THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.222 of 2009 Date: 06-8-2009 Between Mallareddy Saradha … Petitioner/Appellant/Accused and State of A.P., rep. By Public Prosecutor, High Court, Hyderabad … Respondent/Complainant THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.222 of 2009 Oral Judgment: (per D.S.R.Varma, J.) Heard Sri C.Padmanabha Reddy, learned Senior Counsel, representing Sri C.Praveen Kumar, learned Counsel appearing for the appellant-sole accused and the learned Public Prosecutor appearing for the respondent-State. 2. This appeal is directed against the judgment, dated 11-02-2009, passed by the Sessions Judge, Vizianagaram, in convicting the accused for the offence under Section 302 IPC and sentencing her to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- (Rupees five thousand only). 3. The case of prosecution, in brief, is as follows: That P.W.1 is the cousin, P.W.2 is the brother and P.W.12 is the sister of the deceased; that the deceased worked as Cash Officer in State Bank of India, Naval Dockyard Branch, Visakhapatnam, and was residing in his own house bearing Plot No.3, SBI Colony, Vizianagaram along with his wife i.e., the accused herein and two daughters i.e., P.Ws.3 and 4; that one Vavilapalli Ramakrishna was residing in the upstairs portion of the same building along with his wife P.W.7; that both the accused and the deceased lived amicably from the date of the marriage and only about six months prior to the incident, disputes cropped up between them; that in the month of April, 2005 the deceased telephoned to P.W.12 and informed her that P.W.7 called him and informed him that his wife, the accused herein, developed illicit intimacy with her husband (Ramakrishna) and that she was deserted by her husband; that when the deceased questioned the same, the accused denied the said allegation; that the deceased further informed P.W.12 that the accused gave him a glass of milk, which he found to be bitter and on suspicion, he did not consume the same and thereafter, the accused threw the same; on that, P.Ws.2 and 12 visited the deceased and there was a discussion between P.Ws.2 and 12, the deceased and the accused; that in that discussion, the accused denied the allegation and informed them that she was ready to take divorce if some amount was given to her; that subsequently, she left the company of the deceased along with her children; that then on 01-6-2005 the deceased telephoned to P.Ws.1 and 2 expressing fear of being killed by the accused and her paramour Ramakrishna, and he wanted to give a report to the Police; on that, P.Ws.1 and 2 lodged a report to the concerned police, which was marked as Ex.P-1, but the Police did not take any action and that subsequently, in the month of October, 2005 with the intervention of P.W.2, colleague of the deceased (P.W.6) and others there was a compromise between the accused and the deceased and they started living together. That on 14-11-2005 between 6.30 and 7 a.m., P.W.11, who is one of the panel doctors to the State Bank, on receiving a phone call visited the house of deceased, examined him and found him dead; that in the meanwhile, on receiving the phone call about the death of deceased, P.Ws.1, 2 and 12 rushed to the house of accused by 9.15 or 9.30 a.m., that there P.W.12 was informed by the accused that in the midnight, the deceased complained breathlessness and wanted hot water and as such, she i.e., the accused gave hot water to the deceased and went to sleep, that on the next day morning she found him dead and that then P.Ws.1, 2 and 12 on noticing an injury on the right forehead and also nail marks on both sides of the neck of deceased, on suspicion, lodged a report, which was marked as Ex.P- 2. That on 14-11-2005 at about 3 p.m., on the basis of Ex.P-2 lodged by P.W.1, P.W.13 the then Sub Inspector of Police registered the same as case in Crime No.216 of 2005 under Section 174 Cr.P.C., and issued FIR, which was marked as Ex.P-13, that he then examined P.W.1 and recorded his statement, visited the scene of offence and prepared an observation report and rough sketch of the scene in the presence of P.W.8, which was marked as Ex.P-14; that he further held inquest over the body of deceased in the presence of P.W.9, which was marked as Ex.P-9 and that thereafter, he forwarded the dead body for post-mortem examination. That on 15-11-2005 at about 10.30 p.m., P.W.10 Civil Assistant Surgeon, Government District Hospital, Vizianagaram, held autopsy over the body of deceased and he opined that the cause of death was due to asphyxia and that Ex.P-10 is the post-mortem report. That on 26-11-2005 on receiving the post-mortem report, P.W.13 the then Sub Inspector of Police, I Town Police Station, Vizianagaram, altered the Section of law; that Ex.P-15 is the altered FIR; that further investigation was taken over by P.W.14 the then Inspector of Police, Vizianagaram Town Circle; that during the course of investigation, he examined P.Ws.5 to 7; that on 02-12-2005 he arrested the accused in the presence of P.W.8 and sent her for remand and on 09-12-2005 he forwarded the material objects to the RFSL, Visakhapatnam; that Ex.P- 11 is the FSL Report, dated 18-4-2006 and that after receiving relevant documents and on completion of investigation charge sheet was filed. 