THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.Nos.196 of 2007 & 850 of 2008 Date of Judgment: 20-09-2010 CT in Crl.A.No.196 of 2007 Between: Shaik Mastan (A1) ..Appellant And The State of A.P. rep. by its P.P., High Court of A.P., Hyderabad. ..Respondent The Court made the following common Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.Nos.196 of 2007 & 850 of 2008 Common Judgment: (Per Hon’ble Sri Justice A.Gopal Reddy) 1. The appellants (A1 and A2), who were put on trial for the offence punishable under Section 302 r/w 34 IPC in S.C.No.493 of 205 by the II Additional Metropolitan Sessions Judge, Hyderabad found guilty for the said offence and accordingly convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs.100/-each, in default to suffer simple imprisonment for one month, preferred these appeals by availing the services of Legal Services Authority. 2. The gravaman of the charge against the accused is that A2, being the wife of N.Venkati, (hereinafter referred to as “deceased) along with A1 committed the murder of the deceased on 07-06-2005 at 11 P.M. in furtherance of common intention by pressing the neck of the deceased with a pillow. 3. The prosecution story as unfolded during the course of trial may, briefly, be stated as under: A1—Shaik Masthan is the paramour of A2. A2 is wife, P.W.1 is the mother, P.W.2 is the brother and P.W.3 is the son of the deceased. On coming to know of the illegal contact between A1 and A2, the deceased started harassing his wife—A2, beating her regularly and also objected the visiting of A1 to their house. Therefore, A1 and A2 bore grudge against the deceased and hatched a plan to eliminate him. As per the plan, on 07-06-2005 at about 11 P.M. when the deceased was sleeping, A1 pressed the neck of the deceased with a pillow while A2 caught hold of his hands. P.W.3, who is the son of the deceased and A2, went to his paternal grand mother’s room (P.W.1) and slept there; on the next day morning when he woke up, he found his father dead on the cot. P.W.1, who is the grand mother of P.W.3 and mother of the deceased and who is working as sweeper in Cantonment Department, left to duty in the morning itself. P.W.3 went to the office of P.W.1 and informed her about the death of the deceased. On the information received, she returned to the house and saw the deceased in his room on bed and blood was oozing from the mouth. Hence, they doubted about the death of deceased and suspected A1 and A2 are held responsible for causing the death. After seeing the dead body, she lodged a complaint—Ex.P1 with the PS Gandhinagar. Basing on the said complaint, P.W.8—Sub-Inspector of Police registered a case in Cr.No.148/2005 under Section 174 Cr.P.C.; issued Ex.P8—FIR and sent the copies to all the concerned; took up investigation; examined and recorded the statement of P.W.1; visited the scene of offence; conducted scene of offence panchanama under Ex.P2 in the presence of mediators—P.W.5 and another; prepared rough sketch—Ex.P3; got the scene of offence photographed through P.W.6; conducted inquest over the dead body of the deceased, where the inquest panchs suspected that the deceased might have been killed by A1 and A2; seized the blood stained pillow—M.O.1 and cotton Jerkin—M.O.2; recorded the statements of P.Ws.2 and others; sent the dead body for postmortem examination. P.W.7, who worked as Associate Professor in the Department of Forensic Medicine, Gandhi Medical College at the relevant point of time, on receipt of requisition conducted autopsy over the dead body of the deceased from 4.10 P.M. to 5.10 P.M. and issued postmortem report—Ex.P6 and after receipt of FSL report he gave final opinion Ex.P7 stating that the deceased died due to strangulation. P.W.9, who took up investigation from P.W.8, arrested the accused on 09-06-2005; recorded the confessional statements of A1 and A2 in the presence of Narsinga Rao and Yadagiri (L.Ws.14 and 16);on receipt of postmortem examination report he altered the section of law from 174 Cr.P.C. to 302 IPC and after completion of investigation he filed the charge sheet before the X Additional Chief Metropolitan Magistrate Secunderabad. 4. On committal of the case, the learned Sessions Judge framed a charge under Section 304 r/w 34 IPC against the accused, the same was read over and explained to them in Telugu and they pleaded not guilty and claimed to be tried. 5. In order to substantiate its case, the prosecution examined P.Ws.1 to 9 and got marked Exs.P1 to P9 besides case properties— M.os.1 and 2. 6. The learned Sessions Judge on appreciation of oral and documentary evidence was of the view that the prosecution successfully established that the accused and the deceased were together on the previous night; A1 developed illegal intimacy with A2, wife of the deceased, which is the motive for elimination of the deceased. A2 being the wife of the deceased not alarmed P.Ws.1 and 2, mother and brother of the deceased, nor lodged any complaint and absconded from the scene of offence, which clearly establish that the accused pressed the neck of the deceased while he was sleeping. Hence, convicted and sentenced them for the offence as aforementioned. 7. Mr. E.Venkata Reddy, and Ms.Naseeb Afshan, who filed separate appeals on behalf of the appellants/accused, contended that the entire case rests upon circumstantial evidence and unless all the chain of circumstances are complete and incapable of explanation, it is not safe to convict them solely relying upon the evidence of P.Ws.1 to 4. The evidence of P.Ws.1 and 2 is contradictory with the evidence of P.W.3 regarding the presence of A2 after the death of the deceased. The medical evidence adduced by the prosecution through P.W.7 and postmortem report also shows that to the best of his knowledge the deceased died due to strangulation but he is not certain about the cause of death; therefore, there is missing link in the chain of circumstances. Further, mere establishing that A1 was working under the deceased itself is not sufficient to presume that there was illegal intimacy between A1 and A2 for the purpose of establishing motive part to connect the accused with the offence and they are entitled for acquittal. 