THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 1034 of 2007 JUDGMENT:(per Hon’ble Sri Justice N.R.L.Nageswara Rao) The sole accused in Sessions Case No.81 of 2006 on the file of the Sessions Judge, Ongole, Prakasam District, who was convicted of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, ‘IPC’) and sentenced to undergo imprisonment for life and to pay fine of Rs.100/-, in default to suffer simple imprisonment for a period of ten days, is the appellant herein. 2. The case of the prosecution is that the deceased, Thummalapenta Pushpavathi, was the wife of the accused. They are residing at Pamur and running a provisional shop by name and style of Vara Lakshmi Kirana Shop. The accused has been suspecting the character of the deceased and started ill-treating and harassing her. The accused and the deceased were attending to the shop every day from 08:00 AM to 09:00 PM. On 05.11.2005 also, the accused and the deceased attended to the shop and the accused who was having grudge against the deceased for her behaviour did not close the shop even after 09:00 PM and after all the neighbouring shops were closed, the accused beat the deceased with an iron rod, stabbed her on upper parts of the body, cut her throat with blade and left her in the shop and fled away. A telephonic information was received by PW.1, who was the Police Constable attached to Parmur police station, about the incident and then he along with PW.8 went to the scene of offence and found the deceased in a pool of blood and shifted her to the Government Hospital in Pamur. In the police jeep, on the way, PW.1 made enquiries with the deceased about the cause of her death, and the deceased said to have explained to him that she was beaten by her husband, who is the accused. After the deceased was brought to the hospital, she was proclaimed dead by the Doctor. Thereafter, P.W.1 gave a complaint to police, which was registered as a case in Crime No.54 of 2005 of Pamur police station, for the offence punishable under Section 302 IPC and investigated into. During the course of investigation, statements of witnesses were recorded, panchanama of the scene was conducted and inquest was held on the dead body of the deceased. Thereafter, the dead body of the deceased was sent to postmortem examination. On 8.11.2005, the accused was arrested and he gave a voluntary confessional statement. In pursuance of the confessional statement, blood stained clothes of the accused and an iron rod used for commission of the offence were seized under cover of panchanama in the presence of panchas. Thereafter, the accused was sent for remand. After receipt of necessary documents and completion of investigation, charge sheet was laid against the accused for the offence punishable under Section 302 IPC. 3. The case was taken on file as P.R.C. No.1 of 2006 on the file of the Judicial Magistrate of First Class, Kanigiri, and the same was committed to the Court of Sessions. Thereafter, after numbering the case, the case was made over to the trial Court. 4. The trial Court framed the following charge against the accused. “That you on 5.11.2005 at about 9.30 PM, at your provisions shop situated on the eastern side of Pamur-Nellore road, near Kalyani Hotel Centre at Pamur village did commit murder by intentionally causing the death of your wife Thummalapenta Pushpavathi @ Pushpa (deceased) by beating with an iron road (which is used to remove the fiber of the coconuts) twice on her head and also stabbed on her upper portion of the body with the same iron rod and also cut her throat with a blade resulting her death and that you thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance.” When the charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate the case of prosecution, P.Ws.1 to 15 were examined and Exs.P1 to P18 were got marked, on behalf of the prosecution, besides case properties M.Os.1 to 12. 6. After completion of the evidence on prosecution side, the accused was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) to explain the incriminating evidence appearing against him in the evidence of prosecution witnesses. He denied the same. The accused did not adduce any evidence on his behalf. 7. After considering the evidence available on record, the learned Sessions Judge, vide the impugned judgment, found the appellant/accused guilty of the charge levelled against him and accordingly, convicted and sentenced him as stated above. Aggrieved by the said judgment, the present appeal has been preferred by the accused. 8. Heard Sri C.Padmanabha Reddy, learned senior counsel appearing for the accused and also the learned counsel representing the Public Prosecutor. 9. The points that arise for consideration are: (i) Whether the prosecution has proved that the accused has committed the murder of the deceased? (ii) Whether the conviction and sentence imposed by the learned Sessions Judge are legal and sustainable ? 10. According to the case of prosecution, the murder of the deceased is said to have been committed by the accused suspecting her character. The scene of offence is not in dispute since it is a shop where business was being conducted by the accused and the deceased jointly. The time of offence is also said to be after 9:00 PM and the information is said to have been received on telephone by P.W.1, who is Police Constable, at about 9:45 PM and the information was also given that the person who killed the deceased is the accused, who is no other than the husband of the deceased. The person who gave the information, did not disclose his identity nor the prosecution is able to say as to the telephone number from where the information had come. 11. In support of the prosecution case, nearest relatives of the deceased were examined, but they did not support the prosecution case about the ill-treatment of the deceased by the accused or the suspicion entertained by him against her. 12. P.W.2 is father and P.W.3 is mother, of the deceased. They did not support the prosecution case, and according to them, they