*HONOURABLE SRI JUSTICE V.V.S. RAO *THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +CRIMINAL APPEAL No.1747 OF 2006 % 26-03-2010 #Thadepalli Srinivasa Murthy ….Appellant/Accused Vs. $ State of A.P., rep. By Public Prosecutor. …. Respondent !Counsel for the Petitioner : Sri Kowturu Vinaya Kumar Counsel for the Respondent: <Gist : >Head Note: ? Cases referred: 1. AIR 1994 SC 2585 2. AIR 1992 SC 1175 IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE V.V.S. RAO AND HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1747 OF 2006 DATE:26.03.2010 Between: Thadepalli Srinivasa Murthy …… Appellant/Accused. And: State of A.P., rep. by Public Prosecutor …..Respondent. HONOURABLE SRI JUSTICE V.V.S. RAO AND HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1747 OF 2006 JUDGMENT: (per Hon’ble Sri Justice Samudrala Govindarajulu) The accused in this case is husband of the deceased Kalpana who was killed inside their flat No.402 of Vijaya Towers of Visakhapatnam. The deceased was found dead on 15.04.2004 in Kitchen room at about 4.30 p.m when children including Yesoda Sai Sree (P.W.4) went there to watch Cartoon Net work T.V. Immediately those children informed the same to P.W.3 who was resident of flat No.401. Immediately P.W.3 and other neighbours took the deceased to R.K. Hospital where the doctor declared that she was brought dead. So, body of the deceased was brought back to Vijaya Towers and was kept in cellar of the apartments. The deceased was having ligature mark on her neck. In the meanwhile, the accused came there on information. P.W.5 who is resident of flat No.306 and others advised the accused to report the matter to the police. According to P.W.5, the accused requested them not to intensify the incident as his elders were coming and they were look after the matter, and when they insisted the accused to report the matter or otherwise they would themselves report the matter to the police, the accused reported the matter to the police. P.W.11 is the then Sub Inspector of Police, Gajuwaka (Law & Order) Police station. On 15.04.2004 at about 8.00 p.m, P.W.11 received Ex.P-15 report from the accused and registered the same as case in Crime No.98 of 2004 under Section 174 Cr.P.C and issued Ex.P-16 F.I.R. P.W.11 took up investigation in this case. He observed scene of the offence in the presence of mediators including P.W.7 under cover of Ex.P-4 observation report. He prepared P-17 rough sketch of scene of the offence. He sent dead body of the deceased to mortuary of K.G.Hospital, Visakhapatnam. Mandal Revenue Officer (P.W.12) conducted inquest on dead body of the deceased in the presence of panch witnesses P.W.3 and P.W.7 under cover of Ex.P-3 inquest report. P.W.9 who is Professor and Head of the Department of Forensic Medicine, K.G. Hospital, Visakhapatnam held autopsy on dead body of the deceased on 16.04.2004 from 2.10 p.m onwards along with another Professor and they issued Ex.P-13 post-mortem certificate noting the following ante-mortem injuries on her dead body:- 1) A well defined hard, red coloured traverse ante- mortem ligature mark of 22 cms. X ½ cms. present on front of the neck, below the thyroid cartilage level, encircling the neck, transversely upto 8 cms below the angle of the lower jaw on right side of the neck and extending all along the left side of neck and back of neck upto 5 cms. Below the hairline on right side back of neck. No knot mark has seen. No pattern is seen. On dissection of the ligature mark, ecchymosis is present in the underlying tissues. Diffuse bruising in all the underlying neck tissues, muscles, is seen upto preverteibral tissues. Mucous Membrance of the pharynx, epiglottis, Larynex, showing areas of haemorrhagic infiltration. Hyoid bone, thyroid cartilage are intact. 2) Two abrasions of 1 x ½ cms. Each present on top of right shoulder. 3) Two abrasions of 3 x ½ cms. 2 x 1 cms present on left back upper abdomen. 4) Contusion of 2 x 1 cms. Present on outer middle of left thigh 5) Contusion of 1 ½ x 1 cm. Present on front of lower part of left thigh. 6) Contusion of 2 x 2 cms. Present on the outer middle part of right thigh. 7) Contusion of 3 x 2 cms. Present on back upper part of right leg. 2) They opined that deceased appeared to have died of asphyxia due to ligature strangulation. After receiving post- mortem certificate, P.W.11 altered Section of law in F.I.R from Section 174 Cr.P.C to Section 302 IPC and issued Ex.P-18 altered F.I.R. Subsequent investigation was taken up by the then Inspector of Police, Gajuwaka circle (P.W.13). On 23.04.2004 he arrested the accused in the presence of mediators and interrogated him and the accused is stated to have given statement and lead the police party to his house at his flat and produced M.O.4 cell phone wire with charger and plat form which was seized by the police under cover of Ex.P-14 relevant portion in mediators report. After completing investigation, P.W.13 filed charge sheet against the accused before the VIII Metropolitan Magistrate, Visakhapatnam who registered the same as P.R.C.No.8 of 2004 and committed the same to the court of Session, Visakhapatnam. The Sessions Judge, Mahila Court, Visakhapatnam, during trial, examined P.Ws. 1 to 13 and marked Ex.P-1 to P-19 and M.Os. 1 to 4 on behalf of the prosecution. Ex.D-1 letter was marked on behalf of the accused. Plea of the accused is one of the total denial. The Sessions Judge convicted the accused under Section 302 IPC and sentenced him to imprisonment for life and fine of Rs.5,000/-. Hence, this appeal by the accused. 