THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELGANGO Crl.A.No. 1620/1007 Dt.14-7-2011 1. Kunchapu Raju and others ..Appellant/accused 1 to3 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 RAJA ELANGO Crl.A.No. 1620/2007 JUDGMENT (per the Honourable Justice RAJA ELANGO) This appeal under Section 374(2) Cr.P.C., is filed by the accused Nos.1 to 3 challenging the conviction and sentences recorded against them in SC No.141/2007 on the file of Principal Sessions Judge, Khammam. By judgment dt. 31-8-2007, learned Sessions Judge convicted the accused Nos.1 to 3 for the offence under Sec. 302 IPC and sentenced them to undergo imprisonment for life and also to pay a fine of Rs.200/- in default to suffer simple imprisonment for one month each. Learned Sessions Judge further convicted the accused for the offence punishable under Sec 498-A IPC and sentenced them to undergo rigorous imprisonment for one year and also to pay a fine of Rs.200/- in default to suffer simple imprisonment for a period of one month each. The prosecution story, as unfolded during the trial, which led to the conviction of the appellants/A-1 to A-3, is as follows: The deceased is the younger daughter of the defacto complaiant - B. Roshamma (P.W.1). The house of P.W.1 and the accused are contiguous at Samithisingaram, Manugur. A-1 is doing mason work, while A-3 is working as a Coal Filler in PK-1 of Manugur, Singareni Collieries and A-2 is doing coolie work. The deceased was also doing coolie work for eking her livelihood. A-1 got married to one Vijayalakshmi-L.W.14 who was the resident of Rajaram of Chandrugonda Mandal and leading happy marital life. A-1 gradually developed illegal intimacy with the deceased and the deceased also got attracted to A-1 and both of them fell in love. The deceased agreed to marry A-1 though he is a married person. The love affair was brought to the notice of her parents and requested them to perform her marriage with A-1. A-1 also readily agreed to marry the deceased and convinced his first wife, Vijayalaklshmi-L.W.14 and his parents. The elders of the deceased and their caste elders held a panchayat in this regard two or three times with A-1 to A-3 to perform the marriage of the deceased with A-1. During the panchayat, A-1 executed a stamped paper that he will look after the deceased affectionately and also agreed to pay Rs.50,000/- if anything happens to the life of the deceased. On execution of a bond, the parents of the deceased performed the marriage of the deceased with A-1 and after the marriage the couple led happy marital life for a short period of one month. The first wife, Vijayalakshmi, left the company of A-1 after marriage of the deceased with A-1 and went to her parents village at Rajaram and staying there by doing coolie work. A-1 used to go to his first wife, Vijayalakshmi, and stay with her months together. Two months prior to the incident, A-1 went to Rajaram and remained with his first wife, Vijayalakshmi, while the deceased was staying with her in-laws. A-1 to A-3 used to harass the deceased physically and mentally abusing her in filthy language without any reason. A-1 intensified his harassment on the deceased on the instigation of A-2 and A-3 since the deceased is causing hurdles for smooth running of his life with his first wife, Vijayalakshmi. After fulfilling his lust, A-1 neglected the deceased and began to stay with his first wife at Rajaram village without attending to the welfare of the deceased. A-1 disliked the deceased who stood as an obstacle between him and his first wife, and decided to eliminate her. Since then, he started harassing the deceased mentally and physically on the active instigation of A-2 and A-3 who also disliked the deceased in marrying A-1. In furtherance of their common intention, A-1 to A-3 hatched a plan and killed the deceased on 22-7-2005 at 6 PM by strangulation with voni and shifted her to local hospital to create an impression that the deceased committed suicide. A-1 to A-3 took the deceased to the hospitals of L.Ws.12 and 13 (Dr. Madhusudhan Rao and Dr.Malakondaiah) where they examined the deceased and was declared brought dead. A-1 to A-3 brought back the dead body of the deceased to their house and laid the body in front of the house and disappeared from the village. P.W.6-Chukkamma who noticed A-1 to A-3 shifting the deceased in an auto informed the same to P.W.1- Roshamma. In turn, P.W.1 along with her relatives rushed to Bandarigudem and searched for the deceased in all the hospitals but they