THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1337 of 2007 Dated : 20.06.2011 Between : Muvvala Ganesh …. Appellant-accused a n d The State of A.P. … Respondent THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1337 of 2007 JUDGMENT: (per The Hon’ble Sri Justice Raja Elango) This Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) is filed by the appellant- accused questioning the judgment of conviction passed in Sessions Case No.38 of 2007 by the I Additional Sessions Judge at Srikakulam on 28.08.2007 wherein the appellant was convicted under Section 235 (2) Cr.P.C. and sentenced to undergo imprisonment for Life and also to pay fine of Rs.1,000/- for the offence punishable under Section 302 of Indian Penal Code (for short ‘IPC’). 2) The case of the Prosecution, in brief, is that about two years prior to the incident in the present case, the accused married the deceased Kundanamma. At the time of their marriage, the father of the deceased did not give any dowry and also not fulfilled any formalities since the accused and deceased got love marriage. Thereafter, the couple went to Madras for eking out their livelihood. In Madras, the deceased developed illicit affairs with others and on coming to know the same accused admonished the deceased, but she did not heed the words of the accused and continued her acts. Since then, the accused developed suspicion over the character of the deceased. While so, about one month prior to the present offence the couple came down to Nunnalaveru village on account of second marriage of the father of the deceased at which time the deceased was carrying 5th month pregnancy. On the intervening night of 03/04.03.2006 at 0100 hours when the marriage of the father of the deceased was taking place a quarrel took place between the accused and the father of the deceased with regard to ‘Alludu Lanchanamulu’, on account of which the accused and the deceased left the marriage venue at 0200 hours. Keeping those disputes in mind coupled with his suspicion over the character of the deceased, the accused tried to kill her by throttling, but the deceased escaped from the clutches of the accused and ran towards the backyard causing nail injuries on his face and neck. But, the accused chased her and caught hold of her at the backyard and killed by throttling. After she lost her breath, accused dragged her dead body to the middle room of the house, locked the doors and fled away. On the following day, when the father and brothers of the deceased questioned the accused about the whereabouts of the deceased, he denied knowledge of the same. All of them together with the accused went to the house of the accused, opened the lock and found the dead body of the deceased in the middle room of the house. When the father and brothers of the deceased questioned the accused, he carried away the dead body to burial ground. On witnessing the same LWs 5 to 9 rushed to the burial ground and on seeing them accused fled away by leaving the dead body at burial ground. Thereafter, the father of the deceased went to the Panchayat Secretary of the village and narrated the incident, who in turn, recorded the statement of the accused, took him to Police Station and handed over him to Police together with his report to Vajrapukothuru Police, basing on which a case in Crime No.7 of 2006 has been registered. 3) The investigation agency after completion of entire investigation and receiving necessary certificates filed charge against the sole accused, which was numbered as P.R.C. No.9 of 2006 by the Judicial Magistrate of First Class, Palasa. 4) On committal, the learned Sessions Judge examined the accused under Section 228 of the Code of Criminal Procedure and framed charge under Section 302 IPC, in which, the accused denied the charge and claimed for trial. 5) In order to prove the guilt of the accused, Prosecution examined PWs 1 to 12 and marked Exs.P.1 to P.18 apart from marking MOs 1 to 8. After closure of Prosecution evidence, accused was examined under Section 313 Cr.P.C. in which he denied the incriminating evidence put to him available in the evidence of Prosecution witnesses. Accused did not choose to adduce any oral and documentary evidence on his behalf. After hearing the arguments on both sides and on appreciation of entire evidence, the learned Session Judge rendered the impugned judgment as stated above. 6) Heard the learned counsel for the appellant and the learned Public Prosecutor for the State. 7) P.W.1, who is the Panchayat Secretary of Nuvvalarevu village, deposed regarding the information received by him from P.W.2, the father of the deceased, and the statement recorded by him under Ex.P.1. He also deposed to the effect that he visited the house of the deceased where Police seized MO-1 earth, MO-2 broken bangle pieces and MO-3 soiled pasupu tradu with key, black beads and safety pins. In that connection Ex.P.3 observation-cum-seizure report was drafted. The said witness is also present at the time of inquest along with the President of the village and he stated to have observed the injuries on the dead body of the deceased. The inquest report is marked as Ex.P.5. 