THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 378/2007 DATED: 27-07-2010 Between: Turapati Srisailam @ Venkataiah …Appellant-accused And State of A.P. rep. by Public Prosecutor, High Court of A.P. Hyderabad. …Respondent-Complainant THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 378/2007 JUDGMENT: (per THE HON’BLE SRI JUSTICE K.C.BHANU) This Criminal Appeal under Section 374 (2) Cr.P.C. is directed by the appellant-sole accused against the judgment, dated 06-02-2007 in Sessions Case No.348 of 2006, on the file of the V Additional District and Sessions Judge, (III Fast Track Court), Nalgonda at Miryalaguda, whereunder and whereby the accused was convicted of the charge under Section 302 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced to undergo imprisonment for life and also to pay a fine of Rs.1,000/-, in default to undergo Rigorous Imprisonment for one year. 2. Brief facts, that are necessary for disposal of the present appeal, may be stated as follows: P.W.1 is the brother and P.Ws. 2 and 7 are the parents of Mallamma (hereinafter referred to as ‘the deceased’). P.W.4 is the sister-in-law of the accused. The deceased was married to the accused about 20 years prior to the date of incident and were blessed with seven children. Both the accused and the deceased led happy marital life. Since about two years prior to the date of incident, the accused started harassing her and used to beat her. Unable to bear the said harassment, about three months prior to the date of incident, she went back to her parents house. About ten days later, the accused visited her and requested her to join him, but she refused to go with him. On that, a panchayat was held in the presence of P.Ws. 6 and 8 and others. In the said panchayat, the accused executed an agreement with a condition that he would pay Rs.50,000/- as penalty if he beats her in future. It was further incorporated in the said agreement that an equal amount to be paid to the accused if the deceased commits any fault. The said agreement was kept with P.W.2. Thereafter, the deceased joined the accused on the advice of elders. About eight days prior to the date of incident, while P.W.7 was standing at the shops expecting a bus in Nakrekal, the deceased who was in the bus noticed P.W.7 and informed her that the accused was harassing her and that he may kill her if the document is not returned. Subsequently, P.Ws.1,2 and 7 were informed about the death of the deceased. On 01-012006 on information about the death of the deceased, P.W.5 Ex-Sarpanch went to the scene of occurrence at about 7.00 A.M. and thereafter passed on the information to P.W.6, who is the Sarpanch of Adloor village. P.W.6 on receiving the said information informed the same to P.Ws. 1, 2, 7 and others. Then on the arrival of P.Ws. 1 and 2 and on their dictation, he scribed the report under Ex.P1. On 01-01-2006 at about 12.30 hours on receiving telephonic message about the murder, P.W.15 rushed to the scene of offence and there, he received Ex.P1 report and sent the same to the police station. Basing on it, P.W.14, the then Assistant Sub Inspector of Police registered the same as Cr.No.1 of 2006 and issued Ex.P18-FIR. After receiving the C.D. file, P.W.15 visited the scene of offence and prepared an observation report and rough sketch of the scene of occurrence under Exs.P6 and P7 respectively. He then held inquest over the dead body of the deceased in the presence of P.W.10 under Ex.P8. During the course of investigation, he examined and recorded the statements of P.Ws.1, 2 and 7. On 02-01-2006 on receiving requisition, P.W.11- doctor held autopsy over the dead body of the deceased and opined that the cause of the death of the deceased was due to multiple injuries and he issued Ex.P9-post mortem report. On 02-01-2006 P.W.16 the then C.I. of Police took over further investigation, examined and recorded the statements of P.Ws. 6 and 8. On 12-01-2006, he arrested the accused and in pursuance of his statement made in the presence of P.Ws. 12 and 13 at his instance, two pieces of sticks (M.O.4) were recovered under Ex.P20. After receiving relevant documents and on completion of investigation, he filed the charge sheet. 3, The learned Sessions Judge, framed the following charge against the accused: “That you on or about 31-12-2005 at about 9.30 P.M. near the fields of Gopu Venkat Reddy at the outskirt of Utkoor village of Nidmanoor Mandal, committed murder intentionally causing the death of your wife Mallamma by means of a stick and broken sharp stick and thereby committed an offence punishable under Section 302 IPC.” 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 bring home the guilt of the accused, the prosecution examined P.Ws. 1 to 16 and got marked Exs.P1 to 20 besides case properties, M.Os. 1 to 4. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material appearing against him in the evidence of prosecution witnesses. He denied the same and reported no evidence. 6. The trial Court after considering the oral and documentary evidence available on record, found the accused guilty and accordingly, convicted and sentenced him as above. Challenging the same, the accused preferred this appeal. 7. Now the point that arises for consideration in this appeal is whether the prosecution has proved its case against the accused of the charge under Section 302 IPC beyond all reasonable doubt? 