IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAU, THE 22nd DAY OF JUNE, TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.143 of 2007 Between: Korada Vijaya Bhaskara Reddy. … Appellant And State of A.P., Represented by Public Prosecutor. … Respondent This Court made the following: THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.143 of 2007 JUDGMENT: (per the Hon’ble Sri Justice K.C.Bhanu) This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973, (for short, "Cr.P.C.") is filed by the appellant/accused against the Judgment, dated 11.01.2007, in Sessions Case No.50 of 2005 on the file of the Court of I Additional Sessions Judge-cum-Special Sessions Judge for trial of cases under the S.Cs and S.Ts (Prevention of Atrocities) Act, 1989, (for short, “the Act”), East Godavari Division at Rajahmundry, whereunder and whereby, the appellant/accused was convicted and sentenced to undergo imprisonment for life and also to pay fine of Rs.100/-, in default, to undergo simple imprisonment for a period of three months for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, "IPC"); further convicted and sentenced to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs.100/- in default to undergo simple imprisonment for a period of three months for the offence punishable under Section 201 IPC and further convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.100/- in default, to undergo simple imprisonment for a period of three months for the offence punishable under Section 3(2) (v) of the Act. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: P.W.1 is the mother, P.Ws.2 and 3 are the brothers of Nirmala Jyothi {hereinafter referred to as “deceased”}. The deceased was the wife of accused. P.Ws.1, 2 and the deceased were living in Gontivanipalem, whereas the accused was living in 3rd APSP Quarters, Kakinada. P.W.3 was working in 3rd Batalion, APSP, Kakinada. The deceased was studying in a vocational course in Kakinada by residing in the house of P.W.3. She also joined in Swamy computers of P.W.4. During the course of her training, she had intimacy with the accused leading to a love affair. Both of them decided to marry. The parents of the accused did not agree for that proposal. Her parents and brothers also chastisised her for that love affair. On 03.04.2001, the deceased left the house on the pretext of attending to write examination, but did not return by nightfall. At that time, the accused was also not in the village. So on suspicion against the accused, P.W.2 gave a report to Sarpavaram Police Station. About fifteen days later, the deceased and accused were traced and the police called the elders and parents of the accused and deceased. Before them the accused and the deceased asserted their intention to marry each other. For that, the parents of accused refused and went away. On 17.06.2001, the parents of the deceased performed the marriage of accused and deceased at Annavaram Devasthanam. P.W.5 is the Purohit who performed the marriage. The accused used to stay at the deceased parents’ house in Gontivanipalem. The father of the deceased gave Rs.60,000/- to accused when he was searching for a job in Visakhapatnam and the accused sold away the gold ornaments belonging to the deceased. On 12.01.2007, the accused and the deceased went to the hospital to see the ailing father of the deceased and thereafter they did not return. On 28.01.2002 at about 10 a.m., P.W.7 received news from P.W.8 and others that the dead body of a woman was found at Gap No.3, spill way regulator gates of Yeleru Reservoir Canal Dam and on noticing foul smell, they went and saw a decomposed dead body. They inturn informed the same to P.W.7, who went and saw the dead body, which is of a female and presented a report to Head Constable (P.W.17) of Yeleswaram Police Station. On receipt of report from P.W.7 as in Ex.P.2, P.W.17 registered the same as a case in Crime No.10 of 2002 under Section 174 Cr.P.C. and issued FIR as in Ex.P.24 on 28.01.2002. He visited the scene of offence and noticed a decomposed dead body of a woman on 29.01.2002 and observed the scene of occurrence in the presence of P.Ws.7, 8 and others and got photographed the dead body and prepared rough sketch of the scene of offence and got held inquest over the said dead body in the presence of P.W.7 and others. In view of stage of the decomposition of dead body, on his request, P.W.13 conducted postmortem examination at the scene of occurrence on 29.01.2002 from 11.30 a.m. to 1.30 p.m. and issued report as in Ex.P15. During the course of scene of observation, inquest and postmortem examination, P.W.17 collected the clothes available on the dead body i.e., Saree-M.O.1, Langa-M.O.2, piece of jacket-M.O.3 and torn company underwear-M.O.4. He also noticed a ladies wrist watch M.O.5 and a silver anklet-M.O.6 from a distance to the dead body and recovered the same for the purpose of identification of the dead body. Thereafter P.W.17 got buried the dead body at the same place with the assistance of P.W.9 and Darakonda Samuel. The S.I. of police, Yeleswaram Police Station, (P.W.18) took up investigation and obtained postmortem certificate Ex.P.15, from P.W.13 as per which hyoid bone was fractured. Hence, P.W.18 served a questionnaire to P.W.13 to ascertain the cause of death, to which P.W.13 