THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE R. KANTHA RAO Crl.A.No. 82 of 2008 Dt.14-11-2011 Jalagadugula Satyanarayana @ Munna ..Appellant/accused V. The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., at Hyderabad. ..Respondent/complainant The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE R. KANTHA RAO Crl.A.No.82 of 2008 JUDGMENT (per the Honourable Justice A.GOPAL REDDY) The sole accused in SC No.62/2005 on the file of Sessions Judge, Mahila Court, Visakhapatnam, who was put on trial for the offences punishable under Sections 498-A and 302 IPC for causing harassment or cruelty since the date of marriage of Santhosh Roopa Devi ie., since 1996 and for causing the death of his wife, Santhosh Roopa Devi (hereinafter referred to as “the deceased”) on 26-3-2005, was convicted for the offences punishable under Section 498-A and 302 IPC and sentenced to suffer rigorous imprisonment for a period of three years for the offence under Sec. 498-A IPC and sentenced to suffer imprisonment for life and to pay a fine of Rs.1000/- in default to suffer SI for three months for the offence under Section 302 IPC, by judgment of that court dt. 22-12-2006. He filed this criminal appeal challenging the correctness of the conviction and sentences recorded against him. The appellant in the appeal will hereinafter referred to as “the accused”. The prosecution story, as unfolded during the trial, which led to the conviction of the accused, is as follows: The accused is the husband of the deceased. The accused fell in love with the deceased. Elders of the accused and the deceased agreed for their marriage and their marriage was performed in the year 1996. During the wedlock, two male children were born to them and both lived happily for sometime. Thereafter, the accused used to ill- treat the deceased and started to beat her by suspecting her character and to get money from her parents. While they were residing in Indiranagar, Kancharapalem, Visakhapatnam, on the mid-night of 26- 3-2005, the accused beat the deceased indiscriminately and brutally murdered her. On coming to know of the incident, P.W.1, who is the father of the deceased, lodged a report covered under Ex.P-1 with P.W.11 at about 11-30 AM on 27-3-2005. Basing on Ex.Ex.P- 1, P.W.11 registered a case in Cr.No.133/2005 under Section 302 IPC and submitted the original First Information Report covered under Ex.P-11 to the court. P.W.11 examined P.W.1 and recorded his statement. P.W.12, who took over further investigation from P.W.11, visited the scene of offence and verified the same in the presence of P.W.7 and another. He got the scene photographed. He also got drafted an observation report covered under Ex.P-2. He seized material objects, M.Os.1 to 7, at the scene of offence. He examined P.Ws.1 to 7 and others and recorded their statements. He also prepared the rough sketch covered under Ex.P-12. He conducted inquest over the dead body of the dead. Ex.P-3 is the inquest report. After conduct of inquest, he sent the dead body for postmortem examination. P.W.8, who is Assistant Professor of Forensic Medicine, Andhra Medical College, Visakhapatnam, conducted autopsy over the dead body of the deceased. P.W.12 sent material objects for chemical analysis. He also sent the viscera preserved by the Medical Officer- P.W.8. On receiving F.S.L. reports covered under Exs.P-6 & 7, P.W.8 issued post-mortem report covered under Ex.P-4 opining that the deceased would appear to have died of head injury associated with other multiple injuries and semen and spermatozoa detected in swabs and smears preserved from the body by the Serologist, RFSL, Visakhapatnam. P.W.12 arrested the accused on 28-3-2005 and sent him for judicial custody. After completion of investigation and on receiving relevant reports, P.W.12 filed the charge sheet before the III Metropolitan Magistrate, Visakhapatnam. Learned Magistrate took the charge-sheet on file as PRC No.12/2005 and committed the case to the Court of Sessions, Visakhapatnam Division, Visakhapatnam as the offence under Sec. 302 IPC is exclusively triable by Court of Sessions. The learned Sessions Judge took the case on file as SC No.62/2005 and made over to Sessions Judge, Mahila Court, Visakhapatnam. The learned Sessions Judge on hearing the prosecution and the accused, framed two charge for the offence punishable under Sections 498-A and 302 IPC against the accused, read over and explained the same to the accused in Telugu, for which the accused pleaded not guilty and claimed to be tried. To substantiate the charges framed against the accused, the prosecution has examined P.Ws.1 to 12 and got marked Exs. P-1 to P- 12 besides the case properties, M.Os.1 to 7. After closure of prosecution side evidence, the accused was examined under Sec. 313 Cr.P.C., and he denied the incriminating material appearing against him in the evidence of the prosecution witnesses. On behalf of the defence, no oral evidence was adduced, but Ex.D-1 was got marked. P.W.1, who is the father of the deceased, testified that in the month of January, 2005, the accused beat the deceased severely and she came to his house with severe injuries. Immediately, he took her to V Town Police Station and reported