HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.164 OF 2007 Dated:22-06-2010 BETWEEN: Joga Venkata Ramana …Appellant AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.164 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) This is an appeal by Accused No.1 challenging the judgment of the VIII Additional District & Sessions Judge (Fast Track Court), Visakhapatnam, dated 31.1.2007, whereby he was convicted for the offence under Section 302 I.P.C. and was sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for a period of 3 months. The appellant-A.1 was charged for the said offence along with A.2, his sister, but she was acquitted of the said charge. 2. The case of the prosecution is that the appellant is the husband of Shobha Rani (hereinafter called as ‘deceased’) and A.2 is the unmarried sister of A.1 and they are residents of Gollaveedhi, Chodavaram. The deceased was serving as Physical Education Teacher, Municipal Girls High School, Anakapalli. The marriage of deceased and accused took place about 9 years prior to the incident. The appellant was working as Train Ticket Collector at Vijayanagaram. A.2 was staying with A.1 and deceased and she is looking after their children. While so, A.1 is suspecting the fidelity of the deceased as she was coming late to their house after attending the school, that A.1 started harassment, used to beat her and on account of harassment, the deceased once reported to police, but due to intervention of elders, the matter was compromised. While so, on 17.5.2004 at 19.15 hours, A.1 returned to home from duty. Then the elder son of the deceased and A.1 reported A.1 that his younger brother pushed him into ditch resulting an injury to him. On that A.1 got angry on the deceased and entered into backyard where the deceased was taking bath. Immediately, after going to backyard, A.1 beat the deceased with hands, as a result of which, she fell unconscious. A.1 who was waiting for an opportunity, immediately wrapped up the towel around the neck of the deceased and pulled the towel and A.2 caught hold of the legs of deceased tightly to prevent the deceased from struggling till the deceased died. A.1 and A.2 after confirming the death, hidden the towel near by bushes. Immediately after the death of deceased, A.1 went and got P.W.6 the doctor, P.W.7 a compounder successively to make believe the people that the cause of death of deceased was natural. P.W.5, the milk supplier informed the same to P.W.1, who is the elder brother of the deceased and his wife-P.W.3 to whom he was also supplying the milk. On the next day, at 9.00 hours, P.W.1 presented a report to P.W.11, the Sub-Inspector of Police, Chodavaram, who in turn, registered the report as a case in Crime No.43 of 2004 under Section 176 of Code of Criminal Procedure and sent a requisition to conduct inquest over the dead body of the deceased. P.W.11 visited the scene of offence, examined P.Ws.1 to 4 and others, recorded their statements, observed the scene of offence in the presence of P.W.8 and another, drafted an observation report-Ex.P.2, got photographed the same by P.W.10 and sent the dead body for post-mortem examination to P.W.12-doctor. P.W.12 conducted post- mortem examination and issued post-mortem certificate-Ex.P.14 opining that the deceased would appear to have died of ‘Asphyxia’ due to strangulation. Basing on the report, the section of law was altered from 176 Cr.P.C. to Section 302 I.P.C. against A.1 and A.2 and after completion of investigation, charge sheet was laid. 3. The charges levelled against the appellant and A.2 is as under: “ That both of you on or about 17th day of May 2004 at about 7.30 hours at your residence in Golla Veedhi of Chodavaram, did commit murder by intentionally (or knowingly) causing death of Veeranki Sobharani, wife of A.1 of you and sister-in-law of A.2 of you. A.1 of you wrapped up the towel around the neck of Sobharani while A.2 of you caught hold of the legs of Sobharani tightly to prevent her from struggling till she died and that you thereby committed an offence punishable under Section 302 I.P.C. and within my cognizance.” 4. When the charges were read over and explained to the accused, they pleaded not guilty and claimed to be tried. 5. To substantiate the charges, the prosecution examined P.Ws.1 to 14 and got marked Exs.P.1 to P.13 besides the case property-M.O.1. 6. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same. When the accused were called upon to adduce evidence, they examined the eldest son of A.1-appellant as D.W.1 and got marked Exs.D.1 to D.8. 7. The Trial Court upon consideration of evidence on record, held that the prosecution was able to establish its case against the appellant-A.1 for the offence under Section 302 I.P.C. and failed to establish its case against A.2 for the said offence and accordingly convicted and sentenced the appellant as aforementioned. 