HONOURABLE SRI JUSTICE A. GOPAL REDDY AND HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No.196 of 2008 Between: Antharapu Pedda Jangaiah. …. Appellant and State of A.P. rep. by Public Prosecutor. …. Respondent This Court made the following: HONOURABLE SRI JUSTICE A. GOPAL REDDY AND HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No.196 of 2008 JUDGMENT: - (per Hon’ble Sri Justice A.Gopal Reddy) The appellant/sole accused, who was put on trial for the oﬀence under Section 302 IPC in Sessions Case No.216 of 2006 on the ﬁle of VI Additional Sessions Judge, R.R.District, Fast Track Court was convicted and sentenced to imprisonment for life and ﬁne of Rs.2,000/- in default to undergo simple imprisonment for a period of two months, ﬁled this appeal questioning the conviction and sentence recorded against him. 2. The gravamen of the charge against the accused is that on 24.10.2006 the accused intentionally caused the death of Kum.Vasantha, D/o.Jangamma by throttling her and thrown into the well of Patan Jahangeer situated at the outskirts of Shivareddypally village to take revenge on his wife Jangamma. 3. The prosecution story as narrated during the course of trial is briefly stated as under:- The accused got married with Jangamma-P.W.2, who was already married and blessed with a daughter aged about 5 years, whereas the accused married thrice earlier and two of his wives expired and the third wife divorced him. Kum.Vasantha (hereinafter referred to as, “the deceased”) was got admitted in Social Action For Needy People Sant (Hostel) at Bompally, by her grandmother P.W.1 and studying in Central Primary School, Bompally. Three months prior to Dasara festival, mother of the deceased and wife of the accused went to the house of P.W.1 as she was suﬀering from ill health. Later accused went to the house during Dasara festival and asked P.W.1 to send back P.W.2 and when she refused to send P.W.2 along with him to Malkapur he went away. On the intervening night of 23/24.10.2006 at 03:30 AM, when the accused demanded his wife to fulﬁll his sexual lust, she refused. So he picked up a quarrel and beat her by abusing her. On that P.W.2 abused the accused and exchanged hot words and thereby she remained at her mother’s house and looking after the deceased. So the accused was enraged and thought to liquidate her daughter and accordingly hatched a plan to kill her. On the very next day, the accused left his in- law’s house and went to Bompally Central Primary School where the deceased was studying and taken her away from the school on the pretext that her mother was calling her and taken her to the well of Patan Jahangeer- P.W.7 in the outskirts of Sivareddypally village and throttled her and thrown into the said well and killed her to take revenge on his wife. Thereafter P.W.7 informed the same to P.W.1 and she along with her family members visited the scene of oﬀence and saw the dead body. Meanwhile the police came and took her to the place where Sarpanch of the village got written a complaint and submitted the same to the police, on which basis the crime was registered by P.W.10 and issued Ex.P6 F.I.R. and dispatched the same to all the concerned. P.W.11-Inspector of Police, took up investigation. During the course of investigation, P.W.11 visited the scene of oﬀence and saw the dead body of the deceased ﬂoating on the water and took the photographs of the scene of oﬀence with his camera and got removed the dead body of the deceased; examined the witnesses; conducted inquest over the dead body and prepared Ex.P2 inquest report; prepared scene of observation report under Ex.P3; drawn rough sketch under Ex.P4; sent the dead body for post mortem examination; arrested the accused; and after receiving all the relevant reports, filed charge sheet. 4. In order to prove the case of the prosecution, P.Ws.1 to 11 were examined and Exs.P1 to P7 were marked. On closer of the evidence, the accused was examined under Section 313 Cr.P.C. on the incriminating evidence adduced by the prosecution, for which the accused denied the same and not opted to examine any witness on his behalf. 5. Learned Sessions Judge on appreciation of the oral and documentary evidence was of the view that the evidence adduced by the prosecution is trustworthy to connect the accused with the commission of the oﬀence and accordingly convicted and sentenced him as aforementioned. 6. Learned counsel for the petitioner contends that in the absence of any eye witnesses to the incident and when the entire case rests upon the circumstantial evidence all the circumstances unerringly should point out the guilt of the accused beyond reasonable doubt. When P.W.5 stated that the deceased was taken from the school by the accused in the morning at 11.40 AM after interval and failed to say the same when he was examined by the investigating oﬃcer, itself is suﬃcient to say that he has not last scene the deceased in the company of the accused and the accused taking the deceased from the school cannot be believed. Mere suspicion expressed by P.Ws.1 and 2 and disputes between P.W.2 and the accused, itself cannot form the basis to convict the accused. Further the evidence of the Doctor-P.W.9 has not been corroborated with the charge. Therefore, the accused is entitled to acquittal. 7. Learned Additional Public Prosecutor sustained the conviction and take out through the evidence adduced by the prosecution. 8. Now the point for consideration in this appeal is:- Whether the prosecution established the guilt of the accused beyond reasonable doubt? P O I N T :- 9. The entire case of the prosecution rests upon the circumstantial evidence. When a case rests upon 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.” 10. P.W.1, who is no an eye witness and grandmother of the deceased, deposed that on the date of the incident in the early hours, at 03:00 AM the accused took her daughter into streets and tried to strangulate her and as a result her daughter fell down. She along with family members brought her daughter inside the house. The accused ran away after beating his wife. She further deposed that in the evening at 05:00 PM one Pattan Jahangir-P.W.7 telephoned to their village and informed her that her grand daughter was killed and her dead body was in his well. She along with her family members and others went to the well of P.W.7 situated in the outskirts of the Shivareddypalli village. She saw the dead body of the deceased ﬂoating on the water in the agricultural well of patan Jahangir. She lodged the report before the police. 