have no knowledge about the disputes between the accused and the deceased. P.W.3 stated that to her knowledge, they were living amicably. P.Ws.4 to 6, who are the owners of the neighbouring shops of the accused, did not speak anything about the offence, though they spoke about the relationship between the accused and the deceased and some disputes between them. All of them were declared as hostile. The evidence of P.W.7 is about taking of photographs of the scene of offence. The evidence of PW.8 is about going to the incident after receiving phone call, taking the deceased to the hospital and PW.1 enquiring the deceased about the cause of injuries. The evidence of P.W.9 is that the accused and the deceased stayed as his tenants for some time and thereafter, shifted to another place. He also did not support the case of prosecution about the differences between the accused and the deceased. The evidence of P.W.10 is about his presence at the time of panchanama of the scene under Ex.P9, seizure of M.Os.1 to 6 and also at the time of conducting inquest over the dead body of the deceased. The evidence of P.W.11-Doctor is about conducting postmortem examination on the dead body of the deceased and noticing the following injuries. "1. Transverse incised injury on the front of the neck. Size 3 cms x 1 cm x 0.5 cm margins regular. 2. Irregular incised injury on the left parietal bone 3" above the left ear. Size 4 cm x 3 cm x bone exposed. 3. Irregular incised injury 1 cm above the injury No.2. Size 2 cm x 2 cm x bone deep. 4. Irregular incised injury on the left upper arm 5 cms above the elbow joint. Size 5 cm x 5 cm x skin deep. 5. Irregular incised injury on the left upper arm 2" above the injury No.4. Size 1 cm x 1 cm x skin deep. 6. Irregular incised injury below the left collar bone. Size 1 cm x 0.5 cm x skin deep. 7. Irregular incised injury on the left breast 3 cm above the nipple. Size 1.5 cm x 1 cm x skin deep. 8. Irregular incised injury below the left axilla. Size 1 cm x 0.5 cm x skin deep. 9. Irregular stab injury on the right side below the axilla. Size 1 cm x 1 cm x skin deep. 10. Irregular stab injury on the right breast above the nipple. Size 1 cm x 1 cm x fat exposed. 11. Irregular stab injury on the right fore arm below the right elbow joint. Size 1.5 cm x 1 cm x skin deep. 12. Irregular incised injury on the left side above the buttock size length x skin deep. 13. Irregular incised injury on the back in between the two scpulas. Size 1 cm x 1 cm skin deep. There are three injuries in number. The distance in between the injuries are 2 cm. 14. Irregular incised injury 3 in number present on the back on right side over the middle of the scapula. 1 cm x 1 cm x skin deep. The distance in between the injuries are 3 cm. 15. Irregular injury on the left fore arm below the elbow joint. Size 1 cm x 1 cm x 0.5 cm. All the above injuries are antemortem in nature.” She issued Ex.P11-post-mortem report. According to her, there is a possibility of huge loss of blood from human body due to the above injuries and it may lead to unconscious state. The evidence of P.W.13, who is examined to prove the confessional statement of the accused, is not in support of the prosecution case and he was declared as hostile by the prosecution. The evidence of P.Ws.12, 14 and 15, who are police officials, is about the investigation done by them in this case. 13. According to the learned senior counsel appearing for the appellant, the learned Sessions Judge has given much credence to the evidence of P.Ws.1 and 8, who are evidently Police Constables and that the possibility of giving a statement by the deceased on the way to the hospital is very remote from the evidence of P.W.11-Doctor, and that, there is absolutely no explanation for the delay in sending the First Information Report to Court. It is his further contention that the confessional statement said to have been given by the accused is not proved and no circumstantial evidence is also available to find the accused guilty of the offence alleged. 14. On the other hand, the learned counsel representing the learned Public Prosecutor contends that there is no reason to disbelieve the evidence of P.Ws.1 and 8, who are Police Constables, and they have absolutely no interest in implicating the accused and the learned Sessions Judge has rightly relied upon their evidence and accordingly, convicted and sentenced the accused. 15. In this case, evidently, there is no direct evidence about the commission of the offence. The fact that the deceased died in the shop of the accused is also not in dispute. It is the prosecution case that both the accused and the deceased were attending to the business in the shop. There cannot be any presumption that the accused should also be present along with the deceased in the shop at all times because it is common knowledge that when husband and wife are both attending the business, there will be absence of any one of them during the business hours of the shop and the explanation given by the accused that he was not present in the shop at the time of incident, cannot, by itself, be taken as a circumstance pointing to his guilt. Further more, the incident took place at about 9:45 PM and the version of the prosecution that all the shops and shutters were closed by that time, also appears to be improbable since the scene is in the village Pamur at the center. As per the evidence of PW.1, a call was received from Kalyani Hotel Complex and the shop of the accused is located in Guntupalli Chenchaiah Complex. Ex.P15 shows location of several shops. A wine shop is near the scene and at about 09:00 PM, the presence of several persons at the wine shop is indisputable. PW.1 also admits presence of the people. Therefore, the availability of the neighbouring shop owners and the presence of independent witnesses at the scene of occurrence cannot be excluded. At any rate, there is absolutely no effort made by PW.1 to examine, or to find out the availability of, any neighbouring shop owners at the time of incident, to know about the cause of death after he has gone to the scene immediately. It cannot be expected that at about 09:00 PM, there will not be any persons in the center of the village and when a murder has taken place, even before the police comes people might have gathered there. It was only during the investigation, PWs.4 to 6, who are neighbours, at the scene are examined and they did not support the prosecution case. Therefore, keeping in view the nearest relatives of the deceased did not support the prosecution case about the ill-treatment or harassment of the deceased, the motive appears to be not real and not proved. 