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Judgment
This appeal is directed against the judgment, dated 30.06.2015, in S.C.No.58 of 2011 passed by the learned Additional District and Sessions Judge, Vikarabad, Ranga Reddy Districtd, whereby the appellants/A-1 and A-2 were convicted of the offence punishable under Section 302 r/w section 34 of I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs.2,000/- each, in default of payment of fine, to undergo simple imprisonment for three months.
The case of the prosecution, in brief, is that one Kammari Ramchandraiah (P.W.1) lodged a written complaint (Ex.P1) before Sub Inspector of Police, Vikarabad Police Station (P.W.14) on 10.02.2008 at about 6.00 P.M. stating that his daughter Srilatha (hereinafter referred to as the deceased) was given in marriage to one Vadla Brahmaiah (A-1), RTC Conductor of Vikarabad Depot, on 02.11.2000. Since the deceased was not conceived, A-1 married one Santhosha (A-2) without knowledge of the deceased about two years prior to the offence. After coming to know of the same, the deceased brought to the notice of her parents, at whose instance the caste elders held a panchayat, in which A-1 informed that he would look after both the wives. However, A-1 subjected the deceased to harassment and again a panchayat was held on 01.02.2008 before the elders i.e., P.W.6 and P.W.7 and two others (L.Ws.10 and 12) and in the said panchayat, A-1 promised that he would look after the deceased well and that he executed a document stating that he would give half share in his ancestral agricultural land and also half salary to the deceased. Believing the same, the elders and parents of the deceased, sent her with A-1 to his house. A-1, A-2 and the deceased were residing as tenants in the second floor of the house of P.W.4 at BTS colony, Vikarabad. On 10.02.2008 in the evening, P.W.1 came to know that his deceased daughter was murdered by A-1 and A-2 and on that they went to the house of the accused and found the deceased lying in a pool of blood in supine position with severe head injury. Basing on the said complaint, P.W.14 registered a case in Crime No.46 of 2008 under Section 302 of I.P.C. against the accused. During the course of investigation, P.W.14 visited the scene of offence, conducted scene of offence panchanama, drew the rough sketch of the scene of offence and seized blood stains, and hair suspected to be of accused found in the hands of the deceased under a cover of panchanama. Subsequently, P.W.17-Inspector of Police, Vikarabad, took up investigation on 11.02.2008 and he visited the scene of offence and held inquest over the dead body of the deceased in the presence of mediators P.Ws.9 and 10 and referred the dead body to post mortem examination. Subsequently P.W.13-Civil Assistant Surgeon, Vikarabad, conducted post mortem examination over the dead body of the deceased and opined that the deceased died due to penetrating head injury. Subsequently, P.W.14 arrested A-1 and A-2 on 19.02.2008 and in the presence of mediators, they confessed to have committed the offence and P.W.17 seized one small mortar and blood stained clothes worn by A-1 and A-2 at the time of commission of offence and that the material objects including specimen hair of A-1 and A-2 seized during the course of investigation were sent to Forensic evaluation. After completion of investigation, L.W.23-Inspector of Police laid charge sheet against the accused for the offence punishable under Section 302 r/w section 34 of I.P.C.
A Charge under Section 302 r/w section 34 of I.P.C. was framed against A-1 and A-2. The plea of the accused was one of total denial and claimed to be tried. The prosecution in order to prove its case against the accused examined P.Ws.1 to 17 and got marked Exs.P1 to P21 and M.Os.1 to 10. On behalf of the accused, no witness was examined and no document was marked.
The learned trial Judge, on appraisal of entire evidence on record, both oral and documentary, held that the prosecution has proved the chain of circumstances which consistently and unerringly pointed out the guilt of accused as responsible for the death of the deceased and accordingly convicted and sentenced A-1 and A-2 to undergo imprisonment for life and to pay fine of Rs.2,000/- each, in default, to undergo simple imprisonment for three months. Aggrieved by the said conviction and sentence, the appellants/A-1 and A-2 preferred the present appeal.
Learned Counsel for the appellants/A-1 and A-2 submits that there is absolutely no direct eyewitness to the incident and the circumstantial evidence relied upon by the prosecution do not form a chain of events to connect the accused with the commission of the crime. He further submits that the learned Judge erred in placing reliance on the interested and discrepant testimony of P.Ws.1 to 3. The learned Judge has not taken into consideration the evidence of P.W.16-Depot Manager of TSRTC. He further submits that the learned Judge has not considered the delay in lodging the complaint by P.W.1 after lapse of more than 12 hours of the incident. He further submits that the learned Judge failed to give specific finding on the time of occurrence of offence, it varies from the statement of the doctor, who conducted postmortem over the dead body of the deceased, and the statement of witnesses, who spoke about the time of occurrence. He further submits that the learned Judge erred in considering the testimony of P.W.17, who is the Investigating Officer, and also relying upon the seizure of material objects. He further submits that since there is lack of linking evidence and since the entire case is based on the circumstantial evidence, the prosecution has miserably failed to establish the guilt of the accused and therefore, the appellants/accused deserve to be acquitted by this Court.
On the other hand, the learned Additional Public Prosecutor contended that the evidence on record would clinchingly establish the case against the appellants/accused and the trial Court was justified in convicting and sentencing the appellants for the charge framed against them and, therefore, no interference is called for.
Now the point that arises for consideration is - whether the prosecution could establish the charge framed under Section 302 r/w section 34 of I.P.C. against the appellants/accused beyond all reasonable doubt?
P.W.1, who is said to have lodged Ex.P1-report, is the father, P.W.2 is the mother and P.W.3 is the brother of the deceased. P.W.4 is the owner of the house in which A-1 was residing along with his wife as a tenant. P.W.5 is the Police Constable attached to the Clues Team of S.P., Vikarabad. P.Ws.6 to 8 are the panchayat elders. P.W.9 is the panch witness for scene of offence. P.W.10 is the panch witness for inquest. P.Ws.11 and 12 are the panch witnesses for confession and recovery of M.Os.2 to 10. P.W.13 is the Doctor, who conducted autopsy over the dead body of the deceased and issued Ex.P14-Post Mortem report. P.W.14 is the Sub-Inspector of Police, who registered Ex.P1-report given by P.W.1. P.W.15 is a co-tenant of A-1 at the scene of offence house. P.W.16 is the Depot Manager of RTC, Vikarabad and P.W.17 is the Investigating Officer.
P.W.1, who is the complainant and father of the deceased, reiterated the contents of complaint. He stated in his cross-examination that one Vadla Anjaneyulu (L.W.4) scribed Ex.P1-complaint on his dictation. He denied the suggestion that his daughter used to reside mostly in his house after the marriage. He also denied the suggestion that A-1 never harassed his daughter as she never lived with him after the marriage and that he never married A-2.
P.W.2 is the mother of the deceased. Her evidence is on the same lines as P.W.1. She stated that when her son went to the house of her daughter, she informed her son that her husband likely to kill her.
P.W.3, who is the brother of the deceased, did not support the case of the prosecution as he turned hostile. In the cross-examination, he stated that when he went to the house of his sister, she stated that A-1 and A-2 were harassing her while she was living with them.
P.W.4 stated in his evidence that A-1 used to live along with his wives i.e., deceased and A-2 in his house at B.T.S. colony, Vikarabad, as a tenant on the second floor in one portion, while a person from Canara Bank was residing in one portion and an employee of Dharur was residing in one portion. He further stated that he used to reside in the entire first floor as he had a shop on the ground-floor. On the date of offence, while he was at Zaheerabad, his employee in the shop informed him over phone that a woman died in the house of A-1 on the second floor and that he returned to his house and saw a female dead body in the house of A-1 along with her parents.
P.W.5, Police Constable attached to the Clues Team of Superintendent of Police, Vikarabad, stated in his evidence that on 10.02.2008 at about 6.00 P.M. on the direction of Inspector of Police, Vikarabad, he went to the house of P.W.4 at B.T.S. Colony, Vikarabad, and found a female dead body in the middle portion of the top floor of the said house with a grievous injury on her head and blood was also present on the walls around her. He further stated that dead body fists were closed tightly and when the same were opened, they found loosened hair in the fists. He also found blood stained clothes in a bucket in the bathroom in the said house and that he collected the blood stains, hair from the fists and also blood stained clothes from the bathroom and handed over the same to the Inspector of Police.
P.W.6, one of the panchayat elders, stated in his evidence that since A-1 gave assurance in the panchayat that he would look after the deceased well, the deceased was sent to her matrimonial house along with A-1 and few days thereafter, the deceased died. He further stated that the deceased died due to beating of a heavy weapon. This witness was declared hostile by the prosecution. In the cross-examination, he stated that A-1 and A-2 wantonly killed the deceased under the impression that half of the salary of A-1 and a share from the property of A-1 would go to the deceased. He further stated that P.W.1 told him about the death of the deceased at about 7.00 P.M. on the date of incident.
P.W.7, one of the panchayat elders, stated in his evidence that P.W.1 performed the marriage of the deceased with A-1, who is the son of his elder sister. He further stated with regard to the panchayat conducted between A-1 and the deceased. He was also declared hostile by the prosecution.
P.W.8, who is also panchayat elder, did not support the case of the prosecution as he turned hostile. He stated that on the advice of elders, A-1 took the deceased to his house and after five days, they came to know that the deceased died. He saw the dead body of the deceased and found blood injury on the head.
P.W.9, panch for scene of offence, also did not support the case of the prosecution as he turned hostile.
P.W.10, panch for Ex.P5-Inquest panchanama, stated that on observing the injuries on the dead body of the deceased, she opined that the deceased was beaten to death by the accused.
P.Ws.11 and 12, who are the panch witnesses for confession panchanamas of A-1 and A-2 and recovery of M.Os.1 to 10, also did not support the case of the prosecution as he turned hostile.
P.W.13-Doctor, who conducted postmortem examination on the dead body of the deceased, on 11.02.2015, opined that the cause of death of the deceased was due to penetrating head injury and that he issued Ex.P14-P.M.E. report.
P.W.14 is the then Sub Inspector of Police, Vikarabad, who registered a case in Crime No.46 of 2008 under Section 302 of I.P.C. basing on Ex.P1-complaint lodged by P.W.1, conducted scene of offence panchanama, drew rough sketch of the scene of offence and seized blood stains, and hair suspected to be of accused found in the hands of the deceased under a cover of panchanama.
P.W.15, who is a co-tenant of A-1 also did not support the case of the prosecution as he turned hostile.
P.W.16, the then Depot Manager of Vikarabad Bus Depot, stated that A-1 was working as a Conductor in RTC Bus Depot of Vikarabad and on 10.02.2008, A-1 had to attend the duty at 6.45 A.M., but he came to duty at 7.05. A.M. as per Ex.P17-Control Duty Chart.
P.W.17, the then Inspector of Police, Vikarabad, stated that on 19.02.2008, A-1 and A-2 were apprehended by P.W.14 and on interrogation, they confessed the commission of offence. In the cross-examination, he admitted that the hair, which was in the hands of the deceased, was suspected to have belonged to the accused, who killed the deceased.
Considering the evidence of aforesaid witnesses, the trial Court found A-1 and A-2 guilty of the offence punishable under Section 302 r/w 34 of I.P.C. It was observed by the trial Court that even though P.Ws.11 and 12, panch witnesses for confession panchanamas of A-1 and A-2 and seizure of material objects, turned hostile to the case of prosecution, they admitted their signatures on the said confession and seizure panchanamas. Therefore, the trial Court considered the testimony of P.W.17-Investigating Officer with regard to seizure of material objects. The trial Court further observed that when the panch witnesses turned hostile, as per the settled law, the evidence of Investigating Officer can be taken into consideration.
The case of the prosecution, as per Ex.P1-complaint given by P.W.1, father of the deceased, is that the marriage of the deceased with A-1 was performed on 02.11.2000 and as the deceased could not conceive children, A-1 married A-2. When they came to know about the same, panchayats were convened in the presence of elders viz., P.W.6 and P.W.7, in which A-1 promised that he would look after the deceased well and that he executed a document stating that he would give half share in his ancestral agricultural land and also half salary to the deceased and believing his words, the elders and parents of the deceased sent the deceased with A-1 to his house and as such A-1, A-2 and the deceased were residing as tenants in the house of P.W.4. Thereafter, P.W.3, brother of the deceased, went to the house of A-1 to bring his sister, but they promised to come home on Saturday and as such he returned back. Subsequently, he came to know through L.W.4-Anjaneyulu that his sister was murdered and as such they went and saw her dead body in the house where A-1 and A-2 and the deceased used to reside. In the cross-examination, P.W.3 stated when he visited the house of his deceased sister, she told him that A-1 and A-2 were harassing her while she was living with them.
The contention of the learned Counsel for the appellants/accused is that entire case is based on circumstantial evidence and there is no eyewitness to the incident. He further contended that the accused never committed any offence against the deceased and in fact A-1 had attended duty on the date of incident i.e., on 10.02.2008 from 7.05 A.M. to till evening, as per Ex.P17-Control Chart (Duty Chart) and also as per the evidence of P.W.16.
When a case rests upon circumstantial evidence, the law is well settled that the following tests have to be satisfied by the prosecution as laid down by the Apex Court in a decision in Padala Veera Reddy v. State of Andhra Pradesh & others AIR 1990 Supreme Court 79:
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.
Bearing the above principles in mind, it has to be seen that whether the circumstances adduced by the prosecution are sufficient to infer that the accused alone were responsible for causing the death of the deceased.
