HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.485 OF 2007 Dated:20-09-2010 BETWEEN: Madala Appa Rao @ Appayya @ Sreenu …Appellant AND State of A.P., Rep. by Public Prosecutor, High Court, Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.485 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) Sole accused in S.C.No.205 of 2004 on the file of Sessions Judge, Mahila Court, Vijayawada filed the present appeal challenging his conviction for the offence under Section 302 of Indian Penal Code, 1860 and sentencing him to undergo imprisonment for life and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for a period of three months. 2. The case of the prosecution is that the appellant-accused is the husband of Madala Nagamma (hereinafter referred to as ‘the deceased’) and their marriage took place about eight years prior to the date of incident. They are residents of Gunadala. P.W.1 is the father of the deceased and P.Ws.2 and 3 are the relatives of the deceased. P.W.5 is the uncle, P.W.8 is the brother and P.W.9 is the sister of the deceased. The accused is a tractor driver. He addicted to drinking and used to beat the deceased in drunken state. A panchayat was held before P.W.4 and other caste elders twice and the elders advised the accused to look after the deceased property. For some time, they lived together happily, but later, the accused again started beating the deceased. On the date of incident i.e. on 8.9.2004 at about 7.00 p.m. the accused came to his house in drunken state, picked up a quarrel with the deceased as usual at about 9.00 p.m. In the intervening night of 8/9.2.2004 due to the quarrel with the deceased, the accused tied her legs with chunni, removed her clothes, made attempts to enjoy her forcibly and that when she refused for the same, the accused strangulated her with a saree with an intention to kill her and thereby caused her death and thereafter he escaped from the scene of occurrence. On the next morning on 9.2.2004 at 6.00 a.m., L.W.2-Avula Ravamma went to the house of the deceased to handover her daughter and she found the deceased on a cot and when she called the deceased, there was no response. Immediately, she informed the same to P.W.1, the father of the deceased. On that, P.W.1 along with L.W.3-Avula Chikkamma rushed to the house of the deceased, found the deceased dead and observed injuries on her throat and found her legs tied with a chunni and only one langa was found on her body. Immediately, P.W.1 along with P.W.8 went to Machavaram Police Station and narrated the incident. P.W.14-Sub Inspector of Police, Machavaram Police Station recorded the statement of P.W.1 as in Ex.P.1 on 9.2.2004 at 10.00 a.m. and registered a case in Crime No.54 of 2004 under Section 302 IPC and issued Ex.P.7-F.I.R. P.W.15-Circle Inspector of Police took up investigation, visited the scene of offence, prepared scene of observation report under Ex.P.6 and rough sketch of scene of offence under Ex.P.8. He conducted inquest on the dead body in the presence of P.W.13 and others and Ex.P.5 is the inquest report. After the inquest, he sent the dead body for post-mortem examination. P.W.11, Assistant Professor, Department of Forensic Medicine, Siddhartha Medical College, Vijayawada conducted autopsy over the dead body of the deceased on 10.2.2004 between 10.00 a.m. to 11.30 a.m. and opined that the cause of death of the deceased was due to asphyxia as a result of strangulation. Ex.P.4 is the post-mortem report. On 11.2.2004 at about 5.00 p.m., P.W.15 arrested the accused in the presence of P.W.13 and others. On receipt of relevant reports and after completion of investigation, P.W.15 filed the charge sheet against the accused. 3. The charge levelled against the appellant-accused is as under: “That you on the intervening night of 8/9.2.2004 at about 9 p.m. in your house situated at Gangiredla Dhibba, Gunadala, Vijayawada, did commit murder by intentionally (or knowingly) causing the death of your wife Madala Nagamma by strangulating her with a saree and thereby committed an offence punishable u/s.302 IPC and within my cognizance.” 4. When the charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate the charge, the prosecution examined P.Ws.1 to 15 and got marked Exs.P.1 to P.8 besides the case properties-M.Os.1 to 7. 6. 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. When the accused was called upon to adduce evidence, he did not let in any evidence, but a portion in Section 161 Cr.P.C. statement of P.W.3 was marked as Ex.D.1. 7. The Trial Court after considering the evidence brought on record found the accused guilty and accordingly convicted and sentenced him as stated above. Challenging the same, the present appeal is filed. 8. The point for determination is ‘whether the prosecution proved its case beyond all reasonable doubt for the charge under Section 302 I.P.C. against the appellant-accused?’ 