HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HONOURABLE SRI JUSTICE V.ESWARAIAH AND THE HONOURABLE SRI JUSTICE V.SURI APPA RAO CRIMINAL APPEAL NO. 1030 OF 2007 Wednesday, the Twenty Third day of February, Two Thousand and Eleven Between Thammisetty Venkata Kondamma w/o Chinna Ramaiah, Appellant/Accused No.1 AND The State of Andhra Pradesh, Rep. By Public Prosecutor, High Court of A.P., Hyderabad. Respondent THE COURT MADE THE FOLLOWING: JUDGMENT:(per the Hon’ble Sri Justice V.Suri Appa Rao) This appeal is filed against the judgment dated 19.6.2007 passed in Sessions Case No. 121 of 2005 by the learned VI Additional Sessions Judge (Fast Track Court), Markapur, Prakasam District, whereby the appellant/Accused No.1 was convicted for the offence under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- in default thereof to further suffer rigorous imprisonment for two months. The case of the prosecution, briefly stated, is as follows: The Accused No.1 is grandmother of the deceased Kavitha, aged about six months. The son of A-1 - Thammisetty Vijayakumar, PW-1 married Smt. Chandrakala, daughter of PWs. 7 and 8 Gunji Kashaiah and Gunji Venkata Ramanamma. On 19.5.2004, Smt. Chandrakala died at Hyderabad and the dead body was brought to Peddaobeninipalli village for cremation as per the caste customs and religious rites. After cremation of the dead body of Chandrakala, PWs. 7 and 8 left the children of Chandrakala at the house of A-1, who later developed an evil desire of doing away with the life of the deceased, as in her opinion the deceased will become hurdle in getting her son re-married. In pursuance of the said evil desire, she hatched a plan in furtherance of which, on 22.5.2004, A-1 killed the deceased by strangulation when the deceased was sleeping with her. Immediately she informed PW-1 about the death of the deceased and PWs. 7 and 8 were informed by PW-2 (Thammisetty Ramanaiah) about the death of the deceased. PWs. 7, 8 and others immediately rushed to the house of A-1 and found the dead body of the deceased with ligature mark around her neck. Thereafter, on the complaint given by PW-7, B.V.Peta Police Station, registered a case in Crime No. 35 of 2004 for the offence under Sec. 302 IPC and PW-15 Sri K.Siva Prasad, Inspector of Police, took up investigation and got the dead body of the deceased photographed, held inquest over the dead body in the presence of PW-9 and another under Ex.P-7 and sent the dead body for post mortem examination to Government Area Hospital, Markapur. A-2, Dr. V.Janardhan Reddy, hand-in-glove with A-1, in order to screen the evidence of offence, issued certificate dated 23.5.2004, stating that the deceased appeared to have died due to PEM (Protein Energy Malnutrition) with infection. He also issued another certificate dated 24.5.2004 (Ex.P-11) basing on the report issued by the Regional Forensic Science Laboratory stating that the deceased died due to Infective Medical Disease. For the questionnaire given by PW-15, A-2 gave replies in his letter dated 5.10.2004 (Ex.P-18) and as the answers to the questionnaire were not satisfactory, the matter was referred to the Professors of Osmania Medical College, Hyderabad, and on the advice of the Professor, Forensic Medicine, Osmania Medical College, Hyderabad, PW-10 (Dr. M.Narayana Reddy) and other professors of the Department of Forensic Medicine, Osmania Medical College, who examined all the material furnished to them and gave opinion dated 7.1.2005 to the effect that the cause of death of the deceased Kavitha @ Radhika is due to strangulation by ligature and after completion of the investigation, PW-15 Inspector of Police, filed the charge sheet against the appellant herein and A-2, Dr.V.Janardhan Reddy, Civil Assistant Surgeon, Medical Officer, Government Area Hospital, Markapur, who gave Ex.P-16, Post Mortem Examination report. The learned VI Additional Sessions Judge (Fast Track Court), Markapur, framed charge for the offence under Sec. 302 IPC against the appellant herein and for the offences under Sec.201 and 197 IPC against A-2 for screening the offence of murder and for giving false post mortem certificate, which is not admissible, in evidence, for which the appellant and the A-2 pleaded not guilty. In order to prove the guilt of the accused for the above charges, the prosecution in all examined PWs. 1 to 15 and marked Exs. P-1 to P-18. During the course of cross-examination of PW-3, a portion of his statement recorded under Sec. 161 Cr. P.C. is marked as Ex.D-1 in defence. The learned VI Addl. Sessions Judge, (Fast Track Court), Markapur, considering the evidence let in by the prosecution, found the appellant guilty for the offence under Sec. 302 IPC, convicted and sentenced her to suffer imprisonment for life and to pay a fine of Rs.500/- in default thereof to suffer rigorous imprisonment for two months. Accused No.2, who was charged for the offence of screening of evidence of murder and issuing false post mortem certificate, was found not guilty of any of the charges and was acquitted. Aggrieved by the judgment of conviction and sentence recorded against the accused No.1, she preferred this appeal. The prosecution in order to prove that the deceased died a homicidal death examined PWs. 1 to 5. Out of them, PW-1 is no other than son of the appellant. PW-2 (Thammisetty Ramanaiah), a resident of Pedda Obinenipalli village, informed about the death of the deceased to PWs. 7 and 8. PWs. 3 and 4 (Venna Sai Reddy and Nadikattu Venkatareddy) are the neighbours