THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR Criminal Appeal Nos.142 and 169 of 2008 Date: 14-9-2009 Criminal Appeal No.142 of 2008: Between Dhanyasi Varalakshmi @ Varamma … Appellant/A1 and State of A.P., rep. by Public Prosecutor, High Court, Hyderabad … Respondent/Complainant Criminal Appeal No.169 of 2008: Between Kasukurthi Srinivasulu … Appellant/Accused No.s and The State of A.P., Rep. by its Public Prosecutor, High Court of A.P., Hyderabad … Respondent/Complainant THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR Criminal Appeal Nos.142 and 169 of 2008 Common Judgment: (per Sanjay Kumar, J.) 1. These two appeals arise out of the judgment dated 21-01-2008 in Sessions Case No.532 of 2003, on the file of the I Additional Sessions Judge, Nellore. By the said judgment, the sessions court found Accused Nos.1 and 2 (A1 and A2) guilty of the charge under Section 302 of the IPC and further found A1 guilty of the charge under Section 201 of the IPC. A1 and A2 were convicted for the said charges and were sentenced to undergo ‘imprisonment for life’ for the offence under Section 302 of the IPC; and further, A1 was sentenced to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for a further period of 3 months for the offence under Section 201 of the IPC. 2. The case of prosecution was that – One Dhanyasi Basavaiah (hereinafter referred to as ‘the deceased’) and A1 were husband and wife; that A2 is the brother of A1 and brother-in-law of the deceased; that the deceased was working as Assistant Manager in Syndicate Bank, A.S.Pet, Nellore; that his family was staying at his own house at Janathapet, Kavali, Nellore District; that the deceased was visiting his house twice in a week; that the deceased was suspecting that his wife was having illicit intimacy with one Gandham Prasanna Anjaneyulu, who was attending the needs of his family in his absence; that the deceased was ill-treating A1 and spending much of his salary for drinking and that about 20 days prior to the occurrence, the deceased met P.W.9 at Kavali and informed him that he was intending to get transferred to a far-off place like Bombay, as he had got some problems at home. That A1 strongly suspected that the deceased might kill her as he was suspecting her fidelity and sought help of A2; that both the accused hatched a plan to do away with the life of the deceased and in pursuance of it, A2 brought one insecticide poison tin and kept the same with A1; that on 19-4-2003, the deceased as usual came to his house at Kavali; that A1 mixed insecticide poison in the liquor bottle when the deceased went to the bath room and kept the bottle on a stool adjacent to his cot in the main hall; that later, the deceased consumed the liquor and he fell unconscious; that A1 called A2, who was waiting outside the house and A2 came inside and throttled the neck of the deceased with his hands and killed him; that the dead body was shifted to the ground from the cot and that afterwards, A2 went away by taking the empty liquor bottle and insecticide tin with him, and he was seen by P.Ws.3 and 4 at that time. That on 21-4-2003 at about 5 a.m., A1 pretended that she woke up along with her children and started weeping on seeing the deceased; that A1 and her children kept the dead body on the cot, and on hearing the cries, P.Ws.5, 6 and 11, one B.Hymavathi and one Annapoorna came to the house; that at that time, P.W.6 went to the doctor (P.W.7) and brought him, who examined the deceased and declared him dead and that on the arrival of all the relatives of the deceased, including P.W.8 and one Thirupathaiah, the dead body was buried at 7 p.m., on 21-4-2003 in the burial ground of Shanthinagar, Kavali, Nellore district. That there was a condolence meeting held on 04-5-2003 at J.B. College premises; that in the said meeting, P.Ws.1, 10 and 12 and others opined that the death was unnatural and suspected that the deceased was murdered; that on 05-6-2003 at 12 noon, P.W.1 lodged a written report under Ex.P-1 with II Town Police Station, Kavali and it was registered as Crime No.50 of 2003 under Section 176 Cr.P.C.; that it has been stated in the said report that on seeing the dead body, several people suspected about the death and that it was published in Eenadu Telugu Daily saying that the death was not natural and it might be murder and hence to exhume the body and send for post- mortem and to take action; that P.W.18 took up investigation, prepared a rough sketch of the scene of offence under Ex.P-11 and