8. Learned counsel appearing for the appellant-accused contended that absolutely, there is no evidence to show that the deceased was in the company of the accused prior to the incident or at the time of incident or after the incident, that scene of occurrence has not been explained by the prosecution, that it is not the case of the prosecution that the dead body of the deceased was shifted to the residence of the deceased from the place of occurrence, that the evidence of parents and brother of the deceased would go to show that the deceased was being treated cruelly prior to the incident, that a panchayat was also held with regard to that incident and the mediators advised the accused to live amicably with the deceased, that except that fact, which had taken place long prior to the incident, there is absolutely no motive for the accused to kill the deceased, that the trial Court without considering these aspects came to a wrong conclusion in convicting the accused and hence, he prays to set aside the conviction and sentence recorded against the appellant-accused. 9. On the other hand, learned Additional Public Prosecutor contended that the deceased was subjected to harassment prior to the date of incident, that a mediation was also held in the presence of elders and in the presence of elders, the accused promised that he would look after the deceased properly, that since as on the date of incident, admittedly, the deceased was living with the accused in the hut, it is for the accused to explain as to how the deceased died, that in all probability the crime was committed by the accused and none else, that the trial Court after proper appreciation of evidence on record rightly found the accused guilty and absolutely, there are no grounds to interfere with the same. 10. P.W.15, who is the Sub-Inspector of Police held inquest over the dead body of the deceased in the presence of P.W.10 at the outskirts of Utkoor village. The inquest mediators opined that the deceased died as a result of multiple injuries. The opinion of the inquest mediators was incorporated in Col. No.15 of Ex.P8. 11. P.W.11 is the doctor who conducted autopsy over the dead body of the deceased, found the following injuries: 1. Contusion 4 x 2 cm right side of forehead. 2. Contusion 3 x 2 cm right cheek. 3. Contusion 3 x 1 cm on nose. 4. Cut injury 2 x 1 cm at right breast. 5. Contusion 8 x 2 cm on right lower chest. 6. Contusion 3 x 2 cm at right Iliac Fosse. 7. Contusion of 7 x 3 cm left thigh. 8. Contusion 4 x 2 cm on the middle of left thigh. 9. Contusion 8 x 4 cm on right buttock. 10.Contusion 7 x 3 cm on left buttock. 11.Scar admeasuring 5 cm lower abdomen. 12.Fracture of right 7,8, 9 ribs. He opined that the deceased died as a result of multiple injuries and he issued Ex.P9-post mortem certificate. The evidence of P.W.11 and the recitals in Ex.P9 remained unchallenged. Therefore, it is established beyond reasonable doubt that the death of the deceased is homicidal in nature. 12. Now it has to be seen whether the accused is the assailant of the deceased or not? 13. The scene of occurrence assumes importance in view of the fact that the case rests upon circumstantial evidence. The evidence of P.Ws. 1 to 3, 6 and 7 would disclose that on coming to know about the death of the deceased, they went to the village and saw the dead body at the hut of the accused and the deceased. Whereas the inquest was conducted by P.W.15 at the outskirts of Utkoor village. Similarly scene of occurrence report was scribed under Ex.P6 in the presence of P.W.3 and others. As seen from Ex.P6, it is clear that the scene of occurrence is in the outskirts of Utkoor village. P.W.15 also prepared rough sketch of the scene of occurrence, which would disclose that there were no residential houses or houses in and around the scene of occurrence. Therefore, the prosecution failed to establish that at what place the incident has allegedly taken place. 14. In view of the fact that the entire case rests upon the circumstantial evidence, the prosecution has to prove the following circumstances in view of the decision reported in PADALA VEERA REDDY V. STATE OF ANDHRA PRADESH & OTHERS [1] , wherein it was held that: “ 1) the circumstances from which an inference of guilt is sought to be drawn, must be cogent 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.” Bearing the above principles in mind, it has to be seen whether the prosecution is able to establish the guilt of the accused beyond all reasonable doubt. 