THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO DATED: 30-06-2011 CRIMINAL APPEAL No. 1486 OF 2007 Between: Medaveni Sadhanandam ..... APPELLANT AND The State of A.P, rep., by its Public Prosecutor, High Court of A.P., Hyderabad .....RESPONDENT THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 1486 OF 2007 JUDGMENT: (Per the Hon’ble Sri Justice A. Gopal Reddy) The appellant – accused who was tried for the offences punishable under Section 302 IPC and Section 4 of the Dowry Prohibition Act, 1961 in S.C No. 300 of 2007 and convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/-, in default to suffer rigorous imprisonment for one week for the offence under Section 302 IPC by the learned I Additional Sessions Judge, Karimnagar vide judgment dated 24-08-2007 preferred this appeal challenging the conviction and sentence recorded against him. The substance of the first charge against the accused is that on the night of 01-08-2006 at Bommareddypalli Village with an intention to kill his wife Medaveni Renuka (hereinafter referred to as ‘the deceased’) strangulated her and committed her murder when she failed to fulfill his demand of additional dowry and thereby committed the offence punishable under Section 302 IPC. The second charge against him is that on or prior to 01-08-2006 at Bommareddypalli Village, he demanded the deceased to get additional dowry from her parents and thereby committed an offence punishable under Section 4 of the Dowry Prohibition Act, 1961. The prosecution story as narrated during the course of trial, briefly stated, is as under: The accused is a resident of Narayanapur Village. The deceased was also resident of the same village. All the material prosecution witnesses are residents of Gummaredipalli Village. PW 1 is the father of the deceased, PW 2 is her mother and PW 3 is her neighbour. The marriage between the accused and the deceased took place on 13-02-2005. A dowry of Rs.35,000/- was fixed out of which Rs.10,000/- was given by way of cash and Rs.15,000/- valuables were given to the accused. After the marriage, the accused and the deceased lived happily for two months. Later, the accused started harassing the deceased physically and mentally demanding remaining dowry of Rs.10,000/- and used to do no work as a vagabond. The deceased used to prepare beedies for the maintenance of her family. The accused used to leave the house for 10 to 15 days with the money and after spending the same, used to come back to the home and subject the deceased to cruelty for money. As the deceased could not bear the ill-treatment meted out to her, she reported the same to her father PW 1 and with the advise of elders and PW 1, she set up their family at her parent’s house. On 01-08-2006, the deceased earned Rs.1,100/- by making the beedies. The accused asked the deceased for the said money, but she refused to give the same as she has to meet the domestic needs. The accused went out of the house and did not come back. The deceased came to her parents and informed that the accused is not taking food. On 02-08-2006 at 7.00 AM, PW 3 came to the house of PW 1 and informed that the deceased is not getting up from sleep. Immediately they went there and saw that the doors were kept half closed and when they called the deceased, she did not respond. They entered into the house and found the deceased lying dead on the cot. A bed sheet was covered on her body, her neck was bent down and scratch and ligature marks were found on the neck. A gold chain (pusthelathadu), a pair of gold ear studs and a pair of silver leg chains are found missing from her person. Her bangles were broken and the glass beads which string into the gold chain were found here and there on the ground. After seeing the dead body, PW 1 went to the police station and lodged Ex.P-1 report. PW 12, Assistant Sub Inspector of Police, Dharmaram Police Station received Ex.P-1 report from PW 1 on 02-08-2006 at 8.30 AM and registered the same as Crime No. 94 of 2006 for the offences punishable under Sections 304-B and 302 IPC and issued FIR Ex.P-11. PW 13, the Circle Inspector of Police, Peddapalli took up investigation, visited the scene of offence and conducted scene of offence panchanama under Ex.P-12. He examined PWs 1, 2 and others and recorded their statements and sent the dead body for postmortem examination. PW 9 – Civil Assistant Surgeon, District Headquarters Hospital, Karimnagar conducted autopsy over the dead body of the deceased on 02-08-2006 and issued Ex.P-6 postmortem examination report opining that the cause of death is due to asphyxia due to throttling the neck. Ex.P-7 is the final report indicating the cause of death. On 19-08-2006 at about 5.00 