IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE 6th DAY OF JULY, TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.295 of 2007 Between: R.Appa Rao … Appellant/accused And State of A.P., Represented by Public Prosecutor. … Respondent This Court made the following: THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.295 of 2007 JUDGMENT: (per the Hon’ble Sri Justice A.Gopal Reddy) Appellant/A1, who faced the trial along with A2, in Sessions Case No.10 of 2005, dated 22.01.2007 on the file of IV Additional District & Sessions Judge, Visakhapatnam, was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for two months for the offence punishable under Section 302 IPC and further sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for two months for the offence punishable under Section 498-A IPC, while A2 was acquitted of the charge framed against him, filed this Criminal Appeal questioning the conviction and sentence recorded against him. 2. The substance of the charges framed against A1 is that on 09.03.2004 at about 5 p.m., in the fields of Nyayampudi village he committed the murder of his wife Rangala Govindamma by squeezing her neck with the help of his concubine A2 Paneeru Kotamma @ Rangala Lakshmi and thereby committed an offence punishable under Section 302 IPC; and that A1 being the husband of one Rangala Govindamma for the past about two years prior to the date of offence i.e., on 09.03.2004 at G.Bheemavaram and Nakkapalli respectively, had been subjecting her to cruelty both mentally and physically by beating her by developing illicit intimacy with one Paneru Kotamma @ Rangala Lakshmi and thereafter committed murder of the said Govindamma and thereby committed an offence punishable under Section 498-A IPC. 3. The prosecution case as narrated during the course of trial is briefly stated as under: - Rangala Govindamma (hereinafter referred to as “deceased”), who was the daughter of P.Ws.1 and 2, was married with R.Appa Rao- A1 about seven years prior to the date of incident i.e., on 09.03.2004. At the time of marriage, P.Ws.1 and 2 gave Rs.20,000/- as dowry to A1. A1 and the deceased used to live in Nakkapalli village and are blessed with two sons. Two years subsequent to birth of their children, there arose disputes between them. On the death of the son of P.Ws.1 and 2, they shifted their residence to G.Bhimavaram for Toddy business. P.W.1 took the assistance of the deceased and A1 along with him at that place in the business, where they lived with P.Ws.1 and 2 for three months and later left to Nakkapalli. As A1 developed illicit intimacy with another lady A2, he subjected the deceased to harassment and ill-treated her by beating. About one year back to the incident, a dispute has been raised with the village elders under the leadership of Pitla China Apparao-P.W.3, L.W.5 and others and the matter was settled. A1 agreed to behave properly with the deceased and P.Ws.1 and 2 agreed to send the deceased to the house of A1. On 09.03.2004 at about 9 p.m., P.W.1 was informed that the deceased died by falling in a well through P.W.4 and on receipt of the message, P.Ws.1 and 2 went to Nakkapalli at 8 p.m. and they went near the well situated at Nyampudi village and thereafter P.W.1 lodged a report under Ex.P1 to the police on 10.03.2004 stating that his son-in-law and the lady A2 with whom he developed illicit intimacy might have beat their daughter and threw her into the well due to the disputes. On receipt of the report, P.W.17, the Head Constable, Nakkapalli Police Station registered a case in Crime No.16 of 2004 under Section 498-A and 306 IPC and sent the original F.I.R. to the Magistrate, Yellamanchili and copies to all the concerned and he sent requisition to the Mandal Revenue Officer, Nakkapalli for conducting inquest over the dead body of the deceased and took the assistance of P.W.5 to take photographs to the dead body of the deceased. During the course of investigation, himself and another constable visited the scene of offence, got the scene of offence photographed by P.W.5 under Exs.P2 to P4 photographs; drafted the scene of observation report under Ex.P9; prepared rough sketch under Ex.P19. On the same day at 3 p.m., P.W.14, the Mandal Revenue Officer also visited the scene of offence and conducted inquest on the dead body. P.W.17 examined the witnesses enquired by P.Ws.14 i.e., P.Ws.1 and 2, Kandregula Ramanamma-L.W.3, P.W.3, Penke Appanna-L.W.5, P.Ws.4 and 10 and recorded their statements; sent the dead body to the Medical Officer, Yeleswaram for post mortem examination. P.W.16 the Medical Officer, who conducted post mortem examination, issued Ex.P18 with the opinion that the deceased died