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Judgment
Heard Mrs. G. Jaya Reddy, learned counsel for the appellant and Mr. T.V. Ramana Rao, learned Additional Public Prosecutor appearing on behalf of the respondent.
This appeal is filed challenging the judgment dated 07.11.2016 in S.C. No.383 of 2014 passed by learned VI Additional District and Sessions Judge at Siddipet.
The appellant herein is the sole accused in the aforesaid S.C. No.383 of 2014. For the sake of convenience, the parties will be hereinafter referred to as they arraigned in S.C. No.383 of 2014.
Vide the aforesaid judgment, the learned Sessions Judge convicted the appellant - accused for the offence under Section - 302 of IPC and accordingly sentenced him to suffer imprisonment for life and to pay a fine of Rs.1,000/- (Rupees One Thousand Only) and in default, to suffer simple imprisonment for three (03) months.
The case of the prosecution is as follows:
i) PW.1 is the father of the deceased - Renuka, while LW.2 is her mother. On 23.04.2007, the parents of the deceased performed the marriage of their deceased younger daughter with the appellant - accused. After the marriage, they led their conjugal life and blessed with two children.
ii) The accused was working as Fireman in Electricity Department on contract basis for the last five (05) years from the date of incident. About 2½ years back, the accused was transferred to Kodakandla Sub-Station and was residing at Gajwel in the house of PW.5 along with his wife and children.
iii) The accused used to give monthly salary to his wife and get pocket money for his expenditure. Since last six (06) months, the accused addicted to liquor and bad habits. The accused used to pick up quarrels with the deceased for money. The deceased brought the same to the notice of her parents who in turn convinced her. But the accused did not change his attitude.
iv) On 06.10.2014, PW.2 - elder brother of the deceased, celebrated Goddess ‘Pochamma Festival’ at his native place ie.., Manthani Devenipally and the deceased attended the said festival where she informed about the attitude of the accused. On 07.10.2014, when the accused came to his in-laws house, PWs.1, 2 and LWs.2, 4 and 5, father, elder brother, mother, elder sister and younger brother of the deceased, convinced the accused not to consume liquor and lead happy life.
v) On 08.10.2014 in the morning hours, the accused came to Gajwel along with deceased and their children. In the evening at about 5.00 p.m., the accused picked up quarrel with the deceased as to why she informed to her parents and asked money for consuming liquor and the deceased denied giving money. Then, the accused decided to do away the deceased forever and dragged the deceased Saree, stretched around her neck, pushed her on the floor, put his leg on her throat and murdered her by strangulation with Saree.
vi) On receipt of information through PW.6 over phone, PW.1, the father of the deceased, rushed to the house of the deceased, where he found his daughter (deceased) lying dead on the bed in the bed room and a Saree was tied around her neck. Blood was oozing from nose and ears. Then, after enquiring with the neighbours, he lodged a complaint - Ex.P1 with Gajwel Police Station, who in turn, registered a case in Crime No.239 of 2014 under Section – 302 of IPC and took up investigation.
vii) During investigation, the police examined the witnesses and recorded their statements and also conducted autopsy over the dead body of the deceased. After completion of investigation, the police filed charge sheet and the same was committed to the Sessions Judge which was numbered as Sessions Case No.383 of 2014.
The learned Sessions Judge after framing charge for the offence under Section - 302 of IPC proceeded with trial. During trial, the father of the deceased was examined as PW.1, while brother of the deceased as PW.2. PW.3 to PW.6 are the circumstantial witness; PW.4 is the photographer who took the photographs of the dead body of the deceased; PW.7 is the panch witness for the scene of offence, inquest and cloth seizure; and PW.8 is the Investigating Officer, while PW.9 is the doctor, who conducted autopsy over the dead body of the deceased. Exs.P1 to P12 and MO.1 were marked on behalf of the prosecution. No evidence either oral or documentary was let in on behalf of the accused.