gave answers as in Ex.P16. In the light of Ex.P16, answers given by Medical Officer-P.W.13, P.W.18 altered the section of law from section 174 Cr.P.C. to section 302 IPC under Ex.P25. In the meanwhile as per the publication made by the police about the availability of dead body with particulars of the clothes available thereon and the recoveries made thereof, P.Ws.1 and 2 and others visited Yeleswaram Police Station and identified M.Os.1 to 6 are of the deceased and they were seized in the presence of mediators M.Venkata Ramana and others. Then a mediators report under Ex.P9 was drafted. P.W.18, the S.I. of police on issuing the altered F.I.R. under Ex.P25 visited the scene of offence and examined the dead body on 21.03.2002 in the presence of Mandal Executive Magistrate (P.W.15) and a team of doctors T.Ramarao (L.W.25) and P.Sarath Kumar (P.W.14) also visited scene of occurrence. On examination, he got conducted inquest over suspected dead body of the deceased and post mortem was conducted by a team of doctors i.e., P.W.14 and another. On receipt of Ex.P17-requisition from the Mandal Revenue Officer, the said team of doctors gave a preliminary opinion as in Ex.P18. P.W.20 took up further investigation. On 23.04.2002, at 3 p.m., P.D.V.Ramana and V.P.Malleswara Rao, Constables of Yeleswaram Police Station produced the accused before P.W.20 at Yeleswaram Police Station and when the accused was interrogated, he gave a statement in the presence of Ch.Jaggarao and P.W.7. This statement was reduced into writing under the cover of mediators report Ex.P7. At the instance of the accused giving disclosure statement on 23.04.2002 itself, the accused lead the said police party and the mediators to the scene of occurrence i.e., spill way gate and from the thick thorny bushes, picked out a leather belt and produced the same before the mediators as an alleged weapon of offence and the same was seized by the Investigating Officer (P.W.20) under the cover of mediators report Ex.P8. The superimposition technique used to compare the skull recovered from the scene of offence was tallying with photograph of the deceased, sent to the laboratory. The D.N.A. test conducted also revealed the said dead body is that of the deceased. 3. The charges levelled against the accused are as under: “Charge No.1: That you, on 12th day of January, 2002 at about 4.00 p.m. at yeleswaram Dam, did commit murder by intentionally (or knowingly) causing the death of Korada Nirmala Jyothi, and thereby committed an offence punishable under Section 302 of the Indian Penal Code, and within my cognizance. Charge No.2: That you, on the date, time and place mentioned in charge-1 supra, knowing (or hving reason to believe) that certain offence of murder punishable with death or imprisonment for lie, has been committed, did cause certain evidence of the said offence to disappear, threw away th dead body of Korada Nirmala Jyothi into Y.R.C.Waters with the intention of screening you from legal punishment, and thereby committed an offence punishable under Section 201 of the Indian Penal Code and within my cognizance. Lastly, that you on the date, time and place mentioned in charge-1 supra, not being a member of a scheduled Caste or a Scheduled Tribe committed an offence of murder of Korada Nirmala Jyothi under the Indian Penal Code (45 of 1860) punishable with an imprisonment of death or life against Korada Nirmala Jyothi, on the ground that she was a member of Scheduled Caste, and thereby comkmitted an offence punishable under Section 3(2) (v) of the SC & STs (prevention of Attrocities) Act, 1989 and within my cognizance. When the charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate its case, the prosecution examined P.Ws.1 to 20 and got marked Exs.P.1 to P.26, besides marking the case properties-M.Os.1 to 6. 6. After the prosecution evidence is closed, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing again him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, D.W.1 was examined and Exs.D1 and D2 were marked. 7. The Trial Court upon considering the evidence of the prosecution witnesses, found that the prosecution could establish the guilt of the appellant/accused beyond all reasonable doubt, and accordingly, convicted and sentenced him as above. Challenging the same, the present appeal is filed by the accused. 8. Now, the point for determination is:- “Whether the prosecution proved its case for the offences charged against the appellant/accused, beyond all reasonable doubt?” 9 . Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the appellant/accused contended that there is absolutely no evidence to show that the accused was the assailant of the deceased; that even if, all the circumstances relied upon by the prosecution are taken as true and correct, they do not lead to an irresistible conclusion that it was the accused who committed the murder of the deceased and none else; that except the homicidal nature of the death of the deceased, there is no other circumstances to indicate that the accused murdered his wife and caused disappearance of body thereafter. He further contended that the evidence of P.W.1 would only go to show that in the afternoon on 12.01.2002, the accused and the deceased left the Government Hospital, Yeleswaram; that it is difficult to believe the evidence of P.W.6 in view of the fact that number of patients would attend his hospital and it is highly improbable to believe that he could identify the accused and deceased visiting his hospital on 12.01.2002; that there is absolutely no motive for the accused to kill the deceased and that there are absolutely no circumstances to indicate that the crime was committed by the accused and none else. Hence he prays to set aside the convictions and sentences recorded against the appellant. 