due to asphyxia due to pressure on the neck 36 to 48 hours prior to the post mortem examination. P.W.18, the Sub-Inspector of Police, Nakkapalli Police Station, who took up further investigation on 16.03.2004, submitted the original F.I.R. along with Ex.P17 to the Magistrate; altered the section of law to 302 r/w 34 IPC from 498-A and 306 IPC after receipt of Ex.P17 post mortem report. P.W.19 the Inspector of Police, who took up further investigation, verified the investigation done by P.Ws.17 and 18; examined the witnesses; visited the scene of offence; arrested the accused in the presence of P.Ws.12 and 13 and after completion of the investigation, he was transferred to the other place and handed over the investigation to P.W.20. P.W.20, the Inspector of Police who took up investigation, on receipt of final opinion, filed the charge sheet against the accused for the offences charged. 4. On committal, the learned Sessions Judge, framed charges under Sections 302 and 498-A IPC against A1 and Section 302 r/w 34 IPC against A2 and when the same were read over to them, they denied the said charges and claimed to be tried. 5. In order to substantiate its case, the prosecution examined P.Ws.1 to 20 and marked Exs.P1 to P25. No evidence was adduced by the accused in their defence. 6. The learned Sessions Judge after taking into consideration the entire evidence and also the conduct of A1 in not reporting the matter to the police or to any other person and absconding for a wrongful gain after the death of the deceased, while acquitting A2 for the offence with which she was charged, convicted A1 for the offence punishable under Section 302 and 498-A IPC and sentenced him to undergo imprisonment as aforementioned. 7. Questioning the same, the appellant/A1 filed the present appeal. 8. Smt.A.Gayatri Reddy, learned counsel for the appellant/A1 contends that except the evidence of P.W.1, P.W.2 and the investigating agency, there is no other evidence to connect the appellant with the commission of the offence. The evidence of P.W.17 that he examined the witnesses and recorded their statements, who were already examined by P.W.14 and in the cross-examination he admitted that the statements of L.W.1 and other witnesses, dated 04.04.2004 filed into the Court were not recorded by him, clearly goes to show that the prosecution suppressed the earlier statements of the witnesses recorded by P.W.17, as they did not support the case of the prosecution. P.W.4 deposed that the brother of A1 came to him and informed him about the death of the deceased stating that he was informed of the same by A1 and in turn he informed the same to P.Ws.1 and 2. P.W.6, the mother of A1, deposed that the appellant left the house on the date of incident for collecting toddy in the early hours and the deceased was in the room till then and at 2 p.m. she went to the fields for toddy business. In view of the same, since the accused and the deceased did not leave together and it was a broad day light when the deceased was thrown into the well, it is improbable that the appellant is in any way connected with the commission of the offence and therefore, she prays to set aside the conviction and sentence recorded against him for the offence punishable under Sections 302 and 498-A IPC. 9. Learned Public Prosecutor sought to sustain the conviction and sentence recorded by the trial court contending that the prosecution established the guilt of the accused beyond reasonable doubt and the trial Court rightly convicted the accused. 10. In the light of the above submissions, the point that arises for consideration is, whether the prosecution is able to bring home the guilt of A1 for the offences for which he was charged, beyond reasonable doubt? P O I N T :- 11. P.Ws.1 and 2, who are the father and mother of the deceased, stated that at the time of marriage about seven years prior to the death, they gave Rs.20,000/- to A1. A1 and the deceased lived in Nakkapalli village at the residence of A1 and blessed with two sons. About five years ago, as their son died, they shifted their residence temporarily to G.Bhimavaram for doing toddy business and thereafter they took the deceased and A1 with them to that place to help them in the business. They lived with them for three months. As they came to know that A1 had illicit intimacy with one Panneru Kotamma –A2 as such A1 and the deceased were sent back to their village Nakkapalli. Thereafter A2 also went there and thereby A1 used to beat his daughter. In that regard disputes arose between A1 and the deceased. P.W.1 further deposed that they raised a dispute before the elders by name Pitla Apparao, Penki Appanna and others after he sent A1 