THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No.1592 of 2007 Date of Judgment: 12-07-2011 Between: The State of A.P. rep. By P.P., High Court ofA.P., Hyderabad ..Appellant And Morampudi Srini @ Bhadri ..Respondent/Accused The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No.1592 of 2007 ORAL JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) 1. This appeal by the Public Prosecutor is directed against the acquittal order dated 24-10-2005 passed against the accused in S.C.No.48 of 2003 by the V Additional Sessions Judge, West Godavari, at Eluru. 2. The case of the prosecution is as under: The marriage between the accused and Morampudi Subba Lakshmi (hereinafter called as “the deceased) was performed on 01-05-2002. The accused used to work as cooli in glass factory situated in Kondagudem of Devarapalli Mandal and developed illicit intimacy with his co-worker by name Swarna Kumari of Dacherla village and used to harass the deceased both mentally and physically without any reason. Being unable to bear the torture in the hands of the accused, the deceased went away to her parents’ house. P.Ws.1 and 2—the father and mother of the deceased, on coming to know of the illicit intimacy of the accused with Swarna Kumari, conducted Panchayat before the elders wherein the elder have warned him to change his attitude. In spite of advice of elders the accused has not mend his attitude and continued the illicit intimacy with the said Swarna Kumari and harassed the deceased. Thereafter, the accused came to Kurukuru and started living with the deceased. While so, on 28-08-2002 when P.Ws.1 and 2 went to attend their cooli work, at about 11.30 A.M., when the deceased was sleeping on the cot, the accused killed the deceased by squeezing her neck with both hands; cleaned the blood, which was oozed from the mouth with a lungi and kept the same in cardboard box mingled with clothes to conceal the same. When P.W.1 returned to home and while entering into the house, the accused noticed him, pushed aside and escaped on a bicycle. Then P.W.1 noticed her daughter dead and raised cries. On hearing cries, the neighbours—P.Ws.3, 5 and others rushed to the place of occurrence and found the dead body of the deceased lying on the cot and they also witnessed while the accused escaping on a bicycle. On the same day, P.W.1 lodged Ex.P1—report before P.W.11—Head Constable, who in turn registered the same as case in Cr.No.116 of 2002 under Section 302 IPC and issued FIR—Ex.P12. P.W.12— Inspector of Police took up investigation and examined the witnesses; conducted scene of offence panchanama in the presence of mediators—P.Ws.7 and 8; held inquest over the dead body of the deceased. P.W.4—the doctor conducted postmortem examination and issued Ex.P2—post mortem certificate. During the course of investigation, P.W.12 arrested the accused on 30-08-2002 in the presence of P.Ws.9 and 10 and after completion of investigation he laid the charge sheet. 3. P.W.1, who is the father of the deceased, deposed before the Court that there is dispute between the deceased and the accused in connection with extra marital relationship with Swarna Kumari. He conducted Panchayat and advised the accused to lead happy married life, but the accused continued the same. On the date of occurrence, at 11.30 A.M. when he returned to home, he saw the accused came out of the house in a hurry burry manner; since he suspected the accused, went inside the house and noticed the deceased on the cot. He was under the impression that she is sleeping; when he tried to wake up he noticed she died. He went on a bicycle and informed the same to P.W.2. 4. P.W.2, mother of the deceased and wife of P.W.1 is not an eyewitness to the incident. The occurrence witnessed by P.W.1 was informed to P.W.2. Further, P.W.2 deposed regarding the dispute between the deceased and accused in connection with extra marital relationship with Swarna Kumari. 5. P.W.3 is the resident of Kurukuru village. On the date of occurrence, he saw the accused at 11.30 A.M. going on bicycle in a hurried mood and also heard the cries of P.W.1; then he went to the house of the accused and saw the dead body of the deceased and also noticed ligature of finger on the neck of the deceased. 6. P.W.4 the doctor who conducted autopsy over the dead body of the deceased found the following injuries. External Injuries: 1. Three abrasions measuring 1 cm x 1 cm. ; 1 cm x ½ cm.; ½ cm ½ cm present on the left side of the neck at a distance of 1 cm each to one another. 2. An abrasion 2 cm x 1 cm on the right of the neck. Dark brownish in colour. 3. Bruise present all around the neck extending upto the shoulder and anterior upto xephisternum dark brown in colour. 