4. A charge under Section 302 IPC was framed, read-over and explained to the accused in Telugu for which, she pleaded not guilty and claimed to be tried. 5. In support of its case, the prosecution has examined P.Ws.1 to 14 and got marked Exs.P-1 to P-15. No material objects were marked. On behalf of the defence, no witnesses were examined but Exs.D-1 to D-6 were marked. 6. The trial Court after taking into consideration the entire evidence on record, both oral and documentary, had found the accused guilty for the offence with which she was charged and accordingly convicted and sentenced her, as stated above. 7. Aggrieved by the said judgment of conviction and sentence, the accused has preferred the present appeal. 8. Sri C.Padmanabha Reddy, learned Senior Counsel, representing Sri C.Praveen Kumar, learned Counsel appearing for the appellant-accused, contends that – firstly; the evidence of P.Ws.1, 2 and 12 cannot be relied on, inasmuch as their testimony is totally unbelievable, secondly; since this is a case of circumstantial evidence there must be strong chain of circumstances, which would connect the accused alone with the guilt, with no iota of doubt, thirdly; the trial Court went wrong in placing heavy reliance on Ex.P-1, which was allegedly a letter of apprehension written by the deceased and as requested by him, P.Ws.1 and 12 handed over the same to the police, which is contrary to the evidence of P.W.13 Sub Inspector of Police, fourthly; the initial medical evidence on record in the shape of the evidence of P.W.11, who is one of the panel doctors to the SBI, that he did not find any injuries on the dead body, reveals that there were no injuries on the body of the deceased, that similarly the mediator P.W.9 and the Sub Inspector of Police P.W.13 also did not find any injury marks on the body of the deceased during the course of inquest, fifthly; that the daughters of the deceased P.Ws.3 and 4, who were present in the house of the deceased, were declared hostile but still as regards the material aspect i.e., the presence of the accused is concerned, they spoke that their accused mother was not available on that night and on the other hand, she was at Visakhapatnam staying with their senior uncle and therefore, when it is established that the accused was not present on the night of the death of the deceased she cannot be found guilty, sixthly; even assuming that their mother was available on the fateful night along with the daughters, which implies that there are more than one person along with the deceased, it cannot be inferred that the accused alone is responsible for the death of the deceased, and lastly; even as per the opinion of the doctor P.W.10, who conducted post-mortem examination over the body of deceased, asphyxia could have been caused by more than one person. In other words, it was his contention that P.W.10 in unequivocal terms deposed that the death of the deceased could not have been caused by a single person. Hence, he concludes his submissions that the accused deserves order of acquittal. 9. On the contrary, the learned Public Prosecutor vehemently contends that – firstly; P.Ws.3 and 4, who are the daughters of the deceased since were declared hostile, particularly on the aspect of the presence of non-availability of the accused on the fateful night, their evidence cannot be taken into consideration at all and for all purposes. Nextly; the evidence of the doctor P.W.10, who conducted post-mortem examination over the body of deceased, cannot be brushed aside in view of his categorical recording about the injuries found on the body of the deceased, particularly on the forehead and neck of the deceased. Therefore, he contends that an inference can be drawn that the accused, who is the wife of the deceased, was available along with the daughters and she alone was living in the bedroom and since already a letter of apprehension was given much before his death, the same can be taken into consideration as a dying declaration, as was discussed by the trial Court and the case of prosecution has been supported by the medical evidence through post-mortem certificate Ex.P-10 coupled with the final opinion Ex.P-12 issued by P.W.10 after receiving RFSL Report Ex.P-11. 10. In view of the above contentions, the point for consideration is as to whether the prosecution had successfully proved the guilt of the accused and whether the trial Court was right in appreciating the evidence on record while holding that the appellant was the sole responsible person for the death of the deceased ? 