could not find the deceased and returned to the house of the deceased at about 19-30 hours and found the dead body of the deceased in front of the house and also found injuries around the neck of the deceased. Immediately, she lodged a report with the Station House Officer, Manugur-P.W.12, who registered a case in Cr.No.122/2005 under Section 304-B and issued First Information Report covered under Ex.P-7. P.W.12 examined and recorded the statement of P.W.1. P.W.13-Inspector of Police, Manugur, sent a requisition to the Mandal Revenue Officer, Manugur-P.W.10 with a request to held inquest over the dead body of the deceased since she died within seven years of her marriage. P.W.10 visited the scene of offence and conducted inquest over dead body of the deceased in the presence of P.W.8,9 and another(K.Rammurthy). P.W.13 got the scene of offence and the dead body photographed with the help of Bangari Srinivasa Rao. After inquest, P.W.13 sent the dead body to the Area Hospital, Bhadrachalam. P.W.11-Doctor who conducted autopsy over the dead body of the deceased issued postmortem certificate covered under Ex.P-5 opining that ligature mark was present around the neck and at the level of hyoid bone and particularly over anterior aspect of the neck and that strangulation marks are present. On perusal of Ex.P-5, the Deputy Superintendent of Police instructed P.W.13 to alter the section of law form Section 304-B IPC to sections 302, 498-A IPC. Basing on the same, section of law has been altered to Sections 302 and 498-A IPC. P.W.13 examined and recorded the statements of P.Ws.2 to 7. P.W.13 arrested A-1 to A 3 on 8-8-2005. After completion of investigation, P.W.13 filed a charge sheet before the Judicial Magistrate of I Class, Manugur. Learned Magistrate took the charge-sheet on file as PRC No.111/2006 and committed the case to the Sessions Division of Khammam District as the offence is exclusively triable by Court of Sessions. The learned Sessions Judge took the case on file as SC No.141/2007. The learned Sessions Judge on hearing the prosecution and the accused, framed two charges for the offence punishable under Sections 498-A and 302 r/w 34 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 its case, the prosecution examined P.Ws.1 to 13 and got marked Exs.P.1 to P.14 and got exhibited M.O.1. After the closure of prosecution side evidence, the accused were examined under Section 313 Cr.P.C so as to enable them to explain the incriminating circumstances appearing against them. The accused denied the allegations and pleaded not guilty. But Exs.D-1 to D-4 were marked on behalf of the accused. P.W.1 is the mother of the deceased. She deposed that while the deceased was working with A-1, she fell in love with the accused. They did not agree to give their daughter in marriage to A-1 since he was already married. On that A-1 informed them that he can maintain both wives. The first wife of the accused also came to their house along with A-1 and A-2 and persuaded to accept the marriage of A-1 with the deceased. In the presence of elders, A-1 agreed to pay an amount of Rs.40,000/- in case he neglects to maintain the deceased and also executed a document in the presence of the elders. On the assurance given by the accused and also undertaking given by the accused by way of document, they performed the marriage of the deceased with A-1. After marriage, for about one month, the couple led amicable married life. Thereafter, the first wife of A-1 went to her parents house. Six or seven days thereafter, A-1 went to the house of his in-laws of first wife and stayed there for one month and returned back to the house of the deceased. A-1 returned back and picked up quarrel with the deceased. A-1 to A- 3 quarreled with the deceased. On the next day, all the accused insisted the deceased to bring the document executed by them at the time of settlement of marriage. All the accused beat the deceased mercilessly. On the date of the incident at about 6 PM, P.W.2 informed P.W.1 that A-1 to A-3 took the deceased in an auto to the hospital. She along with her another daughter and son went to Bandarugudem and searched for the deceased in all the hospitals and could not trace her. At 7 or 8 PM, she again went to the house of the accused and saw the dead body of her daughter in the house of the accused. They observed injuries on the neck and throat of the deceased and one black colour voni was around the neck of the deceased. She lodged a complaint covered under Ex.P-1 which was scribed by one