4. On the other hand, learned Public Prosecutor contended that the evidence of P.Ws.1 and 6 would go to show that the deceased was last seen alive in the company of the accused and after 12.01.2002 only, the deceased was found missing; that it is exclusively within the knowledge of the accused to speak about the whereabouts of the deceased and the death of the deceased was due to asphyxia due to pressure of the neck and that the belt seized at the instance of the accused is another circumstance which would go to show that he might have present near the scene of occurrence; that, after elaborate consideration of the evidence on record, the trial court rightly found the appellant guilty and there are no grounds to interfere with the same. 5. The entire case rests upon the circumstantial evidence. When a case rests upon the circumstantial evidence, the prosecution must establish all the links in the chain of circumstances, so that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. On this aspect, it is pertinent to refer to a decision reported in Padala Veera Reddy v. State of A.P.[1] wherein at para 10 it was held as follows:- “(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 6. Bearing the above principles in mind, it has to be seen whether the accused is the assailant of the deceased or not? 7. P.W.1 is the mother of the deceased. Her son P.W.3 was working as a constable in A.P.Special Police, Batallian at Kakinada. Though deceased and P.W.1 are residents of Gontivanipalem, P.W.1 got admitted her daughter in degree vocational course at Kakinada. The deceased used to live with P.W.3 in the police quarters. Later, the deceased was also got admitted in the computer course by P.W.3 near the quarters. The accused was the teacher in the said coaching center. The accused and the deceased were moving very closely. Thereafter, the marriage of the accused and the deceased was performed against the will of the elders. After the marriage, they lived together in the house of P.W.1 at Gontivanipalem. It is in the evidence that the accused used to go from the house in search of the job. Similarly, the deceased and the accused used to roam several places. On one occasion, they went to Tirupati and returned on 10.01.2002. By that time, the husband of P.W.1 was taking treatment in the clinic of P.W.6 for diabetes and Blood Pressure. 8. It is in the evidence of P.Ws.1 and 6 that on 12.01.2002 the accused and the deceased visited Yeleswaram Hospital at about 12 noon to see the husband of P.W.1 who was undergoing treatment. It is alleged further that after 1.30 p.m., the accused took away his wife along with him to see a movie. Thereafter they did not return to the house of P.W.1. They searched for the whereabouts of the deceased, but they did not find the accused or the deceased. On seeing a paper clipping about the finding of the dead body near Yeleswaram and the details of the clothes round on the dead body, P.W.2 went to the police station and on seeing the clothes on the dead body, he identified the dead body as that of the deceased. M.Os.1 to 4 are the clothes which were worn by the deceased, which belongs to the deceased and seized by the police. 9. In the fist instance, on finding of the dead body, P.W.8 and another informed P.W.7 about the tracing of the dead body of a woman at gap No.3, spill way regulator down stream. Then P.W.7 went to that place and found the dead body and presented Ex.P2 report to the Village Secretary of Yeleswaram. Basing on Ex.P2 report, P.W.17 registered a case in crime No.10 of 2002 under Section 174 Cr.P.C. He submitted original F.I.R. to the Mandal Executive Magistrate- P.W.15. P.W.17 held inquest on the dead body of the deceased in the presence of mediators. During the inquest, he seized M.Os.1 to 4 from the dead body. Thereafter, the doctor-P.W.13 was also summoned at the place of finding of the dead body and he conducted autopsy on the dead body of the deceased and found the following injuries. 1. A female body is purified, upper limbs and lower limbs extended skin and hair is peeled off from Head and Face. Complete skull is present, complete loss of muscles, tissues over head and face lost. Warms present all over the body. Skin and muscle over the front and back of the chest is lost. Ribs and chest cage is exposed. Skin over the buttocks and lower limbs is peeled off fatty tissue with worms present. Internal Examination:- Skull Intact. Brain Liquified, Hyoid bone fractured, Trachia and larynx contain frothy fluid, lungs remintnents of lung pieces are present. Heart, flabby, Liver Spleen Kidney are shrinked and purified, abdomen, stomach contain grey coloured fluid, preserved for chemical analysis. Bladder and external Gentilla is purified. Ex.P15 is the preliminary opinion given by him. On the questionnaire given by the Sub-Inspector of