It is contended by the accused that there are no eye-witnesses to the incident and the evidence of alleged circumstantial witnesses is not sufficient to prove homicidal death of the deceased, much less killing wife by the accused. There is also no evidence as to first who saw the deceased lying dead and who saw the deceased in the company of her husband in their rented house and, therefore, there cannot be any conclusion that the accused and the deceased were together in the house at the time of incident between 5 or 6 p.m. Further, burden is on the prosecution to establish that the accused and the deceased were seen together in the rented house between 5 or 6 p.m. and none of the witnesses spoke about their presence. Thus, the accused did not commit the aforesaid offence. Without considering the said aspects, the trial Court convicted the appellant erroneously and imposed life imprisonment.
Whereas, learned Additional Public Prosecutor would submit that the trial Court considering the depositions of prosecution witnesses and also medical evidence convicted the appellant. There is no error in it.
The learned Sessions Judge on appraisal of evidence, both oral and documentary and after hearing both sides, convicted the accused for the aforesaid offence and accordingly sentenced him for life imprisonment. Assailing the said conviction and sentence of imprisonment, the accused preferred the present appeal. Now, the accused is undergoing the sentence of imprisonment in Central Prison, Cherlapally, Medchal - Malkajgiri District.
In view of the above, the issue that falls for consideration by this Court is:
Whether the conviction recorded by the trial Court for the offence under Section - 302 of IPC against the appellant - accused is sustainable, both on facts and in law?
Now, it is apt to refer to the evidence of prosecution witnesses so as to come to a conclusion as to whether the trial Court was right in recording conviction against the accused or not?
PW.1 is the father of the deceased, while PW.2 is her brother. Both of them deposed that the accused is a habitual drunkard and that he used to come in drunken condition and demand the deceased to give money and pick up quarrel with her. The deceased told them about the torture meted out by the accused. Despite the same, the accused to stop drinking and to look after the deceased properly, he continued the same. They further deposed that they brought the deceased and her children to their home for Pochamma Festival. After three days, the accused came and took back the deceased and their children on the same day. On the said day night at 11.00 p.m., they received phone call from their relative, Mr. Narender (PW.6) stating that the accused killed the deceased. Immediately they rushed to the accused house at Gajwel, where they saw the deceased lying dead on the bed in the bed room and a Saree was tied around her neck. Blood was oozing from the nose and ears. On enquiry, they came to know that there was a quarrel between the deceased and the accused at about 5.00 P.M. Then, PW.1 rushed to the police and lodged Ex.P1 report.
PW.3, neighboring tenant, did not support the case of prosecution and, therefore, she was declared hostile by the prosecution. During cross-examination by learned Assistant Public Prosecutor, she admitted that the accused is their distant relative.
PW.4 is the photographer and he deposed that he took the photographs of the dead body of the deceased on the request made by PW.8.
PW.5 is the owner of the house, where the accused and the deceased were resided as tenants in one of the portions, deposed that he came to know about the death of the deceased as some persons present there were uttering that the accused killed his wife as she did not give money to him.
PW.6, a circumstantial witness, did not support the case of the prosecution and, therefore, he was declared hostile by the prosecution. During cross-examination by the learned Assistant Public Prosecutor, he admitted that the accused is his distant relative.
PW.7, one of the panch witnesses to the scene of offence
panchanama along with rough sketch (Ex.P8), deposed about the inquest conducted over the dead body of the deceased at Community Health Centre, Gajwel. Ex.P9 is the inquest panchanama, while MO.1 is the Saree of the deceased seized under Ex.P10 - panchanama.
PW.8 is the Investigating Officer and he deposed about the receipt of Ex.P1 complaint from PW.1 by LW.17 - Sub-Inspector of Police and registration of Crime No.239 of 2014 for the offence under Section - 302 of IPC. He further deposed about investigation conducted by LW.17, himself and securing presence of two panch witnesses, preparation of panchanama along with rough sketch, shifting of dead body to the Area Hospital, Gajwel for conducting autopsy etc. He also deposed about the examination of witnesses and recording their statements under Section - 161 of Cr.P.C. and laying of charge sheet against the accused for the aforesaid offence.
