THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE R.KANTHA RAO Crl.A.No.210 of 2008 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) The appellant-sole accused, who was tried for the offence under Section 302 I.P.C in S.C.No.144 of 2005 by the Additional Metropolitan Sessions Judge, Cyberabad, NTR Nagar, Hyderabad, was found guilty of the said offence, convicted therefor and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, in default of payment of fine, to suffer simple imprisonment for two months, by judgment dated 07.09.2006. Challenging the conviction and sentence recorded against him, the appellant filed this appeal. The substance of the charge against the accused is that on the intervening night of 22.04.2004 at the field of Dasaratha near Kothur Vagu, he committed the murder of his wife–Jangamma (hereinafter referred to as ‘the deceased’) by slitting her throat with a knife, and thereby committed an offence punishable under Section 302 I.P.C. 2. The case of the prosecution, in nutshell, is as under: The accused is the husband of the deceased. P.Ws.1 and 2 are the father and mother of the deceased, whereas P.W.3 is the relative of the deceased. The marriage of the deceased with the accused took place about one year prior to the occurrence. At the time of marriage, the parents of the deceased gave Rs.8,000/- cash, 1½ tolas of gold, 20 tolas of silver and house hold articles towards dowry, promising that they will give another 2½ tolas of gold later. After the marriage, the deceased joined with her husband and started living with him at Gattupally Vollage. The accused used to bring the deceased to her parents house in 15 to 20 days and used to leave her there. The deceased used to work in the fields. The accused was not doing any work, and addicted to bad vices like consuming liquor. As he was unable to generate funds to meet his bad vices, he sold away gold and silver ornaments belonging to the deceased. About 15 days prior to the occurrence, the accused beat the deceased and sent her parents’ house demanding to bring the remaining two tolas of gold ornaments, which was promised by her parents at the time of her marriage. When the deceased did not return after complying with the demand of the accused, he went to the house of parents of the deceased. In the presence of her family members and other caste elders, the deceased told the accused that it was better for her to stay in the house of her parents instead of going along with him as he was not having any income and he was harassing her on one pretext or another. Being insulted by the conduct and attitude of the deceased against the accused in the presence of caste elders, he decided to do away with her. In furtherance of his common object, on 22.04.2004 at 11.00 a.m, the accused telephoned to the deceased and requested her to come over to Maheshwaram to talk to him and his mother and further stated that she need not bring 2½ tolas of gold. Believing the said words of the accused, the deceased went to the clinic of one M.Krishna, which is situated at Maheshwaram. After some time, the accused, his mother and others came there and after talking for some time, the mother and grandmother of the accused went away. Then the accused took the deceased to the lands of Dasharatha, which is situated at Kothur Vagu and which is an isolated place covered by Sarkar Babool trees, and enjoyed her sexually and when the deceased became drowsy because of consumption of toddy and participating in sex, the accused slit her throat with a knife, which was brought by him, and done her to death. After inflicting cut throat injury, he dragged her body by catch holding of her legs. Since there was no movement, he confirmed that the deceased died. While leaving the place, he threw away the knife, which was used in the commission of the offence, in the bushes. He slept at Kothur cross roads on that night and went away. P.W.11, who is a resident of Gudur Village, received information through P.W.4 regarding the dead body of a woman at the fields of one Golla Dasharath. Then he proceeded to the scene of offence along with P.W.4 and noticed the dead body. In the meanwhile, P.W.3, who is a resident of Kothur Village, came to the scene and identified the dead body of the deceased. Then P.W.11 went to the police station and gave Ex.P.10-report. P.W.12, the then Sub Inspector of Police, Kandukur received Ex.P.10 report from P.W.11 on 23.04.2004 at 12.00 noon, and registered it as Cr.No.53 of 2004 under Section 302 I.P.C and issued Ex.P.11 – F.I.R. P.W.13 is the