THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1538 of 2007 Date: 11.08.2009 Between : Smt. Dokka Shoba … Appellant And The State of Andhra Pradesh, Rep.by its Public Prosecutor, High Court Buildings, Hyderabad. … Respondent THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1538 of 2007 ORAL JUDGMENT: (per the Hon’ble Sri Justice D.S.R.Varma) Heard Sri G.Shankar, learned counsel for the appellant- Accused No.1 as well as the learned Public Prosecutor, appearing for the respondent-State. 2. This Criminal Appeal is directed against the judgment, dated 12.09.2007, in Sessions Case No.414 of 2006, passed by the IV Additional District and Sessions Judge (Fast Track Court), Nizamabad, acquitting Accused Nos.2 to 4 for the offence punishable under Section 302 read with Section 34 of Indian Penal Code (for brevity “I.P.C.”), however convicting the appellant-A.1 for the offence punishable under Section 302 I.P.C. and sentencing her to undergo Rigorous Imprisonment for life. 3. The case of the prosecution, in brief, is that A.1 and the deceased-Dokka Ravi are wife and husband. They loved each other and got married against the will of the elders of the family. Since about 12 years after begetting two male children, A.1 and the deceased started living separately eking out their livelihood by doing agriculture labour. On 17.8.2006 one Ippa Shanker, resident of N.T.R. Nagar Colony informed P.W.7 Sub-Inspector of Police, Dharpally Police Station, that the deceased, who is no other than his brother, was found dead in his hut, that he along with his parents, caste elders went to the hut and found the dead body of his brother lying on a mat. They found some contusion injuries on his neck and one saree was hanging from the roof of stick in the middle of the hut and further that he came to know that A.1 had illicit intimacy with one Rama Swamy-A.2 and that he was suspecting that the said Rama Swamy and A.1 might have committed the murder of the deceased. 4. On reference by P.W.7, the said complaint was registered by P.W.9 the then Head Constable of Dharpally as Crime No.38 of 2006 under Section 302 I.P.C. and issued Ex.P.13 F.I.R. Basing on the registration of crime, P.W.7 took up investigation and after completion of investigation and necessary formalities, like preparation of panchanama, recording of the statements etc., the police laid the charge sheet against A.1 to A.4 for the offence punishable under Section 302 read with Section 34 I.P.C. 5. When the charge under Section 302 read with Section 34 I.P.C., was framed, read over and explained to the accused, they pleaded not guilty and claimed to be tried. 6. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 11 and got marked Exs.P-1 to P- 17, besides marking MOs.1 to 4 material objects. On behalf of the accused, none were examined and no document was marked. 7. The Court below, after considering the entire material including the evidence, both oral and documentary, available on record, found A.2 to A.4 not guilty of the offence with which they were charged and accordingly acquitted them of the said charge, however, convicted the appellant-A.1 for the offence under Section 302 I.P.C. Aggrieved by the same, appellant-A.1 has preferred the present criminal appeal. 8. Now, the point that arises for consideration, in this criminal appeal is whether the Court below has rightly appreciated the evidence on record while convicting the appellant-A.1 for the offence punishable under Section 302 I.P.C.? 9. This is totally a case of circumstantial evidence, inasmuch as there was no direct evidence. Except P.Ws.1 and 2, the other witnesses i.e., P.Ws.3 to 6 were declared hostile. 10. The substance of the evidence of P.W.1 is to the effect that A.1 had illicit intimacy with A.2 (acquitted), that he received a phone call from A.3 Ippa Shanker, that the deceased, who was his brother, died in the hut by hanging, that after receiving the said information, he along with his parents and other locality people visited the hut of the deceased and found the dead body of the deceased lying in the hut and that he found a blackish injury around the neck which might have been caused with a rope or wire. Nothing much could be elicited from this witness. 11. From the evidence of P.W.1, it is obvious that he is not an eye witness nor did he explain conclusively the circumstances which led to the death of the deceased. What all he stated was that A.1 had illicit intimacy with A.2. Therefore, he expressed the suspicion only about the cause of death of the deceased and that the deceased did not commit suicide, but could have been murdered. 12. Coming to the evidence of P.W.2, who is the father of P.W.1 and the deceased, nothing could be elicited except the statement to the effect that he was informed about the death of the deceased and he rushed along with others to the house of the deceased and found the dead body of the deceased. He did not even express any doubt as regards the cause of the death of the deceased or even suspicion that the death was homicidal. Therefore, the evidence of P.W.2 is of no use at all, so also the evidence of P.W.1, who expressed the doubt that the death of the deceased could be homicidal, but not suicide. 13. It is further important to note that neither of the above two witnesses say about the exclusive company of the deceased with A.1 during that night. It is to be further seen that the confession statements of A.1 and A.2 under Exs.P.10 and P.11, respectively, also could not be proved by the prosecution by examining P.W.6, who was declared as hostile. 