8. Per contra, learned Additional Public Prosecutor contended that when the prosecution has established the presence of the accused on the previous night, A2 who is no other than the wife of the deceased, was in the house along with A1, it is for them to explain how the deceased died. The suggestion made to the doctor that deceased while contact with iron cot natural strangulation is possible has been denied which itself shows that a false plea has been taken by the accused, which is an additional link in the chain of circumstances to convict the accused. Therefore, the conviction and sentence recorded against them cannot be interfered. 9. In the light of the above submissions, the point that arises for consideration in this appeal is: “Whether the prosecution is able to bring home the guilt of the accused beyond reasonable doubt and the evidence in form of chain of circumstances is complete to convict the accused.” 10. P.W.1, who is the mother of the deceased and working as Sweeper in the Contonment, testified that she left the house in the early morning for work; the deceased is his second son, A2 is the daughter in law and A1 is the friend of the deceased; she is residing along with the deceased and his children in Ramaswamy compound, Gandhinagar, Secunderabad. On the date of incident A2 asked her Rs.500/- at about 7 P.M. which she fell due. On the same night she noticed A1, A2 and the deceased in the room and quarrelling. She woke up at 5 A.M. and went to duty; when she was at work, P.W.3 came to her office and informed about the death of the deceased. By the time she came to the house, A1 and A2 were not seen in the house; she lodged a complaint—Ex.P1 with the PS Gandhinagar. Nothing was elicited in the cross-examination to contradict the statement. She denied the suggestion that under the influence of liquor the deceased contacted with iron cot and consequently his neck was tightened and could not take breathe as such he died. She admitted that A1 assisting the deceased for selling the toddy and his son and A2 used to take liquor. She also stated that A1 was residing in their house throughout. 11. P.W.2, who is the elder brother of the deceased and working as labourer in MCH Department, deposed that he came to the house at 7.30 P.M. and noticed that A1, A2 and the deceased were in the room and they are quarrelling. He saw while A2 bolting the door inside. At about 11.30 or 12.00 he went to bed. By that time also the quarrel continued. On the next day morning he saw the deceased on the cot and informed the same to the relatives. 12. P.W.3, who is the son of the deceased and A2 and aged about 12 years on the date of incident, stated that he returned to home 10.00 P.M. after attending some function. By that time, A1 and A2 were present in the house and his deceased father was sleeping on the cot. As he was getting sleep, he went to his paternal grand mother’s room. On the next day morning when he woke up he found his father dead on the cot. A1 and A2 were present on the previous night along with his deceased—father in the room. After return from the function, he slept along with his father, as he was getting sleep he went to his grand mother’s room. In the cross- examination, he admitted that on noticing his father’s death all the neighbours gathered and at that time his mother—A2 also present. A2 used to purchase school bags, books, clothes and biscuits for himself and his younger sister. After he went to sleep he do not know what happened and he did not see committing of murder by A1 and A2 or any other. 13. P.W.4, who is residing adjacent to the house of the deceased, deposed that A1 had developed illicit intimacy with A2 and in that regard there were quarrels between A2 and the deceased. On hearing commotion, he went to the house of the deceased and found him dead lying on the cot. He noticed oozing of blood from the private parts of the deceased and also from nose and mouth. 14. From the evidence of P.Ws.1 to 4, prosecution is able to establish that A1 had developed illicit intimacy with A2 and as such A1 visiting the house of the deceased and he is also assisting the deceased in selling the liquor. On the fateful night, A1, A2 and the deceased were present in the room and on the morning the deceased was found dead. P.W.7, the doctor who conducted postmortem examination found seven injuries and issued Exs.P6 postmortem report opining that cause of death is due to strangulation. He denied the suggestion that the deceased himself caused the injuries mentioned in the report and the said injuries are possible in case of homicidal death. 15. Learned counsels were emphatic in their submission that once the doctor issued postmortem report stating that the deceased might have died due to strangulation, the prosecution failed to establish the strangulation, which is the cause of death. 16. P.W.7, the doctor stated that if any person killed by strangulation associated with smothering, injury Nos.4 and 6 are possible, but it is not necessary in a case of strangulation fracture of thyroid bone cartilage to occur. The prosecution is able to establish the presence of A2 in the house on the date of incident and consumption of liquor through the evidence of P.W.4; it is the accused who committed the offence. 17. In C.CHENGA REDDY v. STATE OF A.P.[1] the Supreme Court in para-21 observed as under: “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.” 18. The Supreme Court in TRIMUKH MAROTI KIRAN v. STATE OF MAHARASHTRA[2] held as follows: “In a case based on circumstantial evidence where no eye-witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete….. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence took place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.” 18. When the offence took place inside the house and after the offence A2 was absconding along with A1 which is an additional link to connect the accused with the commission of offence. No explanation is offered by A2 for her absconding from the house and non-lodging of report with the police or intimating about the death of her husband—deceased to any of the neighbours and kept quiet is also a circumstance, which can be taken into consideration, to complete the chain of circumstances. 19. In view of the same, the conclusions reached by the learned Sessions Judge on the evidence available on record that it is the accused none other than committed the offence, is a just conclusion and do not warrant any interference. Since we are in agreement with the findings of the trial court, we see no merits in the appeals and they are accordingly dismissed. _________________ A.GOPAL REDDY, J. _____________ RAJA ELANGO,J. 20-09-2010 Murthy [1] (1996) 10 SCC 1193 2 2006 AIR SCW 5300