of the accused and inconsistent with the innocence of the accused. 25. Referring to an offence like murder committed in secrecy inside the house, the Supreme Court pointed out in that case that the initial burden to establish the case would indeed be upon the prosecution and that however, the nature and amount of evidence to be led by the prosecution to establish the burden could not be of the same degree as is required in other cases of circumstantial evidence. It was considered that the burden of proof in such circumstances would be comparatively of lighter character and that in view of Section 106 of the Indian Evidence Act, there would be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The Supreme Court was of the opinion that the inmates of the houses in such an event could not get away by simply maintaining silence offering no explanation on the presumption that the burden to establish the case would lie entirely upon the prosecution and that there was no duty at all on the accused to offer any explanation. 26. The Supreme Court further observed in that case that when the case is based on circumstantial evidence and where there is no eye witness account, when the incriminating circumstances are put to the accused, if the accused either offers no explanation or offers an explanation which is found to be false, it would be an additional link in the chain of circumstances to make it complete. It was further observed that 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 the crime, they were seen together or the offence takes 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 the commission of the crime. 27. On the strength of the above decision of the Supreme Court, the learned Public Prosecutor contended that the accused had not offered any explanation as to how the incident occurred and that the case therefore shall be treated to have been established against the accused. It may be recalled that the decision of the Supreme Court was in respect of a dowry death. In the present case, there is no whisper that the incident is relating to dowry death. On the other hand, it is a case where the accused allegedly suspected the fidelity of his wife and that there was no reference to dowry demand from the accused. Section 113-B of the Indian Evidence Act relating to dowry death has no relevance in the present case. We, therefore, consider that it is for the prosecution to establish the guilt of the accused for the murder of the deceased wife and for his attempted commission of suicide beyond reasonable doubt. 28. The learned Public Prosecutor rightly submitted that there are several stages where the accused could have offered explanation relating to the death of the deceased and relating to the injuries upon the person. The first of these stages was the examination of the accused u/s.313 (1) (b) of Cr.P.C. by the trial Court. When the accused was examined u/s.313 (1)b) Cr.P.C. the accused did not offer any explanation regarding the injuries sustained by the deceased which ultimately led to her death or the injuries upon himself. The second stage at which the accused could have offered explanation in this regard, after the examination of the accused u/s.313 (1)(b) Cr.P.C. through defence evidence, if any. The accused did not choose to depose in this case nor did he examine anyone else. Thus, there is no explanation at all from the accused relating to the injuries sustained either by the deceased or by the accused. The accused merely maintained stoic silence. 29. The injuries upon the person by the deceased are such that they could not have been caused by the deceased herself, for the reasons already set out. Thus, it is not a case of suicide by the deceased. It is a patent incidence of homicide. The learned Public Prosecutor relied upon Trimukh Moroti Kirkan (supra) to conclude that the facts and circumstances are such that it shall be assumed that the accused caused the death of the deceased and inflicted injuries upon himself in the process of attempting to commit suicide. His claim is that the incident occurred inside the house of the accused and that no one could have noticed the accused when the accused was causing injuries to the deceased. We are afraid that merely because the accused and the deceased were inside the house, a presumption cannot at once be drawn that the accused was responsible for the causing injuries to his deceased wife, more so, where there was no strong motive for the accused to think in terms of murdering his deceased wife. The learned Public Prosecutor placed reliance upon such circumstances as grounds to establish the chain to assume that the accused caused the death of the deceased. The first of these circumstances is that PWs.1 to 8 and 14 depose that the accused and his wife who is the deceased herein were residing in the same house along with their child and that the deceased was working as the servant-maid in the neighbouring houses. This evidence cannot be treated as part of the chain of circumstances to establish the guilt of the accused, since the deceased wife of the accused working as servant- maid per se is not a ground to accept the claim of the prosecution that the accused bore grudge against the deceased, with such intensity as to cause her death. 30. The second circumstance constituting part of the chain of incidents according to the learned Public Prosecutor is the evidence of PW.5 that the accused used to quarrel with his deceased wife as he did not like the deceased wife