examined P.Ws.1, 5, 6, 10 to 12, one Hymavathi and one Annapoorna; that P.W.14 exhumed the dead body on 06-5-2003 at 12 noon, in the presence of P.Ws.12 and 17 and one C.Malyadri, and conducted inquest over the body of deceased under Ex.P-8; that P.W.19 did further investigation and examined P.Ws.2, 4, 7, 8 and one Thirupathaiah and recorded their statements; that P.W.13, along with Dr. Vijaya Bhaskar Rao and Dr. Suresh Kumar conducted post-mortem examination over the body of the deceased on 06-5-2003 at 5.30 p.m., and sent the viscera of the deceased to the R.F.S.L., for chemical analysis and that the opinion of P.W.13 was that the cause of death was due to organo phosphate, an insecticide poison and pressure over the neck leading to asphyxia. That P.W.19 altered the FIR on 24-7-2003 from Section 176 Cr.P.C., to Section 302 read with Section 34 of IPC; that thereafter, P.W.20 took up investigation and examined P.Ws.1, 4, 5, 6, 8, 10, 15, 16 and one Thirupathaiah and recorded their statements; that on 24-7-2003, P.Ws.15 and 16 produced A1 before P.W.20 stating that she came to the house of P.W.15 and gave an extra judicial confession (Ex.P-9), confessing the commission of offence along with A2 and that P.W.20, in his further examination, recorded the statements of P.Ws.3, 4 and 7 on 08-8-2003 and thereafter, filed the charge-sheet. 3. A charge under Section 302 of the IPC against both the accused and a charge under Section 201 of the IPC against A1 were framed, read over and explained to them in Telugu for which, they pleaded not guilty. 4. In order to establish its case, the prosecution examined P.Ws.1 to 22 and got marked Exs.P-1 to P-13. On behalf of the defence, no witness was examined nor was any document marked. 5. After considering the evidence on record, both oral and documentary, the sessions Court found both the accused guilty of the offences with which they were charged and accordingly, convicted and sentenced them as stated above. 6. Aggrieved thereby, A1 and A2 preferred Criminal Appeal Nos.142 and 169 of 2009 respectively before this Court. 7. The point that arises for consideration in these appeals is – Whether the sessions Court has rightly appreciated the evidence on record before recording the order of conviction against both the accused for the respective charges ? 8. Heard Sri P.Gangaiah Naidu, learned Senior Counsel, representing Sri N.Bharat Babu, learned Counsel for A1; Sri T.Bali Reddy, learned Senior Counsel, representing Sri K.Suresh Reddy, learned Counsel for A2; and the learned Public Prosecutor for the respondent- State in both the appeals. 9. Point:- The case of the prosecution is built upon circumstantial evidence, inasmuch as there were no eyewitnesses to the alleged offence. Needless to say, it is for the prosecution to establish an unbroken chain of events singularly pointing to the guilt of A1 and A2 only to the exclusion of all others, to establish a case against them. As stated by the Supreme Court, the inference of guilt can be justified only when the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. 10. The sessions Court proceeded mainly on the evidence adduced by P.Ws.1, 15 and 16. 11. The motive behind the crime, according to the prosecution, was that the deceased suspected the fidelity of A1 and therefore, A1 and her elder brother, A2, colluded together and did away with him. However, it is to be noticed that none of the family members of the deceased, including his daughter (P.W.2) and his brothers (P.Ws.3 and 8) made any allegation in this regard and on the other hand, they spoke of the amicable relations between the deceased and A1. 12. P.W.1, whose evidence weighed heavily with the sessions Court, stated that his observation of the body of deceased revealed that the deceased had sustained injuries on his neck and face regions. He also stated that he noticed swelling of the neck region of the deceased and from the injuries he found on the body of deceased, it was clear that it was a homicidal death. However, the evidence of P.W.7, a Private Medical Practitioner, who examined the body of deceased on 21-4-2003 at 6 a.m., that is, a few hours after his death, is to the effect that there were no injuries on the face and neck of the deceased. This evidence remained undisturbed. In the light of the evidence of an independent medical professional, the evidence of P.W.1, a layman, does not hold much water, so far as the presence of external injuries is concerned. 