3) At the out set it may be noted that there are no eye witnesses to the occurrence. The prosecution relies on circumstantial evidence and more particularly, last seen theory. The alleged statement of the accused said to have been given to the police during his alleged interrogation after his arrest, is irrelevant and inadmissible in evidence except to the extent of Ex.P-14 saved by Section 27 of the Indian Evidence Act. 4) Marriage of the deceased Kalpana with the accused took place on 22.08.2002. P.W.1 is elder brother of the deceased. After marriage, the deceased joined the accused for family life. Originally, they were residing in Rajivnagar of Visakhapatnam. According to P.W.1, his sister who is the deceased telephoned to him and informed him that her servant maid threatened her as to how she would live with the accused and proclaimed that she had got illegal contact with the accused. P.W.1 further says that again after one month, the deceased telephoned him saying that again the said lady came to her house and created scene and also went to office of the accused and quarrelled with him. He says that subsequently all of them went to Gajuwaka Police station and pacified the matter. Except giving previous incident of the servant maid episode, P.W.1 did not cast any aspersions on the accused. When his elder sister informed about death of the deceased through telephone, P.W.1 called the accused by telephone and enquired with him. P.W.1 says that the accused informed him by crying that somebody killed the deceased. P.W.1 advised him to go and report the matter to the police. On the next date P.W.1 could reach Visakhapatnam from Hyderabad. He was present at the time of inquest on dead body of the deceased. He says that they belonged to ordinary middle class family and that the accused was having his own transport office by the time of marriage. He admits that at the time of marriage, gold ornaments as well as silver articles were presented to the deceased. In cross examination of P.W.1, he denied the suggestion that he did not state to the police as well as Mandal Revenue Officer about the prior episode relating to servant maid. Ex.P-1 is statement of P.W.1 recorded by P.W.12 who is Mandal Revenue Officer and Mandal Executive Magistrate. In cross examination, P.W.1 categorically admits that to his knowledge, the deceased and her husband were living happily and did not quarrel with each other and the accused did not harass the deceased or themselves. P.W.1 admits that Ex.D-1 letter is in hand writing of the deceased. He again says that he was not certain whether it is in hand writing of the deceased. Ex.D-1 is dated 30.03.2004 and it is written on Inland Letter Card by the deceased. On Ex.D-1, in the space provided for noting address of the addressee, no address was written except name as Mrs. Janaki. There is nothing adverse in Ex.D-1 against the accused. On the other hand, the deceased expressed to purchase flat with financial assistance that may be given by her father-in-law. None of occupiers of flats in Vijaya Towers examined in this case spoke about any disputes or differences or quarrels between the accused and the deceased. Thus, the prosecution has failed to establish any motive for the accused to kill his wife who is the deceased. The lower court also came to the same conclusion on motive. But, the lower court observed that motive may not be relevant even in a case based on circumstantial evidence. 5) At this stage it has to be noted that in a case based on circumstantial evidence, the prosecution has to establish all links in the chain of circumstances leading to one and the only conclusion that the offence was committed by the accused only and no others. I n TARSEEM KUMAR V. DELHI ADMINISTRATION[1] it was observed by the Supreme Court; “As the case is based solely on the circumstantial evidence, the Court has to be satisfied that (i) The circumstances from which conclusion of guilt is to be drawn has been fully established. (ii) All the facts so established are consistent only with the hypothesis of guilt of the appellant and they do not exclude any other hypothesis except the one sought to be proved. (iii) The circumstances on which reliance has been placed are conclusive in nature. (iv) The chain of the