THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.342 of 2007 Between 1. Mannem Aruna 2. Mannem Durga Rao … Appellants/ Accused 1 and 2 and The State of A.P., Rep. By its Public Prosecutor, High Court of A.P., Hyderabad … Respondent THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.342 of 2007 Judgment: (per R.Kantha Rao, J.) This appeal is preferred by accused 1 and 2 in Sessions Case No.193 of 2003 against the judgment, dated 28-02-2006, passed by the Sessions Judge, Mahila Court, Vijayawada, Krishna district, whereby and whereunder they were convicted for the offence under Section 302 read with Section 34 of IPC and sentenced to undergo imprisonment for life and pay a fine of Rs.1,000/- each. 2. While the appeal is pending, accused No.2 died and the case against him is abated. 3. Briefly stated, the prosecution case is like this: Accused No.2 was the fostered son of one Manikyamma (hereinafter referred to as ‘the deceased’). Accused No.1 is the wife of accused No.2. There was a property dispute between accused No.2 and the deceased, on account of which it is said that there used to be some quarrels between accused 1 and 2 on one side and the deceased on the other, with regard to partition the disputed property. Earlier to the incident in question, a report was lodged by the deceased against accused No.2 on the ground that he quarrelled with her and beat her and a case was registered in Crime No.301 of 1999 for the offence under Section 506 of IPC and a charge-sheet was also laid against him, but, ultimately, the case against him ended in acquittal. Coming to the incident proper, it is the version of the prosecution that on the date of incident at about 10 a.m., P.Ws.1, 2 and 5 saw accused 1 and 2 assaulting the deceased and questioned them, for which it is said that the accused replied that since it was their family affair, P.Ws.1, 2 and 5 should not interfere and so saying they locked the gate of the house. At about 4 p.m., again they visited the house and found the deceased dead, whereupon P.W.1 lodged a report Ex.P-1 with P.W.9 Sub Inspector of Police, II Town Law and Order Police Station, Vijayawada, basing on which a case in Crime No.248 of 2002 was registered and was investigated into by P.W.9 and a charge-sheet was laid on completing the investigation. 4. During the course of the trial before the learned trial Court, the prosecution, in order to establish the guilt of the accused, examined P.Ws.1 to 10, marked Exs.P-1 to P-18 and M.Os.1 to 6. 5. The learned trial Court, upon considering the entire evidence on record, convicted the accused for the offence under Section 302 read with Section 34 of IPC and sentenced them to punishment, as mentioned above. 6. We have heard Smt. A.Gayathri Reddy, learned Counsel for accused No.1 and the learned Public Prosecutor for the respondent/State. 7. Now, the point for determination in this appeal is -- whether the order of conviction and sentence passed by the learned trial Court can be sustained ? 8. Point:- In the first place, we may state that for the actual incident in which the deceased said to have lost her life, there are no eyewitnesses. Out of P.Ws.2, 4 and 5, who, according to the prosecution, witnessed the accused assaulting the deceased at 10 a.m., P.W.2 only supported the prosecution case. His evidence, as already mentioned, was only to the effect that he and P.Ws.4 and 5 saw the accused beating the deceased at about 10 a.m., in their house. P.W.1 is the person who lodged the report Ex.P-1 with the Police. According to him, P.W.2 did not follow him to the police station at the time of lodging the report, whereas P.W.2 claims to have followed P.W.1 while he lodged the report with the Police. In any event, except the evidence that P.W.2 saw accused 1 and 2 beating the deceased at about 10 a.m., there is no other material on record indicating anybody witnessing the actual incident, which resulted in the death of the deceased. 9. P.W.10, the autopsy surgeon, conducted autopsy over the body of the deceased and he noticed the following ante-mortem injuries. (1) Contusion on the right parito occipital region of scalp 5 x 3 cm; (2) Contusion on the chin 3 x 2 cm; (3) Contusion on the right ring finger 1 x 1 cm; (4) Sub scalpular haemotoma present on the right parito occipital region 6 x 3 x 0.5 cm; (5) Diffuse sub-arachnoid haemorrhage present. According to him, the death of deceased was due to head injury. 10. Even if we accept that P.W.2 witnessed the accused beating the deceased, from the said evidence it is not possible to conclude that both of them or either of them caused the death of the deceased by beating with a stick. Absolutely there is no evidence indicating as to who caused the fatal injury. The deceased was admittedly aged 70 years on the date of her death and how, in fact, the death was caused is not known and the injuries found on the body of the deceased by the autopsy surgeon are not severe in nature. Merely because there was a property dispute and there were some misunderstandings between accused 1 and 2 and the deceased, it is not possible to prove that on that score, accused 2 and 1, who are the fostered son and the daughter-in-law of the deceased, respectively, would go to the extent of causing the death of the deceased. Therefore, in our considered view, it is not possible to arrive at a definite opinion as to the cause of death of the deceased though the fact remains that the body of the deceased was found in the house of the accused and there were some injuries on her body. Since accused No.2 died, it is further difficult to fasten criminal liability on accused No.1 as the person responsible for the death of the deceased. Under these circumstances, we deem it proper to give benefit of doubt to accused No.1 since the possibility of causing all the injuries by accused No.2, who died pending appeal, cannot be altogether discarded. 11. For the foregoing reasons, the judgment of conviction and sentence passed by the Sessions Judge, Mahila Court, Vijayawada, Krishna district, in Sessions Case No.193 of 2003, dated 28-02-2006, against A.1-first appellant is set aside and A.1, who is in jail, in connection with this case, shall be set at liberty forthwith, if she is not required in any other case. The fine amount, if any, paid by her shall be refunded. The appeal is allowed. _______________________ JUSTICE D.S.R.VARMA _________________________ JUSTICE R.KANTHA RAO 09th November, 2009. Ak