PW.9 is the Civil Assistant Surgeon, Government Hospital, Gajwel and she deposed that she conducted postmortem examination over the dead body of the deceased and found the internal and external ante mortem injuries. According to her, the approximate time of death was 20 to 22 hours prior to conducting PME and cause of the death of the deceased was due to asphyxia due to throttling. She issued Ex.P12- PME report. During cross-examination, she admitted that the cases of strangulation are different from cases of throttling and that in cases of strangulation, there is possibility of injury totally around the neck and that the police did not submit any material object to her.
Thus, there is no direct evidence in this case to prove the guilt of the accused. Entire case rests on the circumstantial evidence. In this case, the first circumstance is, disputes between the accused and the deceased. As per the evidence of PW.1 and PW.2, the father and the brother of the deceased, the accused was addicted to alcohol and that he used to pick up quarrel with the deceased. Except vague statements, they have not stated anything specifically.
The next circumstance relied upon by the prosecution is, ‘last seen theory’. As per the prosecution case, PWs.1 and 2 brought the deceased and her children home for Pochamma Festival, whereas the accused did not come, however, he came after three (03) days) and took his wife and children on the same day back to his village. On the same day night at 11.00 P.M., their relative Mr. Narender (PW.6) from Dharmareddypally village called them on phone and told them that the accused killed the deceased and the deceased was found lying on the bed in the bed room only. Thus, their evidence is to the extent of the deceased along with her children and husband coming back to their residence after attending Pochamma festival. They never said both the accused and the deceased were together. Thus, prosecution failed to prove the ‘last seen theory’.
Another circumstance relied upon by the prosecution is that PW.9, the doctor, who conducted autopsy over the dead body of the deceased, deposed that she found external and internal ante mortem injuries on the dead body of the deceased. Further, the cause of the death was due to asphyxia. Thus, the death of the deceased was caused due to asphyxia.
Now, another circumstance relied upon by the prosecution is that the accused is having knowledge of death of his wife and, therefore, he has to explain that he has not killed his wife and burden lies on him in terms of Section - 106 of the Indian Evidence Act, 1872.
As discussed above, there is no direct evidence in this case to prove the guilt of the accused. Entire case rests on circumstantial evidence. There is no dispute with regard to the legal position that conviction can be recorded relying on circumstantial evidence, provided that circumstances relied upon by the prosecution shall form a complete chain. There should not be any break in chain of circumstances. The prosecution has to prove the circumstances which relied upon by them, so that the said circumstances will form complete chain. The said principle was laid down by Hon’ble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 and subsequent judgments also. The five golden principles laid down by the Apex Court in Sharad Birdhichand Sarda (Supra) are as follows:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
As discussed above, in the present case, the circumstances relied upon by the prosecution is not forming complete chain to record conviction against the appellant herein. There is no dispute with regard to the death of the deceased. She is the wife of the accused. However, grave the offence may be, on suspicion we cannot record conviction against the appellant.
In the present case, the prosecution failed to prove the motive and guilt of the accused beyond reasonable doubt by producing cogent evidence. The trial Court without considering the said aspects recorded conviction against the appellant herein holding that the circumstances relied upon by the prosecution form complete chain and the prosecution has proved guilt of the accused beyond reasonable doubt. The said finding of the trial Court is not on consideration of the actual evidence and record. The appellant herein is jail from 07.11.2016. Thus, the impugned judgment is liable to be set aside.
The present Criminal Appeal is accordingly allowed, and the impugned judgment dated 07.11.2016 in S.C. No.383 of 2014 passed by learned VI Additional District and Sessions Judge at Siddipet, is hereby set aside. The appellant herein - accused is directed to be released forthwith if he is not required in any other case. His bail bonds shall stand cancelled.
As a sequel, miscellaneous applications, if any, pending in the appeal shall stand closed.