PM, PW 13 apprehended the accused at Dharmaram bus-stand and recorded the confessional statement in the presence of PWs 6 and 7 and on completion of investigation, he laid the charge sheet against the appellant - accused before the learned Judicial First Class Magistrate, Peddapalli who registered it as PRC No. 18 of 2007 and later committed to the Court of Sessions. On committal, the learned Sessions Judge, Karimnagar registered the same as S.C No. 300 of 2007 and made over to the learned I Additional Sessions Judge, Karimnagar who framed the charges against the accused for the offence under Section 302 IPC and Section 4 of the Dowry Prohibition Act, 1961 as aforementioned and explained the same to him in Telugu. The accused pleaded not guilty and claimed to be tried. To substantiate the guilt of the accused, the prosecution examined PWs 1 to 13 and marked Exs.P-1 to P-15 and produced MOs 1 to 9. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C on the incriminating evidence. He denied the truth in the evidence of the prosecution and reported no defence evidence on his side. The learned Sessions Judge after analysing the oral and documentary evidence convicted the accused and sentenced him to imprisonment as aforementioned. Questioning the same, the present appeal is filed by the appellant - accused. Smt.A.Gayathri Reddy, learned counsel appearing on behalf of the appellant-accused strenuously contended that the entire case of the prosecution case rests upon the circumstantial evidence and, therefore, the chain of events have to be established to prove the guilt of the accused. According to her, the trial Court has not considered the evidence in proper perspective and erred in holding that the death of the deceased was homicidal as PWs 1 and 2 are interested witnesses. She has placed reliance on the judgments in Dasari Siva Prasad Reddy v. Public Prosecutor, High Court of Andhra Pradesh[1] and Gopulapuram Balaiah v. State of Andhra Pradesh[2] to contend that the appellant – accused is entitled to acquittal. The learned Public Prosecutor sustained the judgment of the trial Court and submitted that the conviction and sentence recorded against the accused do not call for any interference by this Court. We have heard the learned Public Prosecutor and have also gone through the entire evidence. The point that arises for consideration is whether the prosecution is able to bring home the guilt of the accused beyond all reasonable doubt and the conviction and sentence recorded against the appellant – accused are liable to be set aside or modified? The entire case of the prosecution rests upon the circumstantial evidence as there are no eyewitnesses to the incident. The prosecution merely depended upon the evidence of PWs 1 to 3 who are the father, mother and neighbour of the deceased and also the evidence of PW 4 who is the panchayat elder to corroborate the statement of PWs 1 and 2 that the accused never used to maintain the deceased and constantly harassed her for her earnings. The evidence of PWs 1 and 2 discloses that on the date of the incident, the accused refused to take food as the deceased did not comply with his demand to give him the amount received by her and for non-parting the amount, the accused developed grudge against the deceased and it is one of the motives to do away with the deceased. PWs 6 and 7 are witnesses to the recovery of Mos 1 to 4 from the possession of the accused admittedly after nineteenth day of the incident. Admittedly, the incident took place in the nighttime on 01-08-2006 and the dead body of the deceased was found on the next day i.e., 02-08-2006. The case on hand is based on circumstantial evidence as there is no direct evidence to substantiate the case of prosecution. When a case rests upon circumstantial evidence, the law is well settled that the following tests have to be satisfied by the prosecution as laid down by the Apex Court in a decision in Padala Veera Reddy v. State of Andhra Pradesh & others[3]: “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.” PW 3 who is the prime witness to the incident has not stated that on the previous day of the incident, she saw the accused and the deceased together in the house. She stated in her evidence that PW 1 has accommodated the accused and his daughter in a rented house belonging to one Erukala Mallamma who is her neighbour. The deceased informed her that the accused used to demand money which was saved by her for the maintenance of the family. She further stated that on the date of incident also the deceased had informed her about the demand of the accused for her wages. According to her, usually the deceased used to woke up earlier to her and