of appellant/A-1. PW-5 (Perumalla Ramesh Babu) is a merchant, who also came to know about the death of the deceased. Admittedly, PWs. 1 to 5 are not the eyewitnesses to the incident. The prosecution entirely relies on the circumstantial evidence to connect the accused with the crime. PWs 1 to 5 stated that after coming to know of the death of the deceased, they went to the house of A-1 and found the dead body of the deceased – Kavitha. The prosecution relying on the medical evidence, contended that the accused/appellant who is having custody of the children of PW-1 is only responsible for causing death of the deceased, whereas, the learned counsel for the appellant vehemently contends that the case against accused No.2, who is alleged to have given final opinion and false post mortem certificate under Ex.P- 11 and P-16, has ended in acquittal and the prosecution did not file any appeal against the acquittal of A-2. That apart, A-2 was examined as PW-12 and through him Exs. P-11 and P-16 were marked, which clearly go to show that the cause of death of the deceased was due to Infective Medical Disease but not due to strangulation by ligature; whereas according to PW-10, Professor, Forensic Medicine, Osmania General Hospital, Hyderabad, himself and a team of doctors on examination of the photographs, inquest report and other material, opined that the cause of death of the deceased is due to strangulation by ligature. Admittedly, Ex.P-8 is issued only basing on the photos of the child. In paragraph No.10 of Ex.P-8, it is specifically opined as under: 11. The photos are not showing any signs of protein energy malnutrition with infection 12. The photos clearly rule out the possibility of death due to protein energy malnutrition with infection in this case. 13. A ligature mark, encircling the neck, in its middle third, is clearly visible in the photos of the child. 14. The ligature mark, as seen in the photographs, is reddish brown and ante mortem in nature PW-10, has finally opined that after the detailed examination of all the documents cited in the reference, we the Professors of Forensic Medicine of Osmania Medical College/Osmania General Hospital, Hyderabad, are of the opinion that the cause of death of the deceased Thammi Satty Kavitha @ Radhika was due to strangulation by ligature. Admittedly this opinion is based only on the photographs furnished to PW-10 and the team of doctors. Learned counsel for the appellant vehemently contends that the prosecution has utterly failed to establish that the deceased died a homicidal death and, therefore, Ex.P-8, opinion which was issued by PW-10 basing on the photographs only, cannot be taken into consideration to conclude the cause of death of the deceased. Admittedly, the accused No.2, who conducted post mortem over the dead body of the deceased and issued Ex.P-12 opinion to the effect that the deceased died due to Infective Medical Disease, was acquitted of the charges under Sec.201 and 197 IPC and no appeal is preferred by the State against the acquittal. When once he was acquitted for the charges leveled against him, it can safely be inferred that the certificate issued by him was not at all false. That apart, even if the prosecution had proved that the death of the deceased was homicidal, there is no other evidence against the appellant herein to connect her with the crime. Admittedly, PWs. 1 to 5 and the child witness examined by the prosecution are not the eyewitnesses to the incident. All of them have stated in their evidence that after coming to know about the death of the deceased, they all went to see the dead body of the deceased. When the Investigating Officer had not satisfied with the post mortem report, Ex. P-16, by A-2, he ought to have taken steps immediately for re-post mortem examination by another Medical Officer available in the District. PW-13, who is alleged to have taken the photographs of the dead body of the deceased, has deposed that he snapped the dead body of a female child in the year 2004 on the instructions of the Inspector of Police at B.V.Peta Police Station. None of the witnesses examined by the prosecution have stated that the dead body was taken to Police Station for taking photographs. Unfortunately, the photographs under Ex.P-9 are not at all identified by any of the prosecution witnesses as that of the deceased girl. As already stated, the opinion under Ex.P-8 is not the conclusive proof of evidence, which was admittedly issued basing only on the photographs of the dead body. On the other hand, the medical certificate Ex.P-11 and the post mortem Ex. P-16 issued by PW-12, show that the death of the deceased was not homicidal. In view of the aforesaid facts, we hold that the prosecution has failed to establish that the deceased died a homicidal death and the appellant is responsible for causing the death of the deceased beyond reasonable doubt. In view of the above, the appellant is therefore entitled for benefit of doubt. The Criminal Appeal is allowed. The order of conviction and sentence recorded by the learned VI Additional Sessions Judge (Fast Track Court), Markapur, Prakasam District, in Sessions Case No. 121 of 2005, against the appellant herein for the charge under Sec. 302 IPC is set aside. The appellant is directed to be released forthwith, if she is not required in any other offence. Fine amount if paid by the appellant shall be refunded to her. ___________________ Justice V.Eswaraiah ________________________ Justice V.Suri Appa Rao February 23, 2011 MAS