8) P.W.2 the father of the deceased deposed that the accused informed him that his wife was not found in the house. Then, he accompanied the accused with his two sons Prasad and Gurumurthy to the house of the accused, opened the door of the house with the key given by the accused, entered into the house and found dead body of the deceased. He also deposed that he witnessed injuries on the dead body of the deceased. It is also his evidence that the accused lifted the dead body on his shoulder and ran towards cremation ground and from that place the accused fled away. The witness also informed the fact that he lodged report with P.W.1 under Ex.P.1 and affixed his thumb impression. 9) P.W.3 who accompanied P.W.2 also deposed on the same lines of P.W.2. P.W.4, who is the neighbour of the accused, deposed regarding the marriage of P.W.2 and also of witnessing the return of accused and deceased from the marriage and entering into the house. He also stated to have heard some sounds from the house of the deceased. He further deposed about the quarrel between P.W.2, the accused and also the sons of P.W.2 took place on the next day morning. He also deposed that he entered into the house of the deceased and found the dead body of the deceased. The said witness also stated that the accused lifted the dead body and ran towards the cremation ground, put the dead body at cremation ground and fled away. 10) P.W.5 the Sarpanch of Nuvvalarevu village deposed regarding visiting the cremation ground and observing the dead body of the deceased in the cremation ground. He further deposed that on 05.03.2006 the accused came to his house at 3.00 p.m. and confessed that he throttled his wife since he was suspecting her fidelity and also his father-in-law did not gave lanchanams. Then, he along with caste elder Behara Kailas took the accused to Police Station and handed over to the Police along with a letter duly signed by him vide Ex.P.6. 11) P.W.6 is a resident of the same area and he also attended the inquest. He deposed that on next day of inquest i.e. on 05.03.2006 on receiving a call from P.W.5 he went to the house of P.W.5 and found the accused in the house of P.W.5. He also deposed that the accused informed them the manner in which he committed the crime. P.W.7 is the Mandal Revenue Officer, who conducted inquest over the dead body of the deceased on 04.03.2006 at 11.00 a.m. under Ex.P.4. He also recorded the statement of PWs 1 to 3 and one Binapalli Prasad under Exs.P.8 to P.11 respectively. 12) P.W.8 is the photographer who took the photographs of the dead body deposed regarding the photos taken by him under Ex.P.12. P.W.9 is the Civil Assistant Surgeon who conducted post- mortem examination over the dead body of the deceased on 05.03.2006 at 10.00 a.m. and issued Ex.P.13 P.M. Certificate. He opined that the death of the deceased is due to throttling and death would have occurred 26 hours to 48 hours prior to the examination. 13) P.W.10 is another Civil Assistant Surgeon who examined the accused on receiving intimation from Police on 05.03.2006 at 5.30 p.m. and he found the following injuries on the accused: i) A contusion in the left cheek measuring 2 x 1 x ½ cm brown in colour circular in shape. ii) A small abrasion measuring 1/4th x 1/4th cm in the right side of neck dark blown to black in colour iii) A small abrasion measuring 1/4th x 1/4th cm red in colour iv) Multiple small abrasions present behind left ear, dark brown to black in colour a) Nail clippings of both left and right hand with mud b) 5 ml of venous blood are preserved for FSL analysis. Ex.P.14 is the wound certificate of the accused issued by P.W.10. 14) P.W.11 the Sub-Inspector of Police states about receipt of complaint from P.W.1 and registration of crime No.7 of 2006 for an offence under Section 302 IPC. P.W.12, the Inspector of Police, who took up further investigation in the case deposed regarding examination of witnesses, preparing observation panchanama, rough sketch and seizure of material objects, arresting the accused and filing the charge sheet after collecting the post-mortem certificate. 15) On the basis of the above elicited evidence adduced by the prosecution witnesses, the learned Sessions Judge rendered the impugned judgment mainly relying on the evidence of PWs 2, 3 and 4, who witnessed the accused at the place of occurrence, and also believing the evidence of P.W.5 who recorded the confession of the accused. 