14. P.W.7, who is the S.I. of Police, Dharpally Police Station, only deposed about the receiving of telephonic message about the death of the deceased and his visiting the house of the deceased and recording the statements of others. Except the above, nothing could be elicited from this witness. 15. P.W.8 Doctor deposed to the effect that he found ligature mark around the neck horizontally knot right side of the neck ½” width and that he issued Ex.P.12 Postmortem Report opining that the cause of death was due to shock asphyxia as a result of strangulation. 16. The evidence of other witnesses is not much relevant and hence, the same is not referred to. 17. The other important circumstance on record is the statement made by the appellant-A.1 during the course of her examination under Section 313 Cr.P.C., wherein she stated that on the fateful day some chit was being conducted and in that connection all the locality people gathered there, that A.1 and the deceased were also gathered there, that in the evening the deceased collected Rs.10/- from A.1, had some toddy and went to his house, that she along with her children slept along with the community people. During night time her son complained that he was hungry, therefore, she woke up, went to her house and opened the door in order to feed the child and in the darkness she could pick up a match box, lighted and found the deceased hanging on his knees to the roof and she brought him down and started crying and in the meanwhile the neighbours came and she was handed over to the police. 18. Here, what is to be noticed is that there was no need for A.1 to explain these circumstances, which are in her exclusive knowledge. 19. The learned Public Prosecutor contended that the statements recorded under Section 313 Cr.P.C., which are exclusively in the knowledge of the accused are admissible in evidence as contemplated under Section 106 of the Indian Evidence Act. 20. But what is pertinent to be noticed is there was no need at all for the appellant-A.1 to make an inculpatory statement at the stage of examining her under Section 313 Cr.P.C. That apart, even if it is to be understood as inculpatory statement, what could be seen from the said statement is only regarding narration of fact which actually establishes her dis-association with the deceased along with her children by sleeping along with the community people. Therefore, the same cannot be treated as inculpatory statement and cannot be used against the maker of it nor there is any scope to use that statement against the appellant-A.1 for the simple reason that there was no admission of whatsoever in that statement. She only explained the circumstances under which she found the deceased dead and nothing more. 21. As already discussed, absolutely the evidence of P.Ws.1 and 2, which is the only piece of evidence on record, is not sufficient to point out the guilt against the appellant-A.1. The evidence of P.W.1 regarding the alleged illicit intimacy between A.1 and A.2 and the statement of A.1 under Section 313 Cr.P.C., which was considered as admissible under Section 106 of the Indian Evidence Act are the only two circumstances that were taken into consideration by the Court below in order to bring home the guilt of the appellant-A.1. 22. In our considered view, the said two circumstances are very weak circumstances. In fact, those circumstances do not throw any light and are not capable of being point out the guilt towards the appellant-A.1. Therefore, there is any amount of doubt as regards the involvement of the appellant-A.1 in the commission of offence. 23. As already pointed out, this is a case of circumstantial evidence. It is settled law that when a case rests upon the circumstantial evidence, the following aspects have to be proved by the prosecution. “(a) All the circumstances must cogently and firmly be established and all the circumstances should unerringly point out the guilt towards the accused; (b) that those circumstances, if taken cumulatively, should form a chain, so that they complete, so that there was no escape from conclusion that within all the human probability the crime was committed by the accused and none else; and (c) that all the circumstances must be complete and incapable of explanation of hypothesis of the guilt of the accused and should not only be consistent with the guilt of the accused, but should also inconsistent with his innocence.” 24. In the instant case, the expected chain of circumstances connecting the appellant-A.1 with the commission of offence is missing. In the absence of any connecting link, it is unsafe to hold the appellant-A.1 guilty of the offence with which she was charged. Therefore, we are of the considered view that the appellant-A.1 has to be given absolute benefit of doubt. 25. For the foregoing, the reasoning accorded by the Court below while recording the order of conviction and sentence against the appellant-A.1 for the offence punishable under Section 302 I.P.C. is liable to be set aside. 26. In the result, the Criminal Appeal is allowed, setting aside the judgment of conviction and sentence, dated 12.09.2007, in Sessions Case No.414 of 2006, passed by the IV Additional District and Sessions Judge (Fast Track Court), Nizamabad, against appellant-A.1 for the offence punishable under Section 302 I.P.C., and she is acquitted of the said charge. 27. The appellant-A.1 shall be released forthwith, if not required in any other case. The amount of fine paid, if any, shall be refunded to her. _________________________ JUSTICE D.S.R.VARMA __________________________ JUSTICE R. KANTHA RAO 11-08-2009 Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1538 of 2007 11-08-2009 (Msr)