and his wife from Bheemavaram to Nakkapalli. A1 stated to the elders that he would leave A2 and look after his wife. Therefore, A1 and the deceased continued to stay in Nakkapalli. One month later A1 and A2 shifted to Anakapalli village and living there. Thereby P.W.1 went there, and brought A1 to Nakkapalli and left him there and thereafter P.W.1 went to his village. One month later he received a message on 09.03.2004 at 8 p.m. through one Rangala Sivasankar that his daughter fell in a well situated at Nyampudi village and died and on the next day morning they went to the well and brought out the dead body. P.W.1 lodged a report under Ex.P1 to the police. In the cross-examination he admitted that he went to the well by auto from the police station. A water tank and the well are visible from the highway while going to the road during the time while sunlight is available. There will be many people passing on the road. P.W.2 admitted in the cross-examination that she did not witness A1 and A2 killing their daughter and she did not state to the police that A1 and A2 started residing Anakapally and then they went there and brought A1 to Nakkapally. She denied the suggestion that she had no personal knowledge about the A1 having illicit intimacy with A2. 12. P.W.3, who is the President of Toddy Tappers’ Association, deposed that he being the elder of their caste held a panchayat along with other elder caste members one year prior to the death of the deceased, where A1 was called to the panchayat and they advised A1 to leave A2 as she was ready to leave and further asked him to look after his wife and children. A1 promised to follow their advice and the deceased used to stay along with A1 and her in–laws in their house at Nakappally. On 10.03.2004 he went to the well at about 9 a.m. or 12 noon and at that time the dead body was in the well and after he went the dead body was shifted out of the well. In the cross-examination he admitted that the police visited the well about half an hour or one hour subsequent to his visit. P.W.4 stated that Srinivas came to him and informed about the death of the deceased stating that he was informed of the same by A1 and inturn he went to Bheemavaram and informed the death of the deceased to P.Ws.1 and 2. 13. P.W.5, photographer deposed that by the time he went near the scene of offence, the dead body of a woman was placed near by the well and that he took the photographs of the dead body under Exs.P2 to P4. 14. P.W.6, mother of A1 and P.W.2 stated that she did not know A2 and that A1 went to the business for collecting toddy in the morning hours on the date of incident and her daughter-in-law was at home by then. At 2 p.m. her daughter-in-law went to the fields for toddy on that day near Kayitha village and she did not return. Her grand son informed her at about 4 p.m. that his junior aunt died in a well. A1 and the deceased used to go together but on that day they did not go together. There was a dispute between A1 and his wife. At that stage she was declared hostile by the prosecution. P.Ws.7, 8, and 9 has not supported the case of the prosecution and were declared hostile. 15. P.W.10, who acted as a mediator on 10.03.2004, deposed about preparation of scene of observation report, conducting inquest on the dead body of the deceased by P.W.14, preparation of rough sketch to the scene of offence. P.Ws.11 and 12 also have not supported the case of the prosecution and were declared hostile. P.W.13, one of the mediators, deposed about arrest of A2 by the Police. P.W.14, the M.R.O. deposed that on 10.03.2004 at 2.30 p.m. on receipt of requisition from the police, he conducted inquest on the dead body of the deceased and prepared inquest report under Ex.P10. P.W.15, the Assistant Director of R.F.S.L., Visakhapatnam deposed about examination of the case property and issuing of report under Ex.P16. 16. P.W.16, the Doctor who conducted post mortem examination found the following injuries: Antimortem external injuries: 1. An abrasion 3 x ½ cm present over lower part of nose on right side. 2. an abrasion 3 x 1 cm present on right cheek. 3. an abrasion 4 x 2 cm pesent over center of forehead. 4. an abrasion 4 x 2 cm present over back of let hand. Anti-mortem internal injuries: 1. Fracture of nasal bone on right side with paraosteal infiltration blood is present. 