then Inspector of Police, Pahadishareef. On receipt of Ex.P.11-F.I.R, he took up investigation, proceeded to the scene of offence situated near Kothur vagu on the road leading from Hyderabad to Srisailam near Gudur ‘X’ road, recorded the statements of P.Ws.11, and 1 to 5, conducted scene of offence panchanama before the presence of P.W.8 and others, prepared the scene of offence panchanama under Ex.P.3, drawn the rough sketch of scene of offence under Ex.P.4, conducted inquest over the dead body of the deceased and thereafter sent the dead body for post mortem examination. Ex.P.5 is the inquest report. P.W.7, the Assistant Professor in Department of Forensic Medicines in Bhaskar Medical College, Moinabad, Ranga Reddy District conducted autopsy over the dead body of the deceased on 24.04.2004 between 10.30 a.m and 11.30 a.m and opined that the cause of death was due to cut throat injury. Ex.P.1 is the Post Mortem Examination Certificate. P.W.12-Sub Inspector of Police apprehended the accused at his house on 25.04.2004 at about 2.00 p.m and produced him before P.W.13 at 3.00 p.m on the same day. Then P.W.13 recorded the confessional statement of the accused before the presence of P.W.9, and based on the said confession he recovered M.O.1-knife from Kothuruvagu bridge near babbul bushes and seized the same. Ex.P.6 is the admissible portion in the confessional statement of the accused. Ex.P.7 is the seizure report. On 26.04.2004 the accused was sent for judicial remand. After completion of investigation and receipt of report from Regional Forensic Science Laboratory, P.W.13 filed charge sheet. On committal, the learned Sessions Judge framed charge against the accused for the offence under Section 302 I.P.C. When the said charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. To substantiate its case, the prosecution examined P.Ws.1 to 13 and got marked Exs.P.1 to P.14, besides case properties M.Os.1 to 4. On behalf of the accused, D.W.1 was examined and Exs.D.1 to D.3 leading portion of 161 Cr.P.C statements of P.Ws.1, 2 and 5 were marked. The learned Sessions Judge, on appreciation of the oral and documentary evidence, held that the prosecution could able to produce enough material to prove that the accused bore grudge against the deceased, that he used to harass the deceased demanding to bring balance gold, which was promised by her parents at the time of marriage, and suspect her fidelity and that the evidence of P.Ws.5 and 6, who are independent witnesses, discloses that the deceased was last seen in the company of the accused few hours prior to the offence, and accordingly convicted and sentenced the accused as aforementioned. Smt.A.Gayathri Reddy, learned counsel for the appellant contends that the entire cases rests upon circumstantial evidence, prosecution is not able to prove that deceased was last seen together with the accused. The evidence of P.W.5 and 6 are contradictory with each other. P.W.6’s evidence is highly suspicious. Further, evidence of the doctor who conducted post-mortem examination also do not lend corroboration with the evidence of prosecution witnesses. The doctor categorically stated he will find any alcohol content in the stomach of the deceased. The seizure of M.O.9—knife has also not been establish by the witnesses to the corroborated evidence who have not supported the case of the prosecution and the omission of P.W.6 about starting RTC bus while he overtaking, he slow down the scoter and witnessing the accused and deceased together is also fatal to the prosecution case. Therefore, accused is entitled to acquittal. Per contra, learned Additional Public Prosecutor sustained the conviction and contends that the evidence of prosecution really establishes the chain of events and guilt of the accused. In the present case, charge framed against the accused shows that the accused enjoyed the deceased consequently when she was drowsy because of consumption of toddy and her throat on the intervening night and made belief she again to catch her back on his house took her to the fields. To substantiate the said charge prosecution witnesses were examined, as referred to above. In view of the above rival submissions, the point that arises for consideration in this appeal is as to whether the prosecution could able to bring home the guilt of the accused beyond all reasonable doubts? The entire case rests upon the circumstantial evidence. When a case rests upon circumstantial evidence only, all the circumstances must firmly and cogently be established and they should unerringly point out the guilt towards the accused. The Supreme Court in Sharad Birdhichand Sarda v. State of Maharastra[1] laid down certain guidelines for conviction on the basis of circumstantial evidence, which have to be fulfilled before the accused is convicted on the basis of circumstantial evidence, which read as follows: (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. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence, and a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. The Supreme Court in Padala Veera Reddy v. State of A.P.[2] has enunciated the principles of law at paragraph 10, which reads as under: (1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) 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 none else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. Keeping in view the legal principles in mind as referred to above, we shall now scrutinize the evidence of the prosecution. P.W.1 only speaks that 15 days prior to the incident deceased came to his house and informed about cause of beating her and three days prior to that she told him she received a phone call from the accused, to the place she requested not to cut. one day prior to the incident in the morning he went to on the next day he received information. P.W.2, mother of the deceased also stated in the same lines that accused running up the deceased to go out; she went away one day prior to the death without informing them. P.W.3 saw the dead body of the deceased along with villagers. P.W.4 who noticed the dead body first informed the same to P.W.1 who in turn went to post station and brought the police. P.W.5 who is the private medical practitioner on 24-02-2004 at 1 P.M. the deceased came to his clinic and after some time accused also came and left the clinic and again deceased came to the clinic along with grand father and mother at 4.30 P.M. P.W.6 stated that on 24-02-2004 at 8.30 P.M. when he reached Gudur bus station RTC bus stopped due to which he slow down and he tried to over take; at that time he noticed accused and deceased were proceeding to Kandukur reach when he told the police previous night at 4.30 A.M. the doctor who conducted post-mortem examination found one incised wound, one scab contusion over temporial area. and issued Ex.P1—post-mortem certificate stated injury No. as mentioned Ex.P is possible with M.O.1. In the cross-examination injuries 1 to 6 and 8 might have been caused pressing or defend herself he did not find any alcohol content in the stomach of the deceased. P.W.8 is the witness to the scene of offence and rough sketch—Exs.P8 and 9 who was present when inquest was conducted on the dead body of the deceased. P.W.9 is the witness to the mediator for seizure of M.O.6 under Ex.P6 seizure Panchanama under Ex.P7. P.W.13 stated that accused confessed commission of offence in his present and found M.O.1—knife. Admittedly P.W.6—Upa Sarpanch of the village did not state before him about stopping of RTC bus near Gudur Chowrasta and he stopped the vehicle etc. therefore, medical evidence adduced by the prosecution do not corroborate with the charge as such; at about accused making the deceased to drink and consequently enjoying her when she was drowsy and cut the throat with knife. P.W.6’s evidence is highly suspicious. He has not stated about his going on scooter and slow down the same while overtaking the standing bus which is an improvement made by him while examining the as witness in the court. except said evidence there is other evidence and the prosecution miserably failed to prove that the accused and deceased were last seen together. The evidence of P.W.6 also shows that the deceased visited his clinic at 1 P.M. and after some time accused along with his grand mother and others came at 4.30 P.M. and left the place. Thereafter, no witness has seen the deceased and accused were together in the place of occurrence. In view of the same, it is highly unsafe to convict the accused with the scanty evidence adduced by the prosecution. The conviction and sentence recorded against the appellant for the offence punishable under Section 302 IPC in S.C.No.144 of 2005 by the Additional Metropolitan Sessions Judge, Cyberabad, NTR Nagar, Hyderabad are set aside. The Appellant shall be set at liberty forthwith if he is not required in any other case. The fine amount, if any, paid by the appellant shall be refunded to him. In the result, the Criminal Appeal is allowed. _________________ A.GOPAL REDDY, J. ________________ R.KANTHA RAO ,J. 28-11-2011 Va/Murthy [1] AIR 1984 SC 1622 [2] AIR 1990 SC 79