HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.283 OF 2007 Dated:12-07-2010 BETWEEN: Goriga Laxmi …Appellant AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.283 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) This is an appeal by the sold accused challenging the judgment of the Sessions Judge, Adilabad, dated 29.01.2007, whereby she was convicted for the offence under Section 302 I.P.C. and was sentenced to undergo imprisonment for life and to pay a fine of Rs.100/-, in default, to suffer simple imprisonment for a period of one month. 2. The gravamen of the charge against the accused-appellant is that on 6.1.2005 at about 10.00 p.m. at Shanthinagar locality of Khanapur, the appellant-accused intentionally committed the murder of her husband- Goriga Gangaram (hereinafter referred to as ‘the deceased’) by axing him on his neck, on the pretext that he was addicted to alcoholic drinks and harassed her to satisfy his lust even in the presence of their aged children. 3. The case of the prosecution as narrated during the course of trial, in brief, is as under: Accused-appellant and the deceased are the wife and husband. P.Ws.1 to 4 are their children. P.W.5 is an immediate neighbour who stays by the side of the house of the deceased, a circumstantial witness. P.Ws.6 and 7 are witnesses to the confessional statement before whom the accused made confession about the offence. P.W.8 is panch witness for the inquest. P.W.9 is the investigation officer who received Ex.P.13 and issued Ex.P.14- F.I.R. P.W.10 is the doctor who conducted autopsy over the dead body of the deceased. P.W.11 is the investigation officer who filed the charge sheet. The accused and the deceased were blessed with 3 sons and 4 daughters, and out of them they performed the marriages of 2 daughters and elder son. Elder son is living at Manchiriyal along with him family. The deceased along with his wife, two daughters i.e. P.Ws.3 and 4 and two sons i.e. P.Ws.1 and 2 was residing at Shantinagar locality of Khanapur. After retirement, the deceased was moving without any work and addicted to alcohol. He used to beat the accused regularly suspecting that she was having illicit relationship with neighbours. The deceased always used to harass the accused physically and mentally. Besides that, he used to force the accused to satisfy his lust in the presence of aged children. On 6.1.2005 at 10.00 p.m., the deceased came to the house in drunken condition, picked up quarrel with the accused alleging that she is having illicit relationship with somebody and asked her to satisfy his lust, for which, the accused objected saying that the children are awake. The deceased did not listen and pulled her saree for which the accused got angry, picked up an axe, pushed the deceased on cot, axed him over his neck which caused the instant death of the deceased. P.W.1 came out of the room on hearing hue and cry and then the accused narrated the incident to him. Due to fear from police, the accused moved here and there and that on 8.1.2005 the accused approached P.Ws.6 and 7 and made confession of the commission of offence. On the next day, P.W.1 informed the police about the incident and gave a complaint Ex.P.13 under his signature Ex.P.1. On the basis of the statement-Ex.P.13, P.W.9 issued F.I.R. under Ex.P.14. Later inquest was conducted in the presence of P.W.8 and another and M.Os.1 to 10 were seized. P.W.10 on receipt of requisition from Police Station, Khanapur on 7.1.2005 conducted autopsy on the dead body at 2.30 p.m. and issued post-mortem report under Ex.P.15, in which he opined that the deceased died due to ‘Haemorrhage and shock as a result of cut injury’. Subsequent investigation was taken over by Inspector of Police-P.W.11 from P.W.9 who had drawn rough sketch of scene of offence marked as Ex.P.16. P.W.11 also recorded extra judicial confession of the accused on 8.1.2005 under Ex.P.17 and arrested the accused on 8.1.2005. After completion of investigation, he laid the charge sheet. 4. On committal, the learned Sessions Judge framed the charge under Section 302 I.P.C. and explained it to the accused in Telugu. The accused denied the charge and claimed to be tried. 5. To bring home the guilt of the accused, the prosecution examined P.Ws.1 to 11 and proved 18 documents under Exs.P.1 to P.18 and exhibited the case properties-M.Os.1 to 10. The accused was examined under Section 313 Cr.P.C. on the incriminating evidence appearing in the prosecution witnesses. She denied the same, but not led any evidence. 6. The learned Sessions Judge upon consideration of evidence on record found the appellant guilty for the offence punishable under Section 302 I.P.C. and accordingly convicted and sentenced her to undergo imprisonment as aforementioned. 7. Sri Vinod Kumar Deshpande, learned counsel for the appellant-accused contended that P.Ws.1 to 8, who are the material witnesses have not supported the case of the prosecution, that except Ex.P.13 report, there is no other evidence to convict the appellant for the offence, and that Ex.P.13 can be used only for corroboration but cannot be used as a substantial evidence to base the conviction, and therefore, he prays to set aside the conviction and sentence recorded by the learned Sessions Judge. 