Police-P.W.18, he gave answer to the questionnaire and he opined that the fracture of hyoid bone is anti mortem injury and the cause of the death was due to asphyxia. The entire skin on the body was peeled out and some parts of the muscles also lost. He has not given any approximate time of death. Then again the dead body was exhumed on 21.03.2002 by the Mandal Revenue Officer. The Doctor conducted post mortem examination. At that time, the entire body was completely skeletonised. Some of the bones have been sent to the expert and D.N.A. test was also conducted. The team of Doctors opined that the deceased might have died of 1) Asphyxia as a result of pressure over neck, 2) Super imposition technique proved positive, 3) D.N.A. profile typing evidence, proved positive, 4) Diatoms test proved negative. So from his opinion, it is clear that the deceased is none other than the biological daughter of P.W.1 and P.Venkat Rao and she died as a result of pressure over neck. Nothing has been elicited from the cross- examination to doubt the testimony of team of Doctors as opined in Ex.P19 with regard to the homicidal death of the deceased. The team of Doctors opined that the time of death was about three months prior to post mortem examination. If that is taken into consideration, the death must have taken place before 23.12.2002. If such is the case, the evidence of P.Ws.1 and 6 has to be disbelieved. 10. The only circumstance on which the prosecution based heavy reliance is, the evidence of P.W.1. P.W.1 simply stated that on 12.01.2002 at about 1.30 p.m., the accused took the deceased from a private clinic of Yeleswaram in order to see a picture and thereafter it is alleged that the deceased was not to be seen. If the last seen theory is so proximate to the time of death, then it can be taken as a one circumstance in the chain of circumstantial evidence. The last seen theory by itself cannot be taken to conclude that the accused had committed the murder of the deceased. But the learned Public Prosecutor stated that under Section 106 of the Indian Evidence Act, 1872, the burden lies on the accused to explain the circumstances which are in the exclusive knowledge of the accused. But we are unable to accept the said contention, in view of the fact that Section 106 of the Indian Evidence Act, 1872 comes into play only after the prosecution established its case beyond all reasonable doubt. One of the cardinal principles that was going through the web of Criminal Justice System is that, the burden always lies on the prosecution and it never shifts unless law says so. As per the offences under Sections 302, 201 of IPC and Section 3(2)(v) of the Act, the burden always is on the prosecution and it never shifts. Therefore, the non-giving of explanation by the accused cannot be taken as a circumstance, so as to link the same in the chain of circumstantial evidence. 11. The other circumstance relied upon by the prosecution is that near the place of occurrence, a belt was seized as shown by the accused from the bushes near the place where the dead body was found. Though the belt was produced before the Magistrate, the same has not been transmitted to the Sessions Court. It was not marked as a material object. It is not the case of the prosecution that the belt seized was the weapon of offence used in the commission of offence. Therefore, the arrest of the accused and recovery of a belt cannot be said to be an incriminating circumstance against the accused. 12. There is no evidence that the deceased was in the company of the accused near the regulatory stream, Yeleswaram reservoir project prior to the incident, at the time of incident or after the incident. Similarly, there is no evidence to show that the accused stealthily carried the deed body to that regulator after committing the murder with an intention to screen the offence. Except showing that the deceased is none other than the wife of the accused, there is absolutely no evidence to show that the accused alone is responsible for causing the death of the deceased. Even if, the evidence of P.Ws.1 and 6 has to be accepted as true and correct, the same cannot be taken as a last seen circumstance, that the deceased was in the company of the accused because the approximate time of death of the deceased is not established from the medical evidence. Therefore, without considering these aspects, the trial Court came to a wrong conclusion and convicted the accused. Even if, the entire evidence of the prosecution is to be accepted, it cannot be said that the accused is perpetrator of the crime. Hence the accused is entitled for acquittal. 1 3 . In the result, the Criminal Appeal is allowed. The convictions and sentences recorded against the appellant/accused for the offences punishable under Sections 302, 201 IPC and Section 3(2) (v) of the Act, in Sessions case No.50 of 2005, dated 11.01.2007 by I Additional Sessions Judge-cum-Special Sessions Judge for Trial of cases under the SCs & STs (POA) Act, 1989, East Godavari at Rajahmundry are set aside and he is set at liberty forthwith, if he is not required in any other case. The fine amount, if any, paid by the appellant/accused shall be returned to him. __________________ A. GOPAL REDDY. J _______________ K.C.BHANU.J 22ND June 2010 lmv. [1] AIR 1990 SUPREME COURT 79