16) It is the case of the prosecution that the appellant-accused on the fateful day committed murder of his wife by throttling her neck. The entire case is based on circumstantial evidence. P.W.2 though stated before the Court that he went to the house of the accused along with his two sons duly accompanied by the accused, he has not stated the same at the time of his examination by the investigation officer. The said fact was deposed by P.W.2 for the first time before the Court only. Presence of P.W.3 is also unbelievable since the presence of P.W.3 was not stated by P.W.2 and P.W.3 also not stated the same before the investigation officer. It is pertinent to mention here that both P.Ws 2 and 3 are the interested witnesses. Further, the theory that the accused carried the dead body from the house to the cremation ground is totally unbelievable and there is no explanation on the part of PWs 2 and 3 as to why they have not prevented the accused from doing the same and also why they have not secured the presence of the accused and produced him before the Police. Further, it is evident from the evidence adduced that in Nuvvalarevu village, where the place of occurrence is situated, more number of houses are situated and number of people are also living in the surrounding houses. In such a situation, the accused carrying the dead body and traveling for 1 km that too in the presence of PWs 2 and 3 creates a doubt about the occurrence of the crime that too in the absence of any explanation as to why PWs 2 to 4 have not prevented the accused from carrying the dead body, securing his presence and producing him before the Police. 17) In the present case P.W.4 is the key witness for the prosecution. The said witness was examined by the prosecution to substantiate the fact that the accused and the deceased returned to home and entered into the house. But, in the absence of any statement by P.W.4 before the investigation officer regarding the presence of the accused and deceased at the time of occurrence, his testimony given in the Court is not acceptable being it is a material improvement which would cause prejudice to the appellant-accused herein. 18) P.W.5 evidence also plays vital role in deciding the case. He deposed that the accused came to his house on 05.03.2006 at 3.00 p.m. and confessed regarding the crime. It is almost in the nature of extra judicial confession. But, at the same time it is to be noted that the said witness prior to recording the said confession, participated in the investigation and is also aware of the allegation that the accused is the person who committed the crime from the other witnesses. In such a situation, the information furnished by the accused is not first information to P.W.5 and is not a surprising statement to him and the said statement is also not properly recorded by P.W.5. Hence, the statement alleged to have recorded by the witness also liable to be rejected. Further in cross examination, he admits that prior to lodging the report, Police came to the village and he also accompanied Police officials to the house of the accused. Further, the evidence of the said witness clearly indicates that prior to lodging the report Police came to the house of the deceased and also it is the evidence adduced by him that on coming to know that police came to the village, the accused fled from the cremation ground. 19) The learned Sessions Judge mainly relied on the above discussed evidence while convicting the accused. He also relied on the answers given by the accused during examination under Section 313 Cr.P.C. wherein he stated that he sustained injury in the hands of his wife on the date of occurrence in coming to the conclusion that the accused and the deceased were in the house at the time of occurrence. 20) But, on careful appreciation of the above elicited evidence, this Court doubts the presence of the accused in the place of occurrence at the time of visit of P.W.2 and the theory that the accused carried the dead body from the house to the cremation ground all alone in the presence of witnesses also highly improbable and unbelievable. The evidence of P.W.4, being an improvement in the Court on material facts, cannot be relied upon. Mere answers given by the accused while examination under Section 313 Cr.P.C. will not have the evidentiary value to convict him. Hence, this Court is of the view that the learned Sessions Judge on the basis of suspicion and on the basis of unbelievable and improbable evidence adduced by the prosecution convicted the accused. 21) Further, it is now well settled that when a case rests upon the circumstantial evidence, the prosecution must establish all the links in the chain of circumstances, so that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. On this aspect, it is pertinent to refer to a decision reported in Padala Veera Reddy v. State of A.P.,[1] wherein at para 10 it was held as follows:- “(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.” 22) In the absence of any other corroborative evidence adduced by the prosecution, this Court is of the view that it is highly unsafe to convict the accused that too for an offence under Section 302 IPC, which is punishable with a minimum sentence of life imprisonment. The prosecution failed to establish the guilt of the appellants-accused by adducing any clinching evidence connecting them with the crime. 23) In the result, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellant-accused by the learned I Additional Sessions Judge, Srikakulam, in Sessions Case No.38 of 2007 on 28.08.2007 for the offence punishable under Section 302 of Indian Penal Code are hereby set aside and he is acquitted for the said offence. Appellant-accused be set at liberty forthwith, if he is not required in any other case. The fine amount paid by the appellant, if any, shall be returned to him. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J 20th June, 2011 sur [1] AIR 1990 Supreme Court 79