8. Sri C.Padmanabha Reddy, learned counsel appearing for the appellant contends that in the absence of any ligature mark on the neck of the deceased, the evidence of P.W.12- doctor who issued Ex.P.14 post-mortem certificate opining that the deceased died of asphyxia due to strangulation cannot be believed. He took us through the evidence of P.W.12 and Ex.P.14 about the external injuries noticed in Ex.P.14 and contended that when the deceased was a physical education teacher, she would be able to resist the acts had the appellant strangulated her but there is no evidence on the side of the prosecution that such resistance was made by the deceased and in the process she received the injuries. P.Ws.1 and 2 who are the brothers of the deceased who visited the scene of offence, lodged Ex.P.1 report with 11 hours delay, which has not been explained by the prosecution and therefore, he has been falsely implicated in the offence and prayed to set aside the conviction and sentence. 8. Per contra, learned Public Prosecutor while sustaining the conviction and sentence would contend that when the accused was present in the house, wherein the deceased died, it is for him to explain under which circumstances the deceased received injuries and died. P.Ws.1 to 3 categorically deposed about the earlier harassment meted out by the accused to the deceased which itself shows that it is the appellant who committed the offence. The false explanation offered by the appellant gives additional link to complete the chain of circumstances and therefore, the impugned judgment needs no interference by this Court. 9. The entire case rests on circumstantial evidence. It is well settled that in a case where the offence is said to have been based on circumstantial evidence alone, indisputably all the links in the chain must be found to complete as was held in Sharad Birdhichand Sarda v. State of Maharashtra.[1] The following conditions must be fulfilled before a case against the accused can be said to be fully established: - (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. The prosecution relied on the following circumstances. (1) the homicidal death of the deceased at the house of the accused; (2) the accused are only the other occupants of the room wherein the deceased met with homicidal death; (3) Recovery of M.O.1-towel used in the commission of the offence in pursuance of the disclosure statement of the appellant-A.1. 10. P.Ws.1 and 2, who are elder brothers of the deceased deposed that after the deceased got job as physical education teacher, A.1 used to harass her on the pretext that she was coming late in the evening, that A.2 and her mother were suspecting the character of deceased and attributing that she was coming late in the evening because of her misbehaviour. Two months prior to the death, the deceased telephoned to P.W.2, informed that she was beaten by A.1, A.2 and their mother and that she sustained fracture of two fingers of right hand and also injury on her left eye and asked him to come to Chodavaram Police Station. Accordingly, P.W.2 went to Chodavaram Police Station and after summoning the accused to the police Station, the Sub-Inspector told him that if a report is given against A.1 and other family members, they will be arrested and A.1 may loose his job and asked the deceased not to give a report. Then A.1 begged the Sub-Inspector of Police and deceased and requested not to give any report and accordingly, no report was given. Later the deceased was treated in a private hospital for her injuries. One week prior to her death, the deceased came to Koduru with her children and complained that A.1, A.2 and their mother were suspecting her character and they would kill her at any point of time and requested him to obtain divorce for her from A.1 as he used to suspect her fidelity. On the date of incident, at about 9.00 p.m. P.W.5-milk vendor came to P.W.1 and told that the deceased died. Then he telephoned to P.W.2 and after arrival of P.W.2 at about 10.00 p.m., both of them went to the house of A.1, found turmeric paste around the neck of deceased and she was lying dead in the middle room of the house. A.1 and A.2 were present there. On 18.5.2004 both of them (P.Ws.1 and 2) gave Ex.P.1 complaint to the police. P.W.3 is the wife of P.W.1 and P.W.4 is the sister of the deceased and they corroborated the evidence of P.Ws.1 and 2. 11. P.W.5 is the milk vendor, who went to the house of the deceased to supply milk at 8.00 p.m. According to him, when he called the deceased, A.2 came out of the house and informed that the deceased fell down. Then A.1 brought one doctor by name bandaru Satyam (P.W.6). The said doctor examined the deceased but did not tell anything. Then A.1 went and brought another compounder (P.W.7) from Sundararao’s hospital, who also did not give any treatment and did not tell anything. Then A.1 asked him (P.W.5) to inform P.W.1 about the condition of the deceased. When P.W.5 examined the deceased, she was breathless. Later he informed P.W.1 and went away. P.W.6 is the doctor and P.W.7 is the compounder, who examined the deceased upon the requisition made by A.1. After examining the deceased, P.W.6 informed A.1 that the deceased died. P.W.6 deposed that he did not see/observe any injuries on the dead body as there was no pulse and no B.P. and pupils were dilated. P.W.7 deposed that on the way, A.1 told him that P.W.6 had already examined his wife. Then he went to P.W.6 and enquired the condition of the deceased, who told him that it was a bad case. However, at the insistence of A.1 he examined the condition of the deceased and informed A.1 that she died. P.W.12 is the doctor who conducted post-mortem examination on the dead body of the deceased. He found the following external injuries: “1. Contusion present over complete frontal both sides of neck from chin and mandible area above to sternam below and on both sides of neck upto back of neck. Reddish brown in colour. 