11. P.W.2, mother of the deceased, deposed that she came to her mother’s house before Dasara festival due to her ill health. After eight or ten days the accused came and asked her to join his company to Malkapur. She stated to him that since he was not feeling well, after she recovered she would join his company. After that he went away, again he came on Dasara festival to her parents house and quarreled with her. After Dasara festival he went away. Again two days after Deepavali festival, he came to her parents house and quarreled with her demanding her to join his company at Malkapur. She further deposed that in the early hours at 03:00 AM, he woke up her and took her outside the house and beat her. On that she cried and pured a kerosene on her body and he also strangulated her with towel, due to which she fell down and lost conscious and on the next day she gained conscious. On that, she informed the village elders about the incident and they got written the complaint and gave it to the police. After she gained conscious, while the accused was leaving the house, he stated anyhow she escaped from his attempt, but he would kill her daughter. She further deposed that in the evening at 05:00 PM, Patan Jahangir telephoned to the village and informed about the death of her daughter. On that she went to the well of Patan Jahangir and saw the dead body of the deceased ﬂoating on the well of Patan Jahangir. She suspected that the accused might have killed her daughter and thrown her dead body in the well. The evidence of this witness that she regained conscious on the next day rules out the possibility of her going to the well and seeing the dead body, which appears to be inconsistent with her earlier part of the evidence. 12. P.W.5, who is one of the material witnesses to prove the case of the prosecution, deposed in his evidence that he is working as a teacher in Social Action for Needy People Camp (Hostel) at Bompally. On 17.10.2006 Venkateswara Rao, one of the teachers of their school brought the deceased to their school and admitted her in their school. The deceased used to stay in the said camp at Bompally. On 24.10.2006 at about 11:40 AM, after interval one person by name Jangaiah came to their school and stated that his daughter Vasantha is studying in their school and her mother called her. He took the deceased on the pretext of her mother was called. Then he called the deceased and she identiﬁed the accused as her father and with the consent of the deceased, he sent the deceased along with the accused. He further deposed that on the same day at 05:00 PM he came to know about the death of the deceased and her body was lying in Sivareddypally village. Police enquired him at 07:00 PM and he stated all the facts and after 02:00 PM when P.W.6, who admitted the deceased in their school came and enquired about the deceased not turned up for lunch, he told him that her father came and took her along with him. Whereas the evidence of P.W.6 is that on 24.10.2006 in the lunch time when he counted the children he found missing of the deceased. Then he enquired her classmates and they stated that her father came and took her. After completion of the lunch, he along with children went to the school and enquired with P.W.5 about the deceased. He told that the father of the deceased came and took her. On the same day in the evening, he came to know that some child fell in the well and died. 13. The Investigating Oﬃcer-P.W.11 admitted in the cross-examination that P.W.5 did not state before him that a person, who came and represented that he was the father of the deceased and took the deceased, did not state his name as Jangaiah. 14. P.W.9, the doctor, who conducted the post mortem examination of the deceased and issued Ex.P5 post mortem report stated that the cause of the death is due to throttling and drowning. In the cross- examination, he admitted that if a person fell in the well, the dead body will be traced out on the water after two days and that if a person kills outside of the well and after half an hour the dead body was thrown in the well, during the time of post mortem examination on such person, the medical oﬃcer will found no water in lungs and stomach. If a person fell in the water while he was alive there will be water in the lungs and stomach. As per Ex.P5, he found full of water in the lungs and stomach of the deceased. He could not found any abrasion mark around the neck of the deceased at the time of post mortem examination. Since he found blood was coming from the nose of the deceased, he gave opinion that the deceased died due to throttling and drowning. 15. The said evidence of the Doctor, P.W.9, completely destroys the charge namely that the accused killed the deceased by throttling the deceased and thrown her into the well of P.W.7 situated in the outskirts of the Shivareddypally village. The learned Sessions Judge fell in error in convicting the accused holding that the evidence of P.W.5 is corroborated with P.W.6 with regard to the accused taking the deceased along with him from the school by taking permission from P.W.5 representing himself as father of the deceased and that the circumstances of motive for the oﬀence that when P.W.2 failed to join the company of the accused and on the incident day in the early hours she failed to cooperate the accused for sexual intercourse, the accused bore grudge and threatened to kill her daughter. As the evidence adduced by the prosecution and the chain of the circumstances are not complete to connect the accused with the commission of the oﬀence, we are unable to agree with the view expressed by the learned Sessions Judge in convicting the accused and hence, the accused is entitled for a benefit of doubt. 16. In the result, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellant/sole accused by the VI Additional Sessions Judge, Rangareddy District at Vikarabad, in Sessions Case No.216 of 2006 on 30.01.2008 for the oﬀence punishable under Section 302 of Indian Penal Code is hereby set aside and the appellant/sole accused is acquitted for the said oﬀence. Appellant shall 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 _____________________ R. KANTHA RAO, J 24th November, 2011. LMV HONOURABLE SRI JUSTICE A. GOPAL REDDY AND HONOURABLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.196 of 2008 (Judgment of the Bench delivered by Sri AGR, J) 24-11-2011 LMV [1] AIR 1990 SUPREME COURT 79