THE HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL No. 406 OF 2007 JUDGMENT: This criminal appeal is filed by the State against the acquittal of Accused No.2 in S.C.No.102 of 2005 vide judgment dated 25.01.2006 on the file of the court of Additional Metropolitan Sessions Judge for the trial of communal offence cases-cum- VII Additional Metropolitan Sessions Judge, at Red Hills, Nampally, Hyderabad. 2. The prosecution case, in brief, is as follows: During the intervening night of 27/28-3-2004 in the early hours, A2-Smt.Nahed Begum allowed A1-Mazhar Baig to enter her bed room by opening the door and A1 sat by the side of Cooler waiting for the opportunity to attack PW.1-Mohd.Ali to eliminate him. At about 4.30 am, PW.1 woke up, noticed his wife-A2 also woke up. He found A1 concealing his presence beside the cooler. A1, all of a sudden, pounced on PW.1 and caused severe bleeding injuries on his head and body with an iron pipe by beating him indiscriminately with an intent to do away with his life. That both the accused have committed offences punishable under Sections 452, 307 read with 34 IPC. 3. The court below after taking into consideration the material placed before it and after hearing both sides, framed charges under Sections 452, 325, 307 IPC against A1 and under Sections 452, read with 34 and 307 read with 34 IPC against A2. 4. On behalf of the prosecution, PWs 1 to 12 were examined and Exs.P.1 to P.13 were marked besides marking M.Os.1 to 3. No witnesses were examined on behalf of the defense except Ex.D.1 a portion of statement of PW.6, in his cross-examination. 5. The court below after taking into consideration the evidence placed on record and the facts and circumstances of the case, found Accused No.2 not guilty while convicting and sentencing Accused No.1 of the offences punishable under Sections 325, 448 IPC. 6. Challenging the acquittal of Accused No.2, the present appeal is preferred by the State. 7. The learned Public prosecutor relied on relevant portion of Ex.P.1-complaint i.e. “Mazhar tried to kill me due to illegal affair with my wife.” and contended that the statement is corroborated by the evidence of the prosecution witnesses. It is his further contention that the court below disbelieved the evidence of PWs 1, 5 and 6 and acquitted A2 of the offences punishable under Sections 452, 307 read with 34 IPC; that on 31.3.2004, A2 confessed before her husband-defacto complainant-PW.1 that she facilitated A1 to enter their bed room; that she was an eye witness for the killing of her mother-in-law by A1 and that on 02.04.2004., PW.1 lodged report to the Police about killing of his mother by A.1. Therefore, the trial court committed error in acquitting A2 of the aforesaid offences though there being sufficient legal evidence to warrant her conviction. 8. The learned counsel for respondent-A2 submitted that PW.1 did not refer to the report about the alleged confession made on 31.3.2004 by his wife-A2, as such, the question of her facilitating the entry of A1 into bed room on 28.3.2004 as well as being an eye witness to the killing of her mother- in- law does not arise. He further submitted that the trial court, after assessing the pros and cons of the entire matter and appreciating the evidence of the prosecution witnesses and other material on record, acquitted A2 of the offences punishable under Sections 452, 307 read with 34 IPC. 9. The evidence of PW.1 is that he was working as an Accountant in Max Super Market, Saudi Arabia. That A2 is his wife. That she used to reside at H.No.17.3.380/6, Imliban, Yakutpura, Hyderabad along with her children and her mother-in-law-Tajunnisa Begum. That A1 is their neighbour. That on 15.3.2004, PW.1 who was at Saudi Arabia, received fax and telephone messages from his sister-Mehmooda Begum and her husband Vikar Hussain Javid stating that his mother Tajunnisa died. PW.1 then returned to Hyderabad on 16.3.2004 and performed last rites of his mother. That on 27.3.2004 at about 6.00 p.m., PW.1 went to the house of his friend by name Md. Ahmed. That at about 12.30 a.m. (mid night), he returned back to his house and slept in his room along with his wife-A2 and children. That before going to bed, PW.1 bolted the two doors of his room. That at about 4.10 a.m., PW.1 woke up and saw his wife A-2 also woke up at that time. Then PW.1 asked his wife as to why she woke up. His wife then told him that she got a bad dream and therefore, she woke up. PW.1 then advised her to read verses of Quran. That at about 4.15 am, again PW.1 woke up and observed that his wife again woke up. He again asked her and she stated again that she got bad dream. That while he was going toilet, PW.1 saw a person behind the cooler. The said person covered his face below the eyes with scarf. That he raised cries “Chor, Chor”. That person was holding an iron pipe in his hand and beat PW.1 with it on his head at three places and on the back side of his body causing injuries. That he caught hold him and removed scarf. Then PW.1 found that the said person is Mazhar Baig-A1. That PW.1 then asked his wife to open the door. A1 again beat PW1 on his back. That on hearing the cries of PW.1, his sister Smt. Zeenath Begum-PW2 entered the room along with her sons Md. Saleemuddin-PW.3 and Syed Samiuddin. That PW.4 Liyaqath Hussain who was also present in the house rushed to the room of PW.1. That after beating PW.1 for the third time on his head, A1 ran away with the pipe. Then A2 and PW.2 Zeenath Begum took PW.1 to New Life Hospital, Chaderghat for treatment. After admitting PW.1 in the hospital, A2 left the hospital. Then Police visited New Life Hospital and recorded the statement of PW.1 (Ex.P.1). That on 31.3.2004 during midnight PW.1 telephoned A2 and asked her to come to New Life Hospital and A2 visited the New Life Hospital. PW.1 then asked A2 to who has removed the bolt of the door. A2 then told PW.1 that she herself opened the door and there was a plan to attack him. That A2 further told him that she has got illicit intimacy with A1 since last 3 years. That PW.1 asked A2 as to who killed his mother. That A2 told PW.1 that A1 came to the house on 15.3.2004 and he stayed whole night in the room up to 4.00 a.m. and that on seeing his mother, A1 pressed her neck and killed her. That PW.1 then asked A2 as to why she did not reveal the said fact earlier. A2 told him that because A1 threatened her that he would kill her children. 10. The case of prosecution is that A2 (wife of PW.1) developed illicit intimacy with A1, who used to visit the house of A2 since PW.1 was working in Saudi Arabia and after the return of PW.1 to Hyderabad on 16.3.2004, A1 and A2 hatched a plan to kill PW.1 and in pursuance of which A1, with the help of A2, gained entry into the bed room of PW.1. Since A2 opened the door and facilitated A1 to enter the room, A1, attacked PW.1 with an intention to kill him. Therefore, A2 is also guilty of the offence since A1 attacked PW.1 in furtherance of common intention of both the accused. 11. The contention of the Public Prosecutor is that in Ex.P.1, PW.1 stated that A1 tried to kill him due to illegal affair with A2, as such, A2 participated in the commission of offence. This contention cannot be accepted as there is no corroboration nor is there any conclusive evidence to that effect. 12. It is seen that the prosecution relied on extra judicial confession of A2 before PW.1 on 31.3.2004 and her conduct on the date of incident. The version of PW.1 is that on 31.3.2004, A2 told him that she opened the door and there was a plan to attack him and she also told him that she got illicit intimacy with A1 for the last three years. PW.5, sister of PW.1, deposed that A2 told her that since 2 to 3 years A1 is harassing her and that he used to visit her house during night time and he killed her mother-in-law and she got plan to kill PW.1 so as to marry A1. PW.6, who is relative of PW.1, deposed that A2 stated to him that A1 used to visit their house and she got relationship with A1 for last 3 years, and one day her mother-in-law had seen A1 in her room and that A1 caught hold of the neck of her mother- in- law and pushed her towards wall and A2 also stated that A1 planned to kill PW.1. From the above, it is clear that there is variation in their evidence regarding extra judicial confession alleged to have been made by A2. The cross-examination of PW.1 goes to show that he did not mention in the complaint dated 02- 04.2004 about A2 planning to kill him along with A.1. PW.1 has not mentioned anywhere in the complaint dated 02.04.2004 about such confessional statement made by A2 on 31.3.2008. Further, the evidence of PWs 5 and 6 is not cogent and convincing to bring home the guilt of A2 that she is connected with the commission of offence. PW.1 did not state in his evidence that his wife-A2 did not open the door of the room though he asked her to open it, at the time of incident. A2 was not examined by the Investigation Officer. FIR was issued against A1 only. In the facts and circumstances of the case, it cannot be said that there was pre-arranged plan or meeting of minds by both the accused before commission of crime. 13. Having regard to the evidence on record and facts and circumstances of the case, this court is of the considered opinion that the trial court has not committed any error in acquitting A2 since there is no cogent and convincing evidence to implicate A2 with the offences punishable under Sections 452 read with 34 IPC and 307 read with 34 IPC. 14. Hence, the Criminal Appeal fails and the same is dismissed. _____________ NALLA, J -06-2010 Stp