2. Abrasion present over 5 c.m. below the front of neck in the mid line about 3 c.m. in size reddish brown in colour. 3. Abrasion present over back of right elbow vertically present about 10 c.m. x 3 c.m. in size reddish brown in colour. 4. Abrasion present over back of left elbow vertically present 10 x 3 c.m. size reddish brown in colour. 5. Abrasion present over front of right knee about 6 c.m. in size reddish brown in colour. 6. Abrasion present over front of left knee about 8 c.m. diameter reddish brown in colour. 7. Abrasion present over front of upper 1/3rd of left leg. Vertically present, 4 x 2 c.m. in size, reddish brown in colour. 8. Abrasion present over just above the great toe of left foot about ½ c.m. in size, reddish brown in colour. 9. Abrasion present over right great toe about ½ c.m. in size. Reddish brown in colour. 10. Healing abrasion present over left chest, 3 c.m. above and just lateral to nipple about 3 x 2 c.m. in size, transversely present. Dark reddish brown in colour. 11. Multiple small healed wounds present over front of both legs and more on left leg below the knee, dark brown in colour.” On internal examination, he found the following injuries: “1. On opening neck, extra vasation of blood seen over complete neck muscles both front and lateral aspects, all the structures of neck including muscles and vessels were severely bruised and dark red in colour, and completely covered by blood. 2. All other internal organs showed severe congestion.” He issued Ex.P.14-post-mortem certificate opining that the deceased would appear to have died of asphyxia due to strangulation about 20 to 24 hours prior to post-mortem examination. In the cross-examination he stated that external injuries noted in the post- mortem certificate are visible to the naked eye. From the evidence of P.W.12 and Ex.P.14, the homicidal death of the deceased has been established. 12. P.W.13 is the investigating officer. He deposed that he observed the scene of offence and examined P.Ws.1 to 7. On 28.5.2004 both the accused came to him, surrendered themselves and confessed the commission of offence. At the instance of A.1, M.O.1 towel was recovered which is used in the commission of offence. The presence of A.1 in the house at the time of offence was also established through the evidence of D.W.1. 13. The defence of the appellant-A.1 was that the deceased might have fallen in the bathroom due to the reaction of excessive insulin injection administered by the deceased herself. But it is not suggested to P.W.12-doctor that on account of excessive insulin, there is a possibility to fall on the ground and sustain injuries as many as 11 injuries as noted in Ex.P.14-post mortem certificate. From the evidence as referred to above, it is clear that at 7.00 p.m. on the date of occurrence, A.1 returned from his job, went inside the house and within one hour the deceased met with homicidal death near the bathroom. A.1 went to P.W.7 at about 8.30 p.m. but before the said time, P.W.6 had already examined the deceased and left the place. As pointed out by the learned counsel for the appellant P.W.6 stated that he did not notice any injuries on the body of the deceased. It might not be possible for him to notice the injuries on account of nighty that was wore by the deceased. Even according to the evidence of P.Ws.1 to 4, who visited the scene of offence during the night of that day, only after noticing the injuries, P.Ws.1 and 2 lodged Ex.P.1 report on the next day morning. In State of Rajasthan v. Kashi Ram[2] it was held as under: “In a case of resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are especially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain.” The presence of appellant-A.1 in the house at the time of occurrence has been established beyond any reasonable doubt. Further, at the instance of the appellant-A.1, M.O.1-towel, which was used in the commission of offence, was recovered. The post-mortem examination report-Ex.P.14 also supports the case of the prosecution about the homicidal death of the deceased. Ex.P.14 and the evidence of P.W.12 belies the explanation given by the appellant that the deceased might have fallen in the bathroom due to the reaction of excessive insulin injection administered by the deceased herself. Therefore, the false explanation given by the appellant is an additional link to complete the chain of circumstances as held by the Apex Court in Deonandan Mishra v. State of Bihar[3]. From the circumstances narrated above, the prosecution was able to establish the guilt of the appellant beyond all reasonable doubt and the learned Sessions Judge after considering the entire evidence in proper perspective rightly concluded that it is the accused and none else who committed the offence. There are no compelling reasons for us to differ with the conclusions reached by the learned Sessions Judge. 14. In the result, the appeal is dismissed. _______________ A. GOPAL REDDY. J _________________ K.C.BHANU.J JUNE 22, 2010 Tsr. [1] 1984 (4) SCC 116 at 184: (AIR 1984 SC 1622) [2] (2007) 1 SCC (Cri) 688 [3] AIR 1955 SC 801