THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.730 OF 2007 JUDGMENT: (Per Hon'ble Sri Justice K.C. Bhanu) This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), is directed against the judgment, dated 13.06.2007, in Sessions Case No.55 of 2006 on the file of III Additional District and Sessions Judge (Fast Track Court), Medak, whereunder and whereby, the appellant/accused was found guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “I.P.C.”) and accordingly, convicted and sentenced to undergo imprisonment for life and to pay fine of Rs.500/-, in default to undergo simple imprisonment for one month. 2. The allegations in the charge sheet in brief may be stated as follows: On 01.09.2005 at about 10:00 hours, PW.1 lodged a complaint stating that about eight years back, marriage of the deceased, Laxmi, was performed with the accused. They lived happily and blessed with two children. Since one year the accused started harassing the deceased as he developed illegal contacts with his maternal sister-in- law and he was intending to marry her. For about two times accused came with elders for settlement of disputes. The elders advised and convinced him to look after the deceased properly. Accused never listened to the advice of elders and continued to harass the deceased. The relatives of the deceased also convinced him not to harass the deceased. The deceased used to inform to relatives about the harassment. With a view to marry his maternal sister-in-law, the accused strangulated the deceased on the night of 01.09.2005. On 02.09.2005, PW.1 received a message through telephone from his sister about the death of the deceased. He went to village of the deceased and found injuries on the neck of the deceased. He went to police station and lodged a report. Basing on the said complaint, police registered a case in crime no.87 of 2005 for the offence punishable under Section 302 I.P.C. During the course of investigation, PW.10 observed the scene of occurrence in the presence of PW.3 and another. He held inquest on the dead body of the deceased. He got the scene of occurrence photographed through PW.9 and thereafter sent the dead body to postmortem examination. The Doctor, who conducted postmortem, opined that the cause of death of the deceased is due to Asphyxia as a result of strangulation. It is the case of prosecution that the accused himself surrendered before police admitting his guilt on 7.9.2005 and confessed about commission of the offence. After receipt of relevant documents and completion of investigation, PW.10 filed charge sheet. 3. The trial Court framed the following charge against the accused: "That you, on 01.09.2005 at about 08:00 PM in your house committed murder intentionally causing the death of your wife by name Laxmi as you throttled and strangulated her with a towel in your house after supper and killed her as she suspecting you had illegal affairs with tractor coolie ladies and thereby committed an offence punishable under Section 302 I.P.C. and within my cognizance" When the above charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution examined PWs.1 to 10 and got marked Exs.P1 to P15 besides case properties M.Os.1 to 3. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same and no evidence either oral or documentary was adduced on his behalf. 6. The trial Court accepting the evidence adduced by the prosecution found the accused guilty of the offence punishable under Section 302 I.P.C. and accordingly, convicted and sentenced him as stated above. Challenging the same, the present Criminal Appeal is filed. 7. Now the point for determination is whether the prosecution proved its case against the accused of the offence punishable under Section 302 I.P.C beyond all reasonable doubt and whether the judgment of the trial Court is correct, legal and proper? 8. Learned counsel for the appellant contended that there are no circumstances to infer that the accused is the assailant of the deceased; that except the fact that the deceased is no other than the wife of the accused, there is absolutely no evidence to show that accused was present in the house at the time of the incident and he is the assailant of the deceased, who committed the murder of the deceased; that similarly, there is no evidence to show about the immediate motive for the accused to commit murder of the deceased and hence, he prays to set aside the impugned judgment. 9. On the other hand, the learned counsel representing the learned Public Prosecutor contended that the evidence of PWs.1 to 4 would clearly go to show that the accused was present in the house at the time of the incident; that there was no scope for any third person to enter into the house to commit the murder of the deceased, as the incident took place within four corners of the house; that all the circumstances unerringly pointing the guilt towards the accused, and hence, he prays to dismiss the appeal. 10. PW.5, who said to be present at the time when the police held inquest on the dead body of the deceased, did not support the case of the prosecution. But the evidence of PW.10, Inspector of Police, would go to show that he conducted inquest on the dead body of the deceased, and the inquest mediators opined in the inquest report that the deceased died as a result of strangulation. 11. Thereafter, the dead body of the deceased was sent to the postmortem examination. PW.8 is the doctor who conducted Autopsy on the dead body of the deceased on 03.09.2005 at 11:30 AM found the following injuries: "1. Ligature marks at the neck, it is transverse completely encircling the neck below thyroid cartilage, base is soft and reddish. 2. Abrasion and congested at the edges of the ligature mark. 3. Bruising of the neck muscles." He issued Ex.P.10 – postmortem report. The doctor opined that the cause of the death of the deceased was due to asphyxia as a result of strangulation. The cause of the death as spoken to by PW.8 and as recited in Ex.P10 remained unchallenged. Therefore, prosecution proved its case beyond all reasonable doubt that the death of deceased was caused as a result of strangulation. Now, it is to be seen whether the accused is the assailant of the deceased or not. 12. There is no direct evidence and the case rests upon the circumstantial evidence only. The law is well settled in view of a decision of the Honourable Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra[1], wherein it is held thus: “A close analysis of this decision would show that the following conditions must be fulfilled before a case against an 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. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made : "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. " (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.” Bearing the above principles in mind, now it has to be seen whether the prosecution proved its case against the appellant/accused beyond all reasonable doubt. 