Rammurthy to the dictation of her son and herself. P.W.2 who is the elder brother of the deceased and P.W.3 who is the elder sister of the deceased corroborated the evidence of P.W.1 in all respects. P.Ws.4 and 5 who are the caste elders in the village of Samithisingaram village deposed regarding settlement of alliance between A-1 and the deceased and execution of the document for an amount of Rs.40,000/-. P.W.4 further stated that on the date of incident at about 8 PM, P.W.1 and her sister informed him about the death of the deceased. On the next day of the incident, he went to the house of the accused. M.O.1 was around the neck of the deceased. He further stated that he observed scratch marks on the neck of the deceased and none of the accused was present in the house at that time. P.W.5 further deposed that on the next day of the incident, he went to the house of the accused and saw the dead body of the deceased and also found M.O.1 around the neck of the deceased. Ex.P-2 is the agreement executed by the accused which bears his signature at Sl.No.7 as an attestor. P.W.6 deposed that while she was returning after grazing the cattle and while she was on the tar road, she saw the accused 1 to 3 taking the deceased to the hospital. Immediately, she went to the house of P.W.1 and informed her about the accused taking the deceased to the hospital. At about 7-30 PM the accused brought the dead body of the deceased to their house and later escaped from the house. P.W.7 who is a resident of Samithisingaram deposed that on the date of the incident at about 1 PM while he was taking meals, he heard the cries of the deceased from the house of the accused. He went to the house of the accused and observed a voni around the neck of the deceased. The accused shifted the deceased to the hospital and sometime thereafter, he saw the dead body of the deceased at the house of the accused. P.W.8 and 9 are the witnesses to the inquest conducted by the Mandal Revenue Officer, Manugur (P.W.10). They stated that on the strength of the statements given by the witnesses recorded by the police, they opined that the accused are the assailants of the deceased. Ex.P-3 is the inquest panchanama.. They further stated that in their presence police drafted crime details form covered under Ex.P- 4 and police observed the scene of offence. During the course of scene observation panchanama, police seized M.O.1 from the scene of offence. P.W.10 is the Mandal Revenue Officer who conducted inquest over the dead body of the deceased in the presence of P.Ws.8 and 9. He further deposed that he observed M.O.1 around the neck of the deceased and froth was emanating. A black ligature injury was found on the left side of the throat. They did not observe any other external injuries over the dead body of the deceased. P.W.11 is the Doctor who conducted autopsy over the dead body of the deceased and found the following ante mortem external injuries: Ligature mark seen at the level of the hyoid bone. The width of the ligature mark is 2 cms around the neck both anterial and posterial aspect of the neck. He issued postmortem report covered under Ex.P-5 opining that the cause of death was due to asphyxia due to strangulation. He further stated that in case of hanging, the ligature mark would be oblique and in case of strangulation, the ligature mark would be horizontal. P.W.12 is the investigating officer deposed regarding registration of First Information Report covered under Ex.P-7; and recording the statement of P.W.1. P.W.13 is the Inspector of Police who took up investigation form P.W.12 deposed regarding conduct of scene observation panchanama; recording the statements of P.Ws.2 to 7 and filing of an alteration memo for altering the section of law from S.304-B IPC to Secs.302 and 498-A. He further deposed that he arrested A-1 to A-3. Appreciating the available evidence adduced by the prosecution as stated above, the learned Sessions Judge convicted the accused as aforementioned. The present appeal by the accused is against the conviction and sentence recorded against them by the learned Sessions Judge. Heard the learned counsel for the accused as well as the learned Additional Public Prosecutor. Perused the impugned judgment and the material available on record. In the present case, entire case is solely based on circumstantial evidence. Even though, P.W.6 cited as an eye witness to the effect that she saw the accused persons carrying the deceased to the hospital, there are no other eye witnesses to the