15. It is not in dispute that the marriage of the deceased with the accused was performed about 20 years prior to the date of incident. It is also not in dispute that the deceased begot seven children. For about 18 years, they lived happily like that of any other couple. Two years prior to the death of the deceased, the accused started harassing her, beating her and he was not providing food to her. Therefore, unable to bear the harassment, she went to her parents house at Adloor village. Ten days prior to the date of incident, the accused came to the village of the deceased in order to take back his wife, but the deceased refused to go along with him. Therefore, the matter was placed before the elders i.e. P.Ws. 6 and 8. The elders chastised the accused and directed him to look after his wife properly. As per the advice of the caste elders, the accused executed an agreement as in Ex.P2 with an undertaking that he did not create any further troubles to her and in case if he contravenes any condition in the agreement and resumes ill-treatment towards the deceased, he agreed to pay Rs.50,000/- to the deceased. Then the parents of the deceased sent her along with the accused. P.W.15 upon receipt of telephonic message about the taking place of murder at Utkoor village, rushed to the village and found the dead body of a female at the hut which is situated near Lord Anjaneya Swamy Temple near Utkoor cross roads. Then P.W.1 presented Ex.P1 complaint. P.W. 15 sent the complaint to the police station with a direction to register the case. P.W.14 registered the case and issued F.I.Rs to all concerned. Thereafter, Sub Inspector of Police, visited the scene of occurrence and observed the same in the presence of P.W.9 and others. He also received Ex.P2 which is the agreement said to have been executed by the accused, from P.W.2. Thereafter, the investigation was taken over by P.W.16 who verified the investigation conducted by the Sub Inspector of Police and found it on correct lines. On 12-01-2006, the Inspector of Police apprehended the accused and the accused led the police and mediators to the fields of Gopu Venkat Reddy and brought two pieces of stick allegedly used in the commission of offence. The same were seized by the police. 16. P.Ws. 4, 5, 12 and 13 did not support the case of the prosecution. They have given a complete go by to their earlier version recorded by the police during the course of investigation. 17. The evidence of P.W.1, who is no other than the brother of the deceased and P.Ws. 2 and 7, who are no other than the parents of the deceased would go to show that prior to the date of incident, the deceased was subjected to ill-treatment and harassment. At best, their evidence would disclose about the motive for the offence. 18. P.W.3 is the photographer who has taken the photographs of the dead body of the deceased under Ex.P3. 19. The evidence of P.Ws. 6 and 8 would disclose that a panchayat was held six months prior to the date of incident. In that panchayat, the elders chastised the accused not to harass the deceased. Therefore, there is no other evidence to show that the accused was last seen in the company of the deceased prior to the incident or at the time of incident or after the incident near the land of Gopu Venkat Reddy at the outskirts of Utkoor village. The incident has not taken place in the hut of the deceased and the accused so as to infer that there was no scope or possibility for any third person to commit the murder of the deceased. The witnesses who were examined to speak about certain incriminating circumstances against the accused did not support the case of the prosecution. In the absence of any other circumstances to infer that the crime was committed by the accused and none else, it is unsafe to base a conviction merely on the surmises and conjectures. If the circumstantial evidence as adduced by the prosecution is to be accepted as true and correct, it will not lead to an irresistible conclusion that the crime might have been committed by the accused and none else. 20. Even recovery of M.O.4-two broken stick pieces after arrest of the accused cannot be shown to be the weapon of offence in view of the fact that M.O.4 does not contain any blood stains and furthermore, M.O.4 was not sent to Forensic Science Laboratory to know whether any blood stains are there or not. The doctor was not asked whether the injuries found on the body of the deceased would be possible by beating with broken stick pieces like M.O.4. Therefore, the recovery of M.O.4 at the instance of the accused cannot be said to be an incriminating circumstance against him. Except stating that just six months prior to the date of incident, the deceased was subjected to harassment by the accused, absolutely there is no other evidence to indicate that on the fateful day of the incident, i.e., on 31-12-2005 at about 9.30 P.M. the accused alone was present in the company of the deceased. The prosecution has not examined any witnesses to show that the accused was last seen in the company of the deceased near the fields of Gopu Venkat Reddy at the outskirts of Utkoor village. Therefore, absolutely there are no circumstances to indicate that the accused is the perpetrator of the crime. In the absence of any such circumstances, conviction of the accused is unsustainable. Hence, the accused is liable to be acquitted. 21. Accordingly, the Criminal Appeal is allowed setting aside the conviction and sentence recorded against the appellant/accused of the charge under Section 302 IPC, by the V Additional District and Sessions Judge, (III Fast Track Court), Nalgonda at Miryalaguda, vide judgment, dated 06-02-2007 in Sessions Case No.348 of 2006. The appellant/accused is found not guilty of the charge under Section 302 IPC and accordingly, he is acquitted of the same. The appellant/accused shall be released forthwith, if he is not required to be detained in any other case. Fine amount, if any, paid by the appellant/accused shall be returned to him. ____________________ A.GOPAL REDDY, J _______________ K.C.BHANU, J DATED: 27-07-2010 Hsd [1] AIR 1990 Supreme Court 79