11. Point :- In this connection, we prefer to point out certain lapses regarding Ex.P-1. Ex.P-1 is a letter allegedly signed by the deceased, wherein he expressed a doubt that in the event of his death, the responsibility shall be placed on the accused and the reason obviously and as put by the prosecution is that the accused had an illicit intimacy with their tenant viz., V.Ramakrishna, and when P.Ws.1 and 12 were informed by the wife of the said Ramakrishna that because of the illicit intimacy of the accused with her husband, the relationship between her and her husband got spoiled and on account of the said intimacy, the accused was questioned by the deceased and there used to be some disturbances and altercations between the deceased and the accused quite often and for the same reason, the accused left the house along with P.Ws.3 and 4. But, however, owing to the mediation conducted by some elders, she came back and joined the company of the deceased and since then they have been living together again along with their daughters P.Ws.3 and 4. 12. It is the specific deposition of P.W.1 that one-day the deceased handed over the letter to him and P.W.12 requesting them to handover the said letter (Ex.P-1) to the police and accordingly the said letter was handed over to the police. 13. The most intriguing aspect is P.W.13 the Sub Inspector of Police in his examination in chief, deposed that no complaint like Ex.P-1 was ever given to them any time before. Furthermore, an astonishing factor that is on record is that the said letter was introduced into the trial Court through the Public Prosecutor and the same was allowed to be marked by the trial Court. 14. In our considered view, this procedure adopted is something surprising, particularly when P.W.13 himself stated that no complaint was ever received by them. It is known procedure that even if any such letter was given previously, an entry ought to have been made in the Genera Diary in that regard and there must have been endorsement to that effect on Ex.P-1 and the same must have been put in the notice of the Magistrate concerned and refer the case to the Magistrate if it is non-cognizable or on any other law, but no such evidence is forth-coming. 15. The said procedure adopted by the Public Prosecutor as well as the trial Court is not at all acceptable by any standard. So also the trial Court was in serious error in placing heavy reliance and attaching substantial significance to the said document, which is totally impermissible to be brought on record. 16. The next thing that is to be noticed is -- the evidence of P.Ws.1 and 2, which runs almost in the same lines to the effect that on 14-11-2005 at 9.30 a.m., P.W.1 went to the house of deceased and found his dead body with injury on the right side of his forehead and swelling of his neck and when he asked the accused, she appears to have informed him that during midnight the deceased informed her that he was having breathing problem and wanted Zandu Balm and accordingly she supplied and she did not know anything else. P.W.1 also spoke something about the altercation between the deceased and the accused. He also spoke something about the motive for the accused to kill the deceased by saying that he was an eyewitness for the quarrels between the accused and the deceased. 17. P.W.1 further deposed about Ex.P-1, which was said to have been given by the deceased to him and P.W.2, so that the same be handed over to the police and in fact, it was handed over to the police. 18. As already noticed above, as per the evidence of P.W.13 the Sub Inspector of Police, no such letter was available with the Police but surprisingly, the same was introduced on to the file of the trial Court through the Public Prosecutor during trial. 19. P.W.12 on all aspects spoke in the same manner as was spoken to by P.Ws.1 and 2, but the only change is that she deposed that she was informed by the accused that the deceased complained of some discomfort and he wanted some hot water and the same was supplied by the accused. 20. The cumulative effect and the purpose of the prosecution to introduce the above said evidence was obviously to establish the presence of the accused during the fateful night. 21. But, we are of the considered view that the evidence of P.Ws.1, 2 and 12 cannot be relied upon at all, for the reason that their evidence as regards the introduction of Ex.P-1 itself was wholly unrealistic and they are very much interested witnesses in favour of the prosecution. The conduct and the presentation of their version through deposition in the trial Court was highly doubtful and improper and therefore, we are not prepared to rely on the evidence of P.Ws.1, 2 and 12 for any purpose. 22. Further, coming to the other aspect of the medical evidence, which is the earliest document that is on record is the inquest report Ex.P-9 in order to show the cause of death of the deceased. P.W.9, who is the mediator to the inquest, spoke to the fact that he did not find any injury marks on the neck of deceased. He spoke further to the effect that the death of the deceased could have occurred in normal course because of heart failure. He opined that the deceased died naturally due to asthma. However, he went on saying that there was no definite opinion about the cause of death of deceased. The deposition of P.W.9 goes in line with Ex.P-9 inquest report. 23. Similarly, P.W.13 the Sub Inspector of Police, who was also a party to the inquest report Ex.P-9, also stated that he did not find any injury marks on the neck of deceased. 