the matter to the police and the police registered a crime against the accused. His daughter requested the police not to harass the accused. Later her deceased daughter joined the company of the accused. On one Saturday at about 8-30 or 9 P.M. the accused and the deceased came to his house and asked for money, then he paid Rs.25/-. On the next day, at about 9 AM, accused sent a message through his elder brother and his brother-in-law that his deceased daughter died. On the said information, himself, P.W.2 and neighbours went to the house of the accused and noticed the dead body of the deceased. He noticed that blood was oozing from her mouth. He reported the matter to the police covered under Ex.P-1. P.W.2 who is the mother of the deceased and P.W.3 who is the younger brother of the deceased stated in similar lines as that of P.W.1. P.W.2 further stated that the accused used to suspect the character of the deceased and used to threaten the deceased to kill the members of their family. She further stated that on receipt of death information, they went and saw the dead body. P.W.5, who is the grand mother of the deceased, stated that when the accused was involved in the rape case, the deceased came to her and asked for money and she paid Rs.1000/- to her. She further deposed that on one or two occasions, the accused beat her also. 15 days prior to the death of the deceased, she gave Rs.1,500/- to the deceased when the accused and the deceased came to her house, in the presence of P.W.7-Levia. P.W.6 and 7 are neighbours of the accused and the deceased. P.W.6 deposed that on one or two occasions, when the accused was beating the deceased, she chastised the behaviour of the accused by going to the house of the accused. When she went to the house of the deceased and questioned the accused, the accused warned her not to interfere with their affairs. On the Saturday night, she heard some galata between the accused and the deceased, but she did not interfere as they usually quarrel with each other. On the next morning, the mother and the family members of the deceased were coming and when she enquired they informed her that the deceased was killed. She further deposed that she did not inform to the police that she heard cries but she specifically stated that she heard words on the said night. P.W.7 stated that one and half a month prior to the death of the deceased, the deceased along with her mother came to her house with severe bleeding injuries, and she was informed that the deceased was beaten by her husband without hearing to their request she went away and returned in the night. On the next day morning, the accused came to her and enquired about his wife and when she informed that his wife was not there he went away. P.W.7 is the Assistant Professor, Forensic Medicine, Andhra Medical College, Visakhapatnam, who conducted autopsy over the dead body of the deceased. He found as many as 83 ante-mortem injuries as mentioned in the post-mortem report covered under Ex.P- 4. He further deposed that among the injuries injury Nos.76 to 81 and 83 are severe in nature. Basing on the FSL reports covered under Exs.P-6 and P-7, P.W.7 issued final opinion covered under Ex.P-5 opining that the deceased would appear to have died of head injury associated with other multiple injuries and semen and spermatozoa detected in swabs and smears preserved from the body by the Seriologist. P.W.12 who is the investigating officer deposed that he arrested the accused on 28-3-2005 and sent him for judicial custody. He further deposed that he sent the material objects for chemical analysis and he also sent material objects preserved by the medical officer-P.W.8. He denied the suggestion that suppressing the report presented by the accused a false case has been registered as the accused is a previous offender and he did not arrest the accused on 28-3-2005. The trial court accepting the evidence of P.Ws.1 to 7 and taking into consideration the conduct of the accused in not informing the fact of his seeing the dead body of the deceased in the early morning when he came to his house and in not giving any satisfactory explanation as to how the deceased died when the accused and deceased are residing in the house as husband and wife, found the accused guilty of the offences punishable under Section 302 and 498- A IPC and accordingly convicted and sentenced him as aforementioned. Challenging the conviction and sentences, the accused preferred the present appeal. Sri P.Suresh Reddy, learned counsel appearing for Sri P.Vengala Reddy contends that the prosecution failed to establish the injuries received by the deceased. He further contends that though the accused pleaded that he was not in the house on the night of the occurrence and returned to the house in the early hours and found the dead body, the prosecution did not consider the said aspect in a proper perspective. He further contends that in a case of circumstantial evidence, the prosecution has to establish each and every circumstance to connect the accused with the commission of the offence, but in the present case the prosecution failed to establish the link between the incident and the accused, and therefore he is entitled for acquittal. On the other hand, the learned Additional Public Prosecutor contends the trial court, upon proper appreciation of the evidence on record, rightly convicted and sentenced the appellant and there are no grounds to set-aside the conviction and sentence recorded by the trial court and hence he prays to dismiss the appeal. In the light of the rival submissions, the point that arises for consideration in this appeal is: “Whether the prosecution proved the guilt of the accused beyond reasonable doubt and whether the conviction and sentence imposed on the appellant for the offences punishable under Sec. 498-A and 302 IPC are liable to be set-aside or modified? Before answering the point, it has to be borne in mind that there is no direct evidence of eye witness in this case and the case is based only on circumstantial evidence. At this stage, it is apt to quote the tests summarized by the Supreme Court in PADALA VEERA REDDY V. STATE OF AP[1]. In the said case, speaking for the Bench, Justice Ratnavel Pandian, held that when a case rests upon circumstantial evidence, it must satisfy the following tests: 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 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.” From the evidence of P.W.8 coupled with Exs.P-4 to P-7 and Ex.P-3-inquest report, it was clearly established by the prosecution that the death of the deceased was homicidal. P.Ws.1,2,3 and 7 categorically stated that the accused used to harass the deceased and beat her for money. In the month of January, 2005, when the accused beat the deceased severely and when the deceased came to the house of P.W.1 with injuries, P.W.1 took her to the police station and reported the matter and later the deceased requested the police not to harass the accused and later the deceased joined the company of her husband. The evidence of P.W.1 in lodging report with the police has been corroborated by the evidence of P.W.10 who registered a case in crime No.7/2005 under Section 498-A and 324 IPC. Further, P.W.6 who is a neighbour to the accused and deceased stated that on one or two occasions when the accused was beating the deceased, she interfered and chastised the accused. Though P.Ws.6 and 7 were cross examined at length nothing has been elicited to discredit their testimony. From the evidence of P.Ws.1,2,3,6, 7 and 10, the prosecution has clearly established that the accused used to harass the deceased to get money from her parents and relatives. From the evidence of the prosecution witnesses, it was clearly established that the accused and the deceased are the wife and husband and they were living together. The evidence of P.Ws.1 and 2, who are the parents of the deceased, would clearly establish that by the time of the death of the deceased, she was living with her husband in his house, which fact has not been denied by the accused. Admittedly, death was occurred in the house of the accused itself. P.W.6 who is neighbour of the accused and the deceased categorically stated that she heard some galata between them on the Saturday night and on the next day morning she came to know about the death of the deceased and she noticed injuries on the body of the deceased. The plea of the accused is that when he visited his house in the early morning, he noticed that his wife was dead. If really he notices the dead body of the deceased, he would have lodged a report with the police nor informed to the neighbours or others about the death of the deceased. In respect of cases where the offence took place in privacy and if the accused alone was in the house, the burden is on him to explain under what circumstances the dead body was in his house. The following observation of the Supreme Court in Trimukh Maroti Kirkan v. State of Maharashtra[2] is relevant in this regard. "If an offences takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to place and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of S. 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer long explanation. In case of no explanation. In case if no explanation or false explanation form the accused, it would cause an additional link in chain of circumstances." In view of the above judgment, when the offence took place in the house, which is in exclusive possession of the accused, the burden is on him to explain under what circumstances, the offence took place. In the absence of any explanation, it can be safely concluded that the accused was responsible for the commission of offence. The trial Court, after taking into consideration the facts and circumstances of the case rightly came to a conclusion that the accused was found guilty of the offence u/ss. 302 and 498-A IPC. After going through the oral and documentary evidence and the judgment of the trial Court, we are convinced that the trial Court rightly came to a conclusion in finding the accused guilty of the offences punishable under Sections 498-A and 302 IPC and there are no grounds to interfere with the same. In the result, the Criminal Appeal dismissed by confirming the judgment of the trial Court in all respects. --------------------- A.GOPAL REDDY,J ------------------- R.KANTHA RAO,J DT. 14-11-2011 Kmr [1] 1989 Supp. (2) SCC 706 [2] (2006) 10 SCC 681