2. Bruising of 12 x 8 cm present on right front and back neck muscles. He issued preliminary post mortem certificate under Ex.P17 and gave final opinion under Ex.P18 after receipt of the report from the RFSL. 17. P.W.17, the Head Constable, deposed that on receipt of a report under Ex.P1 from P.W.1, he registered a case in Crime No.16 of 2004 under Section 498-A and 306 IPC and sent the original F.I.R. to the Judicial Magistrate of First Class, Yeleswaram and copies to all the concerned and sent a requisition to the Mandal Revenue Officer for conducting enquiry and took the photographs of the dead body with the assistance of P.W.5 and got photographed the scene of offence under Ex.P9, prepared rough sketch under Ex.P19 and at 3 p.m., P.W.4 came to the scene of offence and inquest was conducted from 3 to 5.30 p.m. He examined the witnesses i.e., P.Ws.1,2,3, 4, and 10 and recorded their statements, who were already examined by P.W.14. Thereafter the dead body was sent to post mortem examination. He admitted in the cross-examination, that the statements of L.Ws.1, 2 and other witnesses dated 04.04.2004 filed into the Court were not the same recorded by him. P.W.1 did not state to him when he made a complaint that he gave dowry of Rs.20,000/- to A1 and that the height of parapet wall of the well at the scene of offence is one feet high from the ground level on its outside and noted in Ex.P19. P.W.18, the Sub-Inspector of Police, Nakkapalli Police Station, deposed about submitting the original F.I.R. along with Ex.P17 to the Magistrate; altering the section of law to 302 r/w 34 IPC from 498-A and 306 IPC after receipt of Ex.P17 post mortem report. P.W.19 the Inspector of Police, deposed about examination of the witnesses; visiting the scene of offence; arrest of the accused in the presence of P.Ws.12 and 13 P.W.20, the Inspector of Police, who took up further investigation, on receipt of final opinion, filed the charge sheet against the accused for the offences charged. 18. From the above evidence, the prosecution could able to establish that the deceased met with an homicidal death. The entire case rests upon the circumstantial evidence. When a case rests upon the circumstantial evidence, the prosecution must establish all the links in the chain of circumstances, so that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. On this aspect, it is pertinent to refer to a decision reported in Padala Veera Reddy v. State of A.P.[1] wherein at para 10 it was held as follows:- “(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 19. Admittedly, in the case on hand, there is no circumstantial evidence to connect the accused with the commission of the offence and more so, P.W.1 in his report under Ex.P1 stated that his son-in-law developed illicit intimacy with A2 and expressed a doubt that both might have killed his daughter and thrown her into the well. P.W.6, mother of A1, clearly deposed that A1 went for collecting the toddy in the early hours and the deceased was at home till she left to the fields at 2 p.m. In the absence of any evidence that the accused and the deceased together went for collection of the toddy and were together either at the place where they have collected the toddy or that the accused carried the deceased with him to any other place, it is highly unsafe to convict the accused only on suspicion that he might have killed the deceased and thrown the dead body into the well, as there is a missing link to the circumstantial evidence let in by the prosecution. 20. When the earlier statements of P.Ws.1, 2, 4 and 10 recorded by P.W.17 have been suppressed by the prosecution, by producing the statements recorded subsequent to the same before the Court and in the absence of any acceptable evidence let in by the prosecution as to why the earlier statements have not been produced, it is presumed that they have not supported the case of the prosecution. In the absence of any evidence let in by the prosecution that the appellant and the deceased were last seen together either at the house or at any other place, on mere suspicion that the accused might have killed the deceased and thrown her into the well as stated in Ex.P1 alone, is not sufficient to connect the accused with the commission of the offence. Further, the mere abscondance of the appellant and his arrest on a subsequent date, itself do not complete the chain of circumstances to connect him with the commission of the offence. Hence, the appellant is entitled for a benefit of doubt. 21. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded by IV Additional District and Sesions Judge, Visakhapatnam in Sessions Case No.10 of 2005, dated 22.01.2007 against the appellant/A1 for the offences punishable under Sections 302 and 498-A IPC is set aside. The appellant shall be released forthwith if he is not required in any other case. The fine amount, if any, paid by the appellant shall be returned to him. _________________ A.GOPAL REDDY. J ____________ K.C.BHANU.J 6th July 2010 lmv. [1] AIR 1990 SUPREME COURT 79