13. P.Ws.15 and 16 stated that A1 made an extra judicial confession in their presence on 24-7-2003 at 6 p.m. According to them, A1 came to the house of P.W.15 and stated that the deceased ill-treated her and she had killed him by offering poison on the night of 20-4-2003. According to P.W.15, he and P.W.16 prepared a statement to that effect (Ex.P-9) and signed on the same. Thereafter, the same was taken to II Town Police Station, Kavali and handed over to the police. 14. However, upon being recalled and cross- examined, P.W.15 admitted that A1 was educated and knew how to sign. He also admitted that he and P.W.16 had not obtained the signature of A1 on the said statement. P.W.15 did not speak of A1 involving A2 in the acts allegedly committed by her while P.W.16 speaks to that effect. There are thus any number of reasons to doubt the extra judicial confession (Ex.P-9). 15. It is relevant to note that the offence is alleged to have been committed on the intervening night of 20-4-2003 and 21-4-2003, whereas the extra judicial confession is said to have been made by A1 after a lapse of more than three months, on 24-7-2003 to P.Ws.15 and 16, who are neither related to her nor connected to her in any manner. Further, the said extra judicial confession was not even signed by A1 and there is no explanation forth-coming from P.W.15 and P.W.16 as to why they did not obtain her signature thereupon, when admittedly, she was educated and knew how to sign. 16. In Chhittar vs. State of Rajasthan[1], the Supreme Court doubted a confession on the ground that the same was belated. 17. Similarly, in State of Haryana vs. Ved Prakash[2], an extra judicial confession made by the accused to a total stranger was doubted by the Supreme Court. 18. In the present case also, there is an extra judicial confession and in the absence of the said extra judicial confession, the case of the prosecution rests only on the evidence of P.W.1. It is relevant to note that the father of A1 and A2 is himself a police official. If A1 wanted to confess her alleged crime, the most probable person that she would turn to, in such circumstances, would be her father and not some friends of her late husband. Added to this suspicious circumstance is the delay in this urge to confess, which renders this extra judicial confession highly suspect. 19. It is relevant to note that P.W.1, P.W.15 and P.W.16 are the friends of the deceased. They all stated that they noticed the injuries on the deceased immediately and suspected that it was not a natural death. However, none of them said anything at all and allowed the body of the deceased to be buried. This does not lend credibility to their evidence. Further, the evidence of P.W.1, which weighed heavily with the sessions court, is fraught with suspicious circumstances. The said deposition does not commend itself to acceptance. Had the deceased confided in P.W.1 about the alleged infidelity of A1, as claimed by P.W.1, A1 would not have turned to him about the so-called rumours circulated about her. Further, this allegation does not find support from the family members of the deceased, P.W.2, P.W.3 and P.W.8. The evidence of P.W.1, P.W.15 and P.W.16 appears concerted, with the sole intent of implicating A1, for some undisclosed reason. 20. The most significant aspect, overlooked by the sessions court, is the evidence adduced by P.W.13, the doctor who conducted the post-mortem examination over the body of the deceased which was exhumed on 06-5-2003. P.W.13 spoke of the presence of organo- phosphate, an insecticide poison, in the viscera of the deceased. Ex.P-5 is the post-mortem report, Ex.P-6 is the F.S.L. Report and Ex.P-7 is the final opinion. P.W.13 opined that the poison must have resulted in the death of the deceased. P.W.13 further said that the possibility of homicidal death is there in this case and followed up by stating that suicidal death cannot be ruled out. In the light of this evidence by a medical practitioner, merely because the death is unnatural owing to the presence of poison in the viscera of the deceased, a conclusion cannot be drawn that the death of the deceased was caused by homicide only. 21. All the more so, when the evidence of P.W.6 is to the effect that when the neighbours rushed to the house of the deceased upon hearing the cries at about 5 a.m. on 21-4-2003, they found the front door of the house of the deceased bolted from outside. This indicates that intervention of some third and unidentified parties and there is every likelihood that the deceased was administered the poison elsewhere or consumed it himself and thereafter, the body of the deceased was brought from outside and placed in the house. That would be the reason why there is no evidence of any struggle on the part of the deceased and any objects being disturbed in the place where the body of the deceased was found. Needless to state, the death caused by ingestion of insecticide would have been extremely painful and highly traumatic. 