9. Learned counsel appearing for the appellant-accused contended that even though it is the admitted case that the accused and the deceased are husband and wife, there is no evidence to show that on the date of occurrence, both the accused and deceased were in the said house together, and that none of the witnesses were examined to prove the said fact. Further it is submitted by the learned counsel that the witnesses clearly stated that the deceased was not in the habit of wearing panjabi dress, whereas, according to the prosecution, both the legs of the deceased were tied with a chunni. It is not the case of the prosecution that the keys of the tractor were found at the place of occurrence to prove that the accused was present in the house, and in fact, the said keys were not recovered by the investigating agency. In the absence of any evidence to show that the accused and the deceased were last seen together, in the case of circumstantial evidence, the conviction of the accused only on the basis of motive cannot be sustainable. Therefore, she prays to set aside the conviction and sentence recorded against the appellant. 10. On the other hand, the learned counsel representing the Public Prosecutor contended that the trial Court, upon considering the material on record, rightly convicted and sentenced the accused and there are no grounds to interfere with the conviction and sentence recorded by the lower Court. 11. P.W.11 is the doctor who conducted autopsy on the dead body of the deceased and found faint pressure abrasion mark present on front and sides of neck, 20 cm x 3 cm in sixze; marks are present horizontally at the level of thyroid cartilage; and deep tissues contused below the mark. He opined that the said injury is ante-mortem in nature and he was of the opinion that the cause of the death of the deceased was due to asphyxia as a result of strangulation. To that effect, he issued Ex.P.4-post-mortem report. The cause of death as spoken to by the doctor is not specifically denied or disputed. Therefore, the prosecution established its case with regard to the homicidal death of the deceased. 12. There are no eyewitnesses to the incident. P.Ws.6 and 7 were declared hostile. P.W.1 is the father of the deceased, who presented Ex.P.1 report. He is not an eyewitness to the incident. He stated that upon the information given by his fourth daughter about the death of the deceased, he went to the house of the deceased and found the dead body of the deceased in the house. Therefore, his evidence is of no helpful to the prosecution case. However, he speaks about the quarrels between the accused and the deceased. P.W.3 stated that while he was coming to Gunadala for Marymatha Tirunallu, at about 9.00 or 9.30 a.m., the accused came to him and confessed before him that he murdered his wife. However, he deposed that the accused again told him that he said so, for “Yegatali” (joke). When P.W.3 came to Gunadala along with his daughter, he was told that the accused murdered his wife. Immediately, he went to the house of the accused and found the dead body of the deceased. But, he did not reveal to anybody about the alleged confession said to have been made by the accused. Except the evidence of P.W.3 about the alleged confession said to have been made by the accused, no other evidence has been adduced by the prosecution. Therefore, the evidence of P.W.3 cannot be believed. In the present case, the accused is a tractor driver and he used to go to the job and return to house even after three days. Even though the deceased and accused are wife and husband, there is no evidence brought on record that on the date of the incident, the accused was present in the house along with the deceased. Further P.W.15-investigating officer in the cross-examination admitted that he did not observe the key of the tractor at the scene of offence and that none of the witnesses examined by him stated that they had seen the accused in his house one day prior to the incident. When the prosecution wants to establish the fact that the accused alone is the person who committed the murder of the deceased, it should positively establish the same by way of adducing cogent evidence. In the present case, the investigation officer as well as the learned Sessions Judge proceeded on the basis of mere suspicion and the investigation officer laid the charge sheet only on the basis of the confession recorded from the accused, which is inadmissible in evidence. The learned Sessions Judge has also on the basis of mere suspicion convicted the accused. 13. In a case based on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence which would permit no conclusion other than the guilt of the accused. The evidence adduced by the prosecution should consistently point to the guilt of the accused. Admittedly, as stated by the learned counsel for the appellant, even though the appellant-accused and the deceased are husband and wife, in the absence of any positive evidence to show that they were last seen together prior to the date of occurrence, the offence committed cannot be attributed to the appellant. In view of the same, the conviction and sentence recorded by the learned Sessions Judge on the basis of mere suspicion cannot be sustainable and the same are liable to be set aside. 14. In the result, the appeal is allowed. The conviction and sentence recorded against the appellant-accused for the offence punishable under Section 302 IPC, by Sessions Judge, Mahila Court, Vijayawada, vide judgment, dated 30-12- 2006, in Sessions Case No.205 of 2004, are set aside and he is acquitted of the said charge. He shall be set at liberty forthwith if not required in any other crime. The fine amount, if any, paid by the appellant-accused shall be refunded to him. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J. SEPTEMBER 20, 2010 Tsr.