occurrence. P.W.1 in her evidence stated that A-1 is already a married person. The appellant No.1/A-1 intends to marry the deceased, for which he approached P.W.1 along with his first wife and requested for arranging the marriage of A-1 with the deceased. When P.W.1 did not agree for the proposal since A-1 had already a married person, A-1 in the presence of elders agreed to pay an amount of Rs.40,000/- in case he may not look after the deceased properly, and executed a bond for Rs.40,000/- in the presence of elders. The said witness is also not an eye witness to the occurrence. P.W.1 went to the house of the deceased on information received by her from P.W.6. P.W.2 is also not an eye witness to the occurrence. P.W.3 who is also related to the deceased deposed on the same lines as P.Ws.1 and 2 but all the three witnesses attributed motive against the appellant/A-1 is that he insisted the deceased to return back the document executed by him in connection with a sum of Rs.40,000/-. The said fact was not informed by the witnesses during the course of investigation to the investigating officer. It is a material improvement by the witnesses to attribute motive against the accused for the said occurrence. Further, the prosecution miserably failed to establish any motive for the said crime. From the entire evidence on record, it is clear that there is no evidence to show that the A-1 to A-3 lived jointly and the deceased was also living along with them ie., appellants herein. The rough sketch prepared by the investigating officer also clearly discloses that the appellants 2 and 3 are living in a separate house, whereas A-1 is living in a separate house and most of the witnesses have not detailed where the dead body was kept, whether at A-1’s house or at A-2 and A-3’s house. The prosecution ventured to establish the fact that the accused persons carried the deceased to the hospital and the same was witnessed by P.W.6. But the said witness ie., P.W.6 in the chief- examination stated that she informed P.Ws.1 about the accused taking away the deceased to the hospital and she further stated that at about 7-30 PM the accused brought the dead body of the deceased to their house and later escaped from the house. Whereas in the cross- examination, she categorically admitted that at the time of A-1 to A-3 brought the body to the house of A-1, P.W.1, 2 and 3 were present, but P.W.1 categorically stated that when they reached the house of A-1, no accused were present at the place of occurrence. The evidence of P.W.1 falsifies the evidence of P.W.6. Further, P.W.6 admitted in the cross-examination that she has not stated regarding the fact that the accused carried the dead body of the deceased to their house in her Sec. 161 Cr.P.C., statement. It is a material improvement by the witnesses to implicate the appellants/accused; certainly it causes prejudice to them. Apart from the said evidence, no other evidence is available to connect the accused with the crime. Absolutely there is no material as far as the appellants 2 and 3 are concerned. The learned Sessions Judge has wrongly invoked the provision under Sec. 34 of the Indian Penal Code. When there is no intention to show that appellants shared the common intention and when there is no evidence to prove the intention of A-1 to kill the deceased, there cannot be any sharing of common intention. When the prosecution failed to prove the intention of the appellant No.1 to kill the deceased, appellants 2 and 3 cannot be convicted in the manner as was convicted by the learned Sessions Judge. In the absence of any clinching material to connect the appellants/accused with the crime, merely on suspicion and surmises conviction cannot be held to be valid that too for an offence punishable under Section 302 IPC, which is punishable with life imprisonment or death. Hence, we are of the view that the judgment and order passed by the learned Sessions Judge suffers with infirmity and perversity and it is necessary to interfere with the judgment under appeal. Accordingly, this appeal is allowed setting aside the conviction and sentence passed against the appellants/A-1 to A-3 for the offences under Section 302 and 498-A IPC in SC No.141/2007 by the Principal Sessions Judge, Khammam, and they are acquitted of the same. The fine amount paid by them, if any, is directed to be refunded. They shall be set at liberty forthwith, if they are not required in any other case.. --------------------- A.GOPAL REDDY,J ----------------- RAJA ELANGO,J DT. 14-7-2011 Kmr