THE HON’BLE SRI JUJSTICE K.C. BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.A.NO.1076 OF 2007 COMMON JUDGMENT:-(Per NRLN,J) The accused No.1 in Sessions Case No.384 of 2006 on the file of the Court of II Additional Sessions Judge (FTC) Khammam who was convicted for the offence under Section 302 IPC and sentenced to undergo imprisonment for life and also to pay a fine of Rs.200/-, in default to undergo simple imprisonment for two months. The appellant was tried along with A-2 for killing her daughter P.Mahuri. The case of the prosecution is that the deceased is the daughter of A-1. PWs.2, 3, and 15 are the brothers and PW.4 is mother of A-1. About seven or eight years prior to the incident A-1 was given in marriage with one Akula Omkar and later there were some disputes arose in between A-1 and her husband. So she has been living separately and developed illegal intimacy with PW.15. Subsequently, differences arose between A-1 and PW.15. Again she developed illegal intimacy with A-2. On 06-06-2005 A-2 came to the house of A-1 and later went Bazar and brought some liquor which was consumed by both accused and at about 2.00 A.M A-1 came to PW.3 and informed that the girl was not feeling well and she was found died. PW.3 was also noticed injuries on the throat and he called his brother- PW.5. Other villagers also came there. Then A-1 gave a confession to all of them that she has killed the deceased as she was found to be an objection for her illegal relationship and therefore both A-1 and A-2 planned and killed her. Later, PW.1 presented a complaint, which was registered as a case in Cr.No.66 of 2005 under Section 302 IPC and investigated into. During the course of investigation the statement of witnesses was recorded and panchanama was conducted and inquest was held over the dead body of the deceased in pursuance of the P.M examination. During the course of investigation, the accused were arrested and sent them for remand. After completition of investigation the accused were charged for an offence under Section 302 IPC. The case was taken on file as PRC No.22 of 2006 on the file of the Additional Judicial First Class Magistrate, Khammam and later the same was committed to the Court of Sessions and made over to the II Additional District and Sessions Judge’s Court (FTC) Khammam. After appearance of accused, a charge Under Section 302 read with 34 IPC was framed, read over and explained to them for which both accused pleaded not guilty. On behalf of the prosecution, PWs.1 to 18 were examined and marked Exs.P-1 to P-22. After the prosecution evidence was over, the accused were examined under Section 313 Cr.P.C and no defence evidence was adduced. After considering the evidence on record, the learned Sessions Judge found A-2 not guilty and acquitted him and found A-1 guilty of the offence and accordingly convicted. Aggrieved by the said judgment, the present appeal is filed. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor. Now the points that arise for consideration are:- 1. Whether the prosecution has proved that the appellant herein has committed the murder of the deceased? 2. Whether the conviction and sentence imposed by the learned Sessions Judge is legal and sustainable? POINTS:- In support the prosecution case, PW.1 who claims to have come to know about the death of deceased, went to the house of A-1 and saw the dead body and as the Village Secretary was not present, he sent Ex.P-1 complaint to the police. He was declared as hostile by the prosecution as he did not support the information given by the accused about the confession. PWs.2 and 3 are the brothers and PW.4 is the mother of A- 1. They spoke about the relationship between the deceased and A-1 and also conduct and character of A-1 being not good. PW.2 claims to have seen the injuries on the neck of the deceased. PW.3 claims to have questioned the A-1 about the injuries on the neck of the deceased and he claimed that he does not know the injuries. PW.4 claims that she saw the dead body but did not see the injuries and he was declared as hostile by the prosecution. PWs.5 and 6 did not support the case of the prosecution and were declared as hostile. PW.7 claims to have gone to the scene and found the injuries on the neck of the deceased. He denied having questioned the A-1 and A-2, giving information about the cause of death and he was declared as hostile. So also PW.8 did not support the prosecution case and was declared as hostile. PW.9 was examined to prove that his house is near to the house of A-1 and at about 8 A.M he went to the scene and A-1 has confessed that she along with A-2 have killed the deceased and found the injuries on the neck of the deceased. According to him, A-1 gave the confession and the neighbours were also present. The evidence of PW.10 is about taking of the photographs at the scene of offence. PW.11 is the wife of A-2 and she did not support the case of the prosecution and she was declared as hostile. PW.12 was examined to prove the presence at the time of observation of scene and did not support the case of the prosecution and he was declared as hostile. The evidence of PW.13 is she has gone to the scene and was present at the time of inquest over the dead body of the deceased and noticed the injuries. The evidence of PW.14 is about conducting P.M examination over the dead body of the deceased and did not find any external or internal injuries and did not find any fracture of hyoid bone and dead body was in a putrefied condition and no opinion as to the cause of the death could be given. The evidence of PW.15 who is said to be having illegal intimacy with A-1 and to whom the deceased said to have been born did not support the case of the prosecution and was declared as hostile. The evidence of Pw.16 and 17 is about the investigation done by them in this case. In this case, there is absolutely no direct evidence about the commission of the offence by the accused. No doubt A-1 is mother of the deceased and since the age of child is only seven (7) months, the law presumes that the child will be in the custody of the mother continuously. Naturally some explanation has to be given as to the cause of any injuries or death to her. Merely because the accused could not give an explanation, it cannot be taken into consideration that she has committed the murder of deceased. The learned Sessions Judge relied upon the evidence of the witnesses who claims to have seen the injuries on the body of the deceased and therefore came to the conclusion that the death was caused by A-1. The learned Sessions Judge has also found that so called confession said to have been given by A-1 is not true and therefore discarded the same. Therefore, the court was left with only the circumstantial evidence. The deceased being the daughter of A- 1 and being in custody and presumes to be custody at all times as she being a child of seven months. In order to prove the guilty of an offence under Section 302 IPC, the prosecution has to prove that the death of the deceased was homicidal. In the absence of any such evidence, there cannot be any valid conviction for the accused under Section 302 IPC. In this case, the Doctor PW.14 who conducted P.M examination specifically stated that the cause of death could not be decided. Even other wise, if injuries found round on the neck, then it is asphyxial death, there should be traces of asphyxia but there are no such traces. The witnesses who have seen the deceased at the earliest point of time, could not say whether they have noticed any blood or foam coming from the mouth of the deceased. The hyoid bone is said to be intact according to the evidence of Doctor. From the FSL examination though the body is said to have been in putrefaction condition, naturally the injuries cannot disappear when force is used. But the evidence of PW.15 clearly shows that no traces of injury are found. Therefore, in view of the above circumstances, the cause of death of the deceased even if there is any injury noticed by PWs.2 and 3 and others, round the neck is to be believed, it cannot be taken as an injury which causes the death of the deceased. Therefore, the medical evidence does not corroborate or establish the cause of death and the prosecution has failed to prove that the death of deceased was homicidal. When such homicidal death is not proved the presence of injuries which is not explained cannot be a circumstance against the accused, when medical evidence does not show that even if such injury is there, it can cause the death of the deceased. When once the confessional statement said to have been given by A-1 before PW.9 and others is disbelieved, naturally the finding of the injuries spoken by them also has to be viewed with suspicion keeping in view the medical evidence. Therefore, for all the above reasons, we find the conviction and sentence imposed by the learned Sessions Judge is not legal and sustainable as the death was not proved to be homicidal. Accordingly, the conviction and sentence of the appellant (Accused No.1) is set aside and she is found not guilty of the offence under Section 302 IPC and she shall be released forthwith if she is not required in any other case. Accordingly the Criminal Appeal is allowed. ____________ K.C.BHANU,J ____________________ N.R.L.NAGESWARA RAO,J 24-01-2011 TSNR