evidence in the present case is such that there is no scope for any reasonable ground for a conclusion consistent with the innocence of the accused”. In the same decision, regarding motive to be established in criminal case, the following ratio of the Supreme Court is very much relevant; “NORMALLY, there is a motive behind every criminal act and that is why investigating agency as well as the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on basis of the materials produced before the Court, the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the Court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as the court should ascertain as far as possible as to what was the immediate impelling motive on the part of the accused which led him to commit the crime in question”. (Emphasis is ours) In that reported decision, the Supreme Court came to the conclusion on facts that no motive on the part of the accused to commit the murder has been suggested or established on behalf of the prosecution. Ultimately the Supreme Court, after considering the entire evidence on record, allowed the appeal giving benefit of doubt to the appellant/accused. 6) In MULAKHRAJ V. SATISH KUMAR[2] the Supreme Court held in a case of murder based on circumstantial evidence: “It is trite to reiterate that in a case founded on circumstantial evidence, the prosecution must prove all the circumstances connecting unbroken chain of links leading to only one inference that the accused committed the crime. If any other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances, the accused would be entitled to the benefit. What is required is not the quantitative but qualitative, reliable and probable circumstances to complete the chain connecting the accused with the crime. If the conduct of the accused in relation to the crime comes into question the previous and subsequent conduct are also relevant facts. Therefore, the absence of ordinary course of conduct of the accused and human probabilities of the case also would be relevant. The Court must weigh the evidence of the cumulative effect of the circumstances and if it reaches the conclusion that the accused committed the crime,the charge must be held proved and the conviction and sentence would follow”. Regarding motive to be established in a murder case based on circumstantial evidence, the Supreme Court laid down in that decision; “Undoubtedly in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non- existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case”. (Emphasis is ours) 7) Having regard to the above case law laid down by the Supreme Court, observation of the lower Court that motive is not very much essential to be established in a murder case based on circumstantial evidence, may not be entirely correct. Establishment of motive is an essential and initial ingredient to be established by the prosecution in a case based on circumstantial evidence. In case the prosecution relies upon evidence of eye witnesses or direct witnesses to the occurrence, then motive assumes little importance and takes a back seat; and in such a case, the only question to be considered would be whether evidence of eye witnesses is trustworthy or not. Even in a crime depending on circumstantial evidence, if the circumstances are so fool proof that the conclusion is irresistible from those established circumstances that it was the accused and none other who committed the offence, in such a case, absence of proof of motive may not outweigh imperative conclusion to be arrived at basing on unquestionable circumstances. 8) In the case on hand, the sole circumstance on which the prosecution relied upon is evidence of P.W-2. P.W-2 is servant maid in house of the accused and the deceased. She partly turned hostile to the prosecution and partly narrated incidents prior to commission of the offence. It is evidence of P.W-2 that on the date of offence she attended household work from 2.00 P.M to 3.00 P.M and at that time the accused and his wife were there in the house. In cross examination, she deposed that on that day after completion of her work, she went to another apartment to attend her work and she saw the accused going to the lift to go out. Nobody in that complex heard any cries from flat No.402 much less when the accused was in his flat or when the accused was going out of his flat during that afternoon. P.W-6 is watchman in that complex called Vijaya Towers, Kurmannapalem of Visakhapatnam. He says that at about 3.00 P.M the accused came to his apartment and after taking meals went away. There is nothing unnatural for the accused to go to his flat between 2.00 P.M and 3.00 P.M and leaving the flat after half an hour, because it was lunch time. When the accused was in his flat, P.W-2 was present along with the accused and the deceased from 2.00 P.M to 3.00 P.M. No incident took place during that one hour. After P.W- 2 left flat No.402 