13. The relationship of the accused with the deceased is not in dispute. Marriage of the accused and the deceased was performed about eight years prior to the date of incident. They lived happily for about six or seven years. Thereafter, it is alleged that the accused started harassing the deceased as he developed illegal contacts with his maternal sister-in-law of Chippalthurthy Village and he was intending to marry her. Thereafter, the elders intervened and advised the accused, but the accused never listened to the advice of the relatives of the deceased. On 02.09.2005, PW.1, who is the relative of the deceased, received a phone call about the death of the deceased from his sister. The deceased is no other than the daughter of the senior maternal aunt of PW.1. He got suspicion that the accused might have killed the deceased and lodged Ex.P1 complaint. The recitals in Ex.P1 would not reveal any incriminating circumstances against the accused, except the fact that the accused was harassing his wife for the reason that he wanted to marry one of his relatives. Except stating about some prior disputes, the evidence of PW.1 would not go to show that the accused was present in the house at the time of incident. Since PW.1 is a resident of some other village, his evidence is not relevant to speak about the presence of the accused on the date of incident in the house. 14. PWs.2 to 4 are the relatives of the deceased. They belong to different villages. On coming to know about the death of the deceased, they rushed to the scene of occurrence, which is in the house of the accused in Chippalthurthy Village of Narsapur Mandal of Medak District. They simply stated that they found marks around the neck of the deceased and they suspected that the accused was responsible for the death of the deceased. In view of the fact that they are not residing in the same village where the accused and the deceased were residing and for the reason that they did not speak about their presence at the time of the incident, their evidence is not much helpful to the case of the prosecution. They simply expressed their opinion with regard to the suspicion on the accused as the assailant of the deceased. The law is well settled that suspicion, however strong, cannot take the place of legal proof. Therefore, their evidence was not incriminating against the accused. 15. PWs.5 to 7, who are examined by police to speak about the incident proper, did not support the case of the prosecution. The prosecution sought permission to declare them hostile. Even after the cross-examination by the public prosecutor, nothing has been elicited to connect the accused with the crime. Therefore, their evidence is not much helpful to the case of the prosecution. 16. PW.9 is the photographer who had taken the photograph of the scene of occurrence. PW.10 is the Circle Inspector of Police, who conducted investigation and his investigation does not reveal about any incriminating circumstances against the accused such as recovery of any Material Object used in the commission of the offence. 17. No doubt, the death of the deceased had taken place within the four walls of the house. So, there is a presumption that the accused/husband was the murderer who perpetrated the crime. But before that presumption can be drawn, the burden is on the prosecution to establish that the accused was actually present at the time of incident. There is no such evidence to show that the accused was inside the house at the time of the incident or he was seen by other witnesses coming from the house immediately after the incident. None of the neighbours in the locality has been examined to show that the accused was in the company of the deceased prior to, or at the time of, or after, the incident. On this aspect it is pertinent to refer to a decisions of the Honourable Supreme Court in Dasari Siva Prasad Reddy v. Public Prosecutor, High Court of A.P. [2], wherein it is held thus: “HOWEVER, there is one circumstance which is suggestive of the strong possibility of the presence of the accused at his house. As per PW3's evidence which was believed by the trial court, the appellant contacted him in the morning at 6 a.m. and brought PW3 to his house giving a hint that something untoward happened to his sister (i.e. the deceased). Added to this, the accused, in the normal course, is expected to be at his house in the night. However, these factors need not give rise to an irresistible inference that the accused remained in the house in the previous night and the accused alone must have been responsible for the murder. At best, it can be said that the view taken by the trial court is not the only possible view. But, that is not enough to reverse the acquittal. A strong suspicion, no doubt, exists against the appellant but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. The distance between 'may be true' and 'must be true' shall be fully covered by reliable evidence adduced by the prosecution. But, that has not been done in the instant case. If, coupled with the circumstance unfolded by the evidence of PW3, the evidence of PW4 had been believed, it would have gone a long way in substantiating the prosecution case. But, in the instant case, apart from the fact that the appellant was at his house on the morning of 20-4-1996, there is no other circumstance whatsoever which connects the accused to the crime, though serious suspicion looms large about his involvement. The view taken by the trial court that the prosecution could not establish the complete chain of circumstances incriminating the accused is a reasonably possible view and the High Court should not have disturbed the same. Having regard to the state of available evidence, the benefit of doubt given to the accused by the trial court warranted no interference by the High Court.” Therefore, there is a suspicion that the accused might have killed his wife. Suspicion, however strong, cannot take place of legal proof. Except proving the fact that the deceased met with homicidal nature of death, there is no other circumstance to indicate or infer that the accused is the assailant of the deceased. All the circumstances in the case of the prosecution have not been established. If all the circumstances are linked to one another so as to form a chain, which leads to an irresistible conclusion, then only it can be said that the murder was committed by the accused and accused alone. But, in the absence of such evidence, conviction of the accused is not in accordance with law. Therefore, accused is entitled for acquittal. 18. In the result, Criminal Appeal is allowed setting aside the conviction and sentence recorded by III Additional District and Sessions Judge (Fast Track Court), Medak, vide Judgment, dated 13.06.2007, in Sessions Case No.55 of 2006, against the appellant/accused for the offence under Section 302 I.P.C. and accordingly, he is acquitted of the said charge. The fine amount, if any, paid by the appellant/accused shall be refunded to him. The appellant/accused shall be released forthwith, if he is not required in any other crime. _______________ K.C.BHANU, J ____________________________ N.R.L.NAGESWARA RAO, J December 20, 2010 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTIETH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.730 OF 2007 Between: Dappu Jagan ..... APPELLANT AND State of Andhra Pradesh ....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.730 OF 2007 (Per Hon'ble Sri Justice K.C. Bhanu) December 20, 2010 [1] AIR 1984 SC 1622 [2] (2004) 11 SCC 282