4. A burnt injury 1 cm x 1 cm at the lateral side of the left eye 5. An abrasion of 1 cm x 1 cm on the left brest. All the injuries are ante mortem in nature. Internal Injuries: Skull bones intact. Extra and intra cranial hemorrhages present. Meninges and brain are congested. On opening the neck blood clots present. The muscles on the neck are congested and blood clots are seen. Hyoid bone is intact. NO fracture of thyroid the tricoid and tracheal cartilages. On opening the chest, ribs are intact. Lungs are deeply congested. On cut section blood stained frothy liquid is coming from lungs. Heart chambers empty and congested. On opening the abdomen stomach contain partially digested food. Liver spleen and kidneys are congested. Urinary bladder empty. Genital organs are normal. Uterus normal; in size and non-pregnant spinal cord is normal. On external examination blood is coming out from the both nostrils and ears. Small hemorrhages are seen over the congenctive. He opined that the deceased died due to Asphyxia as a result of throttling. 7. P.W.5 who is also resident of same village noticed when the accused traveling on the cycle in a hurry burry manner proceeding towards committee hall. By that time he heard the cries of P.W.1; when he went to the house of the accused he noticed the deceased in the house; he tried to apprehend the accused but did not do so. 8. P.W.6 is the private photographer who took the photographs of the scene of offence and deceased under Exs.P3 to P6. 9. P.W.7 is the Panchayat Secretary. On receipt of message from P.W.1 he prepared a report, in which P.W.1 put his thumb mark. The body of the deceased was handed over to the police. 10. P.W.8 is the Sarpanch of the same village. He speaks about the marriage between the accused and deceased and subsequent illicit intimacy of the accused with Swarna Kumari; he is the panch witness to the inquest report. 10. P.W.9 has not supported the case of the prosecution but she stated as per the request of the police she drafted the report and P.W.1 affixed his thumb impression on the same; he also signed as witness to the mediators report—Ex.P10. 11. P.W.10 is resident of Krishnampalem village who attested the confessional statement of the accused. 12. P.W.11 is the Head Constable of Deverapalli police station. On receipt of report—Ex.P1, he registered a case in Cr.No.116 of 2002 under Section 302 IPC and issued Ex.P12—FIR. 13. P.W.12 is the Investigating Officer. On receipt of FIR he visited the scene of offence; drew rough sketch of the scene of offence; held inquest over the dead body of the deceased; sent the dead body to postmortem examination. After completion of investigation and relevant documents he laid the charge sheet. 14. As per the prosecution case, incident was occurred at 11.30 A.M. in the house of the accused by throttling the neck of the deceased. There is no direct eyewitness in this case and the prosecution mainly relied upon the evidence of P.Ws.1 and 3. P.W.1 only stated that he saw the accused at the place of occurrence at 11.30 A.M. which was supported by other witness—P.W.3. The learned Sessions disbelieved the said evidence and acquitted the accused. Against which the State preferred the present appeal. 15. Heard the arguments and perused the records. 16. To bring home the guilt of the accused, prosecution examined as many as 12 witnesses—P.Ws.1 to 12 and got marked Exs.P1 to P13 and exhibited M.O.1—lungi. 17. P.W.1 who is working as cooli admits in the cross-examination that daily he used to leave the house at 8.30 A.M. and return only in the evening. But he has not stated any reason why he returned to home on the date of occurrence at 11.30 A.M. and there is no evidence to show at the time of occurrence the deceased alone was in the house when the family comprises three more persons. Further, mere presence of the accused at the place of occurrence cannot be a ground to convict him. Though it is stated by the prosecution that blood stained lungi was recovered from the house of the accused, but the same was not sent to FSL to determine the availability of blood on the lungi According to the prosecution, the said lungi was taken from the TV box of the house of the accused. The prosecution failed to establish its case beyond all reasonable doubt. Therefore, benefit of doubt was given to the accused and he is acquitted of the charge. 18. It is well settled proposition of law that when two views are possible one view is given in favour of the accused by the trial court, there is no necessity for the appellate court to interfere with the said judgment. 19. Hence, we are of the view that the judgment and order passed by the learned Sessions Judge do not suffer from any infirmity and we are not inclined to interfere with the order passed by the learned Sessions Judge. 20. The Criminal Appeal is accordingly dismissed. _________________ A.GOPAL REDDY, J. _____________ RAJA ELANGO,J. 12-07-2011 Murthy