24. It is known principle that inquest is for the purpose of noticing the cause of death initially, subject to the final opinion of the doctor. The doctor P.W.11, who is one of the panel doctors to the SBI in which the deceased was working, first examined dead body of the deceased and he also did not find any injury marks on the neck of the deceased. 25. Therefore, when the initial examination by the mediators as well as a responsible doctor P.W.11 was to the effect that there were no injuries over the body of deceased at all, it is indiscernible for us to find a contra opinion expressed by the doctor P.W.10, who conducted post-mortem examination over the body of deceased. 26. In post-mortem certificate Ex.P-10, P.W.10 incorporated the following injuries: (1) An abrasion injury of 8 x 1 cm., reddish – brown in colour in present over front of forehead, 1½” above the right eye. (2) Multiple cresentoric abrasions two on the left side and four on the right reddish brown ¾ cm size over front of neck, neck is swollen. However, he noticed that there was a fracture of hyoid bone and the same was sent to the RFSL for opinion. But no opinion was expressed in Ex.P-11 RFSL Report. 27. Therefore, there is any amount of variation and discrepant versions among the witnesses and the other evidence on record as regards the actual cause of death of the deceased. 28. This doubt is more obvious, particularly in the light of the opinion of the doctor P.W.10, who stated that it was not possible for one person to cause the death of the deceased; whereas the other evidence on record, as stated above, does not disclose the presence of any injuries over the body of deceased at all. 29. In such doubtful circumstances, particularly as regards the very cause of death of deceased and capability of the accused, who is a woman, to inflict such a fatal injury on the deceased at all. 30. It is to be remembered in this context that the prosecution had failed to establish the presence of the accused on that night and we also express our opinion that the evidence of P.Ws.3 and 4 in this regard though they were declared as hostile, still substantial in nature insofar as the presence of the accused. 31. Even assuming that the accused was present during that night, it is obvious that there were three people residing in that house, which includes P.Ws.3 and 4. 32. In this context, it is relevant to refer to the decision relied on by the learned Senior Counsel in DASARI SIVA PRASAD REDDY VS. PUBLIC PROSECUTOR, HIGH COURT OF A.P.[1], wherein the apex Court dealing with a case in which the situation is almost similar to the case on hand, held that mere fact that the accused could not establish by cogent evidence that on the night of the incident he remained at the house of his parents in another village does not lead to the necessary inference that he was in his own house. 33. Thus, in view of the fact that even according to the prosecution, during the night on the day the alleged incident took place, admittedly not only the deceased but P.Ws.3 and 4 were also present in the same house, it is not possible to hold that the accused alone was responsible for the death of the deceased. 34. We can draw an inference about the cause of death of the deceased at the hands of the accused, if at all there are strong circumstances about the presence of the accused on that night. But we cannot go to the extent of drawing an inference about the very presence of the accused during that night. When it was the specific case of P.Ws.3 and 4 that on the previous day they went to Visakhapatnam for the purpose of counselling along with their parents and the accused stayed back with senior uncle and she returned only next day morning. When that was the case, we cannot arrive at a conclusion that the circumstances are strong enough to hold that the accused was very much present during that night. Therefore, this part of the evidence also is doubtful and as already discussed, the medical evidence also is shrouding with the further doubts. 35. It is settled law that in case of circumstantial evidence, the case against the accused must be very strong and reliable and unimpeachable. 36. But, in the light of the serious doubtful circumstances, we are of the view that it is not safe for this Court to accept the finding of the trial Court and confirm the order of conviction and the consequential order of sentence. 37. In the result, this criminal appeal is allowed and the impugned judgment of conviction and sentence, dated 11-02-2009, in Sessions Case No.130 of 2006, passed by the Sessions Judge, Vizianagaram against the appellant-sole accused for the offence under Section 302 I.P.C., is set aside and she is acquitted of the said offence. The appellant shall be released forthwith, if not required in connection with any other offence. The amount of fine, if any, paid shall be refunded to her. _____________________ JUSTICE D.S.R.VARMA _____________________ JUSTICE R.KANTHA RAO 06th August, 2009. Ak THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.222 of 2009 (Judgment of the Division Bench delivered by DSRV, J.) 06th August, 2009. [1] AIR 2004 SC 4383