8. Per contra, learned Public Prosecutor while sustaining the conviction and sentence would contend that the accused, deceased and their children alone were present in the house and that the offence took place in the midnight and that as the axe was also found in the bedroom with bloodstains, it is for the inmates to speak how the axe was used, which is admittedly belongs to them. 9. P.W.1 is the son of the accused and deceased who set the criminal law into motion by lodging Ex.P.13 report. In Ex.P.13 report he stated that on the previous day i.e. on 6.1.2005 at about 9.30 p.m., himself, his mother (accused), his third elder sister and younger sister had supper and at about 10.30 p.m. while he was reading, his father (deceased) came to the house and picked up a quarrel with his mother. His mother and father slept in separate room, whereas himself and his sisters slept in another room. At about 11.30 p.m. they heard some noise and woke up. He came out of the house and found his mother standing in front of the house. When he entered into the room in which his mother slept, he noticed his father was lying dead on a cot in pool of blood. When he enquired with his mother as to what had happened, she revealed that his father state abused her in filthy language in intoxication and attributed that she is having illicit intimacy with others and that unable to tolerate the torture, she axed his father on his throat and killed him. Then he informed the incident to his elder brother-Goriga Ravinder- L.W.5 (not examined) over telephone and after arrival of his elder brother, he came to the police station for lodging the report. But, when he was examined in the Court, he has not supported the version as in Ex.P.13 report and therefore, he was declared hostile by the prosecution. He deposed that he got woke up the accused, his brothers and sisters and came out from the room and noticed unknown person while running from the second room, and that the unknown person is a male person. Police came to his house and obtained his signature on a paper. When he was cross-examined by the Public Prosecutor, he admitted that he did not disclose to the police that somebody ran away from their house. P.Ws.2 to 4 who are the other children of the deceased and accused had not supported the case of the prosecution and therefore, they were declared hostile by the prosecution. P.W.5, a circumstantial witness, who is an adjacent neighbour was also declared hostile. He stated that on the following day of the incident, he came to know about the murder of the deceased, rushed to the house and observed cut injury on the throat of the deceased and that he did not make any enquiry with the family members about the cause of murder of the deceased. P.Ws.6 and 7, before whom the accused is said to have made a confession, turned hostile and stated that the accused never confessed about the commission of murder of her husband and they never took the accused to the police station and handed over her to the police. P.W.8 is a witness to the seizure of M.Os.1 to 10 and also witness to Ex.P.12-inquest report. P.W.9 is Sub-Inspector of Police who registered the crime on the basis of complaint-Ex.P.13 and issued Ex.P.14-F.I.R. P.W.10 is the doctor who conducted autopsy over the dead body of the deceased at 2.30 p.m. on 7.1.2005 and found one cut injury on the front of neck of the deceased. He issued Ex.P.15 post-mortem examination report opining that the death was due to haemorrhagic shock as a result of cut injury of neck. P.W.11 is the Circle Inspector of Police who took up the investigation, conducted inquest over the dead body, got the dead body photographed with the help of photographer, prepared the rough sketch of the scene of offence under Ex.P.16. According to him, on 8.1.2005 P.Ws.6 and 7 produced the accused before him along with a recorded statement of accused. Ex.P.17 is the extra judicial confession statement of accused. He effected the arrest of the accused and produced her before the magistrate for judicial remand. 10. As per report under Ex.P.13, P.Ws.1 to 4 rushed to the scene of offence, that accused disclosed to P.W.1 about her committing the murder of the deceased, that P.W.1 telephoned to his elder brother-L.W.5 and on arrival of L.W.5, P.W.1 lodged Ex.P.13 report at 9.00 a.m. on the next day morning. Thus there is a delay of more than 10 hours in lodging the report, which has not been explained by the prosecution. Further as per the prosecution witnesses, the accused was available in front of the room where the deceased was lying dead, in which case, normally, they will caught hold of the accused, take her to the police station and handover her to the police, but no witness speaks to that effect nor they speak about her absconding from the scene of offence. But as per the evidence brought on record, the accused confessed of her committing the murder of deceased in the presence of P.Ws.6 and 7 on 8.1.2005. Since P.Ws.6 and 7 were declared hostile, the alleged confession of accused under Ex.P.17 cannot be relied on unless it is corroborated with other evidence. There remains only Ex.P.13 report, which cannot be a substantial piece of evidence to convict the accused for the offence with which she stood charged. By examining P.W.10-doctor, the prosecution could only establish that the deceased met with homicidal death. With regard to the seizure of axe-M.O.1, the scene of offence report discloses that no fingerprints of the accused were obtained to compare the same with the fingerprints on the axe, which was found in the bedroom according to the prosecution. Merely because the defence counsel did not cross-examine P.W.1 on the said aspect, an adverse inference cannot be drawn against the accused since it is for the prosecution to establish its case beyond all reasonable doubt. The prosecution miserably failed to establish its case that it is the accused and none else that committed the murder of the deceased. In the circumstances, the conviction and sentence recorded by the learned Sessions Judge against the accused cannot be sustainable and the same are liable to be set aside. 11. In the result, the appeal is allowed. The conviction and sentence recorded against the appellant-accused for the offence under Sections 302 IPC, by Sessions Judge, Adilabad, vide judgment, dated 29-01-2007, in Sessions Case No.486 of 2005, are set aside and she is acquitted of the said charge. She shall be set at liberty forthwith if not required in any other crime. The fine amount, if any, paid by the appellant-accused shall be refunded to her. _______________ A. GOPAL REDDY. J _________________ K.C.BHANU.J JULY 12, 2010 Tsr.