16. The trial Court relied upon the evidence of P.Ws.1 and 8, who deposed about the fact that on receipt of telephonic information, they went to the scene of offence, opened the shutter and found the deceased with injuries inside the shop struggling for breath. Therefore, by the time police personnel reached the scene of offence, the deceased was said to be still alive. In such a case, a prudent police officer or police personnel going to the scene of offence will make an immediate effort to enquire the injured or the persons present there to know about the cause of the injuries or about the cause of the attack. If really, P.Ws.1 and 8 had made any effort to know the cause of the injuries on the deceased, their first effort should be after immediately going to the scene of offence and opening the shutter, but not at the time when they were transporting the deceased to hospital. Therefore, the probability of PWs.1 and 8 making an enquiry from the deceased while being taken to the hospital after lapse of fifteen to twenty minutes of time appears to be improbable, particularly so in view of the medical evidence that there was loss of blood from the body of the deceased, which causes unconsciousness. The medical evidence clearly goes to show that there were number of injuries and even from the evidence of P.Ws.1 and 8, there was oozing of blood from the injuries of the deceased. So, the very factum of P.Ws.1 and 8 making enquiry from the deceased and the deceased giving a statement about the cause of her death on the way to the hospital to them appears to be highly improbable when they have not made enquiries at the scene. It may be that P.Ws.1 and 8 may not be having any grudge against the accused, but probably they may be under labouring the information received by them on telephone that the accused has killed the deceased. Therefore, in view of the above circumstances, the possibility of the deceased giving a statement to PWs.1 and 8 while she was being taken to the hospital appears to be improbable and more so when her coherence, consciousness and capacity to answer the questions is very much doubtful. It is more so because by the time she was taken to the hospital, within thirty minutes she was found dead. Therefore, the point of time of her death is not clear and she might have died even on the way to hospital when she was in the police jeep. In such circumstances, the statements of PWs.1 and 8 about the cause of death given by the deceased cannot be taken into consideration as conclusive piece of evidence when the motive attributed to the accused for the cause of the murder is not established by the independent witnesses and the nearest relatives of the deceased. Furthermore, none of the neighbours, who are expected to be present at the scene of offence, did not speak about the presence of the accused at the time of incident in the shop. Whatever may be the suspicion against the accused about the probability of cause of the death of the deceased, it cannot take place of proof. In the absence of acceptable and corroborative evidence on the side of the prosecution, the learned sessions judge has relied upon the confessional statement said to have been given by the accused leading to the recovery of MO.1 - iron rod, which is said to have been used in the commission of offence. But the prosecution for the reasons best known to it has not sent it for Forensic Science Laboratory examination to find out whether the said rod was actually used in the commission of offence or not. Furthermore, from the medical evidence the possibility of all the injuries being caused by MO.1 also appears to be doubtful. 17. So far as the contention about the late receipt of First Information Report by the Court is concerned, the fact remains that the complaint was lodged by PW.1 immediately at about 11:00 PM, after the death of the deceased and it has reached the Court on the next day morning at about 11:50 AM. From the circumstances, we do not find it suspicious circumstance to doubt the First Information Report lodged by PW.1. 18. Therefore, for all the above reasons we find that though there may be considerable suspicion against the accused, still it does not take place of the proof of his guilty beyond all reasonable doubt and the accused is entitled for acquittal. 19. In the result, the conviction and sentence recorded in the judgment dated 02.05.2007 in Sessions Case No.81 of 2006 on the file of the Sessions Judge, Ongole, against the appellant/sole accused for the offence punishable under Section 302 IPC are set aside. The appellant/accused is found not guilty of the charge levelled against him and he is accordingly acquitted of the same. The appellant/accused shall be released forthwith if he is not required in any other case. The fine amount, if any, paid by the appellant/accused shall be refunded to him. 20. Accordingly, the Criminal Appeal is allowed. _______________ K.C.BHANU, J _____________________________ N.R.L. NAGESWARA RAO, J January 19, 2011 MD THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 1034 OF 2007 (per Hon’ble Sri Justice N.R.L. Nageswara Rao) January 19, 2011 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE NINETEENTH DAY OF JANUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.1034 OF 2007 Between: Thummalapenta Subba Rao ..... APPELLANT AND State of Andhra Pradesh ....RESPONDENT The Court made the following: