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Judgment
This Criminal Appeal is filed against the Judgment dated 24.06.2015 in S.C.No.388 of 2014 passed by the learned Metropolitan Sessions Judge, Hyderabad.
The case of the prosecution is that appellant/accused alleged to have killed his son and is alleged that accused committed offences punishable under Sections 302 and 309 of IPC. To prove the guilt of the accused prosecution examined P.Ws.1 to 10 and marked Exs.P1 to P13 on their behalf and also marked M.Os.1 to 5. The Trial Court after considering the arguments of both sides and also the entire evidence on record, convicted the accused under Section 235(2) of Cr.P.C and sentenced them to undergo life imprisonment with a fine of Rs.2,000/-, in default to suffer simple imprisonment for a period of one months for the offence punishable under Section 302 of I.P.C, and further sentenced to undergo simple imprisonment for a period of two months for the offence under Section 309 IPC. The remand period already undergone shall be set of against the imprisonment as per Section 428 Cr.P.C. Both the sentences shall run concurrently. Aggrieved by the said judgment, accused preferred the present appeal.
Learned counsel for the appellant/accused contended that there was no corroboration on material facts in the evidence in the evidence led by prosecution. None of the prosecution witnesses have supported the case of the prosecution. P.Ws.1 to 4 stated that the deceased had breathing problem, now and then he was taken to the hospital for treatment. Even the mother of the deceased who was examined as P.W.9 not supported the case of the prosecution. P.W.5 is panch witness for scene of offence and confession has not supported the case of the prosecution and stated that his signatures were obtained and he has not witnessed any proceedings. P.W.1 stated that he has not seen the accused in unconscious state. There is material evidence to show that the door was bolted from inside and it was broke upon and the prosecution failed to prove the material evidence. Therefore, requested this Court to set aside the judgment passed by the Trial Court.
The case of the prosecution is that as per the complaint given by P.W.1, J.Satish on 05.09.2013, he stated that M.Satyanarayana (herein after referred as ‘accused), his mother, his wife and his son, Venkata Sai (herein after referred as ‘deceased’) were living as tenants in their house. The accused works as a mason and his wife was working in Kurkure Company. On 05.09.2013 at about 05.00 a.m, Nagamani, mother of the accused informed him that her son and grandson locked the door from inside and they are not opening the door and requested him to open the door. As such, he along with his father went to their portion and saw that the door was locked from inside. Through the window they saw that the accused and his son were sleeping on the bed. With the help of a rod, they opened the lock from the window and when they went inside, they found the accused with cut injury on throat and his son found dead lying beside him. Immediately, they called ambulance and shifted the accused to Osmania Hospital and requested to take action against the accused for killing his own son. FIR was registered under Ex.P7 on 05.09.2013 by P.S Saidabad under Sections 302 and 309 IPC.
P.W.1 stated the accused and his wife were on cordial terms. In the cross-examination, he stated that in the complaint it was not mentioned that he telephoned to the police. He admitted that he stated to police that there used to be disputes between the couple, but they were only trivial disputes and also admitted that he did not state to police that the accused was unconscious and he saw that he was breathing and he was residing as tenant in their house from two years and they were lying on a cot.
P.W.2 is the mother of the deceased. She stated that son of the accused is no more and he had a throat problem and he died due to the said problem. She turned hostile. She stated that wife of the accused was not in the house at the time of the incident as she went to attend a function at Vijayawada. On that day, she was sleeping in the hall along with the deceased. The accused was not in the house as he went to attend his work. She denied the suggestion that she stated to the police as in Ex.P2 that the deceased and accused slept in the bedroom.
P.W.3 is brother of P.W.1. He stated that P.W.1 resides in first floor and he resides in the second floor of their building and the accused used to reside as tenant in the ground floor along with his wife, son and mother. On 05.09.2013, at about 06.00 a.m., P.W.2 was weeping, and then P.W.1 informed that the son of the accused died. They saw through the window of the house of the accused and found accused was sleeping on a cot. The dead body of the child was also found on the cot along with the accused. They informed the same to the police and his statement was recorded by the police. P.W.3 turned hostile. In the cross-examination he stated that accused was looking after the deceased and his wife well and there were no disputes between them. He denied the suggestion that he stated to the police as in Ex.P3 that he observed the cut injury on the throat of the accused.
P.W.4 is a resident of Champapet, Hyderabad and he knew accused. He stated that on 05.09.2013, at about 05.00 a.m., he heard cries and shouts from the house of the accused and then he went to the house of the accused and saw that the son of the accused was dead and the dead body was kept on the floor, while the accused was on the cot. He found cut injury on the neck of the accused and he was unconscious and informed the matter to the police. He further stated that accused was looking after the deceased and his wife well and he does not know whether the deceased had a breathing problem.
P.W.5 is also a resident of Champapet, Hyderabad. He is panch witness for scene of offence. Ex.P4 is the scene of offence panchanama along with rough sketch. He stated that the accused did not make any confession in his presence and nothing was seized from him. P.W.4 turned hostile.
P.W.6 is CMO in Osmania General Hospital, Hyderabad. He stated that on 05.09.2013 at 06.35 a.m., the accused was brought to the causality by the Saidabad Police. On examination, he found a slit cut injury on the throat and on the wrist. It is reported that he attempted suicide. He sutured the wound. He issued medical certificate under Ex.P5. He stated that the injuries are possible with a blade. In the cross-examination, he stated that the injuries are possible with sharp edged iron rod. He did not mention whether the wrist was right or left in Ex.P5.
P.W.7 is Associate Professor in the department of Forensic Medicine, Osmania General Hospital, Hyderabad. He conducted autopsy over the dead body of the deceased and he stated that the cause of the death was due to smothering and throttling - an asphyxia death. In the cross-examination, he further stated that hyoid bone was intact. There were several contusions on the neck which may be caused due to pressure by fingers. There are two contusions on the left side and one contusion on the right side. He issued Postmortem Examination report under Ex.P6.
P.W.8 is Sub-Inspector of Police, who received a report under Ex.P1 from P.W.1 and registered a case in Cr.No.307 of 2013 for the offence under Section 302 and 309 IPC. He issued Ex.P7-FIR to all the concerned. He stated that he did not mention the GD number in the FIR and he did not obtain the signature of the complainant in the prescribed column.
P.W.9 is wife of the accused. She stated that she married the accused about seven years back and blessed with one male child, Srivenkata Sai (deceased) in the year 2009 and she has cordial relationship with the accused. She stated that P.W.2 is her mother-in-law. She further stated that her son died due to breathing problem. She turned hostile. It was suggested that she stated as in Ex.P8 that the accused used to suspect her and he beat her severely but she denied it.
P.W.10 is Inspector of Police, who concluded the investigation and filed charge sheet. It was suggested to him that P.Ws.2, 3 and 9 did not state before him as in Exs.P2, P3 and P8 and he did not conduct any investigation and filed charge sheet without any basis and he denied it. He made GD entry after receiving the telephonic message.
Admittedly, it is the case of circumstantial evidence and it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
The Hon’ble Apex Court in the case of Ashok Kumar Chatterjee Vs. State of Madya Pradesh AIR 1989 SCC 1890 held as follows:
“When a case rests upon circumstantial evidence such evidence must satisfy the following tests:
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 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 no one else, and
4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on 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.
The Trial Court observed that P.Ws.1 to 9, who are material witnesses turned hostile. But as per the evidence, accused along with deceased was sleeping in the house and locked the door from inside. P.W.2, who is the mother of the accused and P.W.9, wife of the accused also turned hostile. As per the evidence of P.W.7, doctor, the deceased died due to smothering and throttling. As the door was locked from inside, there is no scope for anyone to enter into the room and it caused the death of the deceased and accordingly the trial Court convicted the accused.
P.W.2 is mother of the accused and P.W.9 is wife of the accused and both of them turned hostile. P.W.1 stated that he opened the door of the room along with his father and found accused in unconscious state and also found his son dead and informed to the parents and gave the complaint. P.Ws.3 and 4 stated that there was cordial relationship between the accused, his wife and his son. P.W.2 stated that deceased was having throat problem and he died due to that problem, whereas P.W.4 stated that he do not know whether the deceased had breathing problem. As per the medical evidence of P.W.6, accused sustained simple injury i.e., cut injury on throat whereas deceased died due to smothering and throttling. As per Ex.P6, the medical evidence is contrary to the oral evidence of P.ws.2 and 9. As per the medical evidence there are contusions and they were caused due to the pressure of fingers. The doctor clearly stated that the deceased died due to throttling. P.W.2 stated that she was sleeping with deceased in the hall, and her son was sleeping in the bedroom. But when P.W.1 opened the door, he found the accused and deceased on the same bed and the deceased was lying on cot and accused was in unconscious state due to the injuries.
Panch witness for the scene of offence and confession turned hostile and he stated that he has not witnessed any proceedings and accused did not make any confession in his presence. Though the scene of offence panchanama was conducted on 05.09.2013, P.W.10 stated that M.O.2, blade was seized at the scene of offence after the confession of the accused. However, as the panch witness turned hostile, the prosecution failed to prove the seizure of the material objects from the scene of offence. As per the prosecution, the accused used to suspect the character of his wife. On 28.08.013, there was quarrel between the accused and his wife and he beat her severely and she informed the same to her paternal uncle. On the next day morning, her paternal uncle came to their house and he took her with him by leaving her son with her mother-in-law. On 05.09.013, the accused and his son were found in the same room and the accused was found with cut injury and deceased was found lying on cot.
The motive for the offence as per the prosecution is his wife deserted him and he was in depression and he also suspected her fidelity and questioned her several times whether the deceased was his child or not and in frustration he killed his son and also repented immediately and attempted to commit suicide. In this case the material witnesses turned hostile. P.W.1 and others found the deceased lying on the bed along with the accused. Except his confession statement, there is no other evidence to prove that the accused killed his son. Therefore, it cannot be said that the accused throttled and killed his son. This is a case of circumstantial evidence. There are no eye witnesses to the murder. Even mother of the accused, who was sleeping in the hall, did not see what happened and on the next day when she called her son, he did not open the door and as such she called P.W.1 and requested him to open the door. Though the accused sustained injuries with blade, they are simple in nature and it cannot be said that he caused the said injuries with an intention to commit suicide. P.Ws.1, 3 and 4 clearly stated that there are no disputes between the accused, his wife and his deceased son and they were living happily and thus it cannot be presumed that accused might have killed his son. P.W.9 has not stated anything regarding suspicion, in fact she left her son with her mother-in-law i.e., P.W.2 and went with her paternal uncle on 28.08.2013 and the incident happened on 05.09.2013 i.e., after one week, till that day accused has not quarreled with his wife for leaving him. As the accused was in unconscious state, he was immediately shifted to hospital. All the material witnesses including panch witness turned hostile and stated that the accused and his wife were in cordial terms.
This Court cannot jump into the conclusion that accused alone committed the murder and his son also attempted to kill him as he sustained only simple injuries. The Trial Court had drawn inference against the accused without any basis.
The Trial Court convicted accused on 24.06.2015 and from then, he is in jail for 7 ½ years. It is for the prosecution to prove the guilt of the accused beyond reasonable doubt, but the prosecution failed to prove the material evidence and all the material witnesses and panch witness turned hostile. Suspicion however strong will not take the place of proof. As per the decision of the Hon’ble Apex Court in Sujit Biswas Vs State of Assam 2013 Cri.LJ 3140 (SC), it was held as follows:
Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be’ proved, and something that `will be proved’. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be’ and `must be’ is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be’ true and `must be’ true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be’ true and `must be’ true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.
Considering the investigation, as the prosecution failed to prove the nexus between the offence and the accused, this Court finds that it is just and reasonable to set aside the Judgment passed by the Trial Court.
In the result, the Criminal Appeal is allowed by setting aside the judgment dated 24.06.2015 in S.C.No.388 of 2014 passed by the learned Metropolitan Sessions Judge, Hyderabad and acquitting the appellant/accused under Section 235 (1) of Cr.P.C and he shall be set at liberty forthwith, if he is not required in any case. The fine amount shall be refunded to him. M.Os.1 to 5 shall be destroyed after the expiry of appeal time.
Pending miscellaneous petitions, if any, shall stand closed.