P.W.1, father of the deceased, stated in his complaint (Ex.P1) that in the 2nd panchayat held on 01.02.2008, A-1 promised to look after the deceased well and that he has taken away the deceased to his house and thereafter on coming to know about the deceased, they went to the house of A-1 and found the dead body of the deceased lying in a pool of blood with bleeding head injury on 10.02.2008 at about 5.00 P.M. and then he went to the police station and presented Ex.P1-complaint on the same day at about 6.00 P.M. A-1 and A-2 were arrested by P.W.14 on 19.02.2008. Many of the witnesses i.e., P.Ws.3, 6, 7, 8, 9, 11, 12 and 15 turned hostile and did not support the case of the prosecution. The evidence of P.W.4, owner of the house and P.W.15, co-tenant of A-1, who were residing by the side of house of A-1, is of no use. P.Ws.11 and 12, who are the panch witnesses for confession panchanamas of A-1 and A-2 and recovery of material objects, also did not support the case of prosecution and they turned hostile. They simply stated that the police obtained their signatures on un-scribed white papers and they do not know anything about this case.
P.W.5, who is a Police Constable attached to the Clues Team, stated that he collected some blood stained loosened hair from the fists of the deceased and blood stained clothes from the bathroom of the house of A-1. P.W.17-Investigating Officer has collected hair of A-1 and A-2 in the presence of panch witnesses and that he sent the seized material objects to F.S.L. examination and report. As per Ex.P21-FSL report, hair in item Nos.4, 15 and 16 are of human origin and they are possessing dissimilar morphological characters. Thus, it was not established by the prosecution whether the hair in the fists of the deceased pertains to A-1 or A-2. Even on Item No.7, a stone mortar and pestle, blood is not detected.
Admittedly, P.W.1 is the father, P.W.2 is the mother and P.W.3 is the brother of the deceased and they are not eyewitnesses to the incident. P.Ws.1 and 2 stated in their evidence that they came to know about the death of the deceased through P.W.3 and then they went to the house of accused and found the deceased lying in a pool of blood, whereas P.W.3 stated that he came to know about the death of the deceased through one Vadla Anjineyulu (L.W.4). He turned hostile to the case of prosecution. A perusal of evidence of P.Ws.1 to 3 clearly reveals that there are several material variations, contradictions and omissions in their evidence, which would go to the root of the case. The prosecution mainly relied upon Exs.P19 and P20-Confessional statement of A-1 and A-2 and recovery of material objects in the presence of P.Ws.11 and 12 for establishing the guilt of the accused. However, P.Ws.11 and 12 did not support the case of prosecution and they turned hostile. It was observed by the trial Court that immediately after the incident, A-1 and A-2 absconded from the scene of offence until his arrest and as such it can be considered as one of the additional links in the chain of circumstances which points out the guilt towards the accused. In some cases, even if there was no fault on the part of the accused, they will abscond from the scene of offence out of fear that they may be beaten up immediately after the incident. Therefore, we are of the considered view that the said circumstance of absconding of the accused from the scene of offence immediately after the incident cannot be considered as one of the links in the chain of circumstances, which points out the guilt towards the accused.
Though A-1 stated in his 313 Cr.P.C. examination that he was on duty on the date of incident i.e., on 10.02.2008 , he was arrested along with A-2 on 19.02.2008 by the Investigating Officer i.e., 9 days after commission of offence. A-2 in her 313 Cr.P.C. examination stated that she is no way related to the death of the deceased and that she was falsely implicated in the case. No doubt, there were strained relations between the deceased, A-1 and A-2 as A-1 performed second marriage with A-2. However, in the panchayat held in the presence of village elders, A-1 agreed to look after the deceased along with A-2 well and as such A-1, deceased and A-2 used to live in the house of P.W.4. It is for the prosecution to connect the accused with the commission of offence. All the material witnesses did not support the case of prosecution and they turned hostile.
Thus, the prosecution has failed to satisfy the tests as laid down by the Apex Court in the case of Padala Veera Reddy when a case rests upon circumstantial evidence. The circumstances adduced by the prosecution are not sufficient to infer that the accused alone are responsible for causing the death of the deceased.
For the foregoing reasons, we are of the view that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Hence, the appellants/A-1 and A-2 are entitled to the benefit of doubt.
In the result, the Criminal Appeal is allowed and the conviction and sentence imposed against the appellants/A-1 and A-2 by the trial Court for the offence punishable under Section 302 r/w section
34 of I.P.C., vide judgment dated 30.06.2015 passed in S.C.No.58 of 2011, are hereby set aside and they are acquitted of the said offence under Section 235 (1) Cr.P.C. The appellants/A-1 and A-2 shall be set at liberty forthwith, if they not required in any other case. The bail bonds of appellants/A-1 and A-2 are hereby cancelled and their sureties are discharged. The fine amount, if any, paid by the appellants shall be refunded to them. M.Os.1 to10 shall be destroyed after appeal time is over.