22. In such circumstances, the prosecution has utterly failed in establishing an unbroken chain of circumstances pointing to the inescapable guilt of A1, insofar as the commission of the offence under Section 302 of the IPC is concerned. 23. Insofar as the offence under Section 201 of the IPC is concerned, there is no material to show that any evidence was concealed or screened by A1. In this regard, it is to be noticed that after the body of the deceased was found by the inmates, the neighbours came and a panchanama was conducted and everybody was under the impression, as spoken to by the witnesses on record, that the death of the deceased was natural and therefore, the body of the deceased was shifted to the burial ground and was buried without an iota of doubt. As already pointed out, there were no traces of any struggle or any other disturbance being caused to any objects in the place where the body of the deceased was found nor is it the case of the prosecution that some particular material which ought to have been there was found missing, which would lead to a doubt about A1 concealing the evidence. Therefore, the question of any attempt being made by A1 to conceal and screen the evidence does not arise. We therefore find the conviction of A1 for the offence under Section 201 of the IPC unsustainable on the facts established. 2 4 . Nextly, insofar as the involvement of A2 is concerned, the allegation is that he strangulated the deceased after the consumption of the poisonous substance. We are unable to comprehend this charge. When the deceased was administered poison, there was no need for anyone to strangulate him thereafter. Furthermore, it is the evidence of the doctor, P.W.13, that the death of the deceased was due to the poison and the muscles of the neck would get swollen in cases of consumption of poison and indicate pressure on the neck. Therefore, the said circumstance elicited from P.W.13 in his evidence would negate the charge of strangulation. Further, as stated supra, P.W.7, the first doctor on the scene, did not even note any external injuries on the neck of the deceased. 25. It is to be further noticed that the presence of A2 at the scene of the offence was spoken about only by two persons i.e., P.Ws.3 and 4, who were thereafter declared hostile. Therefore, their evidence is of no consequence. The so-called extra judicial confession of A1 is the only piece of evidence that remains, which links A2 to the alleged offence. As stated supra, this confession is fraught with suspicious circumstances and is therefore not worthy of any credence. Thus, the involvement of A2 itself becomes doubtful. It is also to e noticed that the motive behind this offence is alleged to be the illicit relationship of A1 with one Gandham Prasanna Anjaneyulu. The normal human tendency, if the same was true, would be for A1 to turn to her paramour and seek his assistance and not that of her elder brother. This circumstance is sufficient to cast a cloak of suspicion on the very basis of the prosecution’s case. We therefore find that the prosecution did not prove its case beyond reasonable doubt. All the more so, when it cannot be ruled out whether the death was homicidal or suicidal. 26. In the result, both the appeals are allowed and the judgment dated 21-01-2008 in Sessions Case No.532 of 2003 passed by the I Additional Sessions Judge, Nellore, convicting and sentencing the appellants-A1 and A2 for the offence under Sections 302 of the IPC jointly and convicting and sentencing A1 for the offence under Section 201 of the IPC, is set aside. Consequently, the appellants shall be set at liberty forthwith, if not required in any other case. The fine amount, if any, paid shall be refunded to the appellants. __________________________ JUSTICE D.S.R.VARMA __________________________ JUSTICE SANJAY KUMAR 14th September, 2009. Ak THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR Criminal Appeal Nos.142 and 169 of 2008 (Judgment of the Division Bench delivered by SK, J.) 14th September, 2009. [1] 1994 CRI. L. J. 245 [2] 1994 CRI. L. J. 140