and went to another flat, she saw the accused also going away from his flat towards lift to go out. It is not evidence of P.W-2 that she saw the accused going out of his flat in hurried manner or in confused manner or in any other odd manner. Therefore, presence of the accused in his flat from 2.00 P.M to 3.00 P.M is no incriminating circumstance which goes against him. 9) Secondly, the police are stated to have seized M.O-4 cell phone wire with charger in pursuance of the alleged statement of the accused recorded during his interrogation after his arrest on 23.04.2004, after eight days of the offence, from underneath a bed in the same flat. As per evidence of P.W-10 who is one of the mediators in Ex.P-4 mediators’ report, the said charger seized by the police is of Reliance Company. Even according to the evidence of P.W-13, the investigating officer, the accused was possessing a cell phone with TATA service company. It is contended that Reliance Company cell phones and chargers are unique in nature and M.O-4 charger cannot be used for another cell phone of TATA service provider. 10) Admittedly the deceased was wearing Mangala Sutram chain and black beads chain regularly, even as per prosecution case. There were no gold ornaments on dead body of the deceased, except silver toe rings. The investigating officer did not make any investigation as to what happened to normal and regular wearing gold jewellery of the deceased. No doubt, in Ex.P-1 report given by the accused also there is no mention about absence of usual gold jewellery which the deceased was wearing during her life time. In case the accused wanted to really side track the investigation, he would not have failed to mention absence of gold jewellery on dead body of the deceased and would not have projected the said fact in the forefront, so that the investigating agency would be busy to detect the offence in that direction. 11) In our opinion, commission of this offence by a single person is highly improbable having regard to medical evidence in this case. It is contended by the appellant’s counsel that commission of strangulation by a single person by closing mouth of the deceased is highly improbable and impossible because for strangulation the culprit has to hold two ends of weapon around neck of the deceased with two hands and both the ends at a time. In such a situation it may not be possible for a single person to close mouth of the victim and to prevent the victim from raising cries for help. If the offence was committed by a single person, then the victim would naturally react against the assailant and would resist activity of the assailant and would try to cause at least some injuries on the assailant. Nothing happened in this case. The prosecution did not establish any injuries on the accused. P.W-9, who is Professor and Head of the Department of Forensic Medicine in King George Hospital, Visakhapatnam deposed in cross examination that in the absence of knot mark or cross mark in the ligature, there is possibility of one person holding body of the victim and another person causing the ligature. It is also his evidence that other injuries on the deceased noted in Ex.P-13 post mortem certificate could have been caused by resisting the force or act at the time of causing ligature. He says that at the time of strangulation, mouth of the deceased might have been closed by force as tongue remained inside. He ruled out a case of suicide in this offence. He says that they cannot rule out complicity of more than one person in committing strangulation and that there is possibility of receiving external injuries by the assailants due to resistance by the deceased. This evidence of P.W-9 totally rules out complicity of the accused in this offence and also commission of the offence by a single person. In these circumstances, absence of gold jewellery on body of the deceased assumes importance. It is contended by the appellant’s counsel that it may be a case of murder for gain and that some outsiders who are more than one in number might have committed the offence. 12) Thus, all the circumstances relied on by the prosecution have absolutely no relevance and on the other hand, no circumstance established by the prosecution is going to drag the accused into the net. Hence, we are of the considered opinion that the prosecution could not establish any circumstances against the accused in order to find him guilty of committing murder of his own wife. We do not agree with reasons or conclusion arrived at by the lower Court. 13) In the result, the appeal is allowed setting aside the conviction and the sentence passed by the lower Court against the accused/appellant and acquitting him. He shall be set at liberty forthwith. _____________ V.V.S.RAO, J. _____________________________ SAMUDRALA GOVINDARAJULU, J. 26.03.2010 NOTE: L.R copy to be marked (b/o) KSH [1] AIR 1994 SC 2585 [2] AIR 1992 SC 1175