does her work, but on the next day as she could not find the deceased doing the work, she called the deceased. As there was no response, she immediately went to PWs 1 and 2 and informed the same and all of them entered into the house where the doors were kept closed partly. The deceased was found covered with blanket. PWs 1 and 2 removed the blanket and found the deceased dead and the neck was bent on one side. PW 3 also stated that they found broken bangle pieces near the deceased on the cot and black beads of the deceased lying on the ground. In the cross examination, PW 3 has stated that the accused used to call her as ‘chinnamma’ now and then and that the accused and the deceased stayed properly for 15 days only. She has also stated that she has not witnessed the disputes between the accused and the deceased, but the deceased used to inform her. The accused used to go for coolie work now and then but not regularly. He used to come to his house after 1 or two days after spending the money. According to PW 1, one week prior to the death, he brought his daughter to his village and on his enquiry, the deceased informed that the accused is taking away coolie amounts and roaming around the village and not doing any work. He also stated that he has arranged a rented house of one Erukala Mallamma for the stay of the accused and the deceased in his village. According to him, one day prior to her death, the deceased earned Rs.1,100/- wages for the beedie work and the accused demanded the same and she refused to give to the amount, which fact she came and informed to him. When the accused stopped to take food in spite of the request of the deceased, he told the deceased to solve the problems themselves. He stated that on the next day of the incident, PW 3 informed them that the deceased was not opening the doors of her house and the doors are without bolting inside. Immediately, himself and PW 2 went to the house of the deceased. The deceased did not reply when called and they found her covered with blanket. He removed the blanket and found the deceased dead and her neck was bent on one side. The accused was not found in the house and the gold ornaments on the person of the deceased were missing. The recoveries which were found are common articles of the deceased and they are alleged to have been taken away by the accused. PW 2, the mother of the deceased has not stated about the missing of the gold ornaments form the body of the deceased. In the inquest report Ex.P-2 two gold ear flowers, silver toes to both leg fingers and nose stick to right side nose were found. PWs 6 and 7 who are the panch witnesses stated that on 19-08-2006 at about 5.30 PM when they got down from the bus, they found the accused in the custody of the police at Dharmaram bus stand. The Circle Inspector of Police interrogated the accused in their presence and that the accused admitted the offence that he killed the deceased. The accused produced from his possession MOs 1 to 4 i.e., pusthela thadu (gold) with two pusthelu; three gold beeds; one pair of gold lolakula and one pair of silver leg chains. The recoveries under Mos 1 to 4 are common articles and the prosecution failed to prove that the same are of the deceased. The Supreme Court in State of Rajasthan v. Teg Bahadur[4] held that articles recovered such as ear rings, hair clip, pieces of bangles are of common use and can be found in any house and accordingly dismissed the appeal. There is no evidence adduced by the prosecution that on the date of incident the accused and the deceased were in the house. Though according to the prosecution, the motive for the accused to kill the deceased is that the deceased refused to give the earnings, mere motive itself is not sufficient to hold the accused guilty of the offence. Further, PW 3 has admittedly not stated that on the date of incident, she saw the accused and the deceased together. Thus it is clear that there is a missing link to connect the accused with the commission of the offence. Therefore, the evidence adduced by the prosecution is not sufficient to hold that it is the accused but none else who has committed the offence. Thus, the accused is AAentitled to acquittal. In the result, the criminal appeal is allowed. The conviction and sentence recorded against the appellant in S.C No. 300 of 2007 by the learned I Additional Sessions Judge, Karimnagar are set aside and he is set at liberty forthwith, if he is not required in any other case. Fine amount, if any, paid by the appellant shall be refunded to him. A. GOPAL REDDY, J RAJA ELANGO, J 30-06-2011 ks [1] 2004 (2) ALD (Crl) 677 SC [2] 2006 (3) ALT (Crl